Ramsey and Hays
[2016] FamCA 353
•16 May 2016
FAMILY COURT OF AUSTRALIA
| RAMSEY & HAYS | [2016] FamCA 353 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Parental responsibility – Best interests of the child – Child has lived with the father since 2011 – Significant issues of the mother’s mental health – Allegation of child abuse perpetrated by the paternal uncle – Concerns in relation to the mother’s husband – Child to live with the father and spend time with the mother – Father to hold parental responsibility. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode[2006] FamCA 1346 Mazorski & Albright[2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 MRR v GRR [2010] HCA 4 |
| APPLICANT: | Ms Ramsey |
| RESPONDENT: | Mr Hays |
| FILE NUMBER: | NCC | 3176 | of | 2011 |
| DATE DELIVERED: | 16 May 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 29, 30 and 31 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant in Person |
| COUNSEL FOR THE RESPONDENT: | Mr Levick |
| SOLICITOR FOR THE RESPONDENT: | Attwaters |
Orders
That orders of 18 February 2013 be discharged.
That the father have sole parental responsibility for the child B born … 2010 (“the child”).
That the father shall consult with the mother in regard to long-term decisions proposed to be made by him in respect of the child’s long term care, welfare and development and the father shall inform the mother in a timely fashion of those decisions which he makes.
That the child live with the father.
That the child spend time with the mother as agreed in writing such writing to include email or text message and in default of agreement:
(a) During school term each alternate week from after school Friday until 5.00 pm Sunday or Monday if a long weekend commencing on the first weekend after the resumption of each school term and in the other week from after school Monday to before school Tuesday;
(b) One half of the mid-year Term 1, 2 and 3 school holidays from 9.00 am on the first Saturday of such holiday period until 5.00 pm on the following Saturday;
(c) In the Christmas school holidays up to and including the 2018/2019 holidays for three non-consecutive equal block periods totalling one half of the nights of the school holidays calculated from 27 December each year to the last night of such period provided that that prior to 26 October in each year the mother must notify the father in writing or by email or text message of the three non-consecutive block periods proposed by her and that in the absence of such notice or agreement otherwise such periods shall be nominated by the father no later than 26 November each year;
(d) In the Christmas school holidays thereafter for first half of the nights of period in as calculated in (c) above in even numbered years and the second half in odd numbered years;
(e) On the Mother’s Day weekend from after school Friday until 5.00 pm Sunday provided always that the child’s time with the mother shall be suspended on the Father’s Day weekend;
(f) From 12.00 noon Christmas Day until 5.00 pm Boxing Day in even numbered years and from 12 noon Christmas Eve to 12 noon Christmas Day in odd numbered years; and
(g) And that otherwise the mother shall be at liberty to attend on such other occasions and at such other events as are significant to the child’s welfare being occasions relating to education, religious education, health, sporting activities, extracurricular activities or other occasion significant to the welfare of the child where the attendance of either or both parents is to be reasonably expected.
That both the father and mother shall ensure the child’s regular attendances at school and in the event that the child is absent from school whilst in their respective care they shall inform the other promptly of the child’s absence and the reason for such absence in writing including email or text message.
That for the purposes of changeovers they shall be implemented:
(a) By the mother or her nominee known to the child collecting the child from or delivering the child to school where appropriate; and
(b) Otherwise by the mother and father or their delegate meeting at the Suburb C Library to effect changeovers provided that that any such delegate for the purposes of changeovers be known to the child and provided always that the mother be restrained from nominating Mr D for such purpose.
That the mother shall maintain regular consultation with and as directed by Dr E or any successor treating psychiatrist or mental health professional and comply with her recommended treatment regime including the taking of medication.
That the mother do all things necessary to authorise her treating psychiatrist or other mental health professional from time to time to provide to the father not more frequently than each three months a brief report as to the state of the mother’s mental health as it may affect her capacity to care for the child.
That the mother shall notify the father in the event that there is a change of her mental health practitioner, noting that she presently consults Dr E, psychiatrist.
That the parties be restrained from causing or permitting the child from consulting as her general medical practitioner any medical practitioner other than Dr F of the G Medical or H Medical at Suburb I or otherwise as agreed in writing including text or email except in the case of urgency or emergency.
That the mother inform the father in writing including text or email as soon as practicable and in any event within 24 hours as to the identity and dosage of any prescribed or non-prescribed medication which the mother administers or causes to be administered to the child.
That as soon as practicable the parties obtain a referral for the child to attend a specialist paediatrician for the purposes of investigating the child’s bowel issues with each party being entitled to attend any such consultation with the paediatrician.
That the mother and father promptly notify the other in the event of the child sustaining any injury or illness which requires treatment by any health service provider whist in their care.
That the mother and father keep the other informed at all times of their email, mobile phone, land line (if any) phone numbers and residential address and promptly notify the other any proposed or actual change of such details.
That these orders are sufficient authority for the Principal of any school attended by the child to provide to the mother at her cost copies of all notices and reports ordinarily provided to parents of children at that school.
That each party provide the child reasonable means of electronic communication with the other party as appropriate to the child’s age and stage of development at the time including but not limited to telephone communication between 6.00 pm and 7.00 pm on each alternate day of each period which the child is not in the care or company of that parent pursuant to these orders.
That in the event that the child commences participation in any organised extra-curricular activity the party in whose care the child is on the relevant date shall ensure the child is transported to that activity on time and the party in whose care the child would be at the conclusion of that activity shall ensure that the child is collected on time provided always that both the mother and father have agreed in writing including SMS or email to the child’s participation in such activity prior thereto.
That Mr D be restrained from attending at or near the child’s school, attending at or near the Suburb C Library at any changeover and attending at or near any place or activity at which from time to time the child may attend for the purposes of participation in any extracurricular activity while she is in the care of the father.
That the father shall not cause or permit the child to be in the company of Mr J Hays unless another adult known to the child is constantly personally present.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ramsey & Hays has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: NCC 3176 of 2011
| Ms Ramsey |
Applicant
And
| Mr Hays |
Respondent
REASONS FOR JUDGMENT
The Proceedings
Litigation in relation to the child B, born in 2010, commenced in December 2011 when the child was not yet two years of age. Litigation has continued on and off in relation to the child ever since with the latest round of proceedings commenced by the applicant mother in July 2014.
The significant overshadowing circumstances in relation to these proceedings is the mother’s mental health in particular her Bipolar Disorder and the father’s abuse of alcohol.
The First Family Report
The initial Family Report (Exh B) provides a useful summary of the issues and background that were identified early in the proceedings.
In February 2009 the mother attended upon Dr K, psychiatrist. Dr K noted at the time that the mother had been reducing her medication to about half the prescribed dosage to a level that was considered sub-therapeutic. The mother informed Dr K that she had been trying to get pregnant for about six months. Dr K tried to reason with the mother advising her of the risks to her unborn child and discussing with the mother the need to have a stable life prior to falling pregnant. Dr K’s notes reveal that the mother viewed others as having “let her down” including her GP and her family worker and that the mother presented as having a high level of “self-entitlement”. The mother did not attend her next appointment with Dr K.
In March 2009 the mother was referred to see another psychiatrist Dr L by her GP, Dr F, in circumstances where the father had called an ambulance to assist him with the mother who he thought was having a psychotic event. Dr F’s referral letter notes “lately she has been quite unstable with her moods. She keeps getting frustrated, anger problems”. In July 2009 Dr L saw the mother and noted “she tells me she is pregnant. Unfortunately despite our discussion about getting off the lithium before trying for a baby, she has become pregnant while taking lithium.”
The child was born by emergency caesarean in 2010 and the hospital notes revealed that the mother presented as irritable and reported having “racing thoughts”. The mother was commenced on a fairly high dose of antipsychotic medication and was targeted for follow-up on a daily basis once she was discharged. It appears that the antipsychotic medication made it difficult for the mother to attend to the needs of the new born baby due to its’ sedative effect and Dr L agreed to the mother reducing her dose of antipsychotic medication. It appears that the father was significantly engaged in attending to the needs of the newborn child.
The father was admitted to M Hospital in April 2009 for assistance with his alcohol dependence. He had previously had two drink-driving offences in 2005/2006. After the commencement of their relationship the mother continued to have misgivings about the father’s alcohol abuse.
The relationship between the mother and father continued to deteriorate until final separation in June 2010. From July 2010 until July 2011 the father spent time with the child on his days off including some overnight time. The father commenced to have further concerns about the mother’s mental health in January 2011.
On 17 July 2011 the mother was admitted to the G Town Mental Health Unit after first presenting to the N Hospital on 15 July 2011 with the child. The mother was observed to be psychotic, distressed, having persecutory delusions and thought disorder and was scheduled to the mental health unit. The child was placed in the father’s care on 15 July 2011 and has continued to be in his care since that time.
Notwithstanding the mother’s mental health issues, the family consultant observes that the father showed a willingness and determination to maintain the relationship between the mother and the child.
The mother was discharged on 22 August 2011 and the father arranged for the mother to spend time with the child on two days per week provided that the mother was assisted by the maternal grandmother. This assistance was required as the mother was heavily sedated as a result of her antipsychotic medication.
Conflict between the parties escalated by reason of the mother’s demands seeking more time with the child.
The father, reports the family consultant, ceased drinking in January 2011 and had remained abstinent until the time of the Report. The father further engaged with the Brighter Futures program when the child came into his care and was assisted with parenting advice.
In October 2011 Dr O psychiatrist assessed the mother and was informed by her that she had stopped one of her medications as it had caused her among other things to experience suicidal ideation. The mother reported that she remained depressed and was not sleeping well at night. In late October 2011 the mother reported that the father no longer drank and that he “is a great dad and doing a wonderful job with their daughter”.
On 6 December 2011 the father commenced parenting proceedings.
On 30 January 2012, the month after the father commenced proceedings interim parenting orders were made by consent that relevantly in summary provided:
a)That the child live with the father;
b)That the child spend time with the mother on a day basis each Tuesday, Friday and Saturday from 8.00 am until about 5.15 pm;
c)That for the purposes of the child’s time with the mother, the father or his nominee deliver the child to the mother and that the child be returned by the mother or her nominee to the father at the conclusion of that time;
d)That the mother maintain regular consultation with her treating psychiatrist and comply with the treatment regime including the taking of medication;
e)That neither party shall cause or permit the child to consult as her general medical practitioner anyone other than Dr F and that neither party shall administer to the child any medication other than as prescribed by Dr F or as agreed by the other party; and
f)That the father shall undergo not more than three drug and alcohol tests at times nominated by the mother and provide a copy to the mother’s solicitor.
The family consultant in her report concluded:
While the family consultant understands how difficult it is for the mother to relinquish her role as [the child’s] primary carer to the father at this time, she feels that the best arrangements for [the child] would be to remain in the father’s care and to spend time with the mother in accordance with the current arrangements.
It is suggested that, given the father’s demonstrated willingness to facilitate a good relationship between the mother and the child, the father should be given sole parental responsibility for the child and any additional time that the mother spends with the child should be at the father’s discretion and on the proviso that the mother is well and she is complying with medical treatment.
The First Final Orders
Current orders in place in relation to the child were final parenting orders are made by consent on 18 February 2013. Those orders relevantly in summary provide:
a)That all previous parenting orders be discharged;
b)That the mother and father have equal shared parental responsibility for the child;
c)That the child live with the father;
d)That the child spend time with the mother initially on a gradually increasing basis until the child commenced formal schooling in 2015 and thereafter each alternate weekend from after school Friday until 5.00 pm Sunday and each Wednesday from after school until before school Thursday morning;
e)That the mother be restrained from bringing the child into contact with or permitting her to be or remain in the presence of Mr D;
f)That the mother be restrained from administering to the child any medication without first giving notice to the father of the type of medication, dosage and reason for administration;
g)That the mother be restrained from causing or permitting the child to consult as her general practitioner any medical practitioner other than Dr F except in case of emergency; and
h)It was further noted that in addition to the times specified in the orders the father will agree reasonable holiday time for the child and the mother with such consent not to be unreasonably withheld.
The Second Proceedings
Some 16 months later the mother commenced proceedings seeking final and interim orders in relation to the child. The mother’s further application initiating proceedings sought parenting orders that relevantly in summary provided for:
a)The discharge of the previous parenting orders;
b)That the mother and father have equal shared parental responsibility for the child;
c)That the child live with the mother, that the child spend time with the father on alternate weekends during school term from after school Friday to before school Monday and in the other week from after school Thursday to 9.00 am Saturday and half of school holidays.
The father filed a response to the mother’s application seeking that the application be dismissed, that he have parental responsibility for the child and that previous orders as to the child’s time with the mother be discharged.
The Children and Parents Issues Assessment
On 27 November 2014 the parties and the child attended upon a family consultant for the purposes of a Children and Parents Issues Assessment. That report is dated 28 November 2014 (Exh C).
At the time of the assessment the child was nearly five years of age and was due to commence kindergarten in 2015. The child was attending preschool twice a week at an early learning centre and had completed her orientation program for kindergarten and was enrolled to attend at Suburb C Public School.
The mother reported that she was then under the care of her general practitioner Dr F and her psychiatrist Dr E having previously consulted a psychiatrist Dr P. The mother was at the time on a disability pension and unemployed. The mother proposed that the requirement for her time with the child to be supervised be removed.
The issue as to the involvement of Mr D with the mother and with the child was the subject of comment by the family consultant in the following terms:
10. At the time of the previous Family Report the mother purported not to be in a relationship with anyone; she had previously been in a relationship with [Mr D], who has a criminal history related to illicit drug dealing. When the Consent Orders were made it was agreed that the child would not be brought into contact with this person. At the current time the mother is engaged to be married to [Mr D] and would like that restriction to be lifted. The father is strongly opposed to this occurring as there has been ongoing conflict between himself and [Mr D], with [Mr D] insisting upon attending the changeovers which take place at the father’s residence. This has been reported to the police by both parents. The father’s perception is that [Mr D’s] behaviour is designed to be both threatening and intimidating and it has been reported that [Mr D] has suggested physical confrontation as a means of sorting out their differences.
11. The mother’s view is that [Mr D’s] presence at changeover is to ensure her protection from the father and the extended paternal family, whom she perceives as behaving aggressively towards her. The mother proposes that changeover occurs at a neutral venue and has suggested either the local police station or the library. More recently, the mother refused to take the child to the father’s home, instead taking her to the police station and telling the father to collect her from that venue. When the father refused, the mother put the child on the phone and told her to tell the father to pick her up. The father eventually arranged to collect the child from the local library, some hours after the designated return time. There was conflict between the parents at that time, in front of the child.
12. While the mother reports that the child has not come into contact with [Mr D] since the Orders were made (other than talking to him on the phone or seeing him sitting in his car at changeover), the father reports that the child is evasive when asked about [Mr D] and will only say that it is ‘a secret’ when asked whether she is spending any time with this person.
13. The father reports that the mother first asked him to consider lifting the restriction on the child spending time with her partner in around September 2013. He reports that the mother argued that that it was unfair for the child to be allowed to spend time with the paternal uncle, [Mr J Hays], when he had a history of cannabis use and not to be allowed to spend time with her partner who has a history of steroid use and a conviction for importing drugs. Letters were exchanged by both solicitors during September 2013 and October 2013, with no agreement being reached.
As to issues relating to the father’s brother Mr J Hays the family consultant observed:
14. On the 23 September 2013 the mother reportedly told the father to keep his brother away from the child, suggesting that [Mr J Hays] had been ‘molesting’ the child.
15. On the 28 September 2013 the mother contacted the police with regards to her concerns and the father was contacted by the police, first by telephone and then by the police coming to his home to interview him and to check on the child.
16. The father reports that, following these allegations, the paternal family resolved to ensure that the child and [Mr J Hays] were never left alone together or unsupervised. The father reports that this practice is still in place. These measures are designed to protect both the paternal uncle and the child.
17. The father and the paternal grandmother accompanied [the child] to be interviewed by the JIRT team on the 30 September 2013; however, the child would not talk to the officers. The father reports that JIRT advised him that the allegations could not be substantiated.
18. The mother was then interviewed by JIRT. Following the JIRT interview the mother reportedly contacted the pre-school and asked them to keep an eye on the child, suggesting that she might present as ‘a bit sensitive’.
…
22. The mother reports contacting the father in October 2013 and again in January 2014 after [the child] made further disclosures about the paternal uncle touching her private parts and putting ‘his finger in where the poo comes out’. The father reports that he attempted to reassure the mother that the child was never left unsupervised with the paternal uncle; however, the mother remained adamant that the abuse was ongoing. The mother reports that when she attempted to discuss her concerns with the father he just laughed and hung up on her.
23. The father reports that the mother posted concerning status updates on her Facebook page in early January 2014 regarding him and the paternal grandmother, suggesting they were a ‘sinister and hurtful combination’ and that she also sent text messages about her feelings to both the paternal grandmother and the paternal aunt.
24. The mother reports that she told her psychiatrist, [Dr E], about the allegations on the 23 January 2014. It is possible that the psychiatrist made a mandatory report as both parents were subsequently contacted by JIRT and were later interviewed, along with the child. [Mr J Hays] was also interviewed and reportedly told the police that he would have to consider having nothing to do with [the child] in light of the repeated allegations. The mother reports that JIRT were unable to verify the allegations because of [the child’s] young age; the father reports that JIRT indicated to him that they were concerned that the mother may have been coaching the child with regards to the allegations. It would be useful to obtain the JIRT records in order to clarify this situation.
…
27. The mother reports that [the child] continued to make disclosures of abuse with regards to the paternal uncle over the next few months. She reports that [the child] spontaneously made these reports and that she did not question or prompt the child in any way. She reports that in April-May 2014 [the child] told her that her uncle hurts her and ‘hit me on the heart with a stick’ and that he also ‘hit me with a stick on my throat’. In June 2014 [the child] reportedly grabbed her mother’s wrist and squeezed it hard, saying that ‘this is what Uncle [J] did to me’. It is the father’s position that it is simply not possible for any of these events to have occurred given the close scrutiny given to any interactions between the child and paternal uncle and that the mother may have prompted or fabricated these allegations.
It is noted that the father has agreed to orders addressing the issue of his brother and those orders are acceptable to the mother.
Interim Orders
Following release of the Children and Parents Issues Assessment memorandum interim proceedings were before the Court on 19 December 2014 and orders were made by consent as follows:
a)When either parent is to collect the child, pursuant to the orders of 18 February 2013 or subsequent agreement between the parties, other than from the child’s day care or school the changeover shall take place in front of the Suburb C Library;
b)The mother is restrained from permitting Mr D to be present at the changeovers pursuant to the previous order;
c)Each party must take all reasonable practical steps to ensure that he or she is present at the changeovers;
d)Without admission, the father must not cause or permit the child to be in the company of his brother Mr J Hays unless another adult family member is personally present at all times.
Proceedings were listed for final hearing for three days commencing 15 December 2015 with trial directions being made for that hearing on 30 July 2015. Regrettably the matter was not reached and it was subsequently listed for hearing for three days commencing 29 March 2016.
Context
The father is 44 years of age. The mother is nearly 43 years of age.
The parties commenced cohabitation in 2006 and were married in 2007. They separated on a final basis on 19 June 2010 when the mother left the then matrimonial home at Suburb C.
The child is the only child of the parties’ relationship. At the time of separation the child was only a few months old.
The Father’s Proposals
On 25 August 2015 the father filed an amended response in the present proceedings. In that response he sought orders that relevantly in summary provided:
a)That the mother’s application be dismissed;
b)That the father have sole parental responsibility for the child;
c)That previous orders in relation to the child’s time with the father be discharged;
d)That the child spend time with the mother on a supervised basis on four occasions each calendar year for not more than three hours;
e)That the mother telephone the child on no more than two occasions per week;
f)That the mother be restrained from attending at or near the child’s school on school days;
g)That the father notify the mother of any illness or injury suffered by the child;
h)That the father inform the mother of any change of the child’s school and provide to the mother copies of school reports and other relevant school documents; and
i)That Mr D be restrained from being present on any occasion that the child is spending time with the mother or within 500 m of any such location and from attending at or near or upon the child’s school or otherwise approaching or attempting to approach the child or communicate or attempting to communicate with the child.
The father is supported in relation to the orders sought by him by his mother and his stepfather.
During the course of the trial the father provided a proposed minute of alternate orders (Exh N) in the event that the Court was not disposed to make orders for identification time only as proposed in the father’s response. Those alternate proposed orders are relevantly in summary as follows:
a)That orders of 18 February 2013 be discharged;
b)That the mother’s application filed 7 July 2014 be dismissed;
c)That the child live with the father;
d)That the father have sole parental responsibility for the child;
e)That the child spend time with the mother as agreed in writing or by email or text message but in default of agreement during school term each alternate weekend from after school until 5.00 pm Sunday, in the other week from after school Monday to before school Tuesday and for one half of the mid-year term holidays and in the Christmas school holidays up to and including the 2018/2019 holidays for three non-consecutive block periods totalling one half of the holidays and thereafter for one half of the Christmas school holiday period;
f)That the child spend time with the mother and father on various other special days and occasions;
g)That neither parent be authorised to withdraw or remove the child from her scheduled attendance at school on a school day;
h)That for the purposes of changeovers they be implemented by the mother collecting the child from or delivering the child to school as appropriate and otherwise by the mother and father or their delegate meeting at the Suburb C Library to effect changeovers;
i)That any delegate for the purposes of changeovers be a responsible adult with whom the child is familiar and the mother be restrained from nominating Mr D for such purpose;
j)That the mother maintain regular consultation with Dr E or any successor treating psychiatrist and comply with the psychiatrist’s treatment regime including the taking of medication;
k)That the mother do all things necessary to authorise her treating psychiatrist to provide to the father not more frequently than each three months a brief report as to the state of the mother’s mental health and to notify the father in the event that there is a change of her mental health practitioner;
l)That the mother be restrained from attending at or near the child’s school except for the purposes of changeovers as provided for or for the purpose of attending a discrete school event open to be attended by parents provided that she provides to the father not less than 7 days’ notice of her intention to so attend for such school event;
m)That the parties be restrained from causing or permitting the child from consulting as her general medical practitioner any medical practitioner other than Dr F or the H Medical at Suburb I except in the case of an emergency;
n)That the mother inform the father as soon as practicable and in any event within 24 hours as to the identity and dosage of any prescribed or non-prescribed medication which the mother administers or causes to be administered to the child;
o)That as soon as practicable the parties obtain a referral for the child to attend a specialist paediatrician for the purposes of investigating the child’s bowel issues with each party being entitled to attend any consultation with the paediatrician;
p)That the parties notify the other in the event of the child sustaining any injury or illness which requires treatment by any health service provider;
q)That the parties notify the other in advance of any proposed or actual change of mobile telephone number or residential address;
r)That each of the parties be restrained from changing his or her ordinarily place of residence to a location outside the local government areas of Newcastle or G Town without the other party’s consent in writing or order of the Court;
s)That the father consult with the mother in regard to long-term decisions to be made in respect of the child’s care, welfare and development and in any event the father must inform the mother in a timely fashion of those decisions which he makes in particular in regard to the choice of school to be attended by the child and in regard to her health management;
t)That these orders are authority for the Principal of any school attended by the child to provide to the mother at her cost copies of all notices and reports ordinarily provided to parents of children at that school;
u)That each party provide the child all reasonable means of communicating with the other party as appropriate to the child’s age and stage of development at the time including but not limited to telephone communication to occur between 6.00 pm and 7.00 pm on each alternate day of each period which the child is not in the care or company of that parent pursuant to these orders;
v)That in the event that the child commences participation any organised extra-curricular activity the party in whose care the child is on the relevant date shall ensure the child is transported to that activity on time and the party in whose care the child would be at the conclusion of that activity shall ensure that the child is collected on time;
w)That each party is at liberty to attend the child’s extra-curricular activities;
x)That for the purposes of school holidays:
i)Any such period shall be deemed to commence on the first non-school day and to conclude on the day before the child is next due to attend school;
ii)That not less than 90 days before the commencement of the Christmas school holidays the mother must notify the father in writing or by email or text message of the three non-consecutive block periods proposed by her and that in the absence of any agreement to the contrary, the periods of time nominated by the mother must facilitate the period from 24 December to 26 December inclusive being alternated between the parties;
iii)That in default of agreement in writing or by email or text message otherwise from the 2019/2020 Christmas school holidays the child shall spend time with the mother for the second half of the school vacations at the end of terms 1,2 and 3 in even numbered years and the first half of those school vacations in odd numbered years;
y)That Mr D be restrained from attending at or within 300 m of the child’s school, attending at within 300 m of the Suburb C Library at any handover and attending at or within 300 m of any place at which from time to time the child may attend for the purposes of participation in any extracurricular activity while she is in the care of the father; and
z)That the father shall not cause or permit the child to be in the company of Mr J Hays unless another adult known to the child is constantly personally present.
The Mother’s Proposals
The mother’s primary proposals in her Initiating Application are referred to above. The mother is supported in her application by her new husband Mr D.
During the course of the hearing the mother provided a handwritten memorandum as to the orders sought by her (Exh M). In summary they provided as follows:
a)That the mother and father have equal shared parental responsibility;
b)That there be shared care on a week-about arrangement during school term and school holidays, with school holiday periods to be extended as the child gets older;
c)That the child spend each alternate Christmas from 3.00 pm on 24 December until 3.00 pm on 25 December with the mother and that the other parent in such years have the child for the New Year’s Eve celebration;
d)That the mother and father be at liberty to cause the child to attend the G Town Medical Centre and H Medical;
e)That the child’s medications both prescription and over-the-counter be discussed between the mother and father prior to administration to the child unless in cases of emergency;
f)That the mother and father be required to administer any medication recommended by the child’s general practitioner and ensure that the course of medication is completed;
g)That any health issue relating to the child be communicated between the mother and father within six hours or less;
h)That the mother and father facilitate liberal and private communication by telephone between the child and the non-resident parent between 6.00 pm and 7.00 pm such communication to include telephone, email or Skype communication with each parent to facilitate the child having access to her own email address and an operative Internet connection;
i)That Mr D be allowed to attend school events that the child is participating in and to drop off or pick up the child at her school if necessary;
j)That the mother and father have alternate years to organise the child’s class mates birthday party if the child requests same;
k)That the mother be permitted to continue her practical studies and work experience at the child’s school;
l)That all school reports, awards, information, photos and other documents supplied to parents be shared or copied;
m)That the mother and father be restrained from changing the child’s school enrolment without the consent of the other;
n)That the mother and father give to the other not less than 28 days’ notice in writing of any leave planned outside school holidays;
o)That depending upon the mother and father’s living circumstances that a midway drop-off point be nominated being approximately equal distance from the mother and father’s residence for changeovers not occurring at school if a parent changes residence from their current residence in the future;
p)That J Hays have no contact with the child whatsoever; and
q)That the Order on Mr D be removed on court filing (sic).
The Evidence
The Mother
The mother has now been in receipt of a disability pension since 2011.
The mother currently volunteers two days per week at the child’s school. The father did voice some opposition to this occurring but was informed by the school Principal that nothing could be done about the mother’s volunteer work. It is of some concern that in her oral evidence the mother revealed that she had not disclosed to the school her mental health issues.
The mother gives evidence of the child’s separation anxiety exhibited in July 2015 when the mother was present for the purposes of parent-helper mornings. Perhaps this is understandable in the context of it being the child’s first year at school. To her credit the mother spoke appropriately to the father and to the school Principal and has observed that such behaviour has not continued.
The mother has attended the child’s school functions where parents and family are invited and occasionally extended members of the maternal family have also attended.
The mother presently resides at Suburb Q being a two-bedroom semi-detached property with a yard. The property is five minutes’ drive from the child’s school.
The child currently spends time with the mother in accordance with interim orders referred to above. They appear to have an active and engaging relationship. The mother is positive in relation to the child’s present schooling arrangements saying that the child is “doing well at and enjoys school as is evident in her half year report”.
However issues have arisen in relation to holiday time contemplated by the orders and the notation thereto. Notwithstanding, the child has spent block periods of time with the mother during January 2015, April 2015, July 2015 and September 2015, the last three periods representing approximately half of the then school holiday periods. The child also spent time with the mother for the Christmas festive period in December 2015 and for three periods from late December 2015 to 28 January 2016.
In her affidavit evidence the mother asserts that she presently takes low doses of Lithium, a mood stabiliser, and Seroquel, a sedative and confirms that her current treating psychiatrist is Dr E.
R Local Health Service
The mother’s initial engagement in March 2014 with counselling through the R Local Health Service reveals a significantly relevant history (Exh K). The mother reported:
…that she was diagnosed with bipolar, depression and anxiety and had a breakdown in 2004 and 2011. Trigger to 2011 breakdown attributed to stress re separation from [Mr Hays]. Reports no manic episodes since 2011. [Ms Ramsey] also reports suffering with a schizoid effective disorder which is compound by stress. [Ms Ramsey] reports a family [history] of mental health issues and reported that her mother tried to overdose when she was 8 years old and has also been diagnosed and has a long [history] of depression.
As to her family history the mother reported:
…that her parents divorced when she was 4 years of age and that reported that her stepfather had a history of mental health and attempted suicide prior to her mother and him getting together by shooting himself. [Ms Ramsey] reports that [her stepfather] was an alcoholic and was a violent man. [Ms Ramsey] reports that her biological father struggled with addictions and was a gambler. [Ms Ramsey] reports a [history] of short-term intimate relationships lasting only 6 – 9 months which she attributed to the above as well as having significant trust issues.
In April 2014 the mother talked about:
…the ongoing resentment towards the father and his family who she feels “pray on her vulnerabilities” (i.e. Bi Polar diagnosis and ongoing 3 monthly visits to her psychiatrist to gauge Lithium levels). [The mother] talked about how “labels” make her “angry” and how she feels “defined by her illness” which upsets and frustrates her”.
In June 2014 the mother was observed to be “clearly agitated, query ? manic today”.
The Mother/Father relationship
The mother makes some complaint as to the quality of the child’s care whilst with the father although her concern is clearly insufficient to dissuade her from her proposed arrangements for equal shared care. The mother is aware that the father is assisted in his care of the child by the paternal grandmother Ms S. In her oral evidence the mother conceded that she had no current criticisms of the father’s parenting.
There have been some communication difficulties between the parties particularly in relation to arrangements for the child by agreement outside the terms of the current interim orders. Notwithstanding, the mother and father have been able to agree in relation to the child’s education, religion and health needs.
The mother’s perception is that she has something of a conflictual relationship with the extended paternal family, asserting that they have in the past “attempted to intimidate me”. As a consequence she says the orders made in December 2014 provided that changeovers where not at school be at the Suburb C Library. It appears that changeovers at this venue have worked reasonably well.
The Father
The father presently resides in a home at Suburb C owned by his mother and his stepfather to whom he pays rent. The premises are a comfortable three bedroom home occupied by him and the child. The property has a fully fenced backyard with a swing set and other outdoor play equipment for the child.
The father’s brother J resides in the adjoining property. His brother has twins aged seven for whom he provides care in a shared arrangement with their mother. The father has a sister who resides in Brisbane with a daughter close in age to the child. The child and her twin cousins next door spend significant time together.
The father has not consumed alcohol since early 2011 except on one special occasion on 4 November 2015.
He is in full-time employment with his present employer since September 2007. The presently works from 9.30 am to 2.30 pm on weekdays except Wednesdays when he works until 5.00 pm. He undertakes some weekend work when the child is in the mother’s care. The father is assisted in the care of the child by his mother and stepfather who have been together for 25 years.
The child presently attends Suburb C Public School where she is in year 1. Her cousins are in the same school in year 2. The maternal grandmother is a retired teacher and the father seeks some guidance from her from time to time in relation to the child’s schooling.
The father acknowledges that there have been some difficulties in relation to school holiday time and it is his position in the alternative that if orders were to be made for such time they should be defined by the orders.
The mother and father have historically had communication issues that probably are more reflective of the mother’s mental health issues than anything else.
There is an issue as to the child’s ongoing constipation and it appears there is some agreement that the child should be referred to a paediatric specialist for further investigation, especially after the father administered an enema to the child although doing so on the recommendation of his chemist.
The father continues to hold reservations in relation to the mother’s mental health circumstances and historical changes in her treating practitioner. Those reservations lead to his primary position that the child should spend identification only time with the mother, although his alternate position presents it appears a much more child-focused solution to the current litigation.
In his oral evidence the father acknowledged that in the alternative he could contemplate block periods of time during school holidays with the mother and that there should be phone contact on alternate days for the non-resident parent with the child.
Should the child spend identification time only with the mother, it was the father’s view that telephone contact between the mother and the child should be supervised in that they should be conducted on loudspeaker so that he could monitor those calls. He acknowledged that should there be such limited time he would provide to the child any gifts and parcels forwarded by the mother for the child.
The father complains of the attendance or nearby attendance of Mr D in company with the mother at changeovers. The father perceives Mr D’s presence to be intimidating and harassing of him. It is clear that the contact between the father and Mr D historically has presented issues not the least of which appears to be Mr D’s inflated view of his engagement in these issues. When it was put to the father that he had a “friendly relationship” now with Mr D the father was only prepared to describe the relationship as amicable. He continued his opposition to Mr D being able to attend at the child’s school because he was “morally corrupt, had been to jail and was a major drug importer”.
Mr J Hays
The mother makes complaint in relation to the child’s alleged disclosures in September 2013 of inappropriate conduct by the father’s brother Mr J Hays. The mother gives evidence of repeated disclosures by the child thereafter. The disclosures by the child were investigated by JIRT and the Department of Family and Community Services. In the context of the father’s consent to orders relating to his brother’s contact with the child the issue as to the question of abuse is not for determination. However it is noted that there is a very strong inference from the evidence before the Court that the child was exposed to inadvertent or otherwise coaching by the mother. This is extraordinarily evident in the child’s later JIRT interview in January 2014 (Exh J) and the mother’s regrettable efforts at videotaping disclosures allegedly made by the child.
Notwithstanding the mother says there have been no further disclosures made by the child since the interim orders in December 2014 with the mother seeing the relevant order as “highly beneficial in regard to the child’s safety and protection”. As noted above it is proposed that the order will continue as a final order.
Mr D
The mother is supported in her application by her new husband Mr D.
The mother has known Mr D for some years having first met him when she was 25. Their relationship rekindled in early 2012.
Mr D was employed in the mining industry in New South Wales. He has recently been made redundant.
She says that he has been supportive of her in the context of the current litigation and indeed has provided some funds to her for her previous legal costs. She and Mr D married in 2014, notwithstanding the terms of orders made on 18 February 2013 restraining her from bringing the child into contact with him.
The mother conceded in her oral evidence that subsequent to her marriage to Mr D in 2014, “we broke the orders” in relation to his prohibited contact with the child, although the mother denied that she told the child not to tell the father or his family that she had contact with Mr D. The mother and Mr D assert they have not lived together since their marriage although they spend significant time in each other’s home.
The mother asserts an agreement with the father in May 2015 that the child could be brought into contact with Mr D, notwithstanding the terms of the order. The mother observes that the child and Mr D have a good relationship although, somewhat concerningly, Mr D has said to the child in response to the child’s question about what she could call him: “you can call me anything you like, it’s like you have two Dads”. His response reflects poorly on him.
The mother concedes that there have been difficulties in her relationship with Mr D. They have argued and there were problems but she asserts there was no violence. When asked about her report to the nurse at the R Local Health District Clinic in March 2013 that Mr D had been hostile towards her and that there had been domestic violence resulting in her calling the police (Exh L), the mother denied any assertion of domestic violence. When pressed in oral evidence the mother conceded that Mr D was hostile to her in a few ways and was angry with her and she then telephoned police to seek some advice about her living arrangements. The mother further conceded that they were “hostile to each other” with her perception being that people wanted to isolate her from Mr D.
The mother is of the view that the pressure of these proceedings exacerbated the problems between her and Mr D to the extent that they separated in early 2013 but remained in contact. When asked about the ability of she and Mr D to live together the mother reported that they wanted the formal order as to restriction removed and there was a proposal to get a house together next door to where she presently lives.
Mr D spent two years and 10 months in prison in the period 2007 – 2010 following a conviction for importing ecstasy. He says the judge remarked to him that the offence was “incredibly out of character considering your community work and bravery awards”.
Mr D pleaded guilty in 2007 in the Supreme Court of Queensland to a drug related offence. He was sentenced to seven years’ imprisonment with a non-parole period of two years and 10 months. Subsequent to sentence Mr D sought leave to appeal the severity of the sentence to the Court of Appeal, Supreme Court of Queensland.
The application for leave to appeal was heard in 2008. Remarks by the court on the leave application (part of Exh D) clearly evidence a significant involvement of Mr D in criminal activity.
The affidavit evidence of Mr D reveals him to be unnervingly self-confident and opinionated.
In his oral evidence he refutes the suggestion that he was having contact with the child notwithstanding the prohibitive terms of the interim order, “although we may have passed in the supermarket”. He had no intention to disobey the order. Notwithstanding his marriage to the mother at the time of trial they still did not live together although there appeared to be some proposal to do so after the completion of the proceedings. He conceded that he was aware as to why the father objected to his contact with the child.
He considered that he was suffering from a psychiatric disorder – post-traumatic stress disorder although he had not been officially diagnosed. He asserted that he suffered from bad dreams, horrific nightmares and was anxious in crowds. When it was suggested that his assertion in his oral evidence of post-traumatic stress disorder was different to what was painted to the Family Consultant he simply asserted that the Family Consultant was “a liar” and “brash”. It was further put to him that during the course of interview with the Family Consultant his demeanour changed as described by the Family Consultant. His reply was “she was abrasive and I was abrasive back”. He said to the Family Consultant “I’m looking forward to cross-examining you” as he could “see the vibes”.
When it was suggested to him that at the time of his separation from the mother in early 2013 that she described him as “hostile towards me” and reported domestic violence to the police (Exh L) his response was that “we had an argument and got in each other’s face”. When he was asked what was intended by asking the father on an occasion to “step outside”, he replied it was said out of anger and he blamed the father for ruining his relationship with the mother. Somewhat unconvincingly he suggested that he wanted to speak to the father to “explain”.
Having had the opportunity of observing the demeanour of Mr D in the witness box he presented as gruff, overly assertive, unnervingly self-confident and exhibiting an air of aggression. The reservations held by the father as to unnecessary contact with Mr D would appear to be well held notwithstanding that the father regards his relationship with Mr D as “amicable”.
The Family Report
The Family Report is dated 21 July 2015.
The Family Consultant, a clinical psychologist, provides a useful overview of the history of the matter and in referring to the mother’s engagement with the R Area Health Service observes:
30. The casenotes indicate that the mother presents as quite fixated on the past and that her feelings about the father are quite apparent. She is recorded as referring to him as ‘a gifted liar’. The casenotes outline strategies used by the social worker designed to assist the mother to move on from her ‘rumination’ and to allow her to ‘explore alternate ways of reacting to perceived or imagined threat around [Mr J] and future harm’..
32. The mother also reportedly posted comments on her Facebook page including the following statement on the 9 January 2014: ‘An egotistical and spoilt “man”, that has no brains in his head and no sense of decency in his heart, plus a deeply wounded and controlling mother with loads of inherited money to pay a lawyer to do their dirty work, equals a sinister and hurtful combination’.
As to the father’s issues with Mr D the Family Consultant observes:
69. [Mr Hays] explained that he had made what he termed as a ‘private arrangement’ with the mother for [the child] to be able to spend time with [Mr D]. He said that this was not because he no longer views [Mr D] as a threat to [the child] (he views him as ‘morally corrupt’ and a ‘bad influence’ on everyone around him) but because it had become all too apparent to him that the mother was continuing to ignore the Orders in that regard and was coercing the child into lying for her, with negative consequences for [the child]. He said that the mother’s actions were placing [the child] under a great deal of stress and that it didn’t make any sense to him to continue along that path, if the child was going to be the one to suffer. He said that once the restriction was lifted he could immediately see a change in [the child’s] demeanour in that she appeared to have had a great weight taken off her shoulders and was able to talk more freely about her time with the mother. His position at the time of interview was that ‘it would be in [the child’s] best interests to have that restriction lifted’.
On interview with the Family Consultant the father remained quite circumspect in relation to the mother and the child:
71. While Mr Hays believes that the mother truly loves [the child] and wants what is best for her, he also believes that the mother is not always able to recognise what is best for the child. He further believes that the mother is willing to do whatever it takes to achieve her goals, even when this means placing the child at risk of harm, and that she lacks insight into the impact of her actions on [the child]. One example of this is the decision to resume the relationship with Mr D and to encourage the child to lie about spending time with him.
72. Mr Hays said that it would always be the case that he would approach the mother for input into any important decisions that need to be made and would take her views into consideration when making such decisions. He said that he would never seek to stop [the child] from spending time with the mother, but would continue to try to manage the parenting arrangements in such a way so as to allow the child to have a relationship with the mother while, at the same time, keeping her safe from harm. Mr Hays acknowledged the obvious difficulties in this approach, particularly as the mother has little insight into her own behaviour and is likely to resist any reduction in time with the child during those times when she is not functioning very well. He said that he would be willing to engage with an organisation such as ARAFMI in order to seek advice for both himself and [the child].
As to the child’s arrangements for time with the mother as at the time of the Family Report it is noted by the Family Consultant:
80. Mr Hays thought that the current arrangements were working well for [the child] and provided sufficient opportunity for her to maintain her relationship with the mother and said that he would be reluctant to increase the amount of time or to consider the mother’s proposal that [the child] lives primarily with her. He said that he worries about the loyalty demands placed on the child by the mother, particularly in regard to the child going to live with her and feels that despite whatever Orders are made, the mother is very likely to continue along this path in the future and he is fearful that she will continue to look for reasons to bring the matter back to Court in order to increase her time with the child. He said that he is also well aware that the mother tends to ignore Orders if they don’t suit her agenda and is willing to use [the child] as a means of persuading the father to do things her way as [the child] is the one who suffers most if there is parental conflict.
The primary focus for the Family Consultant was the issue of the mother’s mental health. The mother reported:
…that she sees her psychiatrist every 6 months as recommended by her GP. She said that she has 3 monthly tests to check her thyroid function and that this is not to monitor that she is taking her lithium, but to check the impact of the lithium on her thyroid. She said that she takes lithium, but this doesn’t mean she needs supervision.
The mother set out her proposals for the child to the Family Consultant in that she would like the child to live primarily with her for nine nights a fortnight. She said that she is better placed to provide the child with ongoing care as she does not work and is available to care for her at all times. She said that she will be able to fit her studies in around the child’s school times and that when she is qualified as a teacher, she will have school holidays with the child. The mother said, “I am her mum and I am willing and capable of having the child in my care and can provide for her”.
The Family Consultant seemed significantly concerned in relation to the mother’s engagement with Mr D [109]-[123]. She reported:
122. [Mr D] presented with an inflated sense of self-entitlement and self-importance and appeared to lack empathy. From this initial interview with [Mr D], together with information derived from the subpoenaed material and the other Report interviews, the Family Consultant formed a view that [Mr D] appears to present with marked Narcissistic Personality Traits.
123. Given [Mr D’s] presentation at interview, it is possible to hypothesise that [Mr D] perceived the restriction on him spending time with the child as a humiliating narcissistic wound and that this prompted him to respond by actively engaging in the parental dispute, including being present at the various changeovers in an attempt to intimidate the various members of the paternal family and by magnifying the mother’s concerns with regard to the sexual abuse allegations. If the Court finds that the evidence tends to lend support to this hypothesis, then consideration should be given to ensuring that the restriction on [Mr D] spending time with the child remains in place. It is strongly suggested that [Mr D] is required to give evidence in this matter.
It is noted that Mr D did give oral evidence and observations of him during the course of his evidence as to his manner and demeanour supported the conclusions of the Family Consultant.
The child was interviewed by the Family Consultant who observed:
131. When [the child] was asked whether she knew why she had come to see the Family Consultant she said that her mummy had told her she would be coming to see [Ms T]. The Family Consultant asked [the child] whether there was anything that she had needed to remember to tell her and [the child] said that she couldn’t think of anything. A couple of minutes later she said, ‘Oh yes, I want to be with both my mummy and daddy – 5 and 5’. When the Family Consultant asked [the child] what she meant by that she just shrugged and said, ‘I don’t know’. She then deliberately changed the subject.
In evaluation the Family Consultant observed:
140. The Family Consultant shares the father’s concerns about the mother’s current level of functioning. While her Bipolar Disorder appears to have stabilized and is reportedly responding well to medication (insofar as she does not appear to have experienced any recent psychotic episodes), there are significant Personality Traits and behaviours in play here that are impacting on the mother’s capacity to parent the child. It is of significant concern that the mother does not appear to have any insight into the impact of her actions and behaviour on the child, particularly with regard to prompting the child to act out her alleged disclosure to the mother in order to record it and then to share the recording with other people. It is also of concern that the mother has continued to share details of the allegations with others, such as school staff, even after the matter was investigated by JIRT. It is of further concern that the mother is currently involving a 5 year old child in the current Family Law dispute and appears to be placing significant loyalty demands on the child.
141. The mother appears to have a very low opinion of the paternal family in general, displaying a concerning level of animosity towards the paternal grandmother in particular. It would be very difficult for [the child] to understand why the mother feels this way and it is of particular concern that the stepfather appears to share the mother’s views and to support her position. It would appear very likely that [the child] will continue to be exposed to these views when spending time with the mother and her partner and that this will be very difficult for [the child] to cope with, given that she loves all of the adults in her life at the current time. Eventually, in order to cope with this cognitive dissonance, she will find it necessary to pick a side in the conflict…
144. The loyalty demands being made of this child at the current time are unacceptable and if allowed to continue, will have a negative impact on her psychological and emotional development. It is further predicted that the mother will continue to be hypervigilant with regard to [the child] being sexually abused and that there are likely to be further allegations made in the future. It is possible that these future allegations may concern other members of the paternal family or even future partners, given the mother’s previous behaviour and current level of functioning.
As to the mother’s proposal for any effect a shared care arrangement the Family Consultant expressed the view that:
147. This is not a matter suited to a shared care arrangement given the lack of trust between the parents and the animosity displayed by the mother and her partner towards the father and towards other members of the paternal family. It is further suggested that shared parental responsibility is not an option here, particularly in light of the mother’s unwillingness to abide by Orders or to respect the views held by the father. While the mother’s Bipolar Disorder can at times impede her parenting capacity, her personality traits along with her behaviour have also contributed towards the current difficulties with regard to the co-parenting relationship and these are viewed as unlikely to resolve in the near future. The Court may need to consider the option of awarding sole parental responsibility to the parent with whom the child is to live.
148. The Family Consultant has formed the view that the child’s interests may be best served if she were to spend very limited time with the mother in the future. This would appear to be the only way to ensure that the child is able to experience a childhood free from ongoing conflict and ongoing emotional and psychological harm. It is suggested that consideration may need to be given to an Order for the child to spend supervised time with the mother at a Children’s Contact Centre on 4 occasions per year for identity purposes only.
149. The impact on the child of spending far less time with the mother (grief and loss) will need to be weighed up against the impact on the child of being subjected to ongoing investigations and family law proceedings as well as the harm caused to her by misinformation provided to her by the mother, particularly with regard to sexual abuse. It is suggested that, if steps are taken to limit the child’s time with the mother, then one way of assisting the child to deal with the situation would be through a referral to the ARAFMI counselling service, where counsellors have the training and experience necessary to help the child understand the impact of the mother’s mental health issues.
The Family Consultant: oral evidence
The Family Report was dated July 2015 and there had been significant changes thereafter. An outline of those changes and developments was put to the Family Consultant. In that context the Family Consultant was taken to various specific issues in her oral evidence.
The Family Consultant was taken to the consequences for the child of the mother in effect being removed from her life:
What would be the psychological consequences for this child who is now in a well-settled relationship between Mum and Dad, clearly in the father’s primary care, of the mother being removed effectively from her life in any meaningful way? Where would that take her into the future? It would be very hard. She would experience grief and loss. It’s not something that would ever be done lightly.
And bearing in mind – well, I suppose what would lead to difficulties in her psychological development, not having a mother in her life? It’s hard to say, your Honour. She is a very intelligent, resilient little girl. But I have no way of predicting how she would respond to that situation. And it would depend at what time it happened as well.
Well, what does social science tell you, really, in terms of at least what you can draw from the general social science conclusions about what is likely to happen? Well, she may have a sense of abandonment. She may go looking for answers as she gets older.
Asked as to whether some positive relationship developments since the report would influence her view the Family Consultant said:
…I think if things are getting – if things are going as well as your Honour tells me that they are going, then it’s worth leaving
I’m not saying they’re going well, but they’re ? it’s worth leaving her in that situation
Passable, Mr Levick might suggest to me might be a more suitable word. But ? However, if something does happen to change that situation, if things should deteriorate further, then I would stand by my recommendation that she needs to get out of that situation.
Well, that would be the mother’s risk, wouldn’t it? Yes.
That if there was some failure to comply with her ongoing requirement for medical treatment for her mental health issues, and there will be an order as to that in any event, or if there becomes once again a systematic complaint approach by her has happened before, then you would expect the mother would be on notice that it’s at risk as to her time with the child? Yes.
As to parental responsibility the Family Consultant said:
But you have some reservations about equal shared PR? Yes, I do.
And if there was an order for sole PR, but with an obligation to consult, but have the final decision, and also to authorise the provision of information, that might be something that would accommodate the mother? Yes.
Would that – do you think that would be appropriate? Yes, that would
It would send a clear signal? Certainly help.
This conclusion was further reinforced by the family reporter a short time later.
The presence of Mr D was the subject of comment by the Family Consultant:
Well, there’s conflict between the father and clearly it is underlying mistrust between the father and [Mr D], for good reason, on the father’s part, he says. It would appropriate, would you suggest that he be restricted from being in attendance at changeovers and at the child’s school if the father is going to be there to avoid that issue? I think that would be a sensible approach, your Honour.
Yes. And that would fit – would you say that would fit in with the father saying, “Well, all right, well I can live with him living with the mother now with their relationship and the child being in the presence of Mr D”? But that would avoid one big aspect of the conflict. Is that right? Yes.
Counsel for the father questioned the Family Consultant as to her report recommendations:
Having regard to those updating factors, do you adhere to the recommendation that you make in the report? I think if things are going fairly well, at the moment, if they’re manageable, then I would agree to supporting the current arrangements that are in place. If things do fall in a heap, then I think that we’re going to have to have another look at what arrangements will work for this child.
Counsel for the father took the Family Consultant to the issue of the mother’s voluntary work at the child’s school:
And would you say that the conduct of volunteering as a … and then getting prac at the school is also manipulative? Well, it could be seen as manipulative. I understand why she did it. And I would be supportive of it.
Normally I would be supportive of it, apart from the fact that it was causing more conflict because she was coming into contact with the paternal uncle and the paternal grandmother and having to report to the teacher about what was happening and things were getting worse. And also she was sharing with the teacher and apparently other staff – I’m not sure – her suspicious about the sexual abuse allegations, which again made the situation harder for the child at the end of the day.
It perhaps demonstrated some lack of an insight in the mother’s behaviour? Yes. I think so.
As to the framing of orders in the event that the child was to continue time with the mother the Family Consultant said:
You indicated earlier that you would be supportive of the current arrangement. It’s suggested that perhaps rather than have chop changes as currently occurs with each Wednesday, I think, and Friday to Sunday, that that rather be one block, so that [the child] is with her father for a period, and then with the mother for a period, and there are only therefore two changeovers, presumably from school. Would you see that as being appropriate for [the child] at her age? Yes. I would support that, although that is quite a long period of time for her not see her mother if things are going well and there’s no conflict.
So would you say there would be advantages in the current arrangement, even though it means more changes and potentially a face-to-face change on Sunday afternoons? Yes. I think given [the child’s age] and her stage of development, that midweek arrangement is a good thing, as long as things are going well and as long as there’s no conflict. Because it doesn’t
So? You know, it gives her a certain number of days to look forward to seeing her mother again and it’s not an unmanageable long period of time. However, if those transitions are going to be disruptive and hard for the child, then that midweek time needs to stop.
So would perhaps then been an approach be from Friday afternoon to Monday morning or Sunday afternoon, depending on what his Honour considered appropriate, on alternative weekends with a night in the off week that would fit in then with [the child’s] needs more readily as you see at her age? That’s an arrangement that seems to work well for a lot of children her age.
And in relation to holiday periods, would you see any difficulty with extended times that the child might spend away from the father or equally from the mother if things are working well? For example, Christmas holidays. Would you see it as appropriate to do something less than an equal division at her age or would she be in a position that she would cope with, as it were, two and a half weeks or so with one parent, two and a half weeks with the other? I think that [the child] is quite a resilient little girl. So I think that she probably would cope with that, but you could always try an arrangement that saw two weeks/two weeks or even week about during the long school holidays if she wasn’t coping and then when she turns eight, divide up the long school holidays.
Given the father’s still reservations about the mother’s parenting – his Honour has painted a picture of it. I’m not cavilling overly with that, but the father retains his concerns in relation to the mother’s mental state. Would perhaps a week about arrangement be something which at least in the next two or three years be something more preferable for the tensions of all parties concerned and ? I would – yes. I would support that and, you know, just to normalise things. A lot of children her age can’t cope with those extended periods of time, so there are a lot of cases where parents choose to have week-abouts until the children are old enough to cope, say, at, you know, eight years of age or nine years of age.
Parenting
The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode[2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Family Law Act 1975 (Cth) (“the Act) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright[2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
The court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.
The child’s relationships with both parents are overshadowed by the issues discussed above as to the mother’s mental illness and the ongoing but it appears diminishing conflict between mother and father.
The Family Consultant in oral evidence provides guarded support for the child to continue in a significant relationship with the mother in the light of prospectively adverse consequences should that relationship be emasculated as sought by the father in his primary position. The father quite rightly has concerns as to the mother’s ability to control her emotional and psychological reactions that caused her to perceive, unnecessarily, that her relationship with the father is to be combative and protective of her concerns in relation to the child.
It is clear as discussed above that the child’s primary relationship with the father that has now continued for some years should be maintained.
It may be that the guarded prospects as to the mother’s ability to properly regulate her relationship with the father and the child are misplaced. In that event further proceedings would surely result in the mother’s relationship with the child being severely curtailed for the protection of the child. The question as to whether such a course will be embarked upon is solely up to the mother who of necessity will need to focus on ongoing treatment as to her emotional and psychological issues.
At present the child must maintain her significant and meaningful relationship with her father as primary carer and continue her relationship with the mother subject to the reservations expressed above. This consideration is indicative of the present arrangements for the child’s time with the mother to be substantially continued.
Section 60CC(2)(b) – need to protect
The need to protect the child from psychological harm is readily apparent from the matters discussed above. This harm may result from a prospective deterioration in the mother’s mental health or the subjecting of the mother to unnecessary stressors that can trigger inappropriate behaviour or reactions. The evidence is indicative of the mother’s continuing relationship with Mr D being a significant stressor for her. Both she and her new husband will need to deal with this issue in the interests of the child.
These issues remain problematic and the mother needs to be reminded that she will in her own interest and in the interests of the child be required to properly engage with her mental health professionals. The consequences of the mother not doing so and thus creating risk to the child will in all probability lead to much more restrictive orders being made as to the child’s time with her and as to the conditions on which the child may spend time with her. The remedy clearly lies in the mother’s hands.
The Additional Considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
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;
b)The nature of the relationship of the child with:
i)each of the child's parents; and
ii)other persons (including any grandparent or other relative of the child);
c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)to participate in making decisions about major long-term issues in relation to the child; and
ii)to spend time with the child; and
iii)to communicate with the child;
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;
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)either of his or her parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
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;
f)The capacity of:
i)each of the child's parents; and
ii)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;
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;
h)If the child is an Aboriginal child or a Torres Strait Islander child:
i)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
ii)the likely impact any proposed parenting order under this Part will have on that right;
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)Any family violence involving the child or a member of the child's family;
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:
i)the nature of the order;
ii)the circumstances in which the order was made;
iii)any evidence admitted in proceedings for the order;
iv)any findings made by the court in, or in proceedings for, the order;
v)any other relevant matter;
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;
m)Any other fact or circumstance that the court thinks is relevant.
Regard has been had to each of the additional considerations set out above.
The child is of immature years and there are no cogent expressions of any views by the child as to the present issues for determination. Indeed the Family Consultant’s evidence is indicative of the mother inappropriately engaging the child as to the question of her time with each parent.
The child has a well settled, loving and primary relationship with the father and the extended paternal family. The father appeared to the Family Consultant to be much tuned to the child’s needs and they seemed very relaxed with one another. The concerns relating to the father’s brother are to be addressed by appropriate injunctive orders. Otherwise other members of the extended paternal family are engaged appropriately in the child’s life.
The mother’s relationship with the child is subject to the overarching concerns as to the mother’s mental health. However the Family Consultant observed that the child appeared to be happy to see the mother and Mr D and enjoyed her time in the child care room with them. The mother, presented as somewhat anxious in observation. The child separated easily from the mother to be returned to the father’s care. The nature of the child’s relationships with other persons including extended maternal family is not the subject of evidence. Indeed during the course of the trial comment was made as to the absence of evidence from the maternal grandmother in support of her daughter.
The extent to which each of the parents has been engaged in long-term decisions relating to the child has been to some extent limited by reason of interim circumstances since the commencement of the proceedings and the child’s age. Circumstances relating to the child spending time with each of the parents post-separation and communicating with each of the parents is commented on above.
There is no direct evidence as to the extent to which each of the child’s parents has assumed their obligation to maintain the child. The inference is that the father with the child in his primary care is the primary financial provider for the child particularly in circumstances where the mother’s mental health issues see her dependent upon a disability benefit in circumstances where at least at trial she was not residing with Mr D, her new husband.
The mother proposes a significant change in the child’s present circumstances to an arrangement whereby there is shared care. The Family Consultant expresses concern that such an arrangement would be inappropriate in that it would disrupt the child’s settled arrangements with the father. Otherwise the change proposed by the mother is not indicated by her continuing mental health issues that present prospectively as a risk to the child. The matters discussed above are clearly indicative of the child’s present arrangements remaining mostly undisturbed. The father for his part seeks a most significant change in that his primary position would see the child’s relationship with her mother limited to identification contact only. The Family Consultant expressed significant reservations as to this outcome particularly when considering circumstances that have arisen since the report of July 2015. The evidence is simply not supportive at this stage of a change in the child’s circumstances to any significant degree.
There is no practical difficulty or expense of the child spending time or communicating with each of the parents. Appropriate arrangements have now been in place since the child commenced to reside in the primary carer of the father.
The mother concedes that the father is a good parent to the child and that the child is thriving in her present circumstances, particularly at school. The father is assisted by a close relationship with the paternal grandparents and other extended paternal family. The father has demonstrated an appropriate capacity to provide for the needs of the child including the child’s intellectual and emotional needs. As to the mother as discussed above there are reservations. However subject to appropriate engagement with her health professionals there is no evidence to suggest that the mother will not have capacity to provide for the needs of the child when the child is spending time with her.
The father has demonstrated an appropriate attitude to the child and his responsibilities of parenthood. He has appropriately expressed his concerns in relation to the overshadowing issue of the mother’s mental health and in the context of these proceedings adopted an alternate position that recognises the mother’s role in the child’s life. The mother for her part appears to have limited reflective capacity as to the impact of her mental illness on her relationship with the father that to some extent continues to be conflictual and suspicious. It is hoped that the mother will maintain engagement with her mental health professionals such that she will have an appropriate attitude towards the child, particularly the child’s relationship with the father and to her responsibilities of parenthood.
Consideration is to be given as to whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings. In the context of this matter this consideration is problematic. The Family Consultant in oral evidence supported the continuation substantially of the mother’s current time with the child but expressed reservations that such orders may not be the end of the matter. However it is in the interests of the child that the mother be given the opportunity of continuing her relationship with the child. How eventually that plays out in the context of prospective further proceedings is simply not known.
Parental responsibility
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption relevantly does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence (s 61DA(2));
b)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).
A consideration of the best interest factors above render it clear that shared parental responsibility is not in the child’s best interest. The Family Consultant makes considered recommendations as to the allocation of parental responsibility to the father. In the circumstances as discussed above it is entirely appropriate that such recommendation be implemented.
In such a circumstance the presumption of equal shared parental responsibility is rebutted.
Equal or substantial and significant time: s 65DAA
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In light of there being an order for the father to have parental responsibility, it is not required that consideration be given as to the child spending equal time or substantial and significant time with each of the parents.
Accordingly other orders to be made must be considered in the light of the best interest considerations.
Discussion
Overall the best interests of the child clearly dictate an arrangement similar to what is in place at present. The Family Consultant’s recommendations as to the child’s time with the mother are noted and were not challenged in her oral evidence.
The issue of Mr D has been discussed above and it is appropriate that he be restrained from attending at the child’s school or at changeovers between the father and mother or members of their extended family. Otherwise the present injunction, which is more noticeable in its breach than otherwise, as to Mr D’s contact with the child should be discharged.
The father has appropriately agreed to being restrained from bringing the child into unsupervised contact with his brother and such an order will be made.
Otherwise in the light of parental responsibility being allocated to the father he should keep the mother as it were in the loop as to his deliberations.
Both parents should be able to access information as to significant issues relating to the child such as education and health.
To address the father’s ongoing concerns as to the mother’s mental health she should be required to authorise the father to obtain information from her treating mental health practitioners from time to time.
Orders will be made accordingly as set out at the commencement of these Reasons for Judgment.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on Monday 16 May 2016.
Associate:
Date: 16 May 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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