Nugent and Berg
[2017] FamCA 79
•17 February 2017
FAMILY COURT OF AUSTRALIA
| NUGENT & BERG | [2017] FamCA 79 |
| FAMILY LAW – CHILDREN – PARENTING – final orders – where parties have different view as to what was in dispute – mother perceives dispute as being about home-schooling against mainstream schooling – father perceives it as being about his relationship being at risk with child remaining in mother’s care and mother’s capacity to meet needs of child – evidence supports father’s case – child to live with father. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Briginshaw and Briginshaw(1938) CLR 336 CDJ v VAJ [1998] HCA 67; 197 CLR 172 Deiter & Deiter [2011] FamCAFC 82 Donaghey & Donaghey [2011] FamCA 13 In the Marriage of A (1998) FLC 92-800 Johnson and Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 Marsden & Winch (No. 3) [2007] FamCA 1364 Mazorski and Albright [2007] FamCA 520 U and U [2002] HCA 36; 211 CLR |
| APPLICANT: | Mr Nugent |
| RESPONDENT: | Ms Berg |
INDEPENDENT CHILDREN’S LAWYER
| FILE NUMBER: | MLC | 1801 | of | 2015 |
| DATE DELIVERED: | 17 February 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 6, 7, 8, 9 & 10 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Robinson |
| SOLICITOR FOR THE APPLICANT: | Blackwood Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Sevdalis |
| SOLICITOR FOR THE RESPONDENT: | RRR Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Glaister Madison Branson Lawyers |
Orders
All extant parenting orders are discharged.
The father have sole parental responsibility for making major long term decisions relating to C (the child) born … 2007.
That forthwith, the child live with her father at all times other than those referred to in paragraph 5 hereof.
That the father collect the child from the mother by arrangement this day and failing agreement as to the time, from the mother’s home at 7 pm.
From after 10 February 2017, the child spend time with her mother as follows:
(a)During each alternate weekend commencing on Friday 24 February 2017 from 5.30 pm on the Friday (or as close thereto as the train timetable permits) until 6 pm on the following Sunday (or as close thereto as the train timetable permits);
(b)By Skype or telephone each Tuesday and Thursday at 7.30 pm commencing on Thursday 16 February 2017 with the mother initiating the electronic communication and the father facilitating it;
(c)For one half of all school term holidays commencing the second term school holidays in 2017 at specific times to be agreed and, failing agreement, for the first half during 2017 and for a similar period in each alternate year thereafter and for the second half during 2018 and for a similar period in each alternate year thereafter;
(d)For a period of 7 days on a rotating cyclical basis (subject to the interruption of the Christmas and New Year periods next referred to) throughout the long summer school holidays commencing in December 2017 and the first of those weeks shall be by agreement and failing agreement, commencing on the day that the child concludes school for the year provided always that the child be returned to the father one day prior to the resumption of the school year regardless of whether or not it is a full week;
(e)From 11 am on 31 December 2017 until 11 am on 2 January 2018 and for a similar period in each alternate year thereafter; and
(f)From 11 am on 24 December 2018 until 11 am on 26 December 2018 and for a similar period in each alternate year thereafter.
For the purposes of paragraphs 5 (a), and for the sake of clarity, unless there is agreement to the contrary, the father deliver the child to the mother at Southern Cross Railway Station on the Friday evening and the mother return the child to the father at D Town Station on the following Sunday evening.
For the purposes of paragraph 5 (c) to (f), unless the parties otherwise agree, the father deliver the child to the mother at Southern Cross Station at the commencement of the allocated holidays and special occasion times, and the mother return the child to the father at D Town Railway Station at the concluding times under these orders.
Further, for the purposes of paragraph 5 (c), the alternate weekend time provided under paragraph 5 (a) shall continue during the first term school holidays of 2017 but shall otherwise be suspended during school holiday periods and resume as if it had not been interrupted.
Notwithstanding the operation of paragraph 5 (d), the child shall spend time with the father as follows:
(a)From 11 am on 31 December 2018 until 11 am on 2 January 2019 and for a similar period in each alternate year thereafter; and
(b)From 11 am on 24 December 2017 to 11 am on 26 December 2017 and for a similar period in each alternate year thereafter.
For the purposes of all train travel, each party keep the other informed of any known train delays or transport problems.
Each party keep the other informed of significant illness or accident suffered by the child and, in respect of any medical care, provide to the other, the location of the child and the names of any treating medical practitioners in relation to those illnesses or accidents;
That for all purposes associated with the child’s health and education, the mother is authorised by these orders, and the father is required to sign any authority to give that effect, to discuss medical and educational issues with such health professionals treating the child and the principals of any school that the child may attend and the mother is further authorised to participate in any school activities and have access to information and newsletters, at her expense, that parents would normally be entitled to receive (subject always to the rights of the school principal to refuse that participation or information).
That BY CONSENT OF THE PARTIES, each parent is restrained by injunction from denigrating the other or the other’s family members to or in the presence of the child.
That each party is permitted to provide a copy of these orders to any school at which the child attends and to any health or educational professional upon whom the child attends for the purposes of assessing the child’s educational progress.
That the father ensure that the child attend any counselling as recommended by Mr E or Ms B until such time as the appointed counsellor considers it is no longer necessary.
That the reasons for judgment relating to the orders this day are reserved to be published as soon as practicable.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That the Independent Children’s Lawyer is discharged from the proceedings.
That all applications are otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nugent & Berg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 1801 of 2015
| Mr Nugent |
Applicant
And
| Ms Berg |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Mr Nugent (“the father”) sought a parenting order that the child, aged five, be removed for the care of her mother, Ms Berg (“the mother”) and be placed with him. The mother opposed that order and sought a continuation of the extant arrangements arising from an interim court order. The Independent Children’s Lawyer supported the father.
This case was heard over a space of five days. At its conclusion, and for the reasons that should become apparent shortly, all parties requested that the orders be immediately pronounced and that reasons follow. Accordingly, on the afternoon of 10 February 2017, I made orders that the father have sole parental responsibility for the child and that she live with him. I made further orders for the mother’s time with the child to be on alternate weekends and during specific holiday time.
Supervision of the mother?
On the fourth day of the hearing, Ms B, an expert witness whose qualifications and experience were not challenged by anyone, gave evidence. She was required to attend for cross-examination after having completed three family reports over the life of the proceedings.
In her concluding remarks, Ms B said that she had a duty to the child and was very concerned about the risk to the child from the mother if an order was made that the child live with the father. She began by saying that she thought that the mother’s time initially should be supervised and when pressed, indicated that she was troubled as a result of reading a discussion paper about filicide. She said that she thought the mother satisfied three out of the four criteria for the child to be at risk of serious harm from the mother.
Ms B described the three relevant criteria as including the court removing a child from the person who had not only been the primary carer but considered herself to be so; secondly, that there were mental health issues evident in that “primary carer”; and thirdly, that the parent had the altruistic belief that she was the only person who could care for the child. A fourth criterion is not relevant in this case.
Ms B said that her concern was that there “may be” warning signs and she thought it was necessary to have an assessment undertaken of the mother in the absence of any clear psychiatric or psychological diagnosis of her.
This startling piece of evidence gave rise to the Independent Children’s Lawyer properly suggesting that for a number of weeks after a change of residence, the mother should be supervised. She proposed the mother’s brother be the supervisor. A draft undertaking by the brother was prepared and tendered to the court. Counsel for the father indicated that his client adopted the same views. The mother rejected the need for any such orders indicating that the relevant criteria had not been satisfied.
Is the risk unacceptable?
The opinion of Ms B is a matter for the court to accept or reject. Section 140 of the Evidence Act 1995 (Cth) indicates that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities, which is the standard of proof in civil proceedings, will “vary according to the nature of what is sought to be proved”. The gravity of the findings bear upon the decision and should not be made according to inexact proofs, indefinite testimony or uncertain inferences (Briginshaw and Briginshaw(1938) CLR 336).
There is no other evidence than that of Ms B in relation to the risk of harm to the child. It was not earlier suggested by the father nor by either of the psychologists whose evidence I turn to below that there was such a risk. It is very difficult to assess each of the criteria upon which Ms B determined her opinion.
For the reasons that are set out later, I find that the mother has an altruistic belief that she is the only person who can adequately care for the child but more importantly, that the person who is proffered as the alternate parent, the father, could not do the task as well as she could. Having said that, the father’s opportunities to prove to the mother a contrary position, have not arisen because she unstintingly believes that he really has no interest in parenting the child on a permanent basis. The dichotomy therefore is clear. The dilemma is that the mother’s evidence was poorly presented and when she was tested in cross-examination, she was dismissive and obtuse about the father’s role in the child’s life. I could not therefore make a positive finding that she has an altruistic belief that she is the only person who could care for the child. At its highest, I find that she believes that she is a better parent than he is.
The problem is compounded by the mother’s lack of co-operation with the court-appointed psychiatrist and as such, an assessment of her mental state is lacking.
I have had the unique opportunity to watch her demeanour which has enabled me to make the observation about her obtuse responses and her dismissive nature but nothing indicated to me that her emotional response to a change of residence would be so overwhelming that she would take the drastic step about which Ms B was concerned.
A court will not make orders placing a child in the care of a parent if to do so would expose the child to an unacceptable risk of sexual abuse (M v M (1988) 166 CLR 69). That “test” of “unacceptable risk” requires assessments of risk of future physical and emotional harm. (In the Marriage of A (1998) FLC 92-800).
In Johnson and Page (2007) FLC 93-344, the Full Court (May, Boland and Stevenson JJ) at [68] considered the application of “unacceptable risk” principles following M v M (supra), and, referred with approval to a number of factors expressed by a former judge of the Family court the Hon. John Fogarty A.M writing ex-judicially. Mr Fogarty said inter alia:
·The decisive issue is and always remains the best interests of that child. All other issues are subservient.
·The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
·The onus of proof in reaching the conclusion (that there is an unacceptable risk) is the ordinary civil standard.
·...the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In Donaghey & Donaghey [2011] FamCA 13 at [30] to [31], Murphy J adopted the statements of Mr Fogarty including:
the reality is that all courts deal with issues of “risk” and degrees of risk (however described) in various situations and that concept is increasingly used in legislation.
Murphy J also picked up the words of Mr Fogarty in adopting the following:
...unacceptable risk in the High Court’s formulation in M v M (citation omitted) requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is “acceptable” when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of “benefit to the child”. It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the bests interests of the child and protection from risk. (at 261)
The importance lies in the assessment of both the nature and the degree of risk in the case.
The Full Court in Deiter & Deiter [2011] FamCAFC 82 at [61] similarly identified the assessment of risk as comprising two elements. The first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
The risk raised by Ms B must be assessed in the same way as any other evidence. For example, in Marsden & Winch (No. 3) [2007] FamCA 1364, the Full Court endorsed the statement of Fogarty and May JJ in Re C & J (1996) FLC 92-697 at 83,339:
It is well established that the opinions of an expert, however well qualified, are not decisive of the issue and that it is ultimately for the tribunal of fact to determine the matter having regard to that and the other evidence in the case, including the impressions formed of other witnesses. There is no need to cite authority of that well-established approach. But in cases of this sort — the unacceptable risk case involving children who are often inarticulate witnesses of their own misfortunes —that process needs to be approached with caution, fundamentally because the issue is different.
Their Honours added that “different considerations might apply to expert testimony directed towards determining the likelihood of a child having been abused in the past, as compared with expert opinion about the possible impact of something yet to occur.”
I acknowledge that in every case there is a risk. Although her parenting skills are seriously questioned and her ability to best handle the emotional needs of the child are challenged, none of the evidence indicates the mother has the propensity to harm the child physically. Obviously, Ms B placed emphasis on the indicia in the professional literature but my task is to assess the correctness of the application of those indicia. The mother’s subjective view that the father is not interested in the child and has some ulterior motive will, for the reasons that follow, be seen to be rejected. The mother’s view that she alone can parent the child is not altruistic as much as arising from her poor view of the father. There is a risk here because the child is to be removed from an environment where her mother says her child does not want to live with her father but that risk has to be assessed on the basis of acceptability. The evidence below and the findings I make, indicates that the mother holds the child very close to her but that does not mean that she sees others as a threat. It is, in my view, indicative that she does not see a valuable contribution by anyone else. Absence of past conduct such as violence is a factor to take into account as to risk. Nothing suggests that the mother will not move on with her life. She said that if she did not have the child, she would seek a carer’s pension to look after her mother. Thus, nothing I saw indicates that her behaviour does not fall within what might be thought to be an accepted range of emotive responses.
It was for those reasons that I found it unnecessary to require that the mother’s time with the child be supervised.
Conclusion to the parenting case
For the reasons that follow, I found it was in the child’s best interest that she live with the father and that her time with the mother should be on alternate weekends and for a sharing of holiday times as well as regular electronic communication.
The determination of the mother’s time
In many ways, the determination of the mother’s future time with the child was dictated by two things. First, the tyranny of distance. The mother lives in mid-north-east Victoria whilst the father lives in suburban Melbourne. Secondly, each party is reliant upon the public transport system to enable the child to maintain physical contact. That has always been the case.
Having said those two matters, I consider, for the reasons that also follow, the child needs a stable and secure base in a structured family life which she has not had to date. Extra time with the mother would not, on present indications from the evidence, be in the child’s best interests even though the father said he thought there should be, for example, more electronic communication.
The schooling issue
It was disconcerting in this case which began in the Federal Circuit Court that the parties focussed heavily on a philosophical dispute between themselves about the child being home schooled as against mainstream schooling. I say disconcerting because, at least from the mother’s perspective, she ignored a much more serious question of the many other aspects of parenting about which the father was consistently concerned and complaining. Thus, I would not want it thought that the child was moved to her father because of the schooling issue. It was certainly relevant but it was more a component of a number of other issues that the court was required to determine.
To elaborate further on the school issue, the court heard several hours of evidence including from educational psychologists about the child’s schooling to date. Until the very end of the proceedings, the mother was implacably opposed to mainstream schooling and intent on pursuing her role as the child’s teacher. Yet, when on any view of the evidence, one could only conclude that the child should move to live with her father, the mother’s counsel announced that she had been “instructed” that her client would enrol the child in the local mainstream primary school (but on condition that the child remain in her care).
When I indicated to her counsel that the mother had closed her case and inquired whether there was to be a reopening of it, counsel replied that the mother “would like” to give evidence. I gave counsel an opportunity to consider the position overnight and although on the final day, the mother’s “instructions” remained the same, counsel informed the court that no application to reopen would be made. As such, no new evidence was called. Thus, I conclude that the mother is implacably opposed to mainstream schooling because she said so.
When I consider the evidence below, it will be apparent that this change of direction by the mother could only be seen as a desperate plea. In my view the issue of schooling is an aspect of parental capacity (and perhaps responsibility in this case) but it must follow behind the determination of where the child is primarily to live. In my view, it is not appropriate for the court to over-regulate children’s lives (and consequently those of their parents) nor is it necessary or appropriate for the court to be dragged into philosophical issues which are largely unrelated to the best interests of a child. That seemed to be the case here.
What approach to take?
In CDJ v VAJ [1998] HCA 67; 197 CLR 172 (albeit on the question of the admission of further evidence) McHugh, Gummow and Callinan JJ at [117] said:
The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children’s welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children; sometimes either parent would be an excellent choice, and often neither would be ideal.
In the same case, their Honours at [151] said:
The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child requires. Each judge is duty bound to make the order which he or she thinks is in the best interest of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G (citation omitted) Lord Fraser of Tullybelton pointed out:
The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practical answers are to some extent unsatisfactory and therefore to some extent wrong and the best that can be done is to find an answer that is reasonably satisfactory.
In U and U [2002] HCA 36; 211 CLR 238 Kirby J at [137] observed:
…it is an oversimplification to say that the parties do not define the issues to be decided; the Act does.
In this case there are arguments on each side but ultimately, having observed the mother, the paucity of evidence that she provided in respect of her own mental health, her lifestyle as opposed to the positive aspects that the father could contribute to the child’s life, I remain convinced that his proposal was more realistic and more likely to benefit the child.
Accordingly, the approach here is to examine the respective proposals which in reality, are poles apart, in the context of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The parents’ background
The parents had lived in a de facto relationship from 2002 to 2012. In that relationship, two children were born. The child was born in 2007 and J in 2009. J died tragically in 2014 in a fire at the mother’s country residence.
Initially the parents lived in urban Melbourne but at the time of J’s death, they had already separated and the mother and the two children were living in rural Victoria on a property owned by the mother’s sister. That property was, at best as described by the observations of the father and notes from the Department of Health and Human Services, as in an isolated area. Subsequent to J’s death, the mother moved to a miner’s cottage in I Town apparently owned by her brother and to whom she pays no rent. Much concern had been expressed by the father about those living conditions including the absence of a refrigerator and television along with cramped conditions. For example, it was said that the mother slept in the same area where there were kitchen facilities. Those conditions have, at various times, been the subject of complaints by the father about tidiness and hygiene. Much of the father’s complaint was corroborated by notes from the Department of Human Services. The mother did not deny the observations. In fairness to the mother, the Department observed the first of the properties around the time of J’s death and thought that the mother was moving and that may have accounted for the disorganised state. There was little evidence about the current environment.
In I Town, the mother lives alone with the child. The mother’s brother, who was not a witness, lives somewhere nearby. The mother had no hesitation in observing that her brother was the child’s father figure but I know nothing about him at all.
The father resides in suburban Melbourne. He has married. His wife Ms K is a public servant. They married in 2014. Ms K has a 12 year old daughter L. Despite an assertion by the mother that L bullied the child which complaint is said to have emanated from the child, all of the evidence supports a conclusion that the father’s household is structured, orderly and family-oriented. The father’s wife Ms K gave evidence and denied that there was any such bullying and was able to give a description of an event that occurred that certainly did not qualify as more than children’s play. It is clear from the evidence that the child enjoys her time with her father and his family.
The father is by training a professional but he has chosen to work in another field. He has epilepsy which appears to surface about once a year and he takes medication for it. He consequently does not drive a motor car. He also has a hearing defect. His lack of driving has meant the significant train travel on weekends and holidays to see and spend time with the child. The mother too has chosen to travel in the same way. There is no indication on the evidence that that situation is likely to change in the future.
J’s tragic death
It would seem that at the first isolated property, the mother had placed a caravan some short distance from the back of the house where she lived. J was a difficult child because he was severely autistic. It would seem on the day that he died, the child was with J inside the caravan and she was playing with matches which the mother said had been left in the caravan by the father. The mother consequently blames the father for J’s death. On the day that J died, the father was living in Melbourne and as such, her accusation is, I find, without foundation.
The coroner found that J was fully dependent upon the mother and “required a high level of supervision to ensure his safety”. The child and J were in the care of the mother on the day of the fire. The coroner found the child used matches to “cook damper” inside the caravan and the child came running from the caravan to alert her mother to the fire.
The cause of J’s death was found to be smoke inhalation as he had been trapped inside the caravan. The coroner found the fire was “unintentionally” lit by the child. Despite that finding, the mother still strongly attributes the child’s death to the father. There is no logic in that view nor any evidentiary foundation for it. Indeed, sadly, as the coroner found, it was the mother who was responsible for the care of J that day.
Whilst this particular parenting case focuses on the best interests for the future of the child, the death of J and the mother’s belief about it, have created significant barriers for any reasonable communication between the parents. However, in case it was thought that J’s death commenced that lack of communication, the evidence supports a conclusion that it was always poor. In my view, the mother has to take responsibility for that poor communication.
The transfer from the Federal Circuit Court
This case was originally commenced in the Federal Circuit Court but transferred by the learned Federal Circuit Court Judge because it had “a large number of experts, requiring a hearing of around five days and, could most likely be heard more quickly” in this court. That latter point was ambitious.
Ultimately however, along with the parties, I identified two main issues. The first was which of the two parents was able to promote and provide a stable life for the child and secondly, if the answer to the first question was the father, how would the child cope (or what impact would there be on the child) if she was moved to live with the father.
Undoubtedly, there are other matters as Kirby J (supra) earlier said that require consideration and one of those is which parenting order will ensure that the child benefits from a meaningful relationship with both parents. In many ways, the issue of the meaningful relationship is integrally linked with the question of parental capacity and parental responsibility. In this case, for the reasons that follow, I have found that there is little prospect of the mother encouraging a relationship between the father and the child and that she has endeavoured to influence the child to the extent that the child articulates her mother’s position. In addition, notwithstanding counsel’s “instructions” as I have earlier mentioned, the mother is of the view that only she can raise and teach the child. It was certainly her position that the child was so attached to her that the consequences of a change of residence to the father were not in the child’s best interest. I reject that argument.
The legal issue
Part of that first question to which I have referred arises from s 60CC(2)(a) of the Act. That provides, as a primary consideration for the court in determining what is in the child’s best interests:
The benefit to the child of having a meaningful relationship with both parents.
The objects and principles which underpin Part VII of the Act provide inter alia [s 60B(1)]:
(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
…
(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.
The evidence about the father’s role
In respect of the child having involvement, let alone benefitting from, the father’s life, he made the following assertions which were largely unchallenged in cross-examination and indeed, there is no reason why I should not accept them:
· After J’s death, the mother was increasingly restrictive of his time with the child including insisting that he was not permitted to take her to Melbourne which meant that, at Christmas 2014, the child spent time with the father and his family in a hotel in I Town. The father’s whole family had to travel there. The mother’s explanation was that it was appropriate for the child to have “a picnic in the park with relatives” and that arose “because the father made no attempt to negotiate” anything different. In response to the father’s assertion that the mother was dictating terms, her evidence was that “he would not address” her terms;
· Also in December 2014, the mother instructed the father to meet her outside the I Town Police Station where the child and the maternal grandmother were also present. The father wanted the child taken away by the grandmother so that she was not involved in the discussions yet the mother refused. In the course of the ensuing discussion, the mother dictated that the child was not “allowed” out of I Town and that there would be no overnight time with the child in the foreseeable future. He observed that she reasoned that the child had been bullied by the father’s step-daughter (a matter to which I have already referred) but also that the child had told her a “smutty” joke which must, in the mind of the mother, have come from the father’s household.
The two examples to which I have just referred led to the father issuing proceedings in the Federal Circuit Court but there could be no doubt as to what he was seeking. He sought orders that there be a change of the child’s residence.
The mother was cross-examined about the Christmas issue and maintained that the father had failed to negotiate but she showed no insight into the dilemma that she had caused. The father’s family had travelled to I Town, organised accommodation in a hotel where a picture of a Christmas Tree was placed in a room along with tinsel. The mother’s response was that she saw no difficulty for the father because he was having a picnic with the family. The mother’s behaviour gave no thought to how significant that particular occasion was for the child with the family of the father but it also gives some insight into the fact that the father was not prepared to walk away from the situation and he gathered his whole family up to travel to I Town and participated in the activities on the mother’s terms because he thought that he had no choice. I accept his version of the events.
In respect of the second incident relating to the meeting outside of the I Town Police Station, there was no justification for the mother including the child in the discussion leaving aside the question of her dictating the terms. The child was not old enough to be participating in the conversations of the adults. The absence from these proceedings of the maternal grandmother also gives me little comfort that the mother understands the problem but it becomes more difficult too when I consider an assertion by the father that the mother influences the child. That evidence is mentioned below and I accept that the father’s complaint has considerable force.
The first court order
As a result of the proceedings being commenced, Ms B, a social worker but authorised by Regulation 7 of the Family Law Regulations and designated as a family consultant, was required to prepare a report. Even a cursory examination of that report will show that Ms B had no concerns about the father’s capacity to care for the child and she saw no reason why there was a need for restrictions on him.
By June 2015, the parties consented to orders that provided for:
· Equal shared parental responsibility;
· The father to spend alternate weekends with the child from 9.00am Saturday until 6.00pm on Sunday increasing to 5.50pm on Friday to 6.00pm on Sunday after school term 3 started in that year (notwithstanding that the child was not in any mainstream schooling at that time);
· Some limited days of each of the school holidays; and
· Telephone and Skype communication on two occasions per week.
In December 2015, further consent orders were agreed upon for the summer school holidays which increased the father’s time to blocks of five days. All of the evidence of the father indicates that those block periods went smoothly. Counsel for the mother submitted that her client had been cooperative and had complied with all court orders but more importantly, having regard to the train travel involved, the father been persistent to ensure that his relationship with the child continued.
The June 2015 orders arose out of the report by Ms B who said:
[75][C] is a delightful, soft gentle child who impressed as being an innocent natured child who could be easily led and potentially easily bullied if placed in circumstances where she was not under adult supervision. [The child] also seemed to be a child who would require constant adult supervision. It is my view that there is some delay intellectually as well as emotionally which needs to be explored and assessed…
After recommending assessments be undertaken including a psychiatric examination of the parties, Ms B suggested that alternate weekends time between the father and the child should commence. Ms B thought that the father had genuine concerns about the child’s care as well as the limits on her educational opportunities in the care of the mother but she was unsure whether the intellectual and emotional delays were a result of home schooling or what was later described in the hearing as “constitutional” issues.
As for the parties’ health, Ms B noted that it was the mother who seemed to be asserting that the father suffered from a mental health problem. Ms B thought that an assessment should be undertaken of the mother and unless she was prepared to follow the directions and recommendations then made, it might be best for the child to live with the father.
Those observations led to orders being made by the Federal Circuit Court that both parties attend upon a psychiatrist and that the child attend upon “an education psychologist” in relation to a psychological and educational assessment.
Psychiatrist Dr M
The psychiatric assessment by Dr M of the mother was not conducted until March 2016. He said she was “clearly unwilling to properly engage with mental health professionals” and her attendance upon a counsellor was “likely futile”. Dr M thought it difficult to formally entertain a diagnosis because the mother was so guarded but he considered there was “a level of mental disturbance”.
In circumstances where Ms B thought the psychiatric assessment necessary, the lack of responsiveness of the mother creates a difficulty for the court. That said, 11 months has gone by since the report of Dr M was in the hands of both parties. The uncertainty in the mind of Dr M and his general hypothesis that there was a level of mental disturbance in the mother, gives rise to the question of why, if the mother disputed that she had any such problem, she did not seek her own independent psychiatric examination. She had lawyers acting for her throughout the entire time. Her unusual behaviour in restricting the father and her eccentric lifestyle might all be explicitly and plausibly explained if she had undertaken such an examination.
Her approach to the father and her views about him did not change after the June 2015 orders. As I have already observed, counsel for the mother consistently suggested that the mother had complied with court orders. That submission had little merit when one considers the observations of Dr M but more importantly, her position about the father became abundantly clear in January/February 2017 when she was interviewed by Ms B for a third time. In the context of her views about the father and the potential for any relationship between the child and the father in the future, Ms B observed [38] that as to the father’s time, the mother said there should be “as little as possible”. She said that the “rules” were that she does not say anything to the father that he does not want to hear. There was electronic communication but nothing else. She accused the father’s wife of writing responses that she placed electronically and that the father would not allow the two women to communicate which she found very frustrating. She observed that it was not ever going to get better and in her view, that was the reason why she had to have sole parental responsibility or, in the alternative, that the father had it. In relation to Ms B’s observations of the child with the father, but also with the mother, it was the mother’s view that it was all “play acting”. Ms B in cross-examination was not able to explain what that meant but her observations would suggest that it was anything but acting at least by the father and the child.
Of the child, the mother told Ms B that the child does not go to Melbourne to see her father but rather he was the “gateway” for her to see other people. She claimed that recently at Christmas, the child was bored and lonely. That evidence conflicts with everything that I heard from both the father and his wife. The mother said that the child hated school holidays because she did not want to go to her father’s home but that when she returned to I Town, she was “all over her uncle [Mr N]”. The mother observed “she did not have Daddy needs met by (the father)”.
Ms B reported further that the mother held the view that the father could do an “adequate job” as a parent but he didn’t and that the best relationship that he has had with the child was when it was occurring in I Town which obviously, was prior to the June 2015 orders. She said that the more that the father wanted, the worse his relationship became with the child and therefore the less time he had, the better. She accused him of not taking responsibilities for saying “No” to the child and she accused him of sabotaging what she was doing with the child.
In relation to what could only be described as the curious change of “instructions” by the mother to her counsel at the conclusion of the case, it is interesting to note that in discussions with Ms B, the mother said that she had not changed her approach with the home schooling and she was not going to do so, to “suck up to court”.
Just to make her position abundantly clear, Ms B asked the mother what her views were about the father as a parent. Her response was that she thought him “a terrible human being”. She said she knew that he could do an “adequate” job as a parent but he did not.
Just in case it might be thought that the mother was having a bad day with Ms B, she repeated most of those matters in cross-examination.
Some of the problems
Indicative of how difficult it is for any negotiations to occur, one only has to look at the very recent summer school holidays. Ultimately, the father took the child for two blocks of two weeks and of those, the mother said that there was a bit of “messing around” and she was a “bit surprised” because of the nature of the orders of the past. She said having received his request for that particular period of time, she asked him to “try again” because she “preferred that tactic”. She said that the father did not like it when she told him what to do. Nothing could be more evident than what then occurred.
The father has never had the child in Melbourne at Christmas and he was endeavouring to rectify that situation at Christmas 2016. The mother was dismissive. To compound problems, J’s birthday falls early in each year (apparently) the mother has taken the child out “into the desert” to recognise J’s birthday. This year, the father wanted to have the child on J’s birthday so that he could presumably do something of the same nature. In cross-examination, it was put to the mother that she “dictated” time on 26 January and her simple response was that she was not going to agree. When it was suggested that she would never let the father have time on J’s birthday, her only response was that he had never asked. Clearly in 2017, he had.
Counsel for the father took the mother through the observations as recorded by Ms B and whilst she quibbled with some of the context of the statements, she described them as “overall verbatim”. She did not dispute the accuracy although she did indicate that a reference by Ms B to the fact that the father “plays games” was not “entirely” inaccurate.
Two incidents of concern
Two incidents can indicate not just how poor the communication is but how dictatorial the mother can be.
I have already mentioned the assertion by the mother that the child was said to have been bullied by L. Rather than seek some professional help, the mother’s response was to simply refuse to allow the contact to occur in Melbourne.
A second incident related to an item called a “crop top”. On a weekend in the middle of winter, the mother said that the child returned home to her wearing a “crop top” which in electronic communication to the father she described as an American training bra. The father’s electronic response was that the child not only did not own one but she had never worn one. Curiously, the mother maintained that she had possession of the “crop top” so clearly the father was wrong. But, she neither produced it nor sent a copy of a photograph to him leaving him pondering as to how the problem arose. A reading of the mother’s email communication leaves a very clear impression that her view as a parent was that the child wearing this item, was inappropriate parenting on the part of the father. Later however, her explanation was that she wanted to discuss the matter with the father’s wife to find out what young girls were wearing so that she would know in the future and it would not be a problem. There is an inconsistency in the responses. The absence of any corroboration by the production of this item of clothing tends to suggest that the father’s version is right and that he knew nothing about it. It is conceivable that there was such an item. The father’s wife indicated that it is possible that L who is 12 years of age could have had one and that somehow, the child had taken it and worn it under clothing when she returned to her mother. Against that however, the father’s evidence was that he certainly did not see it and if the child had worn it, it would have been under clothing that she was otherwise wearing and that makes sense because this was the middle of Melbourne’s winter.
One might wonder why such a modest incident should cause so much trouble but it was also put into context. At that time, the child was described by the mother as inappropriately dancing in her underwear, repeating a “penis joke” and exposing her nipple to other people in the mother’s own household. None of these allegations was put to the father as an assertion that he had been lax in his discipline or in his care and observations of his daughter. Importantly, the father is married and his wife filed an affidavit of evidence supporting what went on in her household. Nothing was suggested to her to indicate that she was not diligent in respect of inappropriate behaviour in her household. She was asked about the bullying and the crop top but I accept her evidence that neither occurred on her watch.
The child was said by the mother to have complained that she had been “locked in the laundry” by the father’s wife. Apart from denying that there was a lock on the laundry, both the father and his wife indicated that the laundry was used as a timeout concept for a minute or so for any aberrant child. In the child’s case, it had happened once. The mother made the accusation based on something that the child had said but the assertion was that the father had been disciplining the child inappropriately. To the extent that that was the assertion she was making, I reject it entirely.
The mother influences the child
One of the major concerns for me in this case had been the fact that the child mimics what her mother wants. The mother told the court that the child wants to live with her and to be home schooled. When challenged about how the child could have that sort of voice or control at the age of nine, the mother simply said that the child was entitled to a view. The mother readily acknowledged that the matters that concerned Ms B about the court process and the child’s involvement in it were things that she had talked to the child about because “it’s her life”. She went on to say that the child had a right to say what people were doing with her life and that the child’s views should be respected.
In relation to schooling, it was hard to get a sense of whether or not the child was determining what she did or whether the mother was the controlling teacher. My concern arises from the fact that the mother observed that after contact weekends with the father, the child had to “detox”. She found her fidgety and difficult to settle but gave no indication as to how she managed that. In terms of activities, the mother said that the child wanted to do art more at home giving the impression that the child had a very strong say in her own education. The mother has ample resources in the house as was evident when the educational psychologist visited but as I turn to his evidence below, there were concerns about whether the mother was able to use the tools that she had at her disposal.
Finally, the child made her position very clear to Ms B. She said that she would feel happy having every second weekend but not half of the holidays with her father because it was “a bit much” for her and that she wanted to live with her mother. When asked whether her mother had talked to her about these things she said:
I can’t remember. She might have talked to me a little bit but I can’t remember.
Against that however was the fact that when the child returned to the waiting room to her mother who asked her “how she went” the child replied:
I think I remembered most things.
I find that the child has been influenced by her mother.
Parental responsibility
Much of the view about whether the mother has been a responsible parent has to be seen through the eyes of the relevant experts but the influencing of the child creates a very strong impression that with the very low opinion the mother has of the father, she will continue to be destructive of any stable and permanent relationship he should have. The mother’s view is encapsulated in a statement that she made in evidence:
I felt like piggy in the middle – balancing the father’s rights and the child’s rights.
This was not a question of balancing rights between the two. The child has the right to benefit from a meaningful relationship with her father and the negative views of the mother are concerning because the child is now articulating how much time she wishes to spend with her father and describing longer periods such as holidays as not good. The suggestion that the longer periods of time were lonely and boring is rejected on the basis that I accept the father’s evidence, and that of his wife, that the family had a wonderful time and there were no problems.
All of the evidence suggests that the father is a responsible person and his wife is supportive. She was able to explain how she would assist the child not only in respect of educational issues but also settling into a totally different way of life to that to which she has been accustomed.
One of the issues raised by the father of concern about the child continuing to live in I Town was that the child was isolated from other children. The mother denied that saying that there were playgroups but that evidence seems to be directed towards home school groups. The mother pointed to the fact that the child had participated in swimming but there too, the time was limited because swimming only occurred in the summer. The child enjoyed karate but just how involved she was and what her social interaction with other children was, I am unable to find because the evidence was not produced. What concerns me about the absence of that detail arises from the psychological assistance that the child was getting as provided by the Department of Health and Human Services after J’s death. It transpires that a program was instituted for the child around some form of play therapy but the mother withdrew the child after seven sessions when there was still funding for further sessions available. No real explanation was given for that but it is not the most concerning aspect. The Department of Health and Human Services was concerned (as observed by their notes) that the mother was asked to leave the child alone to have the therapy but refused. I conclude from that reaction that the issue of isolation is a problem and that the child has very limited contact with children of her own age. I have made mention of the fact that the mother gave evidence that her brother Mr N was the child’s father figure. She unashamedly confirmed that in cross-examination. But the nature and extent of her brother’s involvement remained a mystery because he was not called to give evidence.
The two proposals
The mother’s proposal was ultimately that the child would attend primary school in I Town, live with her and spend alternate weekends with the father from Friday night to Sunday night and that she spend time with the father over the gazetted school term holiday periods, for five days. During the long summer holidays, the mother’s proposal was that the father have two periods of five days. Although I give it no weight, to Ms B, the child indicated that she did not want the holiday period that her mother was proposing.
The father’s proposal was obviously dictated by the tyranny of distance but that the child live with him and that the mother spend holidays and alternate weekends with the child. Significantly, his proposal was that he would put the child into a mainstream school immediately and to that end, he had made inquiries of the Suburb O Primary School.
The schooling issue
Ultimately, the expert who was of most assistance in respect of the plausibility of what either parent was proposing for the future of the child was Mr E. I turn to his evidence below. The father had made inquiries of the Suburb O Primary School and they have four streams into which the child could be put determined by capacity of the child. The father acknowledged that there may be some difficulties but he was able to say that he would work with the relevant professionals including getting advice from Mr E about the pace at which to travel. To the extent that the child was behind other children, the father said that he would provide a tutor and Mr E thought that was a good idea. Mr E thought that the child needed an assessment first to assess her education needs. In addition to having his wife to assist, the father said that he would be able to take time off work to enable him to care for the child if she was not able to move into the school system on a full-time basis immediately. None of that evidence was seriously challenged and I accept it.
The mother’s evidence was that the court proceedings had disrupted some of the home schooling although I am unable to understand why. She claimed to be distracted by the court proceedings and hence, not able to teach the child all of the things that she would have otherwise liked. When her counsel asked about her 2017 plans, the mother replied that things were a “bit up in the air”. She said she was “unsure” whether changes to mathematics were needed but she intended to continue other subjects. When challenged about lack of peer contact for the child, the mother replied that there was “a little friend” in a home school study group. The answers were vague and disconcerting because the school year should presumably have already begun. Having said that, the psychologist who has seen the child on 70 occasions said she had progressed well. The question is whether that progress is attributable to the mother’s teaching, the psychologist’s therapy or childhood maturation.
What is the child’s developmental stage?
Ms B was able to coordinate a number of experts who have been involved in the child’s life and her report dated 5 February 2017 encapsulates the views of those experts. None of Ms B’s reporting of those experts was challenged as being inaccurate.
Ms H is a speech pathologist who became involved in 2011 to assist the child. That was at a time prior to the separation of the parties and before J’s death. There was some suggestion that the father had been showing a lack of interest in the child’s development with Ms H but he explained that on the basis that when he went to see Ms H he had to care for J in a nearby area because J was a handful.
Ms H described the mother as “unorthodox” but thought that what she was doing worked for the child and that the child had made significant gains. That said, Ms H has not seen the child for almost a year.
Ms H thought that the child will always suffer from a severe language disturbance and that she was 18 months behind but, with someone who could give her one-on-one assistance, she thought she would manage. Ms B asked Ms H about the father’s wife being able to give the child extra help and Ms H thought that that would be “excellent”.
Ultimately, Ms H told Ms B that because the results that the child had produced spoke for themselves, that is, there was an improvement, Ms Berg’s care should not be disturbed. She opined that that sort of result was not going to achieved in a mainstream school. I did not have the opportunity to hear evidence from Ms H and see any of those propositions tested but I take into account that Ms H is a speech pathologist rather than a teacher or psychologist and I turn below to the evidence of Mr E whose evidence I accept, and note that he rejects that view.
Since 2015, Dr G has been involved in the child’s psychological progress and treatment. It was not entirely clear how Dr G became involved with the child because in July 2015, the court orders had only just been made and, with both parties represented by lawyers, specific orders were made for an educational psychologist to become involved and prepare a report. That particular person was Mr E.
In any event, Dr G spent many sessions with the child and unfortunately or otherwise, the father thought her partisan. He complained that she had not provided him with updated information notwithstanding he had had two appointments with her.
At the commencement of the proceedings, counsel for the mother indicated that she wanted to call Dr G. The evidence of this witness was directed to the work she had done with the child and to her opinion that it was not appropriate to move her from the mother. Notwithstanding the single expert witness rules, this witness was produced as an expert for more evidence than just what schooling arrangements were appropriate. Initially calling Dr G was opposed but on the basis that she was called, counsel for the father indicated that he wanted to rely upon the evidence of Mr E. I indicated that it was an unusual course to call Dr G but if it was to occur, bearing in mind both witnesses seemed to have similar qualifications which were different to those of Ms B, they should be in the courtroom together after they had had a meeting. That was arranged.
Dr G attended the court. She acknowledged that she had not done a balanced report in the sense of factoring in what the father was offering for the child in circumstances where she recommended that the child not be removed from the mother. Dr G diagnosed the child with both ADHD and post-traumatic stress disorder. Both of those diagnoses were rejected by Mr E. Unfortunately, perhaps because the two experts did not discuss the matter comprehensively enough or because of the lack of time, Dr G was unable to know why Mr E did not accept her diagnosis. Even so, Mr E made himself available not only to sit through Dr G’s evidence but he also returned the following day and subjected his evidence to cross-examination particularly by counsel for the mother. His evidence was more impressive than that of Dr G because I found that he was objective.
I am very conscious that Mr E was engaged in specifically pursuant to the order of the Federal Circuit Court in 2015 to give advice to the court (and to the parties) about the educational needs and the state of development of the child but as he had been called to give evidence and the issues of ADHD and post-traumatic stress disorder were raised by the mother through Dr G, Mr E was asked (without objection by counsel for the mother), to give his views. He rejected the ADHD diagnosis on the basis that professionally, such a diagnosis cannot be made without two sources of information being made available. Usually, the second source is from a school but in this case, the child has not had that opportunity. Mr E’s concern was that the only information upon which Dr G made her diagnosis of ADHD was the statements of the mother and her own observations in the therapy sessions. In Mr E’s view, that was inadequate.
Conversely, Mr E thought that the reliable sources of information were the father and his wife.
I am unable to make a finding as to whether or not the child suffers from ADHD and in my view, it does not matter because such a diagnosis would not affect the outcome of these parenting proceedings. To the extent that if such an assessment were correct that the child does have ADHD, Mr E was of the view that with assistance from the school (which he was unable to confirm could be provided) and also tutoring and the assistance of the father’s family, ADHD ought not be a problem. Dr G’s view was that the flaw in mainstream schooling was funding. She had been involved professionally in that task some years ago. She was very cynical about the school indicating they could provide assistance because in reality, when the time came, funding was either not there or it did not eventuate.
Mr E had actually taken the trouble to go to Suburb O Primary School and talk to the principal and was impressed by what the school could offer. The father too had been to the school to check out the facilities. In my view, to the extent that the diagnosis of ADHD was correct, it is irrelevant to the issue here.
Dr G’s second diagnosis of post-traumatic stress disorder apparently arises from the fire. Mr E dismissed that on the basis that at the time of the fire, the child was too young (being in her “magical years”) and therefore could not be said to have experienced a life threatening situation. To the extent that a description of the “magical years” was needed, Mr E described it as a child believing in such things as Father Christmas, the tooth fairy and so forth all of which are clearly implausible as rational concepts but children believe them. To therefore have a child understand the concepts of permanence associated with trauma and death, he considered implausible. He therefore doubted the diagnosis of post-traumatic stress disorder.
The relevance of post-traumatic stress disorder was that Dr G also thought the child had anxiety and to remove her from the mother in circumstances where there had been that trauma-related diagnosis would exacerbate her anxiety. Mr E dismissed that as a prospect as well on the basis that he thought the child was very resilient.
Notwithstanding the evidence of Mr E (and to that extent Dr G as well) was outside of their respective original charters, Mr E’s evidence has convinced me that the proposal put by the father about schooling is more sensible and in the child’s interests, than the position put by the mother. Dr G and Ms H both say that removal would be not good for the child but Mr E, whose evidence I accept, rejects that. The extent that it is necessary to say so, no-one challenged the expertise of either Dr G or Mr E. Mr E has many decades of experience as a psychologist and Dr G less so. Dr G’s reports to the mother (which have become part of the evidence) were unashamedly a critiquing of other experts. She was clearly a partisan witness. She had not taken into account what the father was proposing nor had she had significant experience in giving expert evidence in Family Court proceedings.
In my view, it would be inappropriate and grossly unfair to Dr G to criticise her evidence in any way other than as I have described because the matters that Mr E ultimately raised were not put to her. Ultimately however, I am satisfied that Mr E’s evidence supports a conclusion that the child will not be traumatised by a move to live with her father nor would putting her in a mainstream school be a retrograde step.
Ms B’s conclusion
Ms B concluded that the father had the capacity to meet all of the intellectual needs as well as the day to day emotional needs and practical needs of the child along with being able to assist the child in a transitional arrangement to live with him. She had no concerns about the move to a mainstream school. She was complimentary of the father’s wife.
Ms B also found that the mother had the capacity to meet the intellectual needs and emotional needs of the child but was concerned that there was no accounting in any assessment in relation to her schooling of the child nor how the educational tools that she has, are used. That is concerning because Mr E was of the view that when he visited the I Town home, he observed all of the detailed materials but felt that the mother did not know how to adequately use them. There is substance therefore in what Ms B says.
What concerned Ms B most of all was the ongoing conflict between the father and the mother. I have no concerns about the father’s conduct. There is no suggestion of abusive behaviour, inappropriate parenting or (contrary to the mother’s argument) lack of interest. Conversely, the mother has shown a consistent and appalling view of the father which is not matched by any evidence. The mother’s view about the father being responsible for J’s death and her dictatorial approach which includes the influencing of the child enables me to find that the conflict will go on if she has the control of the child’s daily life. The child is entitled to have the benefit of both parents in her life but I find that the mother is doing everything overtly to exclude the father. Conversely again, if the child lived with her father, I have no doubt that he would promote the mother’s role in the child’s life.
Ms B was very concerned that the assessment by Dr M was along the lines that whatever the problem was, it was not going to change. The mother has not sought professional assistance and indicated that she did not need it. Based upon her statements about the father, I agree with Ms B that there is little chance of change in the future and thus, the major issues in the child’s life relating to education and health are going to be a problem if the mother has the right to make decisions regardless of the views of the father. The opposite is not said of the father.
In relation to medical issues, there was a curious piece of evidence in which it was asserted in Department of Health and Human Services’ records that the mother sought chiropractic treatment for J and his problems prior to his death. When she was questioned about what role a chiropractor fulfilled for her, she described it in vague terms as assessing and assisting with general health. I am unclear what her views are about treatment and Mr E’s observations that she was “eccentric” are not matters about which I can make findings. However, he made a number of observations that probably justify doubts as to whether the mother is as competent a parent as she maintains. For example, he noticed when he visited the home that the child was still finger counting and had very limited understanding of mathematics notwithstanding the education she had been given by her mother to that time. He was concerned about the isolation of the child from peers but was more concerned about the fact that the mother expressed to him a powerful opposition to contact with children in the mainstream system. He observed that the mother had told him that the child mixed with children but not in the local area and even so, she maintained her presence when that contact occurred. He described her role in the child’s life as “micromanagement”. He too observed a close and affectionate relationship between mother and child and also between the child and her uncle. He thought that the child needed remedial reading and writing integration skills and needed a further assessment in relation to mathematics. He was worried that what Dr G was doing was using tests for normal children which in his view, failed to differentiate between children in the bottom ten per cent of the assessment groups. He doubted the advice that was being given.
Mr E was asked about the distinction between a “constitutional” problem for the child as distinct from an “environmental” one giving rise to all of these difficulties that were said to have been evident. His view was that it was more likely to have been environmental. On the basis that I found Mr E’s evidence powerfully credible, there is much to be said for stopping the continuation of what is currently happening. I find that it is in the child’s best interests that she is in a loving family where there is no criticism being made overtly of the mother, where the mother is seen as a person who has a role in the child’s life, where there is structured and consistent schooling as distinct from the unregulated home schooling provided by the mother and where there is an ending of the isolation so that the child can expand her horizons. All of those matters favour of a change of residence.
Legal issues
I have already mentioned some of the legal issues that guide the determination of this case.
Section 60CA of the Act requires the court to consider the best interest of the child as the paramount consideration. In determining what is in the child’s best interests, the court is obliged to consider the factors set out in s 60CC of the Act.
I have already dealt with the question of a meaningful relationship. As the authorities say (Mazorski and Albright [2007] FamCA 520) the court has to look prospectively rather than retrospectively. The future is often a reflection of history and in this case, full-time care by the mother does not auger well for the child. Whilst the father has no “track record” of consistent care of the child, he has been unfailing persistent in wanting the child to live with him and he is wholly supported by his wife. None of the cross-examination of either of those witnesses indicated to me that they were other than dedicated and caring parents.
There are no family violence issues in this case. There is no basis for me to be concerned about the physical protection of the child. There is the suggestion that a removal of the child from her mother will be detrimental or traumatic creating anxiety but I accept the evidence of Mr E supported by the fact that I accept the father is conscious of the problems and any problems will be appropriately addressed.
Section 60CC(3) provides matters of additional considerations that the court has to examine. Notwithstanding the mother’s view about the views of the child, I do not accept that the evidence supports a conclusion that the child should be in a position to make decisions about where she lives in the future. Dr G was specifically asked about that question noting what Ms B had observed and she agreed that it was not appropriate for the child to be involved in that type of decision-making. The child’s views are therefore of little weight.
The court is obliged to consider the nature of the relationship of the parents and the child along with other important people in her life. I think I have adequately covered those issues in the narrative above. Suffice to say, both parents love the child but the focus that the father has will be more structured and provide a better chance for the child to move into the secondary school system later. That time is not too far away.
In terms of capacity as parents, I find that the father has much more to offer for the security of the child in the future. He will end the isolation, involve her in family activities, expose her to a wider range of interests and ensure that her education is supported by the relevant professionals. I could not say the same for the mother and as Mr E’s evidence has been accepted as to the uncertainty about the mother’s capacity as a teacher, I have no doubt that the child is better in the father’s care.
The court is also obliged to consider the responsibilities that parents have fulfilled and will fulfil. Again I have covered most of those matters in the narrative above but I find that it is more likely that the father will ensure that the child has a significant involvement in her mother’s life than the reverse. It must be only a matter of time before the mother’s dislike of the father and her overt conduct as I have described above about him, start to adversely affect the child’s relationship with the father. Whilst I cannot stop that occurring on weekends, at least with the exposure to mainstream schooling and family life that the father is offering, there is less chance that the mother can be destructive.
It is important that the court bring proceedings to an end. These parties have had a traumatic life already and the child has been exposed to it. The constant attendances on Dr G may very well have been necessary but this child has not had an opportunity to settle into an environment which is structured. Orders in this case will bring an end to all of that and whilst the father will continue to get advice from professionals as guided by Mr E, I accept that it is unlikely that they will be anything other than education focussed. To the extent that the child has difficulty settling into the father’s home, I am confident based on his evidence that he will contact the mother and endeavour to work with her to get assistance for the child settling into that environment.
Equal shared parental responsibility
Section 61DA of the Act provides that when making a parenting order the court must apply the presumption of equal shared parental responsibility. Both parties clearly understood that provision. Each sought sole parental responsibility and in the mother’s case, she acknowledged that the father should have sole parental responsibility if the child live with him.
To the extent that it is not a matter for the parties but rather the court, in this case, the mandatory rebuttal of the presumption by virtue of family violence does not apply. There is a discretionary provision however to rebut the presumption where it would not be in the best interests of the child. In this case, the evidence is overwhelming in favour of a rebuttal of the presumption by virtue of the fact that these parties cannot communicate with each other about significant issues. That may change; courtesy would require that the father involve the mother in all of the things that are going on in the child’s life while she adjusts to mainstream schooling and a totally different way of life. However, it behoves the mother to show interest because she will have a significant role in the child’s life on weekends and during holiday periods. It is important that the child is not destabilised.
By virtue of the fact that it is not in the best interests of the child that the parents continue to have arguments about schooling and indeed health, my view is that the presumption should be rebutted and therefore the provisions of s 65DAA do not apply.
The orders as set out at the commencement of these reasons are therefore in the child’s best interests. They have already been pronounced and have been implemented.
I certify that the preceding One Hundred and Twenty Three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 February 2017.
Associate:
Date: 17 February 2017
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