Parkin and Sykes
[2012] FamCA 187
•29 March 2012
FAMILY COURT OF AUSTRALIA
| PARKIN & SYKES | [2012] FamCA 187 |
| FAMILY LAW – CHILDREN – Parental responsibility – With whom a child lives – Best interests – Allegations of family violence – Supervised time - Parental alienation - Where the parties are unable to cooperate and communicate – Where the mother is unable to support the child in having a meaningful relationship with the father – Where it would be in the best interests for the child to live with the mother and have limited supervised time with the father |
| Family Law Act 1975 (Cth) Part VII, s 60B, s 60CA, s 60CC, s 61B, s 61C, s 61DA, s 61DAA, s 65AA |
| Chappell and Chappell [2008] FamCAFC 143 Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 MRR v GR (2010) 42 Fam LR 531 |
| APPLICANT: | Mr Parkin |
| RESPONDENT: | Ms Sykes |
| INDEPENDENT CHILDREN’S LAWYER: | Frances Neilson |
| FILE NUMBER: | PAC | 1320 | of | 2007 |
| DATE DELIVERED: | 29 March 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 30 & 31 August, 1 & 2 September 2011 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Parkin in person (30 & 31 August 2011) Mr Vassili (1 & 2 September 2011) |
| COUNSEL FOR THE RESPONDENT: | Ms Kennedy |
| SOLICITOR FOR THE RESPONDENT: | Tiyce Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ward |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Frances Neilson Legal Aid NSW |
Orders
The following parenting orders are made in respect of the child X born on … February 2001 (“the child”).
Previous Orders
All previous parenting orders in relation to the child be discharged.
Parental Responsibility
The mother have sole parental responsibility for the child.
Live With
The child shall live with his mother.
Spend Time With
The child shall spend time with his father on four occasions each year, such to occur on the third weekend of February, May, August and November in each year.
For the purposes of the child spending time with his father in accordance with the above order such time shall:
6.1.Occur and be supervised by staff at CW Contact Service;
6.2.Be for a period of not less than two hours on each occasion at times convenient to the CW Contact Service in consultation with each parent;
Each parent shall:
7.1.Contact CW Contact Service within seven days to arrange an Intake Assessment;
7.2.Participate in the assessment as scheduled;
7.3.Comply with any appointments made by CW Contact Centre for supervised time in compliance with these orders; and
7.4.Pay the fees nominated by CW Contact Service for the provision of its services.
In the event that CW Contact Service is unable or unwilling to provide supervision as set out in these orders, then supervision is to be undertaken by T Children’s Contact Service and each parent shall comply with the substance of the provisions of the previous orders in relation to that Service.
Not less than two weeks prior to each period in which X is to spend time with the father, the mother shall provide the father with a written update of X’s progress in Little Athletics, Soccer, Band or any other organised activity that X undertakes. Such letter should also include details of X’s general health and wellbeing.
Specific Issues
The mother shall advise the father and keep him advised of the child’s residential address, school, usual treating general practitioner, any specialist medical practitioner and any counsellor or therapist upon whom he attends.
The mother shall notify the father as soon as reasonably practicable of any significant injury or serious illness suffered by the child.
The father shall be at liberty to obtain from X’s school details regarding X’s progress, including school reports, regardless of any authority the mother may or may not have provided to the relevant school.
The father shall be at liberty to send X cards, photos, letters and gifts and the mother shall ensure that X receives anything sent to him from the father. The mother shall continue to provide the father with current contact details where he may post the items referred to in this order.
The Independent Child Lawyer have leave to release a copy of the Single Expert Reports of Dr B dated 28 August 2011 and 10 January 2011 to X’s counsellor at UNIFAM ….
IT IS NOTED that publication of this judgment by this Court under the pseudonym PARKIN & SYKES has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 1320 of 2007
| Mr Parkin |
Applicant
And
| Ms Sykes |
Respondent
And
| Legal Aid NSW |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The parties in these proceedings are Mr Parkin and Ms Sykes. For convenience I shall refer to them as “the father” and “the mother”. They have one child X (“the child”) born in February 2001 and who is therefore 11 years of age.
When his parents separated in 2002/2003 the child was approximately 2 years of age. Initially, after separation, he spent some time with his father during daytime and there was some overnight time. But in 2004 his mother stopped the child’s time with his father.
The father filed an application for certain parenting orders in a Local Court. This commenced a course of litigation in various courts which has continued to the present time with very harmful consequences for X.
There have been two final hearings of the parenting dispute. So this hearing makes the third time that this Court has been called on to make final parenting orders.
In addition, there have been longstanding proceedings in the Federal Magistrates Court in relation to the parties’ child support dispute. I understand those proceedings were completed recently. There have also been proceedings involving the parties in the Local Court in relation to an application for an Apprehended Violence Order.
The parents, and most regrettably the child, are exhausted by the litigation.
Applications
The father sought orders on an alternative basis. He indicated that his preferred outcome would be for the child to live with each of his parents on virtually an equal basis.
The first proposal would involve a change of residence so that the child would live with his father for a period of three months at the end of which there would be an assessment by Dr B, the court expert, and if the assessment indicated that the mother would be able to commit to an equal shared parenting arrangement then the parties would put that in place at that time. Or the Court would make orders as it saw fit. During the three month period for an initial period there would be no time between X and his mother in order to enable him to settle in the father’s care. Some telephone calls might be appropriate during that period.
An alternative proposal by the father was that the child live with him and spend such time with the mother as the Court might determine.
The final alternative proposal by the father was as follows:
·The father have sole parental responsibility for the child and the child live with him;
·Dr B interview the child as soon as possible after the change of residence to review any issues which the child might need assistance with including recommendations for the child or father to attend a course or counselling;
·The mother would be restrained from contacting or approaching the child for at least six months;
·The mother be restrained from entering either R suburb or the suburb of the child’s school;
·The mother continue her treatment with Dr K;
·After 12 months Dr B assess the mother and make a determination about the mother’s psychological state and whether she ought to be precluded from spending time with the child; and
·Provided Dr B assessed it as being appropriate that the mother spend time with the child, she spend time with him for 6 hours each second month, supervised either by a contact centre or an adult person approved by the Independent Child Lawyer (“the ICL”).
The ICL proposed that orders be made to the following effect:
·That the mother have sole parental responsibility for X and that the child continue to live with his mother;
·Until 2014 the child spend time with his father on four occasions each year at specified times, supervised at the CW Contact Service and for a period of not less that 2 hours on each occasion;
·That the father be at liberty to obtain school reports and other information from the school;
·That two weeks prior to the times to be spent by the child with his father the mother provide a progress report to the father about the child’s progress with his extra-curricular activities and also concerning his general health and well-being; and
·That the father be at liberty to send cards, photos, letters and gifts to the child and the mother facilitate this process.
The mother would consent to the orders as sought by the ICL.
Background
The father, 57 years of age and the mother, 50 years of age commenced a relationship in 1999. They never formally cohabited.
As indicated above, in February 2001, the child X was born.
In late 2001, the mother said that the father hit the child and that he was distressed. She started to reduce the child’s visits to the father’s home from this time.
In February 2002, the mother returned to paid employment and the child started attending day care. At approximately this time, the mother said that the father grabbed the child around his neck, leaving bruising.
In mid 2002, the father said that the parties separated. But the mother said that this occurred in mid 2003.
Following separation, the child remained living with his mother and had periods of daytime and overnight time with his father.
In November 2003, the mother said that the child was complaining of stomach pains and that the pains became more severe in early 2004.
In early 2004, the child began to develop a stutter.
On 3 February 2004, the mother took X to see paediatrician, Dr C, about his stomach pain.
In February 2004, the mother married a man called N. The marriage lasted only a very short time, then they separated.
In late February 2004, the mother terminated overnight contact between the child and his father.
In March 2004, the mother and the child moved in with the child’s maternal grandmother.
On 3 November 2004, orders were made ex parte in the Local Court, … restraining the mother from removing the child from Australia.
On 14 January 2005, the father filed an Application seeking final parenting orders.
On 10 February 2005, interim parenting orders were made providing for the father to have supervised time with the child each Saturday.
On 29 March 2005, further interim parenting orders were made providing that the father have unsupervised contact with the child each Monday and on each alternate Wednesday and Saturday.
In April 2005, the mother said that the child complained to her that his father had hurt the child’s back.
On 24 November 2005, the mother said that the child complained that his father had hurt him, and pointed to his knee. He also said that his father was angry towards him, scratched him and punched him.
On 25 November 2005, the child was interviewed by case workers from the Department of Community Services (“the DoCS”).
On 15 December 2005, Collier J made an interim order that the father spend time with the child each Monday from 9:30 am until 4:30 pm, supervised by his paternal grandmother.
On 16 December 2005, the DoCS completed their assessment. The allegations of child abuse were unable to be substantiated.
On 22 March 2006, Flohm J made final parenting orders to the following effect:
-That the child live with his mother and
-That he spend time with his father on a specified graduating basis then each alternate weekend from after school Friday until commencement of school Monday, half school holidays and certain special occasions.
In November 2006, proceedings were again commenced in this Court following the mother stopping the father’s overnight time with the child.
Dr B was appointed as Court expert. He recommended that there be a change in the child’s primary residence from mother to father with frequent regular time between the child and his mother. His reasons for this were on the basis that the previous orders had failed because the mother had been too anxious to permit the child to have adequate time with his father.
Despite this recommendation, on 21 August 2008 the parties agreed to the making of final orders by consent. Stevenson J made such orders which provided for the child to continue to live with his mother and spend time with his father during school terms on a fortnightly basis from Friday to Monday in one week and then from Wednesday to Thursday in the other week, for one half of each mid term school holiday period and for a specified block of time during the Christmas school holiday period.
In early 2010 the mother made various allegations about the father’s behaviour towards the child. These included leaving him unsupervised in the father’s home and hitting him on the head. The mother also alleged that the child had been hitting his head against the wall, punching himself in the head and banging his head against a chair.
On 9 June 2010, the child spent time with his father. This was the last occasion that the child spent time with his father pursuant to the orders made in 2008.
On 20 June 2010, the mother notified the father, by letter, of her intention to suspend the child’s time with him.
On 29 June 2010, the mother made a statement to the police in relation to the alleged abuse of the child by his father.
On 28 July 2010, an incident occurred at the child’s school. I shall refer to this in more detail below.
On 30 August 2010, the child was interviewed by officers of the Joint Investigative Response Team (“JIRT”).
On 5 October 2010, Loughnan J made interim orders in effect suspending the orders made on 21 August 2008 insofar as they provided for the child and his father to spend time or communicate except as agreed between the parents and the ICL. The orders also included an order appointing Dr B as Court expert.
On 26 October 2010, the father filed an Initiating Application seeking orders that the child live with him and spend time with his mother as determined by the Court.
On 10 January 2011, Dr B finalised his report and this was released to the parties on 8 February 2011.
The proceedings were listed for final hearing in May 2011. But on 23 May 2011 I stood over the hearing to 30 August 2011 and made an order for Dr B to prepare an addendum to his report.
Credit
The father
The father conducted himself in an impressive manner at the hearing. He answered questions in a responsive manner. He was able to make concessions.
I had no sense that the father either embellished or minimised his evidence. I regard him as a witness of the truth.
The mother
On the other hand, I did not regard the mother as always being responsive in her answers to questions during cross-examination. On numerous occasions she gave me the impression that she was under some pressure to say things which she probably perceived would favour her case.
The mother seemed to have an unrealistic confidence about the truth and accuracy of every statement conveyed to her by the child. She did not seem capable of seeing that things might be relayed to her by him in a completely different context from that in which they had occurred.
I do not regard the mother as an untruthful witness. But, in my view, one must be guarded about interpreting literally many things which the mother said that the child had said to her.
The Mother’s Allegations
The mother described a range of behaviours exhibited by the child that she said have occurred as a reaction by him to spending time with his father. The mother also made numerous allegations about complaints made to her by the child about mistreatment of him by his father.
Following the first hearing in 2006, the mother said that the child placed a rope that was suspended from the top bunk of his bed around his neck. She said that he then began to transfer his weight off his legs to his neck. The mother became concerned and called out “stop”. She said that the child said to her words to the effect of “I want to kill myself so that I don’t have to go overnight to [father’s name]”.
The mother said that she saw the child attempt to hurt himself again on 3 August 2009. She said that he had returned home from his father’s house and told her that he hated going there. He then started to throw himself against the wall. She said that he put a dressing gown tie around his neck and pulled it hard so that his face and eyes were red and he was choking. She said the child then said “I don’t deserve to live”. The mother said that she responded to this by taking the tie from around his neck, hugging him and telling him that she loved him.
In late August 2009, the mother said that the child returned to her in a very distressed state. She said that the child had been crying and that he told her that his father would not allow him to see her for her birthday. He asked the mother to speak to his Unifam counsellor about this. The mother said that she decided not to file a contravention application at this time because she thought it would anger the father and put the child at risk of harm whilst in the father’s care.
In the 2008/2009 season of Little Athletics, the mother said that the child was the only child in his age group to receive a bronze medal (the lowest award) and that this was as a result of his non attendance on the Saturdays that he spent with his father. She said that the child cried and asked her why he had to be the different child. She explained to him that medals were based on attendance and performance.
The child told his mother on 6 January 2010 that his father had left him at home alone and that the house alarm went off. The child said that he was scared and thought that the police would come to the home and think he was a thief. The father had told the child to stay inside but, because the noise was hurting his ears, he had to go outside. He said that he tried to call the father, but that there was no answer and that when the father returned home, he was angry at the child for going outside.
The mother said that on 14 January 2010, she had a conversation with the child about his father hitting him. She said that the child told her that the father whacked him on his head with a newspaper, that it really hurt and “no one did anything”. The mother said that she told the child that no one was allowed to hit him. The child demonstrated the hitting action by gently smacking himself on the head and said that his father does it harder and that it really hurts. On 18 January 2010, the mother said that the child again told her that his father hit him on the head and hit him at Uncle P’s.
The mother said that when the child was returned to her care at 5.00 pm on 25 January 2010, he got into the car and said to her “I’m so hungry, I only had a piece of weetbix and vegemite this morning and nothing else all day. Can you get me something to eat Mum?” His mother then suggested they go to McDonald’s or Kentucky. The child said he wanted Red Rooster, so they went there.
The mother said that she had observed the child often becoming upset and breathing heavily and rapidly prior to his time with his father.
The mother said that after school on the afternoon of 8 February 2010, the child told her that he had been “really brave” in asking his father to swap days for his birthday so that he could spend the day with her. The mother sent a text message to the father asking if the child could spend his birthday afternoon with her. When the child asked her whether the father had agreed to switch days, the mother said she had not yet heard. The mother said that the child then proceeded to bang his head against a chair and then against the wall. Later that evening, the mother received a voicemail message from the father saying that he did not want to swap times on the child’s birthday. When the mother told the child about this, she said he began to bang his head on the metal post in the driveway. He then said “I don’t want to celebrate my birthday again”.
On 15 February 2010, the child attended Unifam for counselling. The mother said that later that day, she saw the child hitting his head in the kitchen. When she asked him why he was doing this, the child responded that his dad had hit him on the head and that he was frustrated. Later that evening, the mother said that she saw the child hit his head against the wall next to the bedroom door and thrash around in his bed. She said that he also complained of headaches.
The mother said that the child complained to her on 8 March 2010 that his father did not allow him to practise the drums. She said that he said to her “He said stop it. Mum, I can’t read and I can’t practise my drums when I am there. I hate it. I hate my Dad so much. If he would die I would not go to his funeral. I would not even be sad.”
The mother said that upon returning home, the child started to water the garden as part of a homework project. She said that he hurt his hand on one of the plants and then wet himself with the hose. The mother said he was drenched. When she asked him to come inside, he stripped off his clothes and flung them at her. She said she found this behaviour unusual. The mother said that later that day she saw the child throw himself around his bed. He began to cry and roll from side to side. She then saw him punch and smack his head and slap his face. She attempted to hold his hands but he struggled free and hit himself repeatedly. The mother asked the child how he sleeps at his father’s house. He told her “Mum, I just lie there straight like this. Then I slip into madness.”
The mother said that when she picked the child up from school on 15 March 2010 he again complained of his father hitting him on the head. This was following a weekend the child had spent at his father’s home.
On 20 March 2010, the mother said that the child told her he hated his life. She asked him why life was so bad. He responded “I hate my life with my dad and I love my life with you. I wish I did not have to see my dad”.
The mother alleged that an incident occurred in April 2010 whilst she and the child were driving on O Road. Coincidently, the father was driving behind them and stopped next to the mother’s car. The child said to her “Mum, Dad is there. Can we go?” She told him not to worry. The father then beeped his horn. The mother said they locked their doors and the child said to her “Mum, please can we get off this road. I don’t like it”. She said that she saw a worried expression on the child’s face and turned off the road.
On 9 May 2010, the mother said that the father asked the child about the incident. The mother said that the child told her that he was really scared and that he had to tell his father the truth. His father said that the child was not in trouble but that the mother was in big trouble. The child told her he was worried the father would hurt her, and he was scared.
The mother said that on 20 April 2010, the child said to her “I nearly like being hit by my dad because it means that I will be with you the next weekend”.
On 22 April 2010, the child participated in a school cross country race. The mother said that he experienced breathing difficulties and chest pain after the race. The mother took him to see Dr Y and said that the doctor concluded that the child had anxiety. He was given breathing exercises to do at home.
The mother said that the next day, 23 April 2010, the child was distressed about seeing his dad that weekend. She said that he was crying in the morning and said “I don’t want to see my dad”. The mother tried to calm him down. She said she was later called to the child’s school because he was very upset. When she arrived at the school, the child again said to her “I don’t want to go to my dad’s.” The mother said she told the child she would see him soon and cuddled him but that it was very upsetting to see the child like that.
On 5 May 2010, the mother took the child to see his general medical practitioner, Dr M. She said that Dr M asked the child what he would wish for if he had three wishes. The child replied “I wish my dad was dead, that my Mum would get another dad and remarry and that my dad had never been born”.
The mother said that on Monday 7 June 2010, she picked the child up from school after he had spent the weekend with his father. She said that he told her that his father hit him on the head again a few times. She said the child also told her “He did not give me any blankets. I said that I was cold and he said no you have enough. Mum, I was freezing cold and he made me sleep in a certain position, I wasn’t allowed to move. I felt like I had a cold in the morning”. The mother said that later that day, the child was complaining of a headache and a cold. He told her that his father had made him watch a movie and that he was scared because a man’s head was cut off. From her recollection, the mother thought that the movie was Braveheart.
The mother said that, during 2010, the child told her that his father did not let him see or telephone his friends and that his father also did not let him telephone her. He also complained to her that his father did not take him to Little Athletics or allow him to watch television. She said that the child told her “Mum it is like hell at my Dad’s and like heaven with you”.
On 28 July 2010, the mother came to collect the child from school. The father also attended the school to collect the child, in accordance with the 2008 orders. She said that when she went into the child’s classroom, the father followed her and that he would not let her or the child leave the room. She said that she called out for help and that the child ran out of the classroom through a gap between his father and the door. The mother screamed and ran after the child to the school office.
The police were called to the school and arrived shortly thereafter. About three hours later, the mother left the school and took the child home with her. She said that the child said to her the next day “Mum, I don’t want to go to the same school anymore”. She said that she promised the child that she would pick him up at the end of the day.
I do not propose to deal with every one of these allegations.
But in relation to the mother’s allegations that the child has said to her on numerous occasions that his father had hit him, I accept that it is more probable than not that the child has said this.
The father denied that he has hit the child in anger or in any forceful or violent manner. He said that he has touched the child on the head and ruffled his hair. The father conceded that on one occasion he hit the child lightly with a newspaper but that this was in a playful way.
The mother was not able to offer any direct evidence of the father hitting the child. And Dr B thought it unlikely that the father had hit the child. Dr B raised this matter with the child and thought it unlikely that the father had been violent to the child. And the authorities have not been satisfied that there was evidence of any violence by the father against the child.
In all the circumstances I am unable to find that the father has hit the child in a manner other than one which has involved some light touching.
In relation to those of the above matters which involve allegations that the father might have neglected the child, such as that he did not provide sufficient food or bed clothing for the child, I am unpersuaded that a literal interpretation of what the child was alleged to have said about these matters is appropriate. In my view, it is more likely than not, that the mother has not brought an appropriate judgment to these statements by the child and has interpreted the child’s complaints without question in her mind in order to support her own belief that the father is a bad parent and in order to support her case.
Many of the above remaining matters will be the subject of discussion below.
The Applicable Law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objectives are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for him. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for his parents to have equal shared parental responsibility for him.
In Chappell and Chappell [2008] FamCAFC 143 the Full Court said as follows:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3) …
Primary Considerations
As indicated above, how the Court is to determine what is in a child’s best interests is set out in s 60CC of the Act. The primary considerations are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I shall return to consider these primary considerations after considering the additional matters in ss 60CC(3) and (4) of the Act.
Additional Considerations – s 60CC(3)
Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child has expressed a very strong wish not to have anything to do with his father. I have referred above to his mother’s allegations in this regard.
Things which the child has said to Dr B include the following:
·“I really hate him”;
·“He tells me to shut up a lot”;
·When asked what he enjoyed with his father the child said “there was nothing good”;
·He was asked about the holidays he said “there was nothing good about the holidays”;
·He was asked about Christmas and how he felt about it, he said “I only got a tool set, it was a little tool box”;
·“I hate my dad …”;
·“I wish never to see dad again …”;
·He was asked about his schooling. He said he enjoyed school but added “last year I had 15 words, now since I haven’t seen dad I’m doing 25 words.”;
·“… I wouldn’t want to see my dad. I never want to see him again.”
Dr B considered the child to be developing well cognitively for his age, but emotionally he had some real concerns. He said that the child appeared to be quite conflicted and stressed, that is that he was caught in a conflicted dynamic between his parents. He said that the child was quite immature and not capable of sophisticated thinking.
In my view, given the complex dynamics involved in this family, one would be guarded about placing significant weight on the child’s views as stated above.
Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Dr B said that the child had a close, loving relationship with his mother. He said that she is the child’s primary attachment figure. He said that he had previously assessed the child as developing well in her care. Dr B said that the child was still developing well in his mother’s care, although Dr B now had some concerns for the child’s mental health.
Dr B said that the emotional level of the mother is very torn and she is fearful of losing the child. He said that unfortunately this fear of losing the child and the mother’s anxiety has had an insidious and continuous effect on him. He said that this anxiety and fear has now translated into the child becoming concerned about the mother in a parentified way. He said that change-over has posed considerable challenge for the child because the child had become very anxious moving from his mother’s home. This is because leaving the home effects his anxiety about leaving her. The child worries about her capacity to cope. So this has become very stressful for the child and he wants the stress to stop. He knows that one way to stop the stress is to complain about what’s happening at his father’s home.
Dr B said that the child and his father had a close, loving relationship which had been progressing extremely well until the Christmas holidays 2009/2010. He said that unfortunately the child had been caught in the conflict between his parents.
Dr B said that at the time of his previous assessment he found that the child had an equally strong relationship with both of his parents with some slightly stronger loyalty to his mother. Dr B said that now he feels that the child is much more protective towards his mother. And that his relationship with his father has deteriorated to the point where it is not a positive relationship.
He also said that there had been a growing, solid relationship between the child and his paternal grandmother and also his paternal aunt and uncle.
Sub-section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
There is no question that the father is able to facilitate a relationship between the child and his mother. The experience is that, without difficulty, he has returned the child to the mother after spending time with him now over a very long time. And there is no evidence that the father has endeavoured in any way to undermine the child’s relationship with his mother.
Dr B said that the father genuinely wants the child to be able to have time with each of his parents.
On the other hand, the mother’s ability to facilitate and encourage a close relationship between the child and his father has been very much in question during the entirety of the period since the parties separated. It appears to be a very complicated matter.
It is clear that there has been a whole pattern of the mother stopping time between the child and his father, then the father taking the matter to Court, the Court making orders, the mother complying for a period, then again stopping the child’s time with the father.
Dr K is the psychiatrist who has been assisting the mother now over more than five years to manage her anxiety. He said that in the context of the mother’s own past traumatic experiences of the father and her associated post-traumatic stress disorder symptoms, it was not surprising that her anxiety was activated and exacerbated when she had to hand over the child to spend time with his father. He said that from time to time this has caused significant anxiety and distress in the mother.
Dr K said that he thought that the mother had made a genuine and earnest effort towards facilitating time between the child and his father. He thought that the mother “came to act constructively to support contact.”. It was not his impression that she had undermined contact, interrogated the child or imposed negative perspectives onto the child. He said that she complied with court-ordered Unifam counselling and took the child to this regularly.
Dr K thought that the mother’s approach to contact was adequate to give opportunity for the development of a close and continuing relationship between the father and the child and that failure of such a relationship to develop was more likely due to factors in the father and the way that he related to the child.
Dr K thought that the mother would be able to continue to follow court orders although he did think that the support from the Unifam counselling had significantly contributed to the mother’s compliance.
On the other hand Dr B, the Court expert, has a different view. He formed an early view at the time of preparation of his report for the proceedings which culminated in the 2008 consent orders, that if the child was to remain primarily resident with his mother, then she would not be able to facilitate a relationship between the child and his father. In his original report Dr B said that for the mother, the idea of sharing the child with his father was very threatening. Dr B also said that he thought the more time the child spent with his father the more threatening it would be for his mother and that the child would be under enormous stress from his mother’s fear of the father in this regard.
Unfortunately Dr B’s original view has proven over time to be correct. I must say I have far less optimism than Dr K that the mother would be able to facilitate orders which required regular supervised time between the child and his father. Experience shows that she has been unable to sustain this.
Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
At an earlier time in the life of the child, Dr B had thought that a transition from his mother’s primary care to that of his father would have been uncomplicated. He thought that the child was young enough, emotionally stable and that he had a good enough relationship with both parents to enable him to be able to cope well enough with such a change.
But the child has remained living with his mother as indicated above, against Dr B’s earlier recommendation. The child has not developed a positive relationship with his father. Accordingly, Dr B now considers that a change of residence from the mother to the father would be too difficult. He said that the child is older and more aware of his mother’s emotional needs and would be likely to be confused by such an outcome. Dr B said that the child has a close attachment and anxious relationship with his mother and his worry about his mother might now be overwhelming for him.
Dr B said that the loss of primary residence with his mother would be profound and would have a substantial impact on the child’s development. He said it would be akin to the death of a parent and would have profound implications. He said that the child would really struggle with his loss.
Dr K thought removal of the child from his mother would make the child very distressed because his mother was his secure base – “he ventures out into the world from her and returns to her”. Dr K said that the child would experience sadness and probably be aggressive. He said that separation from his mother would be likely to be distracting and preoccupying so that the child would have difficulty with his concentration and learning and such matters would create dysfunction. Dr K said that it would pose significant disruption for the child for at least a couple of years and would create a “storm of emotion” in the child.
Dr B said that loss by the child of his relationship with his father with whom he previously had a close relationship was an enormous loss for him. As would be the case with a loss of his mother, the child would be likely to experience loss of his relationship with his father as being like his father had died. He said that there would be likely to be longer term serious consequences including in terms of the child’s mental health. I shall refer to this again below.
Unfortunately, not having a relationship with his father has also resulted in the child not having his previously good relationship with his paternal grandmother.
Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This is not a case where there are such practical difficulties.
Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
Dr K said that the mother had consistently demonstrated a capacity to provide for the needs of the child including his emotional and intellectual needs. He said that there had been a risk, that a preoccupation by the mother with (what she regarded as) the danger that the father posed to the child and herself, might leave the mother to neglect the child’s day to day needs. He said that therapy had assisted the mother to be aware of this risk.
Both Drs B and K said that the mother did not have a psychiatric illness.
Dr K said that even during periods of acute concern about the child’s mental state and contact experiences, his mother had been able to maintain her day to day routine and discipline for the child, his school attendance and his homework. He said that the mother’s care of the child had been “more than adequate”. He described the mother as a “functional” and “above average parent who is raising her son well”. Dr K said that the mother had an anxious and obsessional temperament which tended to make her achieve well. He said that she was functioning well in life.
Dr B thought that Dr K’s suggestion that the mother might have suffered from post-traumatic stress disorder was highly unlikely. Dr B said that he thought that if the mother had such a disorder she would not be able to function adequately as a parent whereas she had been able to do this.
Dr B said that he found the mother to be an intelligent, caring mother who honestly believed that she was doing the best for the child. But he said that he still believed that at an emotional level the mother was very torn and fearful of losing the child. He said that he thought the mother had been looking for security in relationships and still appeared to be highly dependent.
Although he regarded her as not having any psychiatric disturbance he said that on an AXIS II he believed that she had high anxiety and emotional dependent needs. He said that unfortunately this translated into poor parenting because it created anxiety in the child and an over-reliance on the relationship between the mother and the child. He said that this has resulted in a very stressed young child who has been burdened by his mother’s anxiety about his father.
Dr B said that the mother had been unable to contain her anxiety even though she had been attending Unifam and Dr K for therapy. He said that the mother’s level of stress and anxiety had increased since his first report in 2007. He said that he thought that the mother had really struggled to allow involvement of the child with his father but in the end “her anxiety has got the better of her”.
On the other hand, Dr B said that from a mental health perspective he saw no evidence of any mental health disorder in the father. He said that on AXIS II with regard to personality the father appeared to be somewhat unsophisticated and a bit isolated perhaps socially avoidant. However, he said that there was no personality disorder in the father.
He said that the father appeared to be sensitive and caring towards the child even though he was not particularly sophisticated psychologically. Dr B thought that the father would be able to provide “good enough” parenting. He said that the father understood that the child needed socialisation and that his education was important. Dr B said that the father understood that the child needed a relationship with his mother. He thought that the father could be a competent parent based on his consistent successful life history and display of competence throughout his life and lack of disturbance.
Dr B did not regard the father to be untested and highly risky as a parent. He said that the father had some anxiety about the pressure that the child was under in his current circumstances and that the child was finding it very difficult to have a relationship with him.
Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
It might be the case that the parents’ early attitudes to one another as parents were affected by some ambivalence on the part of the father to the responsibilities of parenting. It took him some years to have his name entered in the appropriate register in respect of the child’s birth. It also appears that there have been some ongoing difficulties with child support and reticence on the part of the father to pay a significant amount of child support.
Having said this, it is clear that the father is most anxious to be able to have a close and continuing relationship with his son and to be able to make a meaningful contribution to the development of the child.
On the other hand, while the mother has professed to both Dr B and Dr K that she would hope that the child and his father would be able to have a good relationship, the reality is that she has had a huge struggle to support their relationship.
So far as the mother’s own responsibilities in terms of her relationship with the child are concerned, she has been a capable parent at least in a physical sense and been able to attend in a structured way to the needs of the child.
Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;
I have referred above to various allegations made by the mother which might reflect poorly on the father.
The father informed Dr B that he was shocked that there had been allegations that he had hit the child or treated him badly. He said that he has never hit or hurt the child. He said that he has never had a need to discipline the child because the child was very well-behaved.
Dr B said that he did not believe that the father had perpetrated any acts of violence against the child. He said that he thought the child saying such things was an attempt by the child to try to justify taking a position of supporting his mother against his father.
Dr B said that during the interview he asked the child to demonstrate how his father had hit him and the child tapped the back of his head. Dr B said that it appeared to be innocuous. He also said that during the interview the child warmed up to his father. He also said that he noted that there were inconsistencies in what the child was said to have said.
I must say in my view the state of the evidence is such that it is unlikely that there has been any abuse of the child by his father. None of the relevant authorities or professionals have been able to substantiate any level of abuse.
Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Dr B said that if the child was living primarily with his father and spending regular time with his mother, the mother would probably find it extremely difficult to return the child to his father. Dr B thought that this would almost invariably cause the family to resort to further litigation which would be damaging for the child. Dr B also thought a shared parenting arrangement would be unrealistic and (by inference) would lead to further litigation. Accordingly, he thought things had reached the point where the best interests of the child required that he live with one or other parent and spend little time with his other parent.
And Dr B was quite emphatic that it is very important for the child’s best interests that there really needs to be a final parenting order rather than an order which would involve a trial period of say three months as proposed by the father.
The extent to which each parent has fulfilled their parental responsibilities
Sub-section 60CC(4) of the Act requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent.
It is clear from much of the above material, that on numerous occasions since separation, the mother has failed to facilitate the child spending time with his father. On the other hand the father has been most concerned to fulfil his responsibilities to participate as much as possible in caring for his son. But, as indicated above, the father should have been able to make a much better contribution than he has made to the financial support of the child.
Submissions
It was submitted on behalf of the ICL that the mother believes everything that the child says by way of criticism of his father and that this just reinforces her own quite negative view of the father. So she maintains the view that the child is unsafe in the care of his father.
The evidence does not support a view that the child is at risk in his father’s care.
It was submitted that the father genuinely wants to be having significant and substantial time with the child and is perplexed that this is not happening.
It was submitted that the mother is unable to support the child having a meaningful relationship with his father and the fact that the family has returned to court for a third final hearing of their parenting dispute demonstrates the fact that there are real problems in the child being able to maintain a relationship with both his parents.
It was submitted that ongoing litigation is detrimental to the child and it must stop. It is important for final orders to be made to provide stability for the child before he goes to secondary school and before he reaches adolescence.
It was submitted that the father’s first proposal, which would involve the child living with his father for three months then Dr B undertaking an assessment with a view to the parents having an equal shared parenting arrangement, was completely unrealistic. This was said to be because it would not provide the child with the finality he deserves and, in any event, shared care would not be able to work, given the very poor relationship between the parents.
In relation to the father’s second proposal namely that the child live with him and have limited time with his mother, this was not supported by the ICL. Although Dr B thought the father’s parenting capacity was “good enough” and the child might eventually settle down with his father, the emotional cost would be too high for the child.
The ICL did not support the father’s third proposal. This was that the child live with his father and spend no time with his mother for at least six months and later there be a psychological assessment of the mother by Dr B to determine her suitability to spend time with the child.
It was submitted on behalf of the mother that the child’s secure base with his mother should be preserved. The mother would consent to orders being made in accordance with those proposed by the ICL.
It was submitted on behalf of the father that it was not very long ago that the child had a close and loving relationship with his father. This has been harmed by a pattern of behaviour by the mother which has alienated the child from his father.
It was submitted that the Court would not be satisfied that the father has engaged in abusive conduct towards the child. The Court has viewed the video of the child receiving his gift of a motor bike from his father for his eighth birthday with the child’s excitement and joy evident. Yet the child later complained to Dr B about the motor bike. It was submitted that this was one of many examples of the mother’s exaggerated and overvalued ideas being manifested in the child and her condition has caused great harm to the child.
It was submitted that the father conceded that for the child to pass into his primary care would cause him some trauma and that the child would need some help in managing this. But the child would not be going to High School this year and he would have this year to settle down. So that the impact on him would not be overwhelming.
It was submitted that Dr B said that there still might be some window of opportunity for the child to have a relationship with both his parents. The only way this could happen would be if the child was to live with his father.
In relation to the child’s attachments, Dr B said that as the child gets older the significance between his primary and secondary attachments will be less important.
It was submitted that the father’s second proposal was the appropriate one. That is that the child live with him.
Conclusion About Best Interests
I have referred above to the two primary considerations under the legislation. First is the benefit to the child of having a meaningful relationship with both his parents. Second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
On the two previous occasions involving final hearings, this Court has endeavoured to put in to place orders designed to enable the child to maintain and develop a meaningful relationship with both his parents. On each of those occasions the orders had broken down. The problem which has developed is that the consequences of orders designed to enable the child to have a meaningful relationship with each of his parents have exposed the child to quite harmful matters. These include firstly, a continuation of the litigation with the negative consequences of this referred to above. Secondly, some degree of psychological harm to the child which has arisen out of the very complex dynamics involved in this family endeavouring to implement the orders.
Dr B has indicated that his overriding concern about damage being done to the child is that major damage flows from the ongoing litigation. Dr B said that clearly it is anything but in the interests of the child for the litigation to continue. He also said that tragically for the child, things appear to have arrived at the point where it is impossible for his best interests to be served by having opportunity for a relationship with each of his parents because of the negative consequences which flow from endeavours to provide such opportunity.
Dr B said that following the failure of the orders of Flohm J in 2006 he considered it self-evident that a very different course would have to be taken. In these circumstances he recommended that the child’s primary residence should change from that of his mother to that of his father. But, as indicated above, the parents did not follow that recommendation and they asked the Court to put in place orders which were really just a variation of the earlier substantive orders which had failed. So that the child’s primary residence remained with his mother with a regime of time to be spent with the father. Clearly this has not worked in the interests of the child because not only has the conflict and disputation between them continued but the litigation has continued, all to the detriment of the child.
To make matters even more complicated, Dr B thought that the window of opportunity which had previously been open to permit the child to change his residence from mother to father with a reasonable prospect of success, had now probably closed.
In these circumstances, Dr B said that in order to spare the child the anxiety of endeavouring to live in the two different households and to spare him the almost inevitability of further litigation which would almost certainly follow if orders along those lines were to continue, the Court is really faced with a stark choice. That is, either the child lives with his mother and really has only recognition contact with his father, or vice versa.
I do not consider it appropriate to adopt the father’s proposal that the child reside with him and after a period of three months there be an assessment by Dr B. There are numerous problems with it in my view. Firstly, Dr B said that this child needs conclusion and certainty about the parenting arrangements. In my view, for him to pass to his father in what might be perceived by him to be for a period of three months, would only exacerbate his uncertainty about his future arrangements. In my view, it would be almost inevitable that such a change would be met by further litigation. Neither the parents nor the child would know what the ultimate outcome would be likely to be. To the extent that this part of the father’s application is driven by his desire ultimately to achieve a shared parenting arrangement, in my view there is little reason to be confident that such an arrangement would ever be able to be managed by these parents. And it is inconsistent with the strong views of both Dr B and Dr K.
In my view the last of the father’s three proposals has some similarity with his three month proposal. It would involve the child passing into the care of the father and Dr B reviewing arrangements, and particularly assessing the mother’s psychological condition, in effect to determine whether it would be appropriate for her to spend time with the child. At least to an extent, in my view, this suffers from the same difficulties of uncertainty as the three month proposal. I am not persuaded that such a proposal would be appropriate to the child’s circumstances.
That then leaves the competing applications by the mother on the one hand that the child continue to live with her and spend no time with his father and on the other hand by the father that the child live with him and spend time with his mother as determined by the Court. As indicated above, in my view for the reasons already indicated, the Court would only order recognition contact in such circumstances.
Accordingly, the Court has arrived at the position where it has to choose between each of the parents on the basis that it would be in the child’s best interests for the other parent only to have recognition contact.
The enormity of what this would mean for the child can be seen from the terms with which it was described by both experts. Dr B said, as indicated above, that for the child not to have a relationship with his father would be experienced by the child as being as though his father had in large part died. He said that this could have serious long term consequences for the child. These might include distorting the child’s ability to be able to trust in relationships and therefore fear relationships as well as risk of developing a psychiatric disorder.
Dr B said that on the other hand, if the child was removed from his mother’s primary care he would experience it as though his mother had died, she having been the parent with whom he has lived for almost the entirety of his life. He said that this would be a most significant factor to the best interests of the child. Dr B said that the child would become very anxious, he would be very worried for his mother, in fact it was more likely than not that he would be preoccupied by such grieving that he would be unable to concentrate. It would have a substantial impact on the child’s sense of security and similar longer term consequences as those referred to above if the child was not to have a relationship with his father would be likely to follow.
Both Dr B and Dr K said that if the child was to live with his father there would almost certainly be very serious challenges for the father in endeavouring to manage the child’s behaviour because of the likely reactions of the child. Both Dr B and Dr K had some reservations about whether the father would be sufficiently equipped to be able to deal with such challenges. The father suggested that he would rely on ongoing consultation with Dr B to assist him with any such difficulties as well as the support of various named persons.
The other consequence would be that the mother would become extremely distressed. Dr K thought that he would have his hands completely full in endeavouring to support the mother simply just to function in what would be regarded by her as absolutely devastating circumstances.
In my view, the benefits which might possibly flow from a change in residence for the child to that of his father, being a chance of being able to have a relationship with each of his parents, are outweighed by the risks associated with such a change as referred to above.
On the other hand, losing his relationship with his father would be likely also to have very serious consequences for the child. As Dr B said, it is a very bad situation for the child whichever course the Court decides to take. And what the Court is really faced with is a determination of the “least worst” course.
In the end, both psychiatrists expressed the view that it would be likely to be more damaging for the child to be removed from the parent who is his primary attachment figure namely his mother. I accept this.
Parental Responsibility
I have referred above to the presumption in s 61DA(1) of the Act to the effect that it is in a child’s best interests for his parents to have equal shared parental responsibility for the child. Should the presumption be rebutted in this case?
The child’s parents have a very poor relationship. They do not speak with one another. They have been locked in conflict since separation. Despite a great deal of court intervention, as well as intervention and assistance by numerous behavioural experts, the conflict remains.
As noted above, this is the third time that they have asked this Court to put in place final parenting orders for the parenting of the child. And matters have reached the point where the expert opinion is that the child’s best interests require that he live with one of his parents with minimal time with his other parent.
This is not a recipe for effective sharing of decision making responsibility in relation to the child by his parents. Shared parental responsibility requires a level of communication and cooperation between parents which the child’s parents have been unable to demonstrate since they separated.
In all the circumstances, in my view, it is not in the child’s best interests for his parents to have equal shared parental responsibility for him. He will be living with his mother pursuant to the orders I propose and she will have sole parental responsibility for him.
Time with Father
As indicated above, Dr B has referred to the enormous loss for the child to lose his relationship with his father. And to the likely consequences for him.
Both Drs B and K thought it to be very important for the child to continue to spend time with his father even if the frequency was low. They also thought it should be exercised in a secure place which would enable their relationship to grow. Dr B also said that a contained environment would assist in endeavouring to minimise opportunity for future complaints.
Dr B said that he thought two or three times spent between child and father per year would be appropriate.
Dr B also thought it would be most appropriate for the father to receive copies of the child’s school reports, any medical reports and reports about the child’s extra-curricular achievements.
I accept these opinions.
As learned counsel for the ICL observed, as the child approaches adulthood he will be able to form his own world view about things and be aware that each of his parents, in their own way, did what they thought was necessary to serve his best interests.
And he will be able to watch the DVD of the occasion of his eighth birthday when he had the great pleasure of receiving his mini motor bike. He will see that the images were of him and his father having a normal, appropriate and very enjoyable relationship of son and father.
I certify that the preceding one hundred and ninety-three (193) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 29 March 2012.
Associate:
Date: 29 March 2012
0
2
1