OSTER & HOULI

[2015] FCCA 398

FEDERAL CIRCUIT COURT OF AUSTRALIA

OSTER & HOULI [2015] FCCA 398

Catchwords:
FAMILY LAW – Parenting – young child being treated for separation anxiety – mother being treated for anxiety – parenting capacity – family violence – father’s alcohol use – father only had supervised time up until hearing.

Legislation:

Federal Circuit Court Rules 2001, r.15.28

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011

L & T (1999) 25 Fam LR 590
Jacks & Samson [2008] FamCAFC 173
Nash & Reis [2013] FMCAfam 11
Scott & Kent [2013] FCCA 127
Lennon & Lennon [2011] FamCA 571

Applicant: MS OSTER

Respondent: MS HOULI

File Number: ADC 3108 of 2013

Judgment of: Judge Harland

Hearing dates: 1, 2, 3, 4 & 5 December 2014

Date of Last Submission: 5 February 2015

Delivered at: Darwin

Delivered on: 25 February 2015

REPRESENTATION

Counsel for the Applicant: Ms Ross

Solicitors for the Applicant: Voumard Lawyers

Counsel for the Respondent: Mr Bowler

Solicitors for the Respondent: Angela Ferdinandy Solicitor

Counsel for the Independent Children's Lawyer: Mr Hemsley

Solicitors for the Independent Children's Lawyer: Legal Services Commission Noarlunga

ORDERS

Parental responsibility

1. The parties shall have equal shared parental responsibility for major issues concerning the child [X], born [omitted] 2012, care, welfare and development, subject to Order 2.

2. Until 30 June 2016 the mother have sole parental responsibility for the child’s health and education provided that the mother:

   (a)notify the father of any proposed decision relating to the long term care and welfare of the child, including but not limited to:

   (i)proposed decisions about which schools the child shall attend;

   (ii)proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the child; and ensure that such notification is given to the father  in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency;

   (iii)take into consideration any views expressed by the father in respect of such proposed decisions.

3. From 1 July 2016 the parents shall have equal shared parental responsibility for the child’s education and health.

Live with and spend time arrangements

1. That the child lives with the mother.

2. That the child spend time with the father as agreed and failing agreement, as follows:

   (a)On up to two occasions per week on his rostered days off (which may fall upon consecutive days) from 10.00am to 2.00pm with such occasions to be nominated by the father to the mother during the months of February and March 2015;

   (b)On up to two occasions per week on his rostered days off (which may fall upon consecutive days) from 10.00am to 4.00pm with such occasions to be nominated by the father to the mother for the months of April, May and June 2015;

   (c)On up to two occasions per week on his rostered days off (which may fall upon consecutive days) from 10.00am to 6.00pm with such occasions to be nominated by the father to the mother for the months of  July and August 2015;

   (d)From 1 September 2015 on one occasion each week from 10.00am on one day until 4.00pm on the following day, such days to be nominated by the father to the mother;

   (e)In anticipation of the child commencing overnight time with the father from 1 September 2015 both parties shall use their best endeavours to ensure that wherever possible, from 1 July 2015, the father’s time with [X] is taken on two successive days;

   (f)As and from 1 July 2015 the father shall be at liberty to spend time with [X] outside of the metropolitan area and/or at [L] at the election of the father provided that the father shall only take [X] to [L] on one occasion in any week;

   (g)Order 3(f) herein shall continue upon [X] commencing kindergarten/school provided that in any time that [X] spends with the father, he shall ensure [X]’s attendance at kindergarten/school; and

   (h)From the time [X] commences school (or kindergarten) if he is attending 5 days a week during school terms the father shall spend time with [X] on his rostered days off on two weekends per month from after school Friday until 5pm Sunday.

3. That from the time [X] commences school until [X] commences Year 2 [X] will spend time with the parents during school holidays as follows:

   (a)With the father for the first half of the short school holidays and every second week of the Christmas school holidays commencing on the first week of Christmas school holidays.

   (b)With the mother for the second half of the short school holidays and the second week of the Christmas school holidays commencing in the second week.

4. From the time [X] commences Year 2 of school the parties spend time with [X] during school holidays as follows:

   (a)With the father for the first half of all school holidays in odd numbered years and the second half of all school holidays in even numbered years;

   (b)With the mother for the second half of all school holidays in odd numbered years and the first half of all school holidays in even numbered years.

5. Each party is entitled to attend any extra-curricular, sporting or other activities in which the child engages and at which a parent would ordinarily attend.

Handovers

1. That handovers in respect to the time the child spends with the father in accordance with Orders 5(a) and (b) herein occur at the [M] Children’s Contact Service and if that service is not available at the [M] police station.

2. That handovers in respect to the time the father spends with the child in accordance with Orders 5(d) to (h) and 6 shall be at Hungry Jacks [omitted] or otherwise as agreed.

Therapy

1. That the parties arrange for the child to attend a therapist as agreed or failing agreement as nominated by the Independent Children’s Lawyer NOTING the parties have made an appointment for the child to see [name omitted].

2. That within 14 days the Independent Children’s Lawyer provide a copy of these Orders and reasons for judgment to the child’s therapist.

3. By consent the mother attend upon Ms W for therapy, on a weekly or other basis and for such duration as Ms W recommends.

4. By consent the father will attend an anger management course and attend upon a therapist in relation to family violence, alcohol dependence and impulse control, with such attendance to be at his sole expense.

5. The parties shall provide a copy of these Orders and reasons for judgment to their therapists within 14 days.

Injunctions

1. The mother be restrained and an injunction is hereby granted restraining her from engaging the child in further counselling with

   
   

   Ms O or any other counsellor or therapist without the prior written consent of the father.

2. By consent the father be restrained and an injunction granted restraining him from consuming alcohol or illicit substances 24 hours prior to or during all periods of time spent by the father with the child.

Communication

1. That each party do inform the other forthwith by SMS message to the other’s mobile phone in the event of any serious accident, injury or illness suffered by the child and of all and any serious medical or other treatment received by the said child.

2. That each party do authorise the other to receive any and all information from any treating doctor, health professional, therapist or counsellor upon whom the child attends from time to time and to permit the other to receive any or all information from the child’s school as to their academic and general education progress and information relating to extra-curricular, sporting or other activities in which they may engage.

3. That each party do provide to the other access to medical, dental and health professional reports in respect of the child and keep the other informed at all times, by way of email, of the names and addresses of all health professionals consulted by the child.

4. That each party advise the other of any intention to take the child out of South Australia and provide to the other an itinerary and particulars of the place and person whom they will be staying out of the state 7 days prior to the proposed departure date.

Other orders

1. That upon compliance with Order 12 the Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment under the pseudonym Oster & Houli is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3108 of 2013

MS OSTER

Applicant

And

MS HOULI

Respondent

REASONS FOR JUDGMENT

Introduction

1. [X] turned 3 on [omitted] 2015. He has been the subject of three family reports prepared by Mr B dated 11 October 2013, 2 April 2014 and 3 November 2014.

2. The parties were able to resolve the property issues during the course of the trial and filed orders in chambers in January 2015.

3. The parties have been unable to resolve the parenting issues and given the scope of the dispute this is not surprising.  Both parties did however make concessions during the hearing but there are many serious issues of contention.  This is a complex and difficult matter.  The Independent Children’s Lawyer (ICL) has been of particular assistance.

4. One of the factors that complicate this case is the distance between the parties’ residences. The father lives at [L] in South Australia in the mid-north and works on a rotating roster at [R] in South Australia’s far-north. The mother lives at [C].  The father spends time with [X] at [M].

5. The main issues in this case are:

   a)how the father’s time should progress and under what conditions;

   b)whether the mother should have sole parental responsibility or the parties should have equal shared parental responsibility;

   c)where the father should spend time with [X] and should there be restrictions on that;

   d)where the handovers should be and how the travel should be shared;

   e)whether the father should be the subject of a series of injunctions proposed by the mother.

The father’s case

1. In the father’s trial affidavit he seeks a transition of [X]’s living arrangements such that in nine to twelve months’ time [X] would be in his primary care. He also sought that the mother relocate from [C] to [L]. The father did not press for this at the hearing.  As the ICL points out in his written submissions both these propositions were unrealistic given that the mother has been [X]’s undisputed primary carer since he was born and has been living in [C] for two and a half years.  It is significant to note that the father did not make an interlocutory application seeking to have the mother return to [L] with [X].  It is too late now for the father to complain that the mother moved unilaterally.

2. The father seeks to progress to unsupervised time and overnight time.  He seeks to do this at a faster pace than what is proposed by the mother and the ICL.

3. The father relied on the documents listed in his case outline. In my trial directions I require each party to file one trial affidavit only. This avoids the need for the parties and the Court to refer to several different documents. The purpose of this direction is defeated when the party’s trial affidavit refers to annexures contained in earlier affidavits filed in the proceedings. This is what the father’s affidavit does. His trial affidavit filed on 17 November 2014 does not contain a single annexure but refers to several annexures in previous affidavits filed by him and in at least one instance does not even identify which previous affidavit it was. This is unacceptable. The previous affidavits are not in evidence before the Court. If a party wishes to rely on annexures they should be annexed to the trial affidavit and numbered in compliance with r.15.28 of the Federal Circuit Court Rules 2001.

4. The father acknowledged that he has behaved badly towards the mother in the past but says that he has changed and is keen to develop a working relationship with her so they can co-parent [X]. He expresses some concern about the mother’s parenting capacity.

5. The father has only had supervised time with [X] since the parties separated.  The father is keen to move beyond this so that he can develop a strong, meaningful relationship with [X].  Under his proposed orders, filed with his written submissions, he seeks to increase his times to five hours each visit in February and March 2015, full day visits in March and April 2015 and overnights from May 2015.

The Mother’s case

1. The mother relied on documents listed in her case outline. Ms C and Ms S were not required for cross-examination. Both affidavits are brief and contain observations of [X] and the mother. They do not advance the issues before me particularly in light of the expert evidence addressing these issues, particularly with respect to [X]’s separation anxiety.

2. The maternal grandfather also filed an affidavit in support of the mother. It is apparent from his affidavit and from the comments the maternal grandmother made to the family consultant that the mother’s parents also believe, as does the mother, that the father’s visits with [X] cause [X] anxiety and that they are in large part the problem. Whilst this is understandable particularly in light of Ms O’s advice to the mother, the issue is far more complex and will be discussed later in the judgment.

3. The mother says that her relationship with the father was characterised by violence and abuse.  The mother struggles to see anything positive about the father and blames him for [X]’s separation anxiety. The mother also has anxiety and has had difficulty seeing the link between her anxiety and [X]’s anxiety.

4. The mother’s affidavit contains a lengthy annexure, being extracts of the communication book, which are illegible.  Legible copies were tendered and marked as exhibit E.  Annexure H runs from page 147 to 180. I was not taken to this annexure during the course of hearing. It purports to be a copy of sleep records recorded by the mother’s Fitbit device[1] which the mother says demonstrates “the nexus between [X]’s sleep problems and contact with the father”.  The mother is not qualified to make such a conclusion. There is no scientific information provided to support the Fitbit records.  I place no weight on this annexure.  It is an example of the mother blaming the father but ignoring the concerning fact that she has been unable to establish a bedtime routine for [X].

   [1] This is a personal fitness device which measures a person’s daily footsteps and other measures.

5. The mother seeks to have the current arrangements in place until the end of March. She then proposes to increase the father’s time to 4 hours a visit for the next three months. She then seeks an increase to 6 hours a visit for three months and then an increase to 8 hours a visit until the family consultant prepares a further report before the father commences overnight time with [X].

The Independent Children’s Lawyer’s position

1. The ICL does not support the ongoing provision of supervised time.  The ICL supports the parties having equal shared parental responsibility.

2. The ICL proposes a graduated increase of the father’s time with [X] which falls somewhere in the middle of the parents’ proposals. The ICL seeks an increase to four hours per visit for March 2015, six hours a visit for April and May 2015 and eight hours a visit from June 2015. From May 2015 the father would be at liberty to take [X] to [L] on one occasion in any week. The ICL proposes that the father start overnight visits with [X] from September 2015.

Final or interim orders?

1. A live issue during the proceedings and when the matter was listed for hearing is whether I should make orders on an interim or final basis. I determined that the evidence needed to be tested because the parties had the benefit of three family reports and had not moved past supervised time.  I do not say this as a criticism of the parties, rather it is a reflection of the difficult nature of this case.  At the conclusion of the hearing I directed Counsel to file written submissions.  Given the nature of the issues raised it appeared that the only way to move forward was to test the evidence of the parties and the experts.

2. I listed the matter for further brief submissions on 5 February 2015 to clarify the position of the parties with respect to the future direction of the matter.

3. One of the things that were canvassed during the hearing was the possibility of the parties engaging the family consultant[2] to carry out a home visit to the father’s home once [X] was spending day time visits with the father at his home to provide the parties with a report focusing on the move to overnight time. The value of such a report is that it would give the mother some comfort that the father’s home is suitable and that [X] is comfortable there. This was raised on the basis of this being a private report which the parties would fund. It is the only way such a home visit in [L] could be conducted.

   [2] He is a regulation 7 consultant who also does private reports.

4. It was unclear from the written submissions of the mother as to whether she was seeking such a private report or a further family report.  Ordering a further family report would necessarily involve making interim orders.

5. On 5 February 2015 the mother sought a further family report. She also wanted that report to be carried out before [X] spends time in [L]. That is not what was discussed during the course of the hearing.

6. The father submits that a further family report or private report is unnecessary although he was willing to agree to a private report. He seeks that his time progress to overnight without a further report or court intervention.

7. The Court’s resources are limited. It is unusual for a case to have three family reports in an eighteen month period. It would not be fair to other litigants if this family was to receive a further court funded report.  The Court has to be mindful, not just of the needs of litigants in this case but also the litigants in other cases.

8. The ICL’s submissions were persuasive. The ICL said that the drawback of making interim orders is that the mother will not see the need for treatment and change as imperative.  As I intend to make final orders I do not propose to order the parties to obtain a private report from the family consultant.  If the parties agree that it would be appropriate and useful they can make those arrangements.

The distance between the parties’ homes and the father’s work roster

1. The father has been with his current employer for almost twelve years. The father works on a rotating roster. It is a repeating pattern of:

   a)four day shifts;

   b)five days off;

   c)five night shifts;

   d)four days off.

2. The father works twelve hour shifts starting at 6.00am and finishing at 6.00pm or starting at 6.00pm and finishing at 6.00am.

3. The father works at [R] which is 500 kilometres away from his home at [L].

4. During cross-examination the father indicated that he has been thinking about changing his employment to make it easier for him to spend time with [X] but he has no firm plans.

5. The father says he enjoys living in [L] and does not want to move from there. He owns a home there and has been working on it and has a workshop there. He says he and the mother planned for [X] to grow up there.

6. It seems that unless the father decides to move closer to where the mother lives distance is going to continue to be a significant practical difficulty for the parties and [X].  If the father lived closer to the mother and [X] he would be able to be much more significantly involved in [X]’s life.

7. The father conceded that he had not spoken to a child psychologist when formulating his proposals in his affidavit for [X]’s transition into his full-time care.  This is concerning and underlies some of the mother’s concerns about the father.  The mother is very concerned about the father not listening to others and rejecting the advice of experts.

The mother’s allegations about the father’s drug and alcohol use

1. In her affidavit the mother complains that the father regularly smoked marijuana and drank alcohol to excess and would be physically and verbally abusive towards her.

2. She says on occasion the father would binge drink and then get into physical fights. She says on occasion the father told her about these fights and on another occasion she witnessed these fights for herself.

3. The father also conceded that there were occasions when he picked up [X] when he had been drinking. He sees no difficulty with that if he has not been drinking to excess. He said he would be capable of holding a small child without difficulty after drinking five glasses of wine (being a whole bottle) even though he conceded he would be over the legal limit for driving.  If he had drunk that amount and then picked up [X] as a baby it is not unreasonable for the mother to be concerned about that. He conceded to the family consultant that he stumbled when holding [X] after drinking.

4. The father conceded during cross-examination that at times during the relationship he drank to excess. He did not concede to having a drinking problem saying that he did not drink to get drunk and presently hardly drinks at all. Ms Ross put to him that he was a binge drinker during the relationship. The father responded that he was a social drinker with friends who sometimes drank too much.

5. The father conceded that he had some drink driving offences, the last being in 2007. He also has a conviction for growing cannabis. He says he smoked very occasionally during the relationship.

6. The father denied fighting with friends when he was drunk during the relationship. He did concede to having a physical fight with Mr M in 2010. He made a distinction about the mother’s allegations because he did not consider Mr M to be a friend of his.  The father’s evidence on this point was unconvincing.

7. The father admitted to there being two occasions where he got into fights with bouncers when he was drunk.

8. I find that the father minimised the extent of his drinking during the relationship. The fact that when under the influence of alcohol he admits to getting into three physical fights (the mother says there were at least seven occasions) suggests the father’s drinking was problematic and that the father had difficulties with impulse control, especially when drinking.

9. The father says he has greatly reduced his drinking and is willing to consent to an order that he not drink alcohol whilst [X] is in his care and for twenty-four hours prior to [X] coming into his care.

10. The father says he has no problem with alcohol, anger management and impulse control.  To his credit however he has consented to an order that he attend counselling for these issues at his cost.  This should give the mother some reassurance.  He admits being on anti-depressants and taking them after the breakdown of his previous relationship with a lady named Ms R.  Many people take anti-depressant medication, that without more, is not a cause for concern. The mother also took anti-depressants in the past and was treated for mild depression.

11. It seems to be an agreed position that the parties’ relationship, at least in the later stages was unhappy.  The parties have very different personalities and very different life experiences.

12. It is apparent from the history that the father has struggled when his relationship has ended. The mother also says that the father struggled with the end of his relationship with his previous partner Ms R.

13. I am satisfied that at times the father drank to excess and drank more than he was willing to admit to. His behaviour when drunk was such that the mother is legitimately concerned about his drinking and the impact that could have on [X] if he were to get drunk whilst [X] was in his care.

14. The mother’s concerns will be addressed by the orders the father is consenting to restraining him from drinking alcohol before or whilst [X] is in his care and the counselling the father is to receive.

Mother’s concern about the father’s mental health

1. The father was on antidepressants during the relationship and took them inconsistently according to the mother. The mother seeks orders that the father see his general medical practitioner about his mental health and comply with any treatment regime as described by his practitioner and any psychologist or psychiatrist who he may be referred to. The evidence does not support such an order. It is also well established by cases such as L & T (1999) 25 Fam LR 590 and Jacks & Samson [2008] FamCAFC 173. The Court does not have power to make final orders compelling a party to attend therapy unless it is conditional. For example an order could be made for a party to attend therapy as a condition of that person spending time with the child if such an order was in the child’s best interests. The father has now consented to obtaining counselling.

Mother’s mental health

1. At paragraph 65 of her trial affidavit, the mother said that she suffered from depression during her adolescence and she self-harmed on a few occasions.  She said that she had not suffered depression for years and prior to meeting the father.

2. Significantly at paragraph 66 she says “any anxiety I have is only due to the domestic violence and abuse that I have been through. I have no anxiety if I have no contact with the father.”  It may be easier for the mother to see it in those simple terms.  But it is not helpful for her.  It is clear from the evidence that there is a family history of anxiety in the mother’s family.  Whilst the father’s violence and abusive behaviour undoubtedly exacerbated the mother’s anxiety it is not the sole cause.  It is also clear that at least initially she did not see the connection between her anxiety and [X]’s anxiety.  I will return to this later in the judgment.

The father’s conduct towards the mother post separation

1. The father admitted to making what he referred to as a “foolish comment” shortly after they separated. This grossly understates what he said. The mother recorded the offending conversation, which took place on 17 July 2012, and annexed a transcript of it to her trial affidavit.  During that conversation he made several threats including threatening to take [X] away from the mother and that no one would be able to stop him.  The mother recorded the father’s conversation with her on 17 July 2012. During that conversation the father refers to him going to jail, him killing himself, him making the mother suffer, him threatening to kill her parents, him coming to her house and not caring if the police shoot him, him hanging her etc.

2. The father was cross-examined at some length about this. The father was keen to explain that he acted that way because of his distress due to the mother refusing to allow him to see [X] and his concern for [X]’s welfare. The father’s evidence was discursive and at times contradictory.  At one point he said that he intended to scare the mother into hopefully coming home. A short time later he said it was not his intention to scare her he said that he was probably a little out of control with his emotions at that time. He says that he may have sounded hysterical. He conceded that the mother may have been concerned about his mental health at that time.

3. The father also conceded that he contacted the mother daily after she left with [X] but did not concede that his messages were harassing.  He said contacting her was the only way he could try and see [X].

4. The mother says the messages she received from the father post separation were harassing.  Some were polite, others were not.  They need to be seen in the context of a very recent separation involving a young child. It would be unrealistic to expect people to behave at their best in those circumstances.  However the father’s behaviour escalated to beyond what could be explained as being understandable in the post separation context.  The mother replies to some of those messages. It is clear from those messages that the mother arranged for the father to see [X]. The messages of 11 July 2012 refer to contact being arranged for the upcoming Saturday. The message exchange on page 70 of the mother’s affidavit is significant. The father’s messages were getting angry and the mother pointed out when he gets angry she gets scared and that she did not want to expose [X] to that. The messages continue to run on a daily basis after the phone call of 17 July 2012. It is the accumulation of the number of messages consistently over several weeks that amounts to harassment. Many of the messages are critical of the mother and angry.

5. The mother says she arranged for the father to see [X] in the presence of her father on 14 July 2012.  She said at that visit the father handed her several bills that he wanted her to pay.

6. The father says that the conversation the mother recorded took place before he had personal contact with [X] post-separation. This is inconsistent with the series of text messages annexed to the mother’s affidavit which were not the subject of challenge. The mother recorded that the conversation went for 54.09 minutes. The father says he does not like to think back to that time and had only scanned the documents. He said he was confused as to which conversation it was and conceded that he had several conversations with the mother when he was upset and angry with her. I accept the mother’s evidence that this conversation took place after the father’s visit with [X].

7. Whilst the father conceded that his behaviour was unacceptable he repeatedly tried to justify it by saying he was acting in desperation in response to the mother’s unacceptable behaviour in not letting him see [X].

8. His rationalisations do not justify his behaviour. His conduct would have only heightened the mother’s concerns. The mother was entitled to take the father’s threats seriously and to feel frightened for herself and her family. Given the strength of the father’s emotions at the time and the nature and the frequency of his interactions with the mother by text and telephone it is not surprising that the mother required the father’s time to be supervised. [X] was pre-verbal and vulnerable. Both parents had limited experience as parents at that time although the mother had more experience than the father, being [X]’s primary carer (which the father does not dispute given his work commitments) and post-separation has had the support of her family.

9. The father conceded that there was more than one abusive phone call by him to the mother post separation and is insistent that particular phone call was the most offensive that took place before he saw [X]. It was clear that his memory was not strong in relation to the calls and the sequence of events.

10. What the father has failed to face and needs to, is that the mother has ongoing concerns about his drinking, impulse control and mental health and that they are a real concern for the mother because they are based on her actual experiences of him. The father says he has changed since then but the mother does not have experience of this. Again the father’s consent to attend counselling for anger management should assist the mother in this regard.

The father’s supervised visits with [X]

1. Initially the father had supervised contact with [X] at the [omitted] Children’s Contact Centre. He has also had several supervised visits supervised by Nannies SA. As a result the mother and the Court has the benefit of records of numerous visits. It is clear from those visits that the father was child focused and able to interact with [X] in a positive way. During early visits he demonstrated being child focused by recognising when [X] was distressed and unable to be settled by suggesting that he be returned to his mother early with at least one case after a period of only five minutes rather than insisting on his full visit.  There is nothing in any of the observations which raise any concerns about the father’s parenting capacity.

Ms O

1. The mother says that Ms O only ever treated [X].  This is not consistent with her first report dated 17 March 2014 which says the mother was referred to her for treatment of [X]’s separation anxiety and supporting the mother with issues surrounding her separation and court attendance.

2. That first report Ms O refers to research on neurobiology of the brain and the developing foetus and baby. She seems to assume that [X] suffered from trauma and that the mother had raised levels of cortisol during her pregnancy. There is no medical evidence to support this. By operating on this premise Ms O did not address the underlying issue. It is concerning and somewhat baffling that she did not pick up on the mother’s own anxiety and explore the issue of the mother also being anxious with her given the information that she was provided by the mother.  From reading the first report it is also easy to see where the mother and her family have the notion that it is the father’s contact with [X] that is the problem and causing anxiety. Ms O assumes in that first report that [X] “has heightened arousal responses caused by trauma”.  There is no evidence establishing that [X]’s separation anxiety is caused by trauma.  It is also significant that she says:

   “Ms Houli has a significant history that indicates her sense of feeling secure about the safety of [X] has been compromised as the primary reason stated by Ms Houli for leaving [X]’s father was concern that [X] was not safe with him.”

3. It is concerning that Ms O recognises the mother’s feelings very early on but did not address the issue of the mother’s own anxiety and how that could impact on [X]’s anxiety. It seems that much of the treatment was based on what is an incorrect premise that it is the visits with the father that are his primary source of anxiety. The evidence suggests it is a far more complex picture than that. She refers to the contact with the father appearing to exacerbate [X]’s distress.  The evidence does not support this.

4. I have real concerns with respect to Ms O’s treatment of [X]’s anxiety.  Her interference with the more recent visits by recommending the mother spend time at the beginning of the visits was unhelpful and unnecessary.  It also appears to be based on false information provided by the mother to Ms O.  [X] had had several visits at the Farm Barn before Ms O sent that email.

5. With respect to Ms O telling the mother and writing to Nannies SA that the mother should be present for the first five to ten minutes of visits to settle [X], it is not surprising that the father wanted proof of this request given the successful visits that had been taking place over many months and given his interactions with Ms O.

6. The mother said she was only slightly reassured that the father may be an appropriate father given his sensitivity and child focus with respect to agreeing to Ms O’s request.

7. On 10 October 2014 Ms O sent an email to the father. She referred to a key way of monitoring [X]’s improvement to monitor his sleep which she stated remains a significant issue.

8. It is clear from the father’s evidence that he had difficulties with Ms O and the approach she is taking with [X]. It is plain from the above evidence that he does not want [X] to be labelled and challenges many medical opinions about things like ADHD. As it turns out the father is correct to have concerns about Ms O but it is also apparent that the father has not done much to inform himself about the issues concerning [X].

9. Ms O also conceded when questioned that it would not be an unreasonable question to consider whether or not there is some co-dependency between the mother and [X] and that some of [X]’s anxiety is reacting to the mother’s anxiety.

10. It is also apparent that the mother has withheld important information from Ms O. Ms O was not aware that the mother has been leaving [X] with family members for a few hours each week to go to the shooting range. This paints a different picture to that of [X] not being able to cope without his mother for more than a few minutes. It is clear that the mother and her family place negative associations with [X]’s visits with his father. [X] cannot help but pick up on that.

11. It is concerning that the mother withheld important information from Ms O.  This is one reason why it is important that the father is involved with [X]’s new therapist.

12. Ms O was not an impressive witness. On several occasions throughout her cross-examination she did not answer the questions put to her. She was concerned to justify her position although she had to concede that the research she referred to was based on pregnant women and children who lived in war zones. I place little weight on her reports as it is clear she was treating [X] based on an incorrect premise.

13. The parties have agreed to engage an alternate therapist for [X]. This is a very good development. Both parents can be involved from the beginning.

[X]’s anxiety

1. The father’s evidence is that [X] is not anxious when he is with him. He struggles with the concept that [X] has anxiety at all because of this. He stated during cross-examination that he believes that if [X] was living with him [X] would not need any psychological assistance.

2. The father’s position, whilst on some level is understandable given that he has very limited opportunity to see [X] and interact with him, it is somewhat naïve. The point experts would make about separation anxiety is that the child will display the anxiety with the primary carer because they are comfortable with that person so it is not surprising that [X] would not show the anxiety during the limited periods that he is with the father. It is also clear that the father has demonstrated some skill in being able to comfort [X] and has become an attachment figure for [X].  The father would benefit from listening to expert advice on this issue.

3. It is also clear that the father did not entirely understand Ms O’s role as he pressed for her to observe [X] with him. The father thought that if she did this it would show that the problem is not [X]’s but that ignores the fact that [X] is more likely to display the anxious behaviours with the person he is most comfortable with, the mother. That is not to say that the mother’s own anxiety is not also a significant factor which may be influencing [X]’s anxiety. There is certainly inconsistencies in the mother’s evidence about [X]’s anxiety which would lend some support to this contention.

The parties interactions with each other

1. The father says he is an opinionated person. The father is much older than the mother and is physically much bigger than her. The father strikes me as a person who expresses his opinions strongly. The mother impresses a more fragile, sensitive person. She is thoughtful and values the opinions of experts. The father does not. The mother also has vulnerabilities.  Their very different personality meant that their communication has been mismatched and ineffective.

2. The mother interprets anything the father said in the most negative light possible. I do not think the father is seeking to undermine the mother and harass her but I accept that the mother interprets his approaches to her in that manner. This is something she needs to work further on with her psychologist.

3. [X] has not yet turned three. These parents have many years ahead of them where they are going to have to find a way of communicating effectively about [X]. [X] will benefit enormously if he can see his parents engaging in an effective working relationship.  They do not have to be friends but they are going to have to interact with each other from time to time.

4. The father for his part needs to realise that he can at times come across as overbearing and that he needs to listen to others.  It is important too that he listen and engage with experts appropriately instead of rejecting the information he hears without making his own enquiries.

5. It is clear that both parents are at times giving each other advice about aspects of parenting and nutrition that the other has interpreted as being condescending rather than as being helpful. There is some merit in what the father said with respect to the communication book. He complains that the communication from the mother told him what he could not feed [X] and could not do with [X], not including some positives about [X] and the things [X] likes to eat. The father complains that this is not conducive to developing good communication and rapport between them. I have the impression that the father’s advice about things like keeping [X] hydrated was an attempt by him to be involved with [X] and to show that he has some knowledge about caring for children.  I think the mother has interpreted this as the father thinking that the mother did not know how to care for [X] and of him wanting to control her.

1. The father needs to accept that, particularly as a consequence of his behaviour soon after separation which was appalling, that the mother will have difficulty accepting his communication is coming from a place of goodwill.  He may have moved on from the dark place that he was in post separation but that does not mean that it does not still resonate strongly for the mother.

2. The father interpreted the mother’s actions at separation soon after as being motivated by a desire to exclude him from [X]’s life. He concedes that the mother did not at any time say to him that she was going to take [X] away from him and in fact the text messages indicates the mother acknowledging the father’s love for [X] and the need for [X] to have a relationship with him. The father ignores the fact that the parties had only recently moved to [L] and the mother did not have any social supports there.  She had also been subjected to family violence.  The mother was not working and [X] was four months old. It was logical that the mother would return to her parents’ home in [M].

Counselling

1. The father made it clear during the course of his evidence that he did not think he has a problem with anger and does not think he needs counselling but he did say he would be prepared to go to counselling. He says he has changed since that early post separation period. It was put to the father during his cross-examination that the mother needs to see his effort in that regard with respect to both his anger and his drinking. The father was keen to say that he has dramatically cut his alcohol intake since separation but the point is that the mother’s experience of him is of him binge drinking and in some cases being physically violent with other people when he had drunk to excess.

2. The father has now consented to attending counselling for these issues.

Dr M

1. Dr M prepared a report which was dated 15 July 2014. He is a paediatrician.  He noted that whilst [X] was small in stature he looked well-nourished and was symmetric in appearance which suggests a constitutional of genetic growth pattern which should be monitored. He also noted some suggestion of there being some milk or mild protein intolerance.  He opined that whilst coeliac disease is unlikely it needs to be excluded.

2. The father has made no attempt to speak to Dr M despite his strong belief the other half of [X]’s problems may be instigated by the mother. He then said that he did not know what a coeliac screen was. It is difficult for the father to maintain a position where he says the mother is causing these things when he has no idea of what they are and has made no attempt to talk to the expert.

3. The father has also expressed the view that the mother was breastfeeding for her own comfort and not because [X] needed it. Again the father has strong views but has not sought any expert opinion. He says he has disregarded these things because he says it is part of the mother’s actions in taking [X] away from him so she could do things her own way. The difficulty is that the father is expressing very strong opinions but has not made any attempt to properly inform himself about these issues.  It lends credence to the mother’s concerns about the father’s attitude towards experts.  The father is arguing from a position of ignorance.  He needs to talk to the experts and ask questions.

Ms M

1. The father’s partner filed an affidavit and was cross-examined. She has been living with the father since January 2014. She gave her evidence in a straightforward manner. I accept her evidence.

2. From Ms H’s observations during one of the supervised visits Ms M was sensitive and child-focussed. She kept her distance from the father and [X] but interacted with [X] when the father brought [X] over.

3. The mother seeks an order that Ms M be present at all the father’s visits until 1 March 2015.  I am not going to make that order.  Ms M is not a party to these proceedings.  I accept her evidence that she will attend the visits as she can.  One of the reasons she gave is the car trip gives her a chance to spend time with the father.

Ms H

1. Ms H is one of the supervisors from Nannies SA. She was subpoenaed to give evidence. She supervised visits in September, October and November 2014. For the first few visits she would meet the mother and [X] at the Farm Barn or the Play Café and then she would leave and the father would come in. The last couple of sessions she stayed with [X] for about five to ten minutes (sometimes longer) apparently upon the advice of the mother’s psychologist. The mother and Nannies SA informed her of this. The father says on one occasion the mother stayed half an hour.

2. She says that when [X] saw his father he would go to him very happily. The father would come in with his arms out and [X] would run into his arms every single time. She says that he did not show any distress when the mother left and the father came in. Occasionally he would look back and say mummy but not in a distressed manner and just in the typical way that young children do.

3. Ms Ross cross-examined Ms H and suggested her notes did not reflect the fact that [X] was “difficult to extract from his mother” on those occasions. Ms H said that did not happen. Ms H said that [X]’s separation from his mother was utterly normal for a two year old. She says [X] was not clinging to his mother but did say “mummy” when being handed over to her. Ms H said this was normal because she was still a stranger to [X]. I prefer the evidence of Ms H to the mother on this issue.  Ms H’s professionalism was not called into question. Ms H confirmed with the ICL that such issues would be recorded in the notes. If [X] was distressed that would be recorded in her notes as other instances of distress in early visits have been recorded. I think the mother is looking for [X] to be distressed at these handovers and she herself is stressed. I do not suggest that the mother is deliberately lying but I do think she is so negative and anxious about these visits that she is not seeing what is normal behaviour for a child. She also does not have the benefit of seeing how well the father and [X] interact with each other. Although she has read the reports and sees that intellectually, I suspect her negative experiences of the father and her fears about him pull on her more strongly.

4. I do not accept Counsel for the mother’s criticisms of Ms H’s evidence.  Her observations are consistent with the observations of supervisors and the family consultant.

The mother’s attitude towards the father

1. The mother is extremely negative towards the father.  She gave evidence under cross-examination that she thought the father would deliberately withhold medication from [X].

2. She has no trust in him at all.

3. She did not seem to have been comforted by the several positive reports from Nannies SA as to the father’s ability to focus on [X]’s needs and positive, warm and loving relationship between father and son. This is somewhat concerning and is suggestive of the level of the mother’s concern and distrust of the father being unreasonable.

4. The question arises as to how far does the father have to go to assuage the mother’s concerns? The answer to this is not easy particularly as the mother is [X]’s primary carer and because her anxiety effects [X].

5. The mother complains that the father never asked her about long or short-term issues concerning [X] such as kindergarten and school but she had to concede that she had not given the father that information. The father was well aware that the mother did not want any input from him about issues concerning [X]. This is clear from her response when he tried to offer his opinion when [X] was suffering from gastroenteritis. It is not surprising that the father chose to focus on building his connection with [X]. The entries in the communication book from the father are telling as he is giving information to the mother about what he and [X] have been doing and shows an interest in wanting to know about [X]’s interests. The mother provides little information in the communication book and when she does it tends to be criticising the father such as giving [X] unhealthy snacks. It is not unreasonable for the father to want documents in relation to [X] being lactose intolerant. The communication book can be useful but only if both parties engage to discuss issues relating to [X]’s welfare without being critical of the other, without it being all one sided.

6. The mother also complains in her affidavit that the father undermines her parenting decisions and criticises her. This is not supported on the evidence. I accept that that is her perception that she needs to accept that the father will have valuable opinions to make about [X]’s upbringing just as she does. There is also a legitimate reason for the father to have some concerns about the mother’s parenting in respect to the lack of any bedtime routine and the ongoing issue of co-sleeping with [X]. The breastfeeding was another issue that was canvassed at several points during the hearing.  The issue is not the mother breastfeeding [X] in itself. The issue is that the mother and [X] use this as a means of comfort and that [X] is waking himself up anywhere from 4 to 6 times a night to comfort breastfeed. This is not healthy for either the mother or [X] and their sleep patterns. The mother says she has been trying to get [X] into a bedtime routine but has not had much success to date.  The mother needs to address this issue as a matter of priority.

The mother’s evidence about [X]’s anxiety

1. The mother told the family consultant in April 2014 that she was comfort breastfeeding [X] up to ten times during the day and multiple times during the night. She said the number of comfort feeds during the night were random, perhaps four to six if she could not get him to sleep using other methods.

2. The mother goes to bed with [X] between 10.00pm and 11.00pm. She says she has tried to get [X] into bed before that but has been unsuccessful and he usually goes to bed at 10.00pm or 11.00pm. She then said that he was going to bed at an earlier time last year and he was falling asleep on her on the couch. She started sleeping with [X] in the same bed when she moved out of the home in [L] and the parties separated. He still falls asleep on her on the couch. The mother says she has tried constantly to get him into a bedtime routine but has not been successful. [X] does not sleep in his own bed.  This is concerning particularly because the mother has had several sessions with Ms O.

3. It is clear from the evidence given by the mother during the course of cross-examination that the mother struggles with getting [X] to sleep in a normal routine. It is convenient for her to lay the blame for that at the father’s feet and that is unreasonable. It is of real concern to me that [X] is almost 3 years old and does not have a bedtime routine and does not sleep in his own bed.  I accept that the mother is now trying to address this issue but she needs to redouble her efforts as a priority for [X]’s sake and her own.

4. The mother has taken [X] camping on three occasions at different locations at public camping grounds during school holidays where other people were around and at times with the mother’s family. The mother says she knew that [X] was becoming anxious in that situation but she wanted to give him the experience to help him learn and be exposed to that experience. 

5. The mother says that initially during the early visits the father would return [X] when he became upset after five minutes or so but that the nanny told her after the first few visits [X] would be crying half an hour to 40 minutes. The mother says that the nanny told her that it “tore at her heartstrings”. The father’s Counsel went through the early Nanny SA notes with the mother.  The mother says she thinks it was the visit of 21 February 2014 supervised by Ms J. She had to concede that the notes reflected the father was child focused and rather than insisting on having the whole two hours in accordance with the orders, when [X] was distressed and the father was unable to settle him he returned [X] to the mother early. This does not fit in the with the mother’s negative perception of the father. This is the type of observation which would be in the Nanny SA notes if it had occurred and is also something that the mother would have raised by her solicitors.

6. The mother also took [X] to Queensland in January 2013 and January 2014 for about three weeks on both occasions. She stayed with people she knew there at about four or five locations. These people were not known to [X] and in January 2013 he only had five supervised visits at the Contact Centre.

7. It is of some concern to the Court that if [X] is as anxious as she says and difficult to separate from her that she would think it appropriate to expose [X] to so many different situations in a three week period particularly in January 2013 when he was just being exposed to spending time with his father.  When it was suggested to her that it is almost abusive to expose him in this manner she replied “[X]’s anxiety did not come out until they started this year and were constant.” That is not consistent with what she has said to the family consultant which includes that [X] becomes highly anxious in new situations and that it took him eight to ten months to be comfortable with her family when she moved in with them. What is consistent is the mother blaming the father for her anxiety and [X]’s anxiety. This is something that the mother needs to work on seriously because it is clear that [X] will greatly benefit from his interactions with his father. Despite all of this she said that he coped well in the January three week holiday and enjoyed it.  The mother then had to concede that [X] may enjoy spending time with the father and spending overnights with him. The difficulty is that she will be anxious about it.

8. The mother seeks an order that the father’s time be suspended for three weeks each January so she can take [X] away on a holiday.  I do not think that it is in [X]’s best interest that there be a disruption to his routine and spending time with the father for that length of time until he is older and he is in a healthier sleeping pattern.  When [X] is older his father should also be able to take [X] away on holidays.

9. The mother had a relationship with a man called Mr T from January 2014 to Easter 2014 and during the course of that relationship is when she and [X] spent at least two overnights there. Again there is some inconsistency in her saying that [X] was showing anxiety more physically now that he was seeing his father regularly yet the mother was happy to expose him to a stranger and stay overnight in a stranger’s home. [X] became comfortable enough with him to want the man to show him the cows he had in the paddock and not needing his mother with him and not needing a comfort feed afterwards. Mr Bowler suggested to her that it illustrates the point that if the mother is comfortable [X] is comfortable. The mother said that at the time in January 2014 she could not say herself that she was anxious about [X] spending time with his father. This is somewhat surprising.

10. The mother also met a man in July that she initially connected with on an online dating site. She brought [X] to that meeting at a playground. They did not meet again. She says she did not have anyone to mind [X]. Again given what the mother says about [X]’s anxieties at meeting new people and being in new situations it seems like a strange thing to do.

11. The mother conceded that the father has shown considerable commitment to spending time with [X] through the amount of travel that he has done and the cost he has incurred.

12. The mother emphasises the importance of routine to [X] to manage his anxiety and talks about swimming and church I might add that therefore the father could not see [X] on these days. When she was cross-examined about this she agreed that the father’s relationship was more important than these things but she still struggled with the suggestion that [X] could skip these activities on occasions so as to spend time with his father.  The father can take [X] to swimming and other activities.

13. The mother also had to concede that the father had not breached the orders not to drink alcohol.  There is no evidence that he ever turned up intoxicated to spend time with [X] she conceded that that risk issue has been dealt with then somewhat tellingly what she did say was “those thoughts in my head that it could still happen.… But I have to rationalise that in my head, and it takes time.” That shows an insight on the mother’s part that some of her anxious thoughts are not rational and that does not make the feelings that stir up in her any less real. This is something that Ms W is helping the mother with.

14. The mother also conceded that the father has not sent any threatening or abusive texts or emails and has not attended her home or anywhere she has been and caused any mischief. She conceded that she has not received any abusive and threatening messages in the past two years but that still does not reassure her that he has changed.

15. She did not agree that the violence that occurred during her relationship with the father was fuelled by alcohol. She agreed that it was a lot of the time but not all the time.

16. The mother also conceded that the father is in a happy relationship and that he is a much safer person to be around [X] than he was at the time of separation. The mother is still concerned that the father may become unsafe particularly if his relationship with Ms M ends.

17. The mother also conceded that the breastfeeding is now about comfort and not nourishment for [X].

18. The mother rejected the contention that she has difficulties establishing boundaries between herself and [X]. I think this is a relevant concern and is something which should be explored by the mother’s and [X]’s therapists given the lack of a bed time routine, the fact that the mother and [X] share a bed and the number of comfort feeds [X] demands, particularly during the night.

19. The mother complains that the father pressures [X]. She was not able to explain how and conceded that “I guess he probably doesn’t then”.

20. The mother also conceded that her comments to the family report writer about being notionally open to the concept of [X] having a relationship with his father was not enthusiastic. The mother said that aside from her irrational fear, it is important for [X] and the father to have a relationship. The mother said that the therapy with Ms W was helping her address her anxiety and fears. I accept her evidence that she is committed to her therapy. I also accept that she will struggle to be able to financially afford to see Ms W on a weekly basis. The mother has been paying for half of the Nanny SA costs which is roughly $137 each fortnight.

21. The mother’s position of stressing the importance of [X] having a routine and the level of [X]’s anxiety as reported by the mother is inconsistent with the mother’s actions in taking [X] on holidays for three weeks at a time, having sleepovers with [X] at her boyfriend’s home, introducing [X] to two men before establishing that those relationships were serious, whilst at the same time criticising the father for bringing his partner to visit and leaving [X] for several hours each week.

22. I have some concerns about the inconsistencies in the mother’s evidence with respect to [X]’s anxiety. In my view this reflects the mother’s negativity towards the father.

Ms W

1. Ms W is treating the mother. She did not provide a report but she gave oral evidence which was very helpful to the Court and hopefully the parties as well. She is an experienced psychologist and by the time of the hearing had seen the mother on eight occasions. She administered psychological tests to the mother when she first saw her and assessed the mother as having significant anxiety and fear in regard to the previous experiences of domestic violence and to residual fear of future possibilities. During her evidence she explained the difference between anxiety and fear being that she has a fear because it happened and she has an anxiety at the possibility of it happening again. She referred to someone as processing fear without rational thought or rational evidence about something then it becomes anxiety that manifests in physical symptoms and the way people try to manage that control is to control the surroundings. The prescriptive nature of the orders the mother seeks with respect to the father is certainly consistent with this and consistent with the mother’s desire to control as much as she possibly can with respect to [X]’s interactions with his father. Part of the work that she is doing with the mother is working on cognitive and behavioural therapy to manage that thought process. She also uses exposure therapy and schema therapy.

1. Ms W says that progress has been slow because of the level of the mother’s distress and anxiety but she is making progress. She also said that the mother is dedicated to the process.  Ms W gave evidence that she is mindful of people telling her what she wants to hear but also aware of the need not to push people too far too fast.  This makes sense.

2. Ms W gave evidence that it would be more advantageous that progress would be made more quickly if she had weekly sessions with her when she is limited by the mental health plan which allows for 10 visits per year. She accepted the proposition that there may be a connection between the child with anxiety and the mother with anxiety but pointed out that she has not assessed [X].

3. With respect to breastfeeding the preference would be that the child is taught other comfort methods rather than comfort breastfeeding through the night for both child and the mother’s welfare but that it is not possible to stop that suddenly. She said that if [X] has anxiety (noting that she has not assessed [X]) then she would expect that would be pervasive in that he would feel that anxiety at different times of the day not just at the time of whatever triggers his anxiety and that if he finds comfort in breastfeeding that is the first thing that he would turn to.

4. She said that if she was treating [X]’s separation anxiety she should produce gradual exposure using behavioural techniques and some emotional techniques.  Whilst not letting the child become too distressed allowing the child to experience some distress that enables the child to learn that they can recover from that stress.  This is slow work that needs persistence. She believes that the mother can do that. With respect to not being able to get [X] to bed at night she submits the mother’s self-esteem and resilience are quite low because of her experiences but thinks that she will be able to build up good abilities to be able to address these issues. The weekly visits would be beneficial for the mother and would have a flow on effect on [X].

5. She also said that she thought it would assist the mother to feel more confident in the father and confident in [X]’s safety if the father did undergo some treatment to deal with violence.

6. The evidence about [X] staying up until ten or eleven at night and falling asleep on the couch with the mother or another member of the family suggests that he is very attached to the people caring for him but is concerning in the sense that it is late for a child but is also behaviour that is consistent with a child with anxiety. She said in her clinical experience of it not being out of the ordinary that that does not mean that it is healthy or beneficial.  It is unusual for a child of two years and nine months to wake up and be breastfed four to six times a night. It is also potentially unhealthy for [X] as it is disrupting his sleep.

7. It was put to Ms W that the mother has difficulty resisting [X]’s demand for breastfeeding that while she tries and distracts him, when that doesn’t work she gives into [X] rather than setting appropriate boundaries.  She accepted the evidence that [X] has been comfortable in coping with things like the holidays in Queensland is reflective of [X] coping because the mother is comfortable in those situations [X] picks up on his mother’s feelings.

8. The fact that [X] is experiencing anxiety before and after visits with the father, but during those visits the child has not been anxious and enjoyed them, it is possible that the anxiety he experiences is because of the mother’s anxiety surrounding those visits.

9. She made it clear that [X] is also experiencing his own anxiety too and therapy would be beneficial for him to have exposure to new situations and to start learning how to regulate his emotions.

10. Quite properly in my view, Ms W would not concede that [X] is only experiencing his mother’s anxiety. She also said that it is normal for a young child to experience anxiety when separating.

11. Ms W’s notes reflect that the mother was trying to present as not being anxious and as being a good mum. That is not surprising. That may be why in part Ms O did not pick up on the mother’s anxiety.

12. She noted on one occasion that [X] played in the waiting room with his grandmother, whilst the mother was in the session with her, happily for 50 minutes. She noted that his mother breastfed him on demand as soon as she came out of the session. Ms W interpreted that as [X] wanted to reattach to his mother. She noted this was early in the treatment. The mother would have seen this as being a good mum, not upsetting [X].

13. Ms W noted that the mother’s anxiety increased quite markedly when the father’s time with [X] increased from two hours to three hours.

14. Ms Ross cross-examined Ms W about some of her session notes. She records the mother telling her that the father doesn’t believe her that she tells the child psychologist what to do.  The mother has reported her experience of the father being controlling and her fear that he is still controlling and that as a consequence of that [X] will not be looked out for. The mother is worried that the father will not believe that [X] needs medication. It is important that the father takes knowledge of these concerns. I accept that the mother genuinely feels this way. The issue is not simply whether or not objectively she has reason to still have these concerns clearly the concerns are real and she has benefited from seeing Ms W and will further benefit from regular treatment. It is one reason why it is important for the father to give serious consideration as to whether he can provide some assistance to the mother financially for her to be able to see Ms W as frequently as possible as both he and [X] will benefit from that.

15. Ms W said that in her opinion the mother is not at a stage where she can communicate effectively to the father about [X]’s well-being and treatment. She recommended that the parties use a communication book that goes back and forth with [X].  She said this was preferable to emails because the communication book is a bit more precise because it takes effort to write in it and people tend to be more thoughtful whereas emails can be sent in the heat of the moment and not retrieved. She did not think the father or the mother would be able to manage face-to-face handovers with the father at this stage. She further said that until the mother is able to deal with her emotions and fully understand them, being face-to-face with the father could be a trauma trigger and that may hinder the therapeutic process.

The family consultant

1. The family consultant prepared his first report when [X] was one year and nine months old. The family consultant observed that the father was child focused and also impressed as being “dogmatic and overbearing”.

2. The family consultant records at paragraph 25 that the father told him that he “had a history of being a bit aggro”.  The father acknowledged that alcohol had featured in his relationship with the mother.

3. The mother said that during their relationship the father would become angry with her for no particular reason that alcohol was not always the trigger.  Work pressures also featured. She raised concerns about the father holding the baby while he was intoxicated and unsteady on his feet.  He also tried to feed [X] a sandwich when he was 3 ½ months old and had not yet tried pureed food.  The father says he was just getting [X] to smell it.  The mother said the father refused to take feedback from her, from experts and that he has a general view that he knows what is right regardless of professional opinion.

4. The mother said she believed the father was well-intentioned regarding [X] and that she wanted a relationship to exist between them but she wanted safety measures in place.

5. When the family consultant observed the father with [X], [X] had not seen his father for eleven months. [X] was able to separate from the maternal grandmother and engage with the father and the father interacted with [X] in a child focused appropriate way.

6. The family consultant noted that because the relationship ended when [X] was four months old the attachment process with his father was disrupted. The mother had acted with safety issues in mind. He noted that the separation anxiety displayed by [X] at the contact centre when he was 11 months old was age appropriate.

7. The main risk factors he identified was the father’s history with alcohol and violence and an associated risk factor was the father’s lack of acceptance of professional opinion. He noted that the father had minimised the risk to [X] of holding him and stumbling when the father had too much to drink. He also referred to the father’s texts and threats. The family consultant says the mother’s concerns on the balance of probabilities as being legitimate and he supported supervision to continue on to when the child was three and a half if not older.

8. The family consultant recommended that the father complete a parenting course before starting to spend unsupervised time. The father has completed a parenting course.

9. By the time the second report was prepared [X] was two years and one month old. There had been difficulties with spend time arrangements. It is clear that by this stage the issue of [X]’s separation anxiety had emerged. The father told the family consultant that he wanted to have four consecutive days with [X] to build momentum and thought that even if [X] was unwell he should spend time with him so that he could play a comforting role and give the message to [X] the father is a protective person. At paragraph 24 the mother told the consultant that [X] becomes highly anxious in various situations and took 8 to 12 months for [X] to be comfortable with the extended family he was living with. She also said that since [X] started spending time with the father he did not easily separate from her. She said that [X] got on well with her new partner and coped well with the sleeping over at his place.  The mother noted that the key was to not pressure [X] which is what she thought the father did.

10. The mother raised various other concerns about the father including that the father bought bunk beds and that the father might leave knives lying around.

11. The observation session between [X] and the father went well with [X] not showing any anxiety.

12. The family report writer identifies that there appeared to be a co-dependent dynamic between the mother and child where [X]’s separation anxiety and the mother’s acquiescence by frequent and regular breastfeeding and comforting.  He further noted that [X] had been living with the maternal family for several months he should be able to tolerate greater level of separation than he was.  He also thought that the mother was hyper-vigilant and she needs counselling targeted at this because if it goes unchecked it could impact on [X]’s emotional self-regulation.

13. The family consultant observed that [X] separated well from the mother and was happy in his father’s care and showed “a measure of tolerance regarding change.” He noted that the reports from the contact centre and Nannies SA also supported this.

14. At paragraph 57 the family consultant said the following:

    “Ms Houli maintains the child needs structure and routine due to the deleterious effects from time spending with the father. However, she took the child interstate on holiday and in the process denied the child time with the father, as well as introduced a new man into the child’s life, which includes sleepovers. This seems to be incongruent and her reluctance to have the child spend current levels of time with the father therefore appears questionable. It is further noted the child has experienced multiple changes in persons facilitating handovers, which would be distressing for any child in similar circumstances. A stable consistent person would be ideal.”

    This is significant.

15. The third family report was released on 3 November 2014. [X] was distressed and crying for his mother at the beginning of the observation session with his father but his father was able to settle him within 2 minutes and engaged with him in child-focused play for the next hour.

16. Both the mother and the maternal grandmother told the report writer that it was damaging to [X]’s mental health to force him to spend time with his father beyond what he is comfortable with. The mother referred to the importance of routine for [X] and how the father’s roster disrupts that. 

17. At paragraphs 29 and 30 the family consultant said:

    The report writer remains concerned that the opportunities denied to the child to have an ongoing and meaningful relationship with Mr Oster are an overreaction to the anxiety experienced by the child, which appears to be generalized.

    If the Court accepts the feedback from Nannies SA that time spending generally has been positive over a sustained period of time as well as the observations of the report writer, then a strong argument exists for the continuation of relationship building between the child and Mr Oster.

18. The family consultant clarified at cross-examination that instead of using the word “generalised” in paragraph 29 he could have used the word separation. He expressed the view that both the mother and Ms O have overreacted. The mother has been influenced by the professional psychologist. He then went on to critique the reports where Ms O refers to increased cortisol levels during pregnancy due to exposure to trauma. The research in this respect was in relation to children exposed to extreme trauma such as during times of war which is very different to the experiences the mother had when she was pregnant. Unfortunately her experience is fairly common in matters before this court. That is not to diminish her experience.  I agree with the family consultant’s observations.

19. The family consultant has had the benefit of seeing the parties and [X] on three separate occasions over a period of time. He noted that on each occasion the father impressed as being child focused. At times he was frustrated about the slow progress and supervision. The father’s frustration is entirely understandable. What is significant is that the father has focused on [X] and how to progress his time with him.

20. The family consultant expressed the view that it was much more to be gained for [X] if the father has a front and centre role in terms of his relationship with him rather than the father being off to the side and having the issue of [X]’s anxiety addressed first.

21. The family consultant commented that he did not think the supervision is necessary for [X]’s sake but could allay the mother’s anxiety.

22. The consultant said that [X]’s time with his father could easily double to six hours at a time in the next three to six months. He also saw no difficulty with the geographical radius being extended as it will provide fresh experience.

23. He was more cautious about the move to overnight time, preferring the option of the parties engaging him in a private capacity to undertake such a report where he would conduct a home visit at the father’s home and observe [X] there.

24. The family consultant supports an increase to four hours straight away. The issue is not just how [X] will cope with further increases but how the mother will as well.

25. The family consultant was cross-examined. He was not convinced that [X]’s anxiety is entirely due to the mother given the family history of anxiety.

26. One of the difficult issues in this case is the balancing act of managing the mother’s and [X]’s anxiety and ensuring that [X] has the benefit of a meaningful relationship with his father.  The difficulty with the approach of waiting for the mother to overcome her issues of anxiety is that she may never adequately deal with these issues. There are real benefits to [X] in spending more time with his father and learning to cope with different environments.

27. He does not agree with the idea that the time needs to be guided by [X]. The problem with the concept of being guided by [X] is that he is a young boy and the parents have very different views about what his needs are.

Injunctions sought by the parties

1. The mother seeks several injunctions against the father:

   That the father be restrained and injunctions be granted restraining the father from:

   a) smoking cigarettes, marijuana or allowing any other person to do so in the vicinity of the child;

   b) feeding the child any cheese, cream, cakes, biscuits, dips or drinks containing milk proteins;

   c) attending on or remaining within 100 metres of the residence or workplace of the mother or allowing his partner, or any member of his family, to do so;

   d) approaching the mother, her partner, or any other member of her family at any location, or allowing his partner or any member of his family to do so, save and except for the purposes of handover as otherwise ordered;

   e) other than by email or through the communication book, telephoning or forwarding text messages, or otherwise communicating with or contacting the mother or her partner, or allowing his partner or any member of his family to do so, save and except in accordance with the terms of this Order;

   f) denigrating the mother, her partner or any member of her family to or in the presence of the child or allowing any other person to do so;

   g) discussing any aspect of these proceedings, or matters pertaining to child support with or in the presence of the child or allowing any other person to do so;

   h) attending at [X]’s school and educational institution other than in his time and only to functions to which parents are ordinarily invited;

   i) approaching the child at any sports events, school events or extra-curricular activity in the mother’s time;

   j) allowing the child to undergo any elective surgery or surgical procedure without the prior written consent of the mother.

   That the father do ensure that:

   a) the child is administered all medication that is required or prescribed by his medical practitioners;

   b) he follows the advice of all medical recommendations made by the child’s medical practitioner.

2. Father’s injunction sought:

   That the mother be restrained and an injunction is hereby granted restraining her from engaging the child in further counselling with Ms O or any other counsellor or therapist without the prior written consent of the father.

   An order restraining the mother from taking [X] to see Ms O is justified based on the evidence.

3. The Court does not make injunctions lightly as they restrict the person’s freedom of movement. Section 68B of the Family Law Act 1975 deals with injunctions in relation to children. Section 68B(1)(c) empowers the court to grant an injunction restraining a person from entering all places in the case of education or a child’s school. The injunction may be made on an interlocutory or permanent basis in any case where it appears to the Court to be just or convenient: section 68B(2).

4. In this instance the injunctions being sought by the mother are long term.

5. Some of the injunctions the mother seeks attempt to micromanage the parenting arrangement.  Others have commented on this problem, for example in Nash & Reis [2013] FMCAfam 11 and Scott & Kent [2013] FCCA 127. They would be difficult to enforce. When making orders the Court must be mindful about the enforceability of such orders. It would be undesirable for there to be Contravention Applications about these types of orders and it would be very difficult to establish and would lead to further conflict between the parents.

6. There is no evidence before the court which would justify the injunctions sought at (b) to (e) and (g) to (j). Since mid-2012 and the intervention order that was taken out to protect the mother, the father has not approached the mother or her family inappropriately. There is no evidence to support restricting the father from attending school or other activities for [X].

7. There is some justification for the mother’s concerns about the father following the advice of medical professionals and giving [X] medication. However the father did give evidence that he followed the requests the mother made about not giving [X] certain foods as he may be allergic to those foods. This is different to the father’s choice to give [X] treats. Given the limited time he has spent with [X] it is not unreasonable for the father to want to treat [X] to a pasty. The mother cannot control everything the father does with [X]. She should take comfort from the numerous positive reports of the father’s interactions with [X].  The father is going to receive counselling and is on notice that he needs to consult with the experts involved with [X].

The law and its application to the facts of this case

1. The current proceedings were commenced by the father on 28 August 2013. Consequently the amendments made to the Family Law Act 1975 by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 apply. This is significant because it means the expanded family violence definitions apply to this case.

2. In cases about children under Part VII of the Family Law Act 1975 the Court must regard the best interests of the child as the paramount consideration: section 60CA. What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below.

3. There are objects set out in section 60B that help to clarify what Part VII aims to achieve when it talks about best interests: section 60B(1). There are also principles that underlie these statutory objects: section 60B(2).

4. The concept of best interests is explained in section 60CC. The primary considerations are set out in section 60CC(2) and include the benefit to the child of having a meaningful relationship with both parents, and protecting the child from harm arising from abuse, neglect or family violence.

5. There are additional considerations set out in section 60CC(3). These include: the views of the child, the nature of the child’s relationship with the parents and other persons; the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the likely effect of change on the child; issues of practical difficulty and expense associated with contact; the parents’ capacity to provide for the child’s needs; the maturity, sex, lifestyle and background of the child and parents; special considerations if the child is of Aboriginal or Torres Strait Islander culture; attitudes to the child and to the responsibilities of parenthood; family violence or family violence order; issues of finality; and any other fact or circumstance that the court thinks relevant.

6. At the core of Part VII of the Act is a presumption of equal shared parental responsibility. Thus section 61DA creates a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. This presumption may be negated in certain circumstances (section 61DA(2)), or rebutted (section 61DA(4)).

7. If the presumption applies, the court is required to consider certain time arrangements as between parents and children: section 65DAA. Thus the court is required to consider equal time, or substantial and significant time, but only if this would be in the best interests of the child, and is reasonably practicable: section 65DAA (1) and (2). Equal time means what it says, and substantial and significant time is explained in section 65DAA(3):

8. Another important concept used in section 65DAA is that of reasonable practicality. That is explained in section 65DAA(5).

Parental responsibility

1. The father seeks an order for equal shared parental responsibility. The ICL supports that order. The mother seeks an order for sole parental responsibility or in the alternative if the Court will not grant a blanket sole parental responsibility order, sole responsibility for medical and educational decisions.

2. I raised with the parties the possibility of making an order for equal shared parental responsibility on a delayed basis of say 12 months to enable the mother to undertake further counselling so that she will be able to communicate with the father. 

3. I have real concerns about giving the mother sole parental responsibility. As Murphy J commented in Lennon & Lennon [2011] FamCA 571 “being a very serious interference with the fundamental rights of person.” [X] is not yet 3. His father will be spending regular periods of time with [X] and it is anticipated that will increase to substantial and significant time including overnights. In those circumstances I am not satisfied that it is in [X]’s best interests to exclude the father from the decision making for major issues concerning [X]’s welfare.

4. I also have some concerns about both parents’ handling of health issues concerning [X]. [X] will benefit from the input of both his parents on these issues. Having said this, I accept that the parents are not currently in a position where they can communicate effectively about this and work together.  Both parents need to do some work on this. For this reason I am going to make an order that the mother have sole parental responsibility for health issues concerning [X] for the next 12 months. That will enable the mother to continue to work with her therapist and for the father to attend counselling.

5. To their credit both parents have agreed to orders, in the mother’s case to continue her counselling and in the father’s case to obtain counselling for anger management and alcohol use.

Relevant section 60CC factors

1. [X] enjoys the benefit of a meaningful relationship with both his parents. The orders I will make will ensure he continues to have the benefit of both his parents’ continuing involvement in his life. Both parents have valuable things to offer him.

2. I am mindful of the findings I have made with respect to family violence. The mother has been affected by family violence by the father. As much as the father would like to forget these aspects of the relationship and his appalling behaviour shortly after the relationship ended he must accept that his conduct has deeply affected the mother and continues to do so.

Comments on the orders I shall make

1. The mother seeks orders that would not allow the father to have care of [X] on Sundays because she takes [X] to church. The father’s roster was tendered and marked as exhibit D. The roster shows that even though it varies the mother will still have several Sundays where the father is unable to nominate that as a day to see [X] because he will be working. In my view given the significant amount of travelling the father has been doing and will continue to do for some months he should be at liberty to nominate a Sunday to spend time with [X] if that best suits him.

2. The mother is also keen to have [X] enrolled in regular activities to help him socialise. The mother made it clear in her evidence that she thought these needed to have priority over the father’s time with [X]. The fact is spending regular time with his father is just as important for [X]’s development. The father’s work roster and the distance between the parties complicate these issues but the parties and the Court must deal with the reality of the parties’ circumstances. It is not always possible to make ideal arrangements. It may be that the father will be able to take [X] to his activities if they occur during the father’s time with [X]. This would be beneficial for the father and [X]. To this end it is important that the mother keep the father informed about these activities.  I am not going to make an order requiring the father to take [X] to all of his activities because the father’s time is limited and that will be a matter for him to decide.

3. The mother seeks an order that the father’s time be suspended for three weeks a year in January so that she can take [X] away on holidays. She has already done this twice despite her concerns about [X]’s anxiety and the need for routine. At [X]’s age I do not think it is in [X]’s best interests to have such a long period where he does not see his father. When [X] is older it should be possible for both parents to take [X] away on holidays.

4. The practical difficulty and expense of the father spending time with [X] is a real issue in this case. The father has travelled two and a half hours each way to visit [X] at [M].  A two and a half hour drive as years of very long time for a child as young as [X] to be in a car. Realistically until the father is spending longer periods of time with [X], the father will need to continue to undertake the level of travel he currently does. Once [X] is spending longer periods with his father it will be important that [X] is able to spend time with his father at the father’s home which will be a far more natural environment. The mother will need to share in the travel. This will involve cost to her due to the fuel but there are no circumstances in this case justifying the father continuing to carry the sole burden of travel once his time with [X] increases.

5. I do not have concerns generally about either parent’s capacity to provide for [X]’s needs other than what I have previously discussed.  The orders will enable [X] to continue to have his relationships with the extended maternal family and also develop relationships with the father’s extended family.

6. I have made orders which deals with the father’s time into the future including once [X] starts school. I have included these orders so that there is something in place for the parties in the event neither one of them commences further proceedings. I acknowledge that either party may commence further proceedings because of [X]’s young age, his anxiety and the issues that have arisen in this case. Nonetheless I think it is important that the parties have an end to these current proceedings which have been stressful for both. Making interim orders or orders which only address the next couple of years is only likely to increase the parties’ stress and would not be in [X]’s best interests.

Conclusion

1. I have considered all of the written and oral evidence and the written and oral submissions. It is not necessary for me to discuss every issue raised.

2. I have to look at the difficulties I have in accepting parts of both parents evidence.  What is clear is that both parents love [X] dearly and want what is best for him.

3. I accept that [X] has some separation anxiety and that this is his own anxiety.  However I also find, based on the evidence I have referred to earlier that the mother has significant anxiety of her own and that this anxiety significantly compounds [X]’s anxiety.

4. It is a positive thing that the mother is committed to her therapy with Ms W.  She has made progress but she knows that she has further work to do.

5. The orders I am making seek to strike a balance, giving the mother some opportunity to engage in further work with Ms W before having to consult with the father on health and education issues.  The father will also be engaging in his own counselling which will also help with their communication.

6. I am not satisfied that the evidence establishes that there needs to be a further intervention before the father’s time progresses to overnight time in several months’ time.  That is more likely to lead to further litigation.  I am not satisfied that it is in [X]’s best interests for the progression to be as slow as the mother advocates or as quickly as the father advocates.  I have largely adopted the ICL’s position which strikes a balance between the competing considerations of enabling the mother to further address her anxiety establishing appropriate boundaries with [X] and giving [X] the opportunity to further develop and strengthen his relationship with his father.

I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  25 February 2015