Pierce and Caswell
[2015] FCCA 27
•22 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PIERCE & CASWELL | [2015] FCCA 27 |
| Catchwords: FAMILY LAW – Contested parenting application – father’s allegations of mother’s poor parenting – father’s new de facto relationship changes previous ability of parents to co-parent – father and his de facto denigrating mother – mother and father have ability to parent co-operatively when no intrusion from third parties – the father and his de facto authorises significant medical decision whilst holding over child and without any reference to the mother – the mother struggling with parenting given her significant medical conditions. |
| Legislation: Family Law Act 1975, ss.60 B, 60 CC, 61DA, 65DAA |
| Mazorski & Albright [2007] FamCA 520 H & H [2003] FMCAfam 41 |
| Applicant: | MS PIERCE |
| Respondent: | MR CASWELL |
| File Number: | BRC 1649 of 2013 |
| Judgment of: | Judge Willis |
| Hearing dates: | 28, 29, 30 May & 20 June 2014 |
| Date of Last Submission: | 20 June 2014 |
| Delivered at: | Cairns |
| Delivered on: | 22 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Slade Jones |
| Solicitors for the Applicant: | Legal Aid Queensland |
| Solicitors for the Respondent: | Self-represented |
ORDERS
The mother and father have equal shared parental responsibility for the major long term issues of the child, [X] born [omitted] 2006 (“the child”) including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.
NOTING that Order 1 herein DOES NOT enable the father’s partner to be in any way involved in decision making (or requesting or providing advice) about long term issues regarding the child, nor does it permit the father’s partner to engage and have dialogue with school teachers/ staff/ school administrators; doctors and other professionals treating the child, counsellors, dentists and others upon whom the child may attend from time to time. The Order for equal shared parental responsibility refers to the mother and father and no other person.
Notwithstanding Order 1 herein:
(a)The father shall be responsible for the daily care, welfare and development of the child whilst she is living with or spending time with him; and
(b)The mother shall be responsible for the daily care, welfare and development of the child whilst she is living with or spending time with her.
Living arrangements
The child live with the mother.
Unless otherwise agreed, the child will spend time with the father each alternate weekend from after school (or otherwise 3:00pm) Friday until before school (or otherwise 9:00am) the following Wednesday ON THE CONDITION THAT the father is to ensure that his de facto partner does not correspond with schools, doctors and counsellors and other professionals [X] may attend upon, as referred to in Order 2 herein.
Notation: The Court notes that the regular time set out in Order 5 will cease during school holidays.
Handovers
Handovers are to occur to and from the child’s school on school days. The non-collecting parent is not to attend school at handover time. On non-school days, handovers are to occur at McDonald’s Restaurant, [suburb omitted].
Holidays
Unless otherwise agreed, the child will spend half the Queensland gazetted school holidays, including Easter, with each parent as follows:
(a)With the father for the first half in odd numbered years and the second half in even numbered years;
(b)With the mother for the first half in even numbered years and the second half in odd numbered years.
Time for the purpose of Christmas school holidays will commence at 5.00 pm on the last day of school and will conclude on Friday prior to the first day of school with the halfway point to be calculated between those dates.
Christmas Day
In the event that the parent who otherwise has the child in their care for the first half of the holiday periods pursuant to the terms of these Orders (which includes Christmas Eve, Christmas Day and Boxing Day (“the Christmas days”), has not travelled away from Brisbane for the Christmas holidays, the parent with whom the child is living on Christmas Day will retain the child until 11:00am on Christmas Day and thereafter the child will spend time with the other parent from 11:00am onwards until 11:00am on Boxing Day, after which time the child will be returned to the other parent to continue on with their holiday period. The Court notes that this provision will only apply when the party who would otherwise have the child over the Christmas days elects not to travel away.
Special days
The child will spend time with each of the parents on special days as follows:
Mother’s Day and Father’s Day
(a)In the event that Mother’s Day falls on a day when the child is living with the father pursuant to these Orders, then the mother shall spend time with the child from 9:00am to 5:00pm Mother’s Day.
(b)In the event that Father’s Day falls on a day when the child is living with the mother pursuant to these Orders, then the father shall spend time with the child from 9:00am to 5:00pm Father’s Day.
Birthdays
(c)In the event that the child’s birthday falls on a day when the child is otherwise spending time with the father pursuant to these Orders, then the mother shall spend time with the child at times as to be agreed between the parties and failing agreement from 3:00pm to 6:30pm on a school day or between 12 noon and 5:00pm on a non-school day, subject to clause g herein.
(d)In the event that the child’s birthday falls on a day when the child is otherwise spending time with the mother pursuant to these Orders, then the father shall spend time with the child at times to be agreed between the parties and failing agreement from 3:00pm to 6:30pm on a school day or between 12 noon and 5:00pm on a non-school day subject to clause g herein.
(e)In the event that the mother’s birthday falls on a day when the child is living with the father pursuant to these Orders, then the mother shall spend time with the child at times to be agreed for a period of no less than four (4) hours and failing agreement between 3:00pm and 7:00pm subject to clause g herein.
(f)In the event that the father’s birthday falls on a day when the child is living with the mother pursuant to these Orders, then the father shall spend time with the child at times to be agreed for a period of no less than four (4) hours and failing agreement between 3:00pm and 7:00pm subject to clause g herein.
(g)It is not intended that school holidays or any other block time which the child is to spend with a parent pursuant to the terms of these orders, is interrupted by order 10 (a-f) herein. In other words, the child will only spend time with each of the parents as set out in this clause in the event that the child is not otherwise having block time with either party.
Each of the parents will facilitate the child having reasonable telephone/ Skype/ Facetime communication with the other party and in the event of disagreement, the mother is to facilitate two telephone/ Skype/ Facetime communications with the father each week at times nominated by her in advance and the father is to facilitate one phone call to the mother each weekend that the child spends with the father at a time nominated by him in advance.
When the child is spending holidays with either parent, that parent is to facilitate Skype/ Facetime /telephone contact at all times as agreed and no less than two occasions each week.
The parties shall communicate general parenting information by text message or email.
Each parent shall keep the other informed of their residential address, telephone contact number/s and email address and shall advise the other of any change within twenty four (24) hours of any change occurring.
In the event of any parenting dispute the parties are to attend Family Dispute Resolution in an endeavour to resolve the dispute.
The parties are entitled to travel interstate with the child at their times set out in these orders and in the event that they are travelling interstate, the travelling parent is to provide the other parent with at least 72 hours notice, save and except for genuinely urgent travel, at which time the travelling parent will advise the other parent at the earliest opportunity of the destination within Australia to which they intend to travel with the child.
Restraints
Neither parent will denigrate the other or their family to, or in front of, or within the hearing of the child and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the child and failing their compliance with such a direction shall remove the child from that environment immediately.
Neither parent will discuss these proceedings with the child.
The mother is restrained from bringing the child into contact with
Mr M.
Counselling/ Parenting Courses
The Mother and Father are to forthwith enrol and attend as soon as practicable the Parenting Orders Program (POP) offered by Relationships Australia and will provide to the other a certificate confirming his/her attendance and successful completion of such course within 6 months of the date of this Order.
The mother and father are to organise joint counselling in order to properly understand and agree that they are the parents of the child, and they alone, without interference from partners, are responsible for all aspects of the child’s parenting.
Other
The parties shall keep the other informed of the child’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent (not their partners) with information that they are lawfully able to provide about the child and this order shall serve as such authority.
Each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent (not their partners).
The parties shall keep the other informed of any school, educational facility or extra-curricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the child and the option to purchase school photographs and this order shall serve as such authority.
If there is a cost associated with the provision of any information or documents under these orders from the child’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity provider the expense shall be borne by the parent requesting the information.
Subject to the conditions imposed by the child’s schools, these orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews, subject always to the discretion of the school authorities.
Each parent shall ensure the child attend all educational, sporting and hobby events when the child is with that parent in all reasonable circumstances.
All outstanding Applications be removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Pierce & Caswell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 1649 of 2013
| MS PIERCE |
Applicant
And
| MR CASWELL |
Respondent
REASONS FOR JUDGMENT
The parties in this matter are unable to agree about the living arrangements of their child, [X], born [in] 2006. The father is Mr C, the respondent, and the mother is Ms Pierce, the applicant. The mother has two other children, [Y], born [in] 1997 and [Z], born [in] 2000.
The parties had a reasonably short-lived relationship of only five years. During the relationship the parties both worked. The mother worked up until [X]’s birth and then recommenced working part time after [X]’s birth. It seems that the father worked full time and the mother worked part time, whilst also doing the primary role of mothering. The parties separated in 2010 on a final basis and at that stage [X] remained living with the mother and her two other children, being [X]’s siblings. [X] also spent time with her father every weekend and, in the event of a long weekend or that he had a rostered day off, [X] spent that time with him as well.
The parties worked out their own arrangements for the following two years. According to the mother during the time they were together the father had a significant problem with alcohol and that, although he was a good father, he came home drunk numerous times and would go through the house yelling and breaking things. The father acknowledged that at that stage he was drinking an unhealthy amount and said that there are “no excuses for that behaviour.” He added that, “Neither of us was happy as a couple.”[1] It seems that the separation was prompted because of an incident at [Y]’s trophy night, at which the father started drinking heavily. The mother says she took the children home early and that the father didn’t come home at all staying at a friend’s home. After about six months, the friend at whose place he had stayed told the mother that the father had tried to touch her 14 year old daughter. The mother told the Report Writer she was shocked and sceptical initially, and that she asked to hear it from the child herself. This was apparently arranged. The mother confronted the father about the issue and he denied the behaviour. The mother said she thought about it for a while, but in any event she decided that she could not continue to live with him. This accusation has been denied by the father. It does not seem to have ever been pressed through the criminal Court and it is not raised as an issue in these proceedings.
[1] Family Report dated 26 June 2013, paragraph 17.
Both of the parties agree that the father has always taken a strong and involved role in [X]’s life. Over a period of time and by their mutual agreement, they reached the stage where [X] was spending time with the father, as I said, for the whole weekend each week and extra days. This was all by agreement. The father’s case now is that he just went along with everything, even if he didn’t agree with it.
In 2010 the father met his current partner, Ms C. This seems to have been somewhat of a turning point in the father’s attitude towards parenting. Ms C told the father that he needed to take a stance in relation to the issues which had been concerning him regarding the mother and her parenting and the care of [X]. The father says that, with the assistance of Ms C and her support, he began insisting on having a voice about [X] and [X]’s care. He says he has tried to raise various aspects of [X]’s care with the mother, such as the need to go to the dentist, such as dirty clothes or him not being happy about what’s in the lunchbox or any other aspect of her parenting. He says that when he did do that, the mother was very defensive and would not ever admit that she was doing anything wrong or make any changes. The father told the Report Writer that he has now decided not to take no for an answer any longer. The mother says that when Ms C came on the scene was the period when the interaction and communication between the parties and cooperative parenting all seemed to collapse. Ms C has given evidence at the trial, as has the mother’s own mother, Ms P.
Essentially the father’s case is that the mother is a very poor parent; that she does not have the ability to properly care for [X]. He points to the mother’s medical conditions and the medications that she is required to take in response to those conditions. He is most concerned as to the cumulative effect of all the drugs that she takes and submits that he has seen the mother in a state of being completely dazed and quite non-responsive, as if she has been severely affected by her medications. The father also points to her lack of hygiene; her inability on occasions to provide clothes that are not mouldy; her inability to provide healthy lunches and the Court has been furnished with pictures of lunchboxes with “Pop Tops” and packets of Tiny Teddy choc chip biscuits. The father also is concerned at the number of occasions on which [X] is taken to school late and the number of illnesses. All of these concerns have been raised with the Department of Child Safety and they have all failed to meet the threshold of anything that the Department would be acting upon.
It is noteworthy that the notifications to the Department about the mother’s poor parenting were made by Ms C during a time that the child was being withheld. Other notifications had been made earlier in 2011 by the father and those complaints were in relation to some poor parenting, as I understand it, more about the likely threat or risk to [X] being in the company of the mother’s then boyfriend, Mr M. The mother says she is no longer in a sexual relationship with Mr M, but they remain friends. She mostly visits him at his home, because he suffers from agoraphobia and anxiety and does not like going out socially. It is not difficult to see why the father would have complained about concerns with Mr M. Unfortunately Mr M, has posted on his Facebook pages some fairly horrifying, graphic descriptions of gothic images, images that could come straight out of horror movie with people screaming; crosses on their head; hands dripping in blood clutching a face; pictures of people wearing black T-shirts with “satanic skinhead” and “annihilate” written on them whilst wearing a balaclava and holding a weapon; a picture of a person hanging their head in what looks like a jail cell with a noose hanging above their head with the word “suicide” written; images of a Charles Manson like figure; dolls with blood pouring out of one eye and some sort of object coming out the other eye; pictures of Mr M himself, it seems, with blue hair, black fingernails and body piercings; pictures of someone, whether it’s him or someone else, with long hair in a Charles Manson type pose, wearing sunglasses and holding two pistols and other graphic and horrifying images and phrases, including “corporation porno” with hooded masked people; and another person with something around his neck.
The mother denies that she is a bad parent and her application is that [X] live with her, and initially it was that the child spend each alternate weekend with the father from Friday to Tuesday. During the course of the trial the mother agreed that her position in terms of orders sought was that [X] live with her and spend from Friday to Wednesday morning with the father each alternate week. By the end of the evidence, and particularly after having the evidence of Ms C, the mother wished to retreat from that position fearing that the child would be under the influence of Ms C for too many days.
The father seeks an order that [X] live with him and spend each alternate weekend with the mother. The mother’s position is that she and the father had always been able to work things out and that it was really the intrusion of his partner, Ms C, which resulted in this matter coming to Court and that she has been influential in the father’s decision to twice hold the child over from the mother in 2013.
The father has been self-represented. At the commencement of the trial he asked for a McKenzie friend who was to be his partner. The Court refused his application to have his partner act as a McKenzie friend, given that she was involved in the family report interviews and that she has filed an affidavit and was obviously going to be a witness. The father’s material is voluminous, to say the least. His affidavit of 16 May 2014, which the father says was prepared by his partner who is a registered nurse, is 104 paragraphs, but there would be about 150 to 200 pages of single line spacing text or email messages and other annexures. He also sought to rely on an affidavit filed on 25 June 2013 and that is another affidavit of about 20 pages. The annexures of school work and other matters would be 100 or more pages. He also sought to rely on another affidavit filed on 21 May 2013. That has affidavit evidence and countless text messages and probably another 60 pages of annexures. It has been quite a task for the mother and the Court to get across the evidence in the father’s material.
The father has been, as I said, self-represented and he has, in my view, nonetheless tried his hardest to assist the Court and to conduct himself in a very courteous and patient manner. I have marked as exhibit F1 the orders sought by the father and the mother’s orders sought are in her case outline, as amended. Mr Slade Jones of Counsel has represented the mother, and he has likewise been as helpful as he could to both the Court and to Mr C, the father, to try and have this matter dealt with expediently.
The Court was not assisted by an Independent Children's Lawyer and therefore, given that the father was self-represented, the Court itself was often in a position of having to ask questions that had not been asked by the father. The Court also directed that the mother’s treating doctor give evidence about the mother’s medications as this was a major issue raised by the father.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).” The Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 made significant changes applying to matters filed on or after 7 June 2012. As a result of those legislative changes, when applying the primary considerations under s.60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.
When I determine the best interests of [X], I will consider also the additional considerations set out in s.60CC(3) when evaluating each of the parties proposals for the children’s future living arrangements. Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked.
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.
In these reasons, statements of fact constitute findings unless indicated otherwise.
Witnesses
The father
The father gave evidence and was cross-examined. I considered that the father was a mostly truthful witness. The father is a genuinely loving father. At times though he had a harsh edge. By that I mean from time to time he seems to not be able to help himself being sarcastic. At times, when asked questions, he would break into a rather sarcastic laugh. The father seems to have a tendency to be somewhat supercilious with responses to simple questions during examination. Instead of yes or no, would reply, “the evidence would suggest so.”
I nonetheless had an impression that the father was very concerned about the issues that he raised. I consider he tried to give an honest version of events but he had a tendency to exaggerate when it suited his case to do so. He has, it seems to me, been labouring under a degree of frustration in that his unshakable belief that the mother’s poor parenting should disqualify her totally from being the primary parent, has not been accepted unquestioningly by the Department of Child Safety or the Family Report Writer. Whilst complaining about all of these issues, he has together with his partner taken to issuing insulting Facebook messages about the mother.
There was really no valid reason why he did not come to Court with these issues earlier in a much more measured approach than ultimately adopted. His explanation is that someone told him at the Family Relationship Centre that you couldn’t make any application under the Family Law Act 1975 while the Department were investigating. I do not know if the father has misunderstood what has been told to him. But in any event, there has been plenty of opportunity for him to come to Court during periods other than when the Department were investigating. If his complaints go back as far as he says, day one after the child was born, he has certainly been slow to come to Court and perhaps this explains his overt frustration and at times distress, as observed by me during the trial. In fact he has never previously filed an application in this Court. It was the mother who filed an application when the father was holding the child over. His holding over of the child in 2013, on one occasion for 11 nights, during which he changed the child’s school from [W] to [M] State School was, in my view, a very highhanded way of dealing with his concerns such as dental matters, complaints about the mother’s household and his complaints about the mother’s boyfriend.
I accept the father may have been mildly concerned about the degree of medication that the mother takes and her ability to parent, however the father is clearly driven by the influence that his partner, Ms C, who has been his partner for, I think, just on two years, has had over him. He protested loudly and frequently that his partner should not be vilified and that he was not influenced by her and that he made all his own decisions. As will be seen elsewhere in these reasons, I do not accept that. The father, to me, seems a fairly straight forward, well-meaning and loving father. However, in his own words, he took the biggest gamble of his parenting life when he decided to hold [X] over for seven weeks from the mother. I’m quite satisfied that he has been assisted, if not encouraged in this, by his partner, Ms C.
The holding over was quite a staged event. The father attempted to justify his action initially on the basis that the child needed some serious dental work done, so much work that she needed to have a general anaesthetic. The father said he and his partner decided the child should stay with him until at least the operation was over. There was no valid explanation for not permitting the child to contact the mother in a meaningful way in this period. In these 7 weeks the father adopted a course of essentially no contact and allowed two phone calls for the duration. The father failed to permit any physical contact of any kind between the mother and [X]. Bearing in mind the mother was the primary carer for all of [X]’s life, this was a most radical and abrupt change for [X], imposed by the father. I am satisfied it was purely strategic.
The father’s initial position was that a psychologist, who his partner referred him to, had told him to do so, but as his questioning continued, it was clear that the father admitted that the psychologist did not say that. The plan to hold the child over seems to be quite contrived in that Ms C had been to a psychologist first to get advice about what to do in terms of their plans for [X]. She was referred to another psychologist where Ms C and the father went. That person has been consulted without the child, and with the child. On the second occasion it seems that that psychologist said the child was not yet ready to have proper contact with the mother face to face.
I am satisfied that the father’s partner, Ms C, who is a registered nurse and has been a registered nurse since only 2011, has had quite an overwhelming influence on the father. I note that she is 16 years older than him and she has more formal education than him. She has a degree in nursing and before that worked in administration and aged care. The father has described her in most glowing terms saying that she is a very educated person, she is a nurse and she knows things from her life experience. The father seems to forget that Ms C is not the child’s mother and that she is completely out of line in acting as the mother and assuming parental responsibility for major issues, which I am satisfied she has done.
Ms C
This witness was very confident, held very strong views, had limited experience as a nurse, showed much self-importance and was overly confident in her alleged knowledge of all matters medical. She basically regarded herself as a doctor, a psychiatrist and a police officer. She has taken it upon herself to, as I said, organise a Justice Examination Order of the mother without referring it to the father. She has reported the incidents that the father has complained about to the Department of Child Safety, she says with the father’s knowledge. She has purported to have a therapeutic relationship with the mother and accordingly says she made an assessment of the mother. Ms C routinely said things like, “If she was a patient, I would do X or Y.” In truth, Ms C had never had anything other than a passing conversation with the mother and has made all her “medical and psychiatric” observations from a distance. In terms of her testimony I also had the distinct impression that she and the father had rehearsed some of their answers. In particular I consider they rehearsed reasons as to why they withheld [X] after January and why they were allegedly so disturbed. Ms C stated, “because after [X] reported that there had been another seizure” and “because the level of distress, I put more weight to it.” During the father’s evidence, he said, “The thing that troubled me was because of the child’s distress, I put more weight to it.” I did not accept the explanation of Ms C that she did not discuss her evidence with the father. Her evidence and the fathers were at times identical.
The father, in his evidence, often waited for 20 or 30 seconds or more to offer up an answer. I had the impression he was trying to recall what it was that he was supposed to say in some answers. He did not give his evidence spontaneously in relation to some questions to do with the involvement of Ms C and why he had held over the child. However, in relation to other matters about how definite he was that he had seen the mother in a very poor state in April in the car park, I accepted that he was concerned but likely overstating his evidence. I had an overwhelming impression that Ms C is a very strong influence over the father and over the family circle of the father, [X] and her own son. She gave evidence as to the significant amount of dental work that needed to be done for [X] and that it was necessary ultimately to have a general anaesthetic.
Ms C has written over 50 emails to counsellors and the child’s school and tried to orchestrate and control the child’s contact with the mother, whilst the child was held over by the father and herself. She gave evidence that initially she didn’t think a general anaesthetic would be necessary, but after one procedure, she realised and listened to the dentist who said that [X] would not be able to put up with the degree of work that needed to be done. Ms C then said that she initially had some reservations about a general anaesthetic for [X], but the work was so extensive that the child wouldn’t be able to cope and so she and the father took the decision, for the child have a general anaesthetic. At no point did Ms C convey the discussion or decision to the mother or give her the opportunity to be included in that decision-making. The father and Ms C mulled over that issue and together decided that they would proceed with a general anaesthetic. The mother, of course, was distressed to find out afterwards that the child had had a general anaesthetic and that she had not been consulted or there to comfort the child when she came out of that anaesthetic.
I am very disturbed about the input of Ms C in this matter. Well-meaning she may be, however she is totally aligned with the father and hostile and demeaning towards the mother. She has driven the father’s case in this matter in terms of involving statutory authorities when this was not justified. She has also shown her true feelings about the mother in a Facebook entry in which she referred to the mother as “a fuckwit”. Ms C did not have the honesty with the Court to admit against her own interest that the insult she posted was intended for the mother. When asked Ms C said, rather disingenuously, that she didn’t actually ever say who it was about. Ms C posted a Facebook comment which read:
“What sort of IDIOT packs a meat sandwich for their child without an icepack and then can’t work out why the kid spends the afternoon in the sick bay vomiting after eating the contaminated sandwich? A fuckwit.”
The father then commented the same day against that post saying:
“The same kind of idiot that thinks it’s okay to consume multiple prescription painkillers, epilepsy and anxiety medication at the same time, and then drive their kids to school? But I spoze (sic) it’s not that bad when the kids only have to go to school for four days a week with a parent under the influence of all that medication.”
When Ms C was asked about that, as I said, she rather disingenuously said, “I didn’t mention her name.” Ultimately, when pressed, she had to concede that it was obvious who she was talking about. I am quite satisfied that Ms C has a very low opinion of the mother and her parenting. She took it upon herself to decide that the child should not be speaking to the mother while she was with the father and told the father to take the phone away. Ms C also made arrangements for the parties to attend at a psychologist of her choosing with the child and then afterwards explained to the child during the first holding over of 11 days that, “Sometimes mummy and daddies have to go to school to learn things.” She said:
“We told [X] that, just like you go to a school to learn a new thing, sometimes mummy and dads go to school and learn about things, mummy things.”
This was an explanation given to [X] as to why it was she wasn’t going back to her mother’s on the first occasion she was held over. This is rather an extraordinary explanation to give to a six year old. The mother of course was never requested to do any parenting training by the Department, who were not interested in their complaint. I consider it’s very presumptuous and intrusive of Ms C to enter into the parenting arena in the manner in the way she has. She has no legal responsibility or parental responsibility for [X], yet she has weighed into and been involved directly (to the exclusion of the mother) in some of the most significant decisions for this child, such as having an anaesthetic or not at the age of six. She has either initiated or condoned the holding over of this child from the mother leaving the child and mother distressed for weeks at a time. Unfortunately Ms C showed no insight or regret about her intrusive behaviour in the parenting issues of [X].
During her evidence, when the Court asked, she admitted that she had also been through family law proceedings. When asked if she had ever had her own children removed from her for seven weeks, she replied that she had and that her former husband had held their children over that long from her. If that is so, it is all the more troubling that Ms C decided that that was quite a good strategic move to take. Overall, I have some serious reservations about her over involvement in these parental dynamics. When questioned about his partner and her involvement the father had trouble trying to answer and said several times that he didn’t want Ms C to be vilified or to be blamed and tried to say that he made all the decision himself. Neither of these scenarios (as between the father and his partner) of who was primarily responsible for the father’s post separation conduct gives the Court any comfort. Between them, very poor non child focused decisions and actions have been imposed on [X] and the mother.
It is Ms C who organised for a Justice Examination Order on the mother during the period that she and the father held the child over in May 2013 for seven weeks. That was, in my view, entirely strategic. The basis upon which the Justice Examination Order was issued was what Ms C called her “professional opinion.” Her affidavit is replete with repeated references to her making observations and assessing the mother in her official capacity as a registered nurse. She has said things like:
“As a registered nurse, I adhere to the National Competency Standards for the Registered Nurse, which includes utilising my skills and training to conduct comprehensive and systematic assessments using relevant evidence based assessment framework to collect data about the physical, socio cultural and mental health of the individual group.”
As I said, throughout her affidavit it reads:
“It is my professional opinion that [X] is also in need of specialist assessment and intervention to ensure her safety, wellbeing and ongoing developmental progress. It is my professional opinion that [X] can be better supported this time by her father, Mr C. It is well documented that children of [X]’s age learn from their primary caregiver.”
Some of the matters relied on by Ms C in alerting the mental health authorities and police to call on the mother and do a Justice Examination Order were that she was not capable of making appointments properly; she had a poor memory; she had had some weight loss and she doesn’t seem to understand the concept of hygiene; her speech is slow and her perceptions are not evidence based and she doesn’t provide healthy lunches. Ultimately, there was no basis for detaining the mother under the Justice Examination Order sought by Ms C. Her complaints to the Department of Child Safety were not acted upon as the Department considered that the issues did not meet the threshold for intervention.
The Mother
The mother was unfortunately a very poor witness, in that she had an appalling memory, not just a bad memory. Literally she could not remember when she had operations or what she did seven months ago. She answered many questions with “I don’t recall.” She also showed a significant degree of indecision and she has exhibited some very poor judgment in relation to her 13 year old teenage daughter. Her decision to allow her child, [Z], aged 13, to have her boyfriend over for sleepovers was completely ill advised and naïve and shows significant misjudgement on her part. She wept when she spoke about how she now realises all of the consequences of this decision. I was nonetheless concerned at this decision.
In some respects her decision to enter into a relationship with Mr M had the appearance of a questionable decision. He is certainly alarming, confronting and terrifying to look at on his Facebook page. The mother’s own mother gave evidence and it was clear to me that she did not approve of Mr M as a partner. She tried to paint him in the kindest possible light, the best feature being that he was no longer in a serious relationship with the mother anymore and that she felt the mother just felt sorry for him. I accept that the mother has a friendship with Mr M and that is her prerogative. Mr M is not the mother’s partner as implied by the father.
I was not satisfied that the mother is incapable, as alleged by the father, of providing a healthy lunchbox for [X]. I was very concerned at hearing the number of physical ailments that the mother has, as it was never clearly explained in her affidavit material. The mother explained that she had had significant back problems, which were hereditary, since she was a child in primary school. By her late teens she was on significant medication and has been so since that time. The mother takes medication for her back and that medication is of the highest order, including using her mother’s Tramil. The mother had a back operation in 2012 and that was a significant operation. She needed much care and assistance from her own mother, who also takes significant pain relief medications, including Tramil, for the same back condition.
The mother also has suffered from collapsing or fainting. Sometime later in 2012, the mother suffered a seizure. She has now been diagnosed with epilepsy and was not permitted to drive for at least six months after the diagnosis. The father suggests that she has had other collapsing episodes or seizures and that she has “told the children” not to tell the father about them. I am not able to determine if that has been happening or not. The mother also tells me that she has been diagnosed with depression in the last couple of years and that she takes an antidepressant and an anti-anxiety tablet. These are not insignificant illnesses for a mother who has the primary role of raising three children, including two teenagers ([Y] aged 17 and [Z] aged 14) and [X]. It became apparent to me that it was very hard for the mother to get all the children to school on time and, even someone without those aliments, in my view, would have had trouble every morning getting a child in grade 12, a child in grade 9 and a child in grade 2 to three different schools and to get them all there on time. I accept that [X] has had a lot of illness, as shown in her absentee records, and that there have been significant amounts of absenteeism each year. From 23 January 2012 to 13 May 2014, a period of almost 2.5 years [X] has had 62 full day absences and 10 part day absences.[2] The absent days are at least nearly always explained.
[2] Exhibit M1.
The mother denied that she needed to lie down during the day a lot, when it was suggested to her that [X] had repeated that, “Mummy needs to lie down a lot.” The mother said words to the effect that she wished she had time to lie down, but that she doesn’t lie down and that that isn’t true. However, later in her evidence she gave inconsistent evidence with this statement. When asked what she did during the day after she dropped the children at school, the mother said that she did the housework. She said she often did it piecemeal and rested in between and she would lie down for an hour or more during the day or in between quite physical bouts of housekeeping. The mother says that she is also starting to do some studies and hoping to get a certificate.
The mother impressed me as being a loving mother, but that she had significant responsibilities and obligations with all of the issues that she was balancing with raising three children (2 being teenagers) and her illnesses. To the extent that this has been commented on in the family report, I accept those observations being:
“Ms Pierce appears to be struggling and barely managing to keep on top of everything. She has a low self-esteem and significant dependency needs.” [3]
[3] Paragraph 123, Family Report dated 23 May 2014.
Dr U
Dr U gave evidence at the continuation of the hearing after he had initially provided an affidavit, as requested by the Court and organised by the solicitor for the mother. Questions posed by the Court are addressed in Dr U’s affidavit, which is effectively a report filed in an affidavit under the hand of the instructing solicitor, John Blayney, filed on 20 June 2014. The questions posed by the Court were those that involved issues being pursued by the father. As I have said earlier with one self-represented and no Independent Children’s Lawyer, there were issues about which evidence ought to have been, but was not, obtained prior to the trial. The Court therefore requested a short report be provided dealing with the mother’s medical condition, her medication, and the effect of her condition and/or medication on her capacity to parent and, in particular, her ability to respond to emergencies day and night.
Oral evidence was given by Dr U and he was cross-examined at length by the father who was, effectively, trying to link up his suspicions of the mother’s alleged abuse of prescription drugs with Dr U’s report.
Dr U has listed out in his report the medical history of the mother since about 1988 onwards and, relevantly, that includes; in 2007 generalised anxiety disorder; in 2011 back pain; in 2012 a discectomy L4/L5 for disc prolapse and severe spinal canal stenosis; and in 2012, epilepsy – grand mal – seizures on two occasions only and none now for over a year.
Dr U writes:
“Currently her active conditions include epilepsy (well controlled), depression (well controlled), and back pain, for which she is undergoing further investigation and treatment through the orthopaedic department of the [omitted] Hospital, where her discectomy was performed previously. Ms Pierce has recently had an MRI of her spine to assess the situation further, and is awaiting her follow up appointments at this stage.”
Dr U listed out the mother’s medications; Diazepam, Effexor, Epilim, Norspan patch, OxyNorm, and Panadol Osteo. The conclusion was that:
“...whilst her capacity to undertake various physical tasks may, at times, be temporarily impaired depending on her level of back pain, all other medical conditions are largely well managed and the level of control is such that Ms Pierce’s capacity to care for, or meet the needs of, her three children is not, in my opinion, in any way significantly functionally impaired or impacted upon. Ms Pierce has coped well with her children over the years. She has been under care and supported at this medical practice, being managed over this period by several treating GPs here, with her records of attendance dating back to 1999.
Ms Pierce was managed here through her last pregnancy, and throughout the time known to her medical attendants there have never been any concerns expressed over her ability to care for her children, including her ability to respond to emergencies that may arise day or night.”
The questions put to Dr U by the father about the combination of the medications revealed that there was no medical concern about the combination of those medications, and that the mother was a compliant patient, and that the medications were taken by her as prescribed. There was no evidence that the combination of her medications led to disorientation, drowsiness, paranoia, or any of the other suggestions made by the father. I can see that the mother has been at the same surgery for 15 years. There were explanations for the possibility the prescriptions that the mother had were overlapping and that is that from time to time patients regularly lose prescriptions, and that the mother was no different to any other patient in that regard.
The doctor gave evidence that, typically, when there are repeat prescriptions for a day medication such as Effexor, typically, before writing out another script for that same period, the doctor would contact the authorities to justify why another script is being prescribed in the same timeframe, or earlier than expected. The doctor also made the point that, just because a patient had a prescription, as the mother did in July from Dr C who, according to the PBS records, wrote out a prescription for Effexor with repeats, that did not mean that the repeats were made up.
The mother is required to take two tablets a day. So over a period of 30 days she needs 60 tablets, and there are 56 tablets in one lot of prescriptions and then repeats. Dr U was not concerned that a script for the same amount of medication had been written out in September, following on from Dr C’s prescriptions, and said that multiple times a week he would receive requests from people who have lost their scripts.
Dr U said there was nothing about the mother’s presentation that suggested that she is abusing her prescription drugs, and he noted that the mother is monitored regularly, so the possibility of her abusing the prescription drugs is minimal, and that most of the pain management that she is taking is effective. In his report, Dr U stated she may feel that she needs a rest or break from time to time doing any particular physical task, but there have been no issues with side effects of her prescriptions generally, and she is well monitored.
Dr U explained that, on one occasion in September 2013, the mother was given a new prescription. This was in line with the evidence given by the mother. The mother had a bad reaction to that drug, and was on it for, I think, a day and a half or so, and then she returned to the doctor’s, said that she had felt “out of it” for a couple of hours the day before, and that the drug was not suiting her.
The father has had some difficulty in accepting the medical evidence and even at the end of the trial, the father was still making submissions that the doctor didn’t get enough opportunity to see the mother, but he personally still held concerns about the effects of the medications. The Court has tried to explain to the father that his own views about the nature of medical evidence carry little weight. The Court is also quite satisfied that the father’s views represent those held by his partner, who has been a registered nurse for two years and who has very clearly led the way with the whole inquiry about the mother’s medications.
The mother, in this trial, has had to go through very intrusive questions from the father, who has waded through all of the mother’s medical evidence. I am satisfied his questions have been framed with the help of his partner Ms C. I note also that in September a medication was prescribed being an anticonvulsant (sounds like Pregamalin) and that upon taking it the mother had no memory of some hours on a particular day. The medication was new and did not suit the mother and Dr U explained it was changed straightaway. The Court does not regard the mother taking a medication prescribed for her by her own treating doctor, and then having a bad reaction to it, as any cause for concern that the mother is constantly and regularly drowsy, or having slurred speech and being disorientated as alleged by the father. There simply is no evidence to suggest that the doctor’s prescriptions are anything other than appropriate.
The Court asked Dr U what he considered about the position of the father’s partner who, in her affidavit, took it upon herself to diagnose the mother with all of the conditions listed in the next paragraph. Despite the fact that the father’s partner is not a doctor, but rather is a very new registered nurse with two years’ experience, and noting she has never actually met and assessed the mother with any of these conditions.
The following diagnosis were read out to Dr U from the Affidavit of Ms C, the father’s partner at paragraph 32 of her affidavit:
As a registered nurse assessing Ms Pierce, using all available data, I report the following observations:
(1) Her speech is disorganised with little or no content.
(2) Her cognitive processing appears impaired.
(3) Her working memory appears impaired.
(4) Her social and interpersonal functioning appears impaired.
(5) Her executive functioning appears impaired.
(6) It appears that she cannot differentiate between her needs and [X]’s needs.
(7) She appears to exhibit paranoid behaviour.
(8) She displays a disorderly lifestyle.
(9) She self-reports sleep disturbances which negatively impacts on [X].
(10) She seems to promote a co-dependence between herself and [X] which accedes the parameters of positive attachment, experiences expected to be presented between a mother and child.
(11) She appears to remain oblivious to the concept of hygiene or the health consequences related to poor hygiene for herself and for [X].
(12) She appears to have little or no insight into her own mental health.
(13) She appears to have little or no understanding of the developmental needs of [X].
(14) Her perceptions of reality contradict actuality.
The father’s partner continues:
“It is my professional opinion that Ms Pierce is in need of specialist assessment and intervention to ensure her own safety and wellbeing and the safety and well being (sic) of [X]. As a Registered Nurse, it is my professional opinion that Ms Pierce is in need of holistic support to enable her to function as an independent individual and parent.”
Dr U, when asked to consider the appropriateness or otherwise of a registered nurse making these diagnosis and without her qualifications to make these diagnosis and, in particular, noting that they were made without any actual personal assessment of the mother. Dr U informed the Court that it is impossible to make a diagnosis without first seeing and a long interrogation and spending time with the patient. Issues such as cognitive processing and working memory and executive functioning all take many hours of assessment that requires psychological and sensitive testing, assessment of learning would take hours of one-on-one contact and an evidence-based psychological questionnaire to get any meaningful results and that any such diagnosis, as suggested as being made by Ms C is fraught with difficulty and he would never do any diagnosis in that fashion.
In terms of her ability and qualifications to make such diagnosis, the doctor said that any diagnostic training for a nurse is generally not a major component of nursing and that any diagnosis would require the intervention of psychologists and psychiatrists and other practitioners in the field and that he would say that they would need many hours of assessments.
The doctor also said that in the course of treating the mother, she has seen a psychiatrist for assessment along the way and she has had psychological support.
Dr U said that, based on his records, he has never seen the mother in a state that he would have considered compromising her ability to parent the children. He confirmed his earlier assessment provided earlier, at KP4 of the mother’s affidavit of 25 June 2013, which is a letter from Dr U of 11 June 2013 that when the doctor said in his report:
“I can confirm that Ms Pierce has been seizure-free, based on her reporting of symptoms and collateral corroborating history from her children, Ms Pierce has at all times been compliant with her medication taking it as prescribed.”
Dr U said that there was clinical information provided to him through specialist neurologists, an MRI and an ECG or EG as well as collateral information being provided by her son, [Y], and daughter, [Z]. It has been part of the father’s case that the mother is suffering more seizures than she is letting on. There is simply, again, no evidence that the Court accepts to support this assertion.
I note that Dr U’s report concludes:
“Ms Pierce has been quite concerned and upset of late with issues that have arisen in relation to access and care for her daughter because of circumstances that have arisen between Ms Pierce and her estranged partner. Whilst she has been, at times, distressed with events and worries for her daughter’s wellbeing, she remains appropriate and functional, managing to care for her other children and function day-to-day. I do believe that Ms Pierce, at this point in time, is quite controlled and stable and is attempting to logically work through the issues to sort out the unpleasant situation she finds herself in with her daughter’s, [X], absence reasoning three matters and obtaining professional advice and support. Her general health is otherwise stable.”
That letter is written at a time when the father was unilaterally holding the child over for seven weeks and the mother and child were not permitted to have any contact with each other.
I note the observation that the mother is compliant with her medication and that, during the discussions concerning [X] and her siblings, that the mother displayed tolerance concerning compassion in her dealings with all her children, including [X], according to Dr U who is, of course, her own doctor.
In relation to the issue that has been a major theme of the father’s case that the mother is incapable of looking after [X] because of the combination of her medications, I am satisfied that her medications are being managed appropriately and that she is attending her doctor regularly, that she recognises when she is unwell as she did in September when the medications had unpredicted side effects. I do not accept that the mother ought to be criticised for taking drugs prescribed for her by her doctor. It is unfortunate that the drugs had a bad side effect, however that situation is not a valid basis for suggesting that [X] be removed from the care of the mother to live with the father, as the father has suggested throughout this trial.
The father’s evidence that he saw the mother drooling, slurring her words and other similar things in a car on one occasion in a car park are, in my view, exaggerated or false. The evidence from Ms P was that she went with her daughter to the shopping centre, left her daughter in the car for a while, went in and did some shopping and came back and then they drove home.
Mother’s Witness: Ms P, the maternal grandmother
Ms P as a quite impressive witness and appeared to be a very capable down to earth grandmother who is assisting her daughter regularly and as best she could. The grandmother, herself, has back conditions and takes a lot of medication for this particular spinal condition, which has been genetic and which affects Ms P, the mother, and Ms Pierce’s brother.
In terms of the evidence about the mother in the car in a car park, I do not consider that the maternal grandmother would have sat in a car and been driven around if the driver could not open their eyes and was drooling. In all, I consider it highly unlikely that the mother presented in the way that the father has described. The mother has only had the incident in September with the new medication a bad reaction was noted by the school as well. There is no other evidence of her being affected in a bad way by her medications, as had been alleged by the father. I did gather from Ms P that she knew her grandchildren well and she had a good relationship with the father. Ms P expressed reservations about the over involvement of Ms C and had more confidence that the mother and father could co-parent if Ms C was not on the scene.
Father’s Witness: Ms D
Ms D is a former girlfriend of the father’s and she was in a relationship for about 18 months with the father which she thought ended around Christmas 2012. She said that after they ended their relationship, they remained friends, as they do up to this day. I was impressed with Ms D as a witness. I considered she was very candid and she has obviously been a good friend for the father. Their relationship ceased when the father started seeing his current partner.
Ms D described her impression of the mother and father’s former home when they lived together as a couple. Ms D went to assist the father to clean up after the mother had moved out. It seems there was a period of five or six months after the father left that home to move in with his own mother, at separation. He then decided he would move back into the flat. At the point Ms D was assisting him. The mother had left and she said that she had a few things to come back and get.
The kitchen described by Ms D was that the kitchen cupboards were empty, there were cockroach droppings and mice droppings at the back of the cupboards, pots and pans and dirty dishes were piled on the sink, some saucepans had material stuck on them, others were clean. I had the impression that there had been some packing up in progress or completed which seems to be the reason why the kitchen cupboards were empty as were some of the wardrobes and other rooms in which all the belongings were gone. Again, there were things like cockroach and mice droppings in the backs of the cupboards, and some fairly unsightly grime.
Ms D said when she went to the front door there was the “stink of decaying food, mouldy clothes, rats and mice droppings”. There was practically nothing in the cupboards except for rat and cockroach excrement, as everything was on the benches. The pots were on the stove and piled two and three high on each plate, and the last one at the bottom back of the stove still had stale cooking water with black, rotting blobs in it. She cleaned out the fridge which was “disgusting” and there was food glued to the inside surfaces.
The floors in the bedrooms were covered in rubbish, food scraps and clothes. The bedroom that the mother had slept in was filthy, and her bedding and the bedding on the little mini-bed that [X] was supposed to have slept in was also dirty. I accept that the apartment was in a very poor condition. I also note that the mother had moved out, and that there would have been some degree of untidiness and things like cockroach droppings in places like the backs of cupboards and so forth would have looked very unsightly in the midst of all of the moving out and chaos. I do not know how long the unit had been vacant.
I do not have evidence that the mother lived in this fashion all the time, though I do not dismiss the account as to the condition the unit was found on inspection of the unit at the vacant stage, is not in my view, evidence of how the mother or father lived in that unit. It is evidence of how it was found by Ms D. Of interest in her evidence was that the father’s concern when they were together, he would like to have an opportunity to influence how [X] was being brought up and that, they were going out, [X] was spending at least two days out of seven with the father. Ms D said that, after a while, the father started to feel as though his two days was starting to make a difference and that it was starting to work.
Ms D described four year old [X] as being a very self-centred child who would never share, she would snatch toys from Ms D’s grandchild, she would try and tell Ms D’s granddaughter what to do, and that [X] was a child who thought she was the boss of the house, in charge of the house, and that the father eventually starting to get [X] to understand that her behaviour in that manner was not acceptable.
Ms D’s description of [X] being a very assertive child is in line with the opinion of the Report Writer.
Ms J, Family Report Writer
Ms J, the family Report Writer, has prepared two family reports. Ms J started off her evidence by including a paragraph that had dropped out of her reports to the effect that, in the event that child remained living with the mother, the child should spend four days a week with the father, which was the mirror image of paragraph 126. During the course of her evidence, I suggested to the Report Writer that the mother had changed her position from the father having four days a week to the father having from Friday to Wednesday morning. Ms J said that a day or two here or there was of no great significance either way. If the mother offered that time then she would have thought that the same arrangement, a mirror arrangement, should happen with the father.
The mother’s position in relation to time with the father at the commencement of the trial (and the mother being the first witness) she agreed that [X] should spend more time with the father. She agreed that it could go as far as Friday to Wednesday morning. That position, however, was withdrawn after the mother witnessed the evidence of the father’s partner, Ms C, and the mother through her Counsel, Mr Slade Jones, submitted at the end that the mother was so alarmed by the evidence of Ms C and her intervention in this matter and her obvious hostility towards the mother, that she could not continue to support that position as she had originally indicated. On reflection she considered that Friday to Tuesday each alternate week would be in [X]’s best interest.
The evidence of the Report Writer was effectively that if the Court was troubled with the mother’s parenting capacity and issues, including her poor decision making being; (1) the mother’s decision to allow her 13 year old daughter to have a male friend over for sleepovers; (2) poor parenting by way of hygiene; or (3) the mother’s decision to engage in a relationship with Mr M; or (4) the mother’s parenting capacity being affected by her taking medications, then the Court might order that the child live with the father. Otherwise, if the Court was not troubled by those issues, that the child would live with the mother and spend time with the father.
One of the issues which the Report Writer was asked about is the capacity of the father to promote a relationship with the mother and child in the event that the child spends most of her time in the father’s household given his and his partner’s low regard for the mother. The Report Writer said that generally the long term effect of that would be that the child would move from one house to the other and would ultimately start taking stories from one house to the other or when she doesn’t get her way in one house, she will go to the other house and effectively manipulate the parents. The Report Writer stated that the atmosphere would be ripe for that if, in the father’s household, the mother was denigrated and she was held in a very poor regard. The end result would be that the child will have a very unhealthy relationship with both parents.
The Report Writer also asked about the father’s physical responses in Court when he was sighing heavily and loudly and seemingly in some distress when listening to questions being asked of the Report Writer about future orders for [X]. Ms J’s view was that the father is heavily invested in getting what he perceives as the right outcome for his child, and what the Court observed in the father’s very heavy breathing and apparently suffering some distress was really him being in pain over the possibility that what he sees as right for the child might not occur and that he is in fear that his perception of what is right for [X] is not going to be understood in a way that, for him, is so clear.
Ms J advised that if the child was placed with the mother, she was not troubled about four or five days with the father, and that those sorts of times were closely related and there was no significant differences. The Report Writer noted how well the parties appeared to have co-communicated before the entrance of Ms C into the parental dynamics. She noted that the father now says that that was only because he didn’t take up his concern about issues with the mother. The Report Writer said that the mother and father both dearly love the child, and that she would very much recommend that if the Court thought that there was significant intervention by the third party (Ms C) that an order for counselling for the mother and father ought to be made with the purpose of improving their cooperation and to help them realise that they are the only two people that should be making decisions for this child.
60CC(2) The primary considerations are:
The benefit to the child of having a meaningful relationship with both of the child’s parents;
I am satisfied that it is in the best interests of [X] to have a meaningful relationship with both parents and that she is a much loved child by both parents. The issue of the father’s antagonism and seeming resentment of the mother coupled with his attitude and his partner’s attitude towards the mother is a significant factor and there are consequences for [X]’s exposure to this attitude as referred to by the Family Report Writer.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am not satisfied that [X] is exposed to neglect as alleged by the father. There is a risk of psychological harm caused by the strong views and criticisms against the mother, held by the father and his partner.
In terms of education, and the father’s concerns about the mother getting the child to school late, I’ve already commented that it is a difficult thing, indeed, to get three children to three different schools every morning on time. Interestingly, the father’s view is that the child is doing exceptionally well at school, and that she is a very bright student, and that her reading is progressing in a very good fashion. Overall, he doesn’t have any complaints at all about her performance at school. There is, therefore, little for the Court to conclude, other than the father has no complaints about the progress of schooling, despite late starts or absences.
The other issue raised by the father is about the dental records. I note that the mother appeared to be following advice, in terms of the abscess, that she could have it either done straight away or leave it. I do not regard the father’s position that the child had to suffer an abscess for 72 days, or some other time, as being correct, or as being a valid complaint against the mother. There is no evidence to suggest that the dentist said anything other than she could wait until it got bad again. I note that there was a lot of dental work to be done. I do not have any actual evidence that the mother has been neglectful. The father also had parental responsibility whilst he had regular time (couple of days a week) with the child, and he did not take any steps to address the dental work till his new partner came on the scene and he withheld the child. This was a very poor parenting decision on the father’s part coupled with an extreme response to the required dental work.
In terms of the mother’s coping, the Report Writer thought that the mother minimised her constant lateness for school and she described difficulties in mobilising the older children to get ready. The absences from school were regarded as being not alarming, but were substantial and warranted further explanation.
There has been an issue raised by the father of the mother being co-dependent on the child. That was raised by the father, however there does not really seem to be any evidence of that. [X] has her own bed now in the mother’s room and when she has a nightmare or she wakes up, sometimes she goes into the mother’s bed. The mother’s presentation in terms of her capacity to care left the Court quite troubled that she was able to cope. One of the single biggest issues for the Court was also the seizures that the mother is suffering and whether or not she is actually in a position to provide full-time care for the child. When the mother first collapsed, that was a disturbing event for all of the children. They rang her friend, [name omitted], and rang the ambulance. All of the parties agree that [X] was greatly troubled by seeing this incident.
The Court requested during the trial that the mother’s doctor be called to give evidence about the nature of the medications and about how they would affect the mother’s capacity to care for the child, both during the day and the night, particularly in the event of an emergency with the child. Subpoenas were issued and the doctor was contacted and ultimately that evidence was received. Having heard this evidence I am satisfied that the mother’s medication is being properly monitored. I have the impression that the mother’s physical ailments reduce her capacity to cope with the demands of parenting.
S.60CC(3) The additional considerations are:
S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
[X] is very young and I consider she is too young to understand the effect of her long term living arrangements and the issues in this matter.
S.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)
I am satisfied that [X] is a much loved child by both parents. I have the impression that she has a strong character and is going to benefit from shaping in her development by committed and active parenting.
[X] has always lived with her mother primarily. One of the most moving aspects of the interview by the Report Writer in September 2013 was described at paragraph 94, which said:
“The most moving aspect of the interview was her recollection of how much she had missed mum when she had been at dad’s place for several weeks. She referred to how she had not been allowed to talk to mum on the phone. She had asked dad if she could, but he said that this would be too upsetting for her.”
[X] has always live with her half siblings, though, given their ages, it is to be expected that their lives will move on into adulthood in the not too distant future.
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
To participate in making decisions about major, long term issues in relation to the child; and
To spend time with the child; and
To communicate with the child.
The mother has made most of the day to day decisions regarding [X]. I do not accept that the father was prevented from being involved in [X]’s child rearing. It seems to me the father was content with the arrangements for years, where [X] lived with the mother and spent several days a week with him. It may be that the father was somewhat naïve about processes with the mother open to him such as family dispute resolution to discuss his ongoing concerns about absentee days or the need to go to the dentist. These issues should not have been insurmountable in a shared care arrangement.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The father and mother have each played a significant role so far in raising [X]. It seems to me they co-parented in the true sense of the word with [X] generally spending a part of each week with the father.
The mother seems to have struggled through her parenting as described by the Family Report Writer. Hygiene at times does not seem to be a priority given the evidence of Ms D. The mother allowed her 13 year old daughter to engage in an entirely inappropriate activity. I have the impression that at times, the mother is just overwhelmed with her responsibilities.
S.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 he or she has been livingS.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father’s proposal of having [X] live with him and spending minimal time with the mother, will in my view, expose [X] for significant periods to the derogatory views of the mother strongly held by the father and his partner as referred to. This is a significant factor for the Court.
S.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
The mother and father have each provided food, shelter, and a loving home for [X] in the past. With the arrival of the mother’s partner a struggle has ensued over decision making about [X]’s dental needs and unilateral action was taken by the father in removing [X] from the care of the mother. This was compounded by the father’s decision to refuse [X]’s request to call her mother or spend any time with her mother. No amount of required dental work justified this conduct. I am troubled at the father’s ability and capacity to provide for the child’s emotional wellbeing.
The mother has a heavy load in raising three children, added to her own physical restrictions. The mother has shown poor and risky judgment in acquiescing to her 13 year old daughter’s request to have her boyfriend stay over. It seems she has been late getting [X] to school and absent days as shown in the subpoena material are noted.
Fortunately however there are only 2 unexplained absences and the father is correct in his statement that [X] is doing very well at school as can be seen in her report cards in which [X] is seen to have earned the praise of her teacher. [X] is described as an enthusiastic and capable student demonstrating a strong work ethic. She has made significant improvements in reading, writing and mathematics throughout 2013. She has a happy demeanour, a positive attitude and she received a “very high” for her behaviour. Her subject results were all in a very acceptable range, her homework usually completed and a parent interview welcome but not essential. To note also [X]’s presentation at school as seen in records was neat, maybe wears uniform twice and comes to school with all the equipment she needs.
The father has not been the primary sole parent for [X]. He has always parented with assistance from the mother, or his current de facto. My impression is that the father has little understanding of the pressures of full time parenting of 3 children and that most of his complaints about lunch boxes, the cleanliness of clothes are unfounded. I had a strong impression, the father is looking for fault on the mother’s part and that he fails to acknowledge her positive attributes and successes in raising [X]. The mother went through a difficult period when she had major surgery. Fortunately she had much assistance from her own mother who in my view is a very good support for the mother. She is also a neutral family member in terms of her dealings with the issues between the mother and father.
I have a strong impression, that, left to make decisions themselves, without interference from third parties, each parent has a lot to offer [X]. I consider each parent has strengths and weaknesses. Overwhelmingly, as noted by the Report Writer, [X] is a much loved child.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
I have nothing to add under this consideration.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parents has generally shown a willingness to be involved in the responsibility that comes with parenting. Left to make decisions between themselves, the Court considers each parent will continue to do so. The actions of the father, as referred to in these reasons in taking radical action in authorising significant medical procedures and withholding the child from the mother have been a very poor reflection on the father’s parental responsibility. The dental issue did not require any such change of residence and prevention of the child spending time with the mother, as was imposed by the father. The father said he took the “biggest gamble” of his parenting life in engaging in this preconceived plan. These decisions were unwise, regretful and unnecessary.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family and S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
(iv) any findings made by the Court in, or in proceedings for, the order;
any other relevant matter.
There are no issues of family violence and no family violence orders.
S.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
It is clear to the Court that the pressure of the litigation is felt by each of these parties. The Report Writer noted the overt physical responses of the father in Court which she considered was his heavy investment in this litigation. The involvement of his de facto and her campaign of emails to the counsellor, her requesting police to have the mother assessed under a Justice Examination Order, her reporting to the mother to the Department of Child Safety all took this matter to a much more combative and hostile level. The mother has been heavily maligned, her medical records analysed by the father and his de facto, and an attempt made to have her dealt with for a mental health disorder, which failed completely. I have a strong impression that this litigation has been overwhelming for the father as he has gone all out to launch a serious smear campaign against the mother. His evidence at times was rehearsed. I do not think the father would have launched this style of litigation without the intervention of his de facto. Unfortunately, the father is very much under the influence of his de facto. The orders that the Court make should in all the circumstances hopefully bring the litigation to an end.
S.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant
I have nothing further to add.
Equal shared parental responsibility
The father conceded during his final submissions that he no longer sought an order for sole parental responsibility. I note that there is no child abuse or family violence that would suggest that the presumption does not apply. Each of the parties are now seeking an order for equal shared parental responsibility. I consider each of these parties have their own strengths and that they’re both invested in her future. Overall, it would be in [X]’s best interests to have an order for equal shared parental responsibility and have the benefit of their joint input in long term decisions.
I will need to add to that, however, that the reservation for the Court is that it will not be the father exercising the responsibility, but it will rather be his partner, Ms C. I intend to make orders that it is to be the parents, and only the parents, that together discuss any issues about the child’s long-term care, welfare and development issues and that it will be the mother and father only who correspond with, in any way, any doctor, treating professional, educationalist or any other person by whom the child is being treated, attending upon or dealing with any schooling issue at all.
I am appalled to see the amount of correspondence written by Ms C to the school, and to the counsellor, Ms S. I think there are in excess of 50 emails all written by Ms C. There are, either written by her or clearly at her initiative, emails written by the father to the school and others. There are a myriad of directions coming from Ms C. She has overstepped the mark so far that the Court is very troubled by her interventions. They are entirely out of line and misguided. I have a very strong impression that she has a small amount of knowledge in a nursing field, but she is overly confident and lacks insight into her own qualifications and lack of experience. I am quite satisfied that the mother’s position that these parties were getting on very well prior to her involvement is quite true.
Discussion
It is clear that each of the parties has a good relationship with [X] and that each parent has high hopes for her in the future. [X] is a lucky child in that she has two parents who love her dearly.
The mother has the adequate capacity to parent [X] on a day to day basis and so does the father. The mother however has many other responsibilities in parenting her teenagers, surviving financially and managing her medical conditions. The father has become very intense and emotional about the fact that as he sees it, [X] must live with him as the primary carer. The father lacks insight into the effect on [X] of his radical decisions to just withhold [X] from her mother on one occasion for almost 2 months and prevent [X] from seeing her mother at all in that time. The father is a loving father, who wants the best for [X], but he is slow to accept that he is under the influence of his de facto, nor does he seem to realise the powerful effect on [X] of his and his de facto’s negative attitude towards the mother. The Court is troubled by the prospect of long term influence of the attitude of the father and also his partner on [X]. Not only is it likely to result in [X] playing one parent off against the other, it will also likely lead to [X] choosing one parent over the other. In my view, this would be a catastrophic result for [X] who is entitled to know and be cared for by each of her parents to the extent that it is consistent with her best interests.
I have made an order for equal shared parental responsibility. Having done that, the Court is pursuant to s.65DAA consider whether an order for equal time and if not equal time significant and substantial time should be made. For this to occur, the Court must be satisfied that it is both in [X]’s best interests and reasonably practicable to have either an equal time arrangement or spend significant and substantial time with each parent. The father to his credit appeared by the end of the trial, to genuinely show some realisation that his litigation tactics have caused the mother significant distress. The father’s inexperience with parenting full time or as a primary parent sees him being overly critical of the mother. He seemed to struggle to understand that [X]’s teenage siblings would naturally have arguments as teenage siblings do routinely. His focus on school lunches and dirty clothes is not borne out by evidence in school records. The medical evidence is that the mother is taking her prescriptions as prescribed and is a compliant patient. Her seizures are well managed. The mother clearly, though, has significant responsibilities in raising all three children as a single parent. She is not a perfect parent and neither is the father. I accept that Ms C’s arrival on the scene has been a source of distress for the mother and I am troubled that the father has not realised this earlier than the trial.
The father is seeking an order the [X] live with him primarily and spend only each alternate weekend with the mother. Having canvassed the relevant considerations throughout this judgment, I am not satisfied that it is [X]’s best interests to live with the father and his de facto as primary parents. This is a radical departure from her living arrangements for effectively her whole life. I do not consider that the mother’s capacity is so lacking that is warrants the removal of [X] from her mother and that [X]’s relationship ought to be diminished to spending each alternate weekend with her mother. The father has never been the primary carer, he has limited experience in having [X] with him for lengthy periods, and he has shown a willingness to disregard [X]’s relationship and love of her mother which is most troubling.
Added to this, the father has shown a willingness to be under the influence of Ms C who he loves and respects and in whom he sees no faults. The Court has grave reservations about how long the child’s relationship with the mother would last if [X] lived under the primary influence of the father and his de facto partner. Together they have demonstrated a strong desire to assume all parenting decisions and to exclude the mother. Together they have demonstrated contempt for the mother on a personal basis. Ms C has tried everything in her armoury to have the mother statutorily assessed for mental illness, reported to the Department of Child Safety, she has engaged in tactics with a counsellor to have the child in the possession of herself and the father and to control and halt the child’s relationship with the mother. The father has been a willing partner and or gone along with the decisions made by Ms C. His inability to see how intrusive these actions have been is quite troubling for the Court. These actions engaged in by both the father and his partner do neither of them any credit.
The mother seeks an Order that the child live primarily with her. I am mindful of the evidence of the Report Writer as to the mother struggling to parent three children. I accept that her load is heavy. I also consider that her parenting decisions such as allowing her 13 year old to have a sexual relationship right under her own roof, are ill considered and naïve. The mother does struggle each day to get through the physical side of keeping house, parenting and driving three children to all of the schools and commitments all week. Her physical ailments do play out in her capacity to parent. Whilst I am satisfied that her medical issues are being well monitored I am satisfied that they add an extra layer of difficulty for the mother on a day to day basis. It seems likely that some of her own difficulties are relevant when looking at [X]’s absences from school.
I am satisfied also that [X] is quite a strong willed child, who will need responsible and strong parenting to shape her development. I do not consider that the mother can do this alone. I regard the father as being a good parent, a loving parent and a father who is striving to achieve the best in life for [X]. Unfortunately his way of trying to achieve this has been misplaced, though I am sure his motives are not misplaced. His ability to allow himself as the father of [X] to be dominated by his current partner is also troubling.
Neither parent has asked for an equal time arrangement. I do not consider that these parties have the ability to facilitate an equal time arrangement given the attitude of the father to the mother, particularly when the involvement of his partner seems to fuel conflict between the mother and the father. Also, I am satisfied that if the child lived in an equal time arrangement that she would be exposed to too much influence and negativity towards the mother in the father’s household. The Court does not accept the level of criticism and concern regarding the mother’s parenting as contended by the father. The father himself is not without criticism in his own parenting. He has made poor non child focused decisions in holding over the child as referred to elsewhere in these reasons. There was only a glimmer during the trial that he is aware of this. He does dispute that in the past the mother had legitimate concerns about his drinking.
The mother seeks in her final submissions, an order for [X] to live with her and spend from Friday to Tuesday each alternate week with the father. The mother would have agreed to extending this Wednesday, but for the overwhelming influence of Ms C on the father and her obvious poorly held view of the mother. The Court is left to weigh up the advantages and disadvantages of each proposal. There are obvious advantages in having the father more involved in [X]’s life as without the interference of his partner, he has much to offer [X]. The mother’s parenting at times is left wanting [X] has missed many school days. She is a strong willed child. The mother has a heavy load with her physical and medical conditions and parenting three children. I consider the influence of the father (but not his partner) in [X]’s life would be most beneficial. The father seems to have an otherwise sensible approach to parenting and he is striving to provide [X] with a fulfilling child hood.
Having regard to the primary and additional considerations, I am satisfied that it is in [X]’s best interests to live primarily with the mother though to spend significant and substantial time with the father. I am satisfied that it is [X]’s best interests to spend time with her father from Friday until the commencement of school on the following Wednesday morning each alternate week. The mother nominated that [X] spend until Tuesday each alternate week with the father, however, given what I consider to be the load for the mother in getting [X] to school throughout the year, her physical restrictions and the effects of those conditions on her parenting and I accept that she has been struggling, I am satisfied that it is in [X]’s best interests to spend the extra day each fortnight with the father who will be able to assist in raising [X] on a regular basis. I am satisfied that spending this amount of time living with the father will enable [X] to retain her loving relationship with the mother as [X] will still be living primarily with the mother. I also consider that through this arrangement [X] will receive the benefit of the best of each of her parents parenting. The Court however, makes this order on the assurance of the father made by him during submissions and after the ordeal of four days in litigation, that he alone will do the parenting while [X] is in his care and he and the mother alone will make decisions about [X] with the mother, and he and the mother alone will deal with all issues medical and educational and any other issues arising in relation to [X]’s welfare. Effectively these Orders are made on the basis that the father’s partner will respect the legal standing of both the mother and father and provide her support to the father from well behind the firing line. The father is to ensure that his de facto does not correspond with schools and doctors and counsellors and others upon [X] may attend and this will be a condition of the father’s time with the child.
So there is no confusion, the Orders for equal shared parental responsibility will include a notation that it is not for any other adult to be making decisions or interfere in the parenting decisions of [X] that fall within the realm of long term decision. This is intended to remind the father to do what he says to the Court that he will do, and that is co-parent [X] with the mother, without direct or indirect or influence from his partner. It is essential the father’s partner not remove herself from the front line of the child’s medical and educational issues and other issues to do with her long term welfare and that the father ensure that the mother’s standing as a parent is respected and observed as being equal to his own standing. His failure to do this will inevitably result in the matter returning to Court and I have no doubt that his failure to observe the meaning and spirit of the Orders as drafted by the Court, will have significant consequences for the father’s future involvement in [X]’s life.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Willis
Associate:
Date: 22 January 2015
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Family Law
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