Raymond and Choate
[2013] FCCA 2262
•17 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAYMOND & CHOATE | [2013] FCCA 2262 |
| Catchwords: FAMILY LAW – Parenting – 14 year old child – evidence that mother suffers from borderline personality disorder – enmeshed relationship with child – whether acceptable risk of any contact or communication. |
| Legislation: Family Law Act 1975, ss.60CA, 60B, 61DA, 65DAA, 60CC, Part VII |
| MRR v GR [2010] HCA 4 |
| Applicant: | MR RAYMOND |
| Respondent: | MS CHOATE |
| File Number: | SYC 2546 of 2007 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 16 December 2013 |
| Date of Last Submission: | 16 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2013 |
REPRESENTATION
| Mr Raymond | In person |
| Ms Choate | In person |
| Counsel for the Independent Children’s Lawyer: | Ms Eldershaw |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Sydney Central Family Law |
ORDERS
All outstanding Applications be dismissed.
All previous Orders are discharged.
The Father have sole parental responsibility for [X] born [in] 2000 (“the child”).
The child live with the Father.
The Mother be restrained from having any form of contact or communication with the child.
IT IS NOTED that publication of this judgment under the pseudonym Raymond & Choate is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2546 of 2007
| MR RAYMOND |
Applicant
And
| MS CHOATE |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This case is about [X], born [in] 2000, who is nearly 14 years old. It is about where she should live and how much time she should have with each of her parents. Her father is the applicant. Her mother the respondent.
The case has a long history which is adverted to in my two earlier judgments in this case dated 11 December 2012 in respect of interim orders and 17 November 2011 in relation to final orders. There is no need in these present reasons to set out the history again, other than to the extent that it relates to the period since December 2012.
The chronology prepared by Ms Eldeshaw of counsel, appearing for the Independent’s Children Lawyer, as well as the procedural history that she provided in the Independent Children’s Lawyer’s case outline document is attached in Schedule One to these reasons. On 11 December 2012, for the reasons set out therein, I restrained the mother from having any communication with [X] since then. Such communication as there has been between the mother and [X] has been indirect and by way of electronic means.
The father and the Independent Children’s Lawyer are ad idem in proposing orders for sole parental responsibility in favour of the father, that [X] live with the father, have no time with her mother and that there be no communication between the mother and [X]. Indeed, the orders proposed are consistent with the existing interim orders.
The mother’s proposal is contained in exhibit R1, which is incorporated and reproduced in the Schedule Two to these reasons. In effect, she proposes a reversal of the existing care arrangements with [X] to live with her and have alternate weekends and half the school holidays as well as special days with her father.
The evidence before the Court consisted of the following:
a)Dr M's Report dated 23 November 2012;
b)Dr M's Report dated 31 August 2011;
c)Dr M's Report dated 7 April 2011;
d)Dr M's Report dated February 2010;
e)Family Report dated December 2010;
f)Initiating Application filed 13 July 2012;
g)Affidavit of the father filed 13 July 2012;
h)Affidavit of the father filed 19 October 2012;
i)Affidavit of the father filed 23 September 2012;
j)Contravention Application filed 3 July 2012;
k)Affidavit of the mother filed 3 July 2012; and
l)Affidavit of the mother filed 26 September 2013.
The Court has had regard to the previous affidavits filed in the proceedings. Indeed, the matter has been in my docket for several years and all the relevant major recent litigation has taken place before me.
In addition to those documents, both the mother and the father gave evidence and were cross-examined and a number of documents were tendered in evidence. The matter proceeded on the basis that the findings that had been made in my 2011 reasons were non-contentious given the expiry of the appeal period. In addition, Dr M, the Part 15 Expert in this case gave evidence and was cross-examined.
At one level, the issues in this case are relatively straight forward and obvious. That is to say it is where [X] should live, how much time, if any, she should have with the parent who she does not live with. But at a deeper level, the issues before the Court include:
a)Is there an ongoing risk to [X] of having time with and communicating with her mother;
b)If there is such a risk, is it greater than the benefit to her of having ongoing contact and communication with her mother;
c)To what extent should [X]’s views carry weight in this decision;
d)To what extent has the mother gained some insight in relation to her mental health issues though the Court acknowledges that this is very much related to the first question – the assessment of risk question.
These are not the only issues in this case. But they are certainly the main ones.
The Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the Court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a Court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the Court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the Court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a Court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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 willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(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.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the Court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Risk of Harm
Let me deal with what is possibly the main issue – whether there is the need to protect [X] from harm. This is a matter that is specifically referred to in section 60CC(2)(b), as well as section 60CC(2A) of the Act. Is [X] at risk of harm from her mother? Both the father and the Independent Children’s Lawyer contend that she is. The mother says that there is no such risk. In my reasons for judgment of 17 November 2011, at paragraph 78, I found that there was such a risk based on the evidence, especially the expert evidence.
Orders were then made for [X] to live with her father and to have limited contact with her mother. By 11 December 2012, it was clear that the risk still existed, notwithstanding the proceedings and the orders that were made. I incorporate, at this point in my reasons, paragraphs 8, 12 and 13 of my reasons for judgment of 11 December last year.
8. Final orders were made in November 2011. Reasons were published. Within a few months of the contact referred to in those orders taking place, problems arose. Contact apparently ceased from 30 June. As I said, the mother filed a contravention application, the father filed an application seeking to discharge orders. Ms Power was urgently reappointed as the Independent Children’s Lawyer and back in August I made orders suspending the mother’s time and contact and communication. In October, Dr M was re-appointed. His report was released at the end of November and that’s what brings the matter before the Court today.
12. Dr M’s report highlights a number of other concerns. He was concerned about [X]’s deteriorating mental health, about her self-harm, about her reticence to speak with him in what he described as her highly reactive mood. In his report, there were a number of very significant paragraphs that I will simply incorporate into these – my extempore reasons. For example, paragraphs 38 to 45 which are both quite insightful about [X] but quite disconcerting as well. He expresses an opinion at paragraphs 47 to 52. Again, I incorporate that. And then, of course, he makes his recommendations at paragraph 54. He recommends that all contact and communication between [X] and the mother be discontinued.
13. He described the relationship between [X] and her mother as remaining enmeshed and, in particular, he was quite concerned about this. He was concerned about [X]’s deteriorating mental health and linked this, at least in part, not just to developmental issues relating to [X]’s age and the separation but to the contact with her mother. Dr M also expressed concern about the mother’s mental health as well, particularly in circumstances where the mother had completed her DBT program in February. And in any event, he described her as lacking insight into her own actions, that her parenting capacity was impaired and that clearly she was personality disordered.
Regrettably, the fact is that even the limited contact between the mother and [X] that were provided for in the orders made 17 November continued to expose her to risk, despite the requirements of supervision that had been imposed in the earlier orders, and this resulted in an order suspending her contact and communication.
Now, of course, that was over a year ago now, but does the risk continue? It is much harder to assess, of course, the risk when [X] is not having contact or communication with her mother. In one sense, this is probably a good thing to the extent that she isn’t directly exposed to the risks adverted to. Whether there is an ongoing risk is to be assessed by reference to the mother’s behaviour, her mental health and her attitude and perspectives, as well as what has happened in her life over the last year.
Dr M was quite clear in the evidence he gave yesterday. He thought that the risks that he had previously identified, and which I have discussed in previous reasons for judgment, remained in the present and were unchanged. He referred in his evidence to the continuation of an apparent pattern in the mother’s life of amplifying her emotional experiences and concerns, rather than containing, and, for example, referred to the mother’s response to [X]’s exposure to inappropriate material on the internet, and her continued dysfunctional family relationships.
He said that, in his opinion, the mother continues to suffer from Borderline Personality Disorder, even after completing her Dialectical Behaviour Therapy. He pointed out that even after completing that therapy, the mother had problems regulating her emotions in front of [X]. He pointed out that the mother has not sought other assistance since completing her therapy. Indeed, the mother herself gave evidence that she was offered a follow-up after the completion of the course of therapy but didn’t take advantage of it.
Dr M’s concerns were about the mother’s inability to contain her emotions, her oppositional behaviour and her emotional volatility. These are matters still evident in the mother’s life. For example, she was intensely emotional in her presentation to the Court, and I provide just one example where she said:
I am not a monster; I am a mother.
Her very strong negative feelings about the father are clearly apparent from the evidence. Her volatile relationships are evidenced by her estrangement from her own sisters and the impression the Court formed of a distinctly tense relationship with her own brother with whom she shares a house. Her oppositional behaviour is exemplified by the apprehended violence orders and the criminal convictions recorded against her. Dr M described the mother as having an unstable personality structure which would lead to, as it has in the past, an inappropriate approach to parenting [X].
There was no serious challenge to Dr M’s evidence, and the Court accepts it. Indeed, if anything, the risks to [X]’s psychological health may be even greater than that which Dr M may have contemplated because of a number of matters. Thus, for example, whilst Dr M was clearly aware of the mother’s pregnancy and, indeed, conscious of the stresses that this would place on the mother, both physically and emotionally, he may not have been aware of other stresses in the mother’s life that became apparent from her cross-examination, which took place after his evidence.
Thus, for example, the mother gave evidence that she was the sole carer for the maternal grandmother whose condition, for example, was described by the mother in closing submissions in these terms:
She is so forgetful that I have to show [X]’s photo to her everyday; otherwise, she will forget her.
Moreover, Dr M may not have been aware of the absence of any proposed father support figure to the mother when her baby is born. Clearly, and based on the mother’s own evidence, the mother is thinly stretched in a physical and emotional sense, and this can only increase once the baby is born. In these circumstances, the risk to [X] may be greater than that which Dr M contemplated, and his description of the mother’s vulnerability or fragility may, in fact, be understated.
Now, these comments, of course, contraindicate quite strongly any suggestion of [X] living with her mother as she proposed. But what about some contact and communication? The father and the Independent Children’s Lawyer strongly oppose this on a number of grounds, but it would seem principally because the orders for contact that I made on 17 November 2011 so obviously failed and there is no evidence before the Court to suggest that the mother has gained any further insight or otherwise dealt with the issues that she has.
There is some substance to this. If the risk to [X] continues, as indeed the Court has assessed that it does, that risk must equally apply at even limited opportunities for contact. However, a number of points need to be made. Dr M specifically considered the impact on [X] and her mother of the birth of a sibling for [X]. The mother certainly wants to involve [X] in getting to know her sister or brother. [X] knows that her mother is pregnant. The Court suspects that [X] would probably want to get to know her brother or sister.
On balance, whilst recognising the difficulty of this and the risk associated either way, Dr M was against even contact between [X] and her mother for the limited purpose of meeting her new sibling because of the risk of psychological abuse to [X]. It is important to note that
Dr M specifically considered whether [X] had developed sufficient skills and maturity to be able to cope with her mother’s behaviour. The Court will call this resilience but that is not the term that Dr M used. He thought, on balance, that [X] did not have the resilience or the maturity and was unlikely to have this before 16 years of age.
He was concerned, as indeed the Court was concerned, about [X]’s experiences on the internet and exposure to material which is clearly inappropriate and which suggested that she struggled with maturity issues. Thus he was of the opinion that it couldn’t be said that [X] had developed sufficient skills or resilience or maturity to be able to herself manage the risk of potential psychological abuse by her mother in terms of the risk that was described by Dr M.
The Court is also concerned that even limited contact might retard the progress that [X] appears to have made during the course of these proceedings in a psychological sense. The father’s evidence and the evidence by way of the reports of Ms B strongly suggest that [X] is progressing well. One can see, obviously, the benefit to [X] of her involvement with Ms B and the remarkable progress that she has made, a matter that I discussed at paragraphs 54 to 61 of my reasons to judgment from November 2011. The question needs to be asked why should that be put at risk.
Implicit in the mother’s case is the importance of maintaining a relationship with her. Whilst the Court accepts this as an important principle, it is a principle that is subject to the need to protect [X] from the risk of harm. It is a part of the mother’s case that [X] was at risk of harm in her father’s care due to his inability to control her access to inappropriate material on the internet. There is no doubt that the material she has accessed is grossly inappropriate. However, the Court was impressed about the father’s response to this problem. It was considered reflective and, above all, realistic.
Both Dr M and Ms B were aware of the issue of [X] accessing inappropriate material on the internet but neither chose to criticise the father’s management of it. The mother was certainly critical of the father’s management of the issue but when she was given the opportunity to suggest what he could do that he was not already doing, she really wasn’t able to come up with a convincing rebuttal. At paragraph 20 of my reasons for judgment of 11 December last year I said, and I quote:
We live in a world where communication between people is both increasingly easy but complex and fraught with risk.
The events of the last 12 months only demonstrate that insofar as it relates to [X] and the internet. However, the Court is not satisfied that there is any risk to [X] that cannot be managed by the father. [The mother walked out of the courtroom at this point.]
[X]’s Views
I turn now to consider [X]’s views. There is no question that [X] wants to spend time and communicate with her mother. The issue is what weight the Court should place on her views. Implicit in the mother’s case is that the Court should place significant weight on it. In the father and the Independent Children’s Lawyer’s case, the opposed is contended.
Were this not a case where, in the Court’s opinion, there are such clear risk issues to [X], this would turn out to be a difficult issue. As it is, it doesn’t stand in the way of the orders the Court will make. It is necessary to comment, though, about what I describe as the “elephant in the room”. I think all parties to this case and all the experts involved know that one day [X] will make up her own mind about these issues before the Court and she will probably vote with her feet but now is not the time. Dr M seems to think it shouldn’t occur before 16. The Court recognises all of this. However, there is no futility in making these orders.
[X] turns 14 soon. If, at 16 or at some later age, she decides for herself what to do then the Court will be confident in knowing that, at least for the next two years, she will be in a caring environment where she will be physically, emotionally and intellectually nurtured and stimulated and where emotions will be appropriately regulated and managed, and where life events, ups and downs, will be contained and not amplified.
Impact on Relationship
Will [X]’s relationship with her mother suffer? The Court doesn’t think so. [X] clearly knows that her mother loves her and craves a relationship with her.
The Court believes there is reason to believe that [X] actually has an understanding of her mum’s condition. Indeed, ironically perhaps, an even deeper understanding than the mother herself. The Court is confident that [X]’s relationship with her mother will not be lost even with the orders the Court is proposing to make.
Conclusion
I asked a number of questions earlier in these reasons; have they been answered? Having regard to all the evidence and the reasons I have set out, the answers to the questions the Court has asked are as follows:
a)There is a risk of psychological harm to [X] if she spends time or communicates with her mother.
b)This risk is greater than the benefit to her of having a meaningful relationship with her mother.
c)This is a case where [X]’s views are to be given minimal weight due to the risk issues.
d)The mother still demonstrates poor insight into her condition.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 20 December 2013
Schedule One – Chronology
| Date | Event |
| 1969 | Applicant Father, Mr Raymond born |
| 1974 | Respondent Mother, Ms Choate born |
| 2000 | The child, [X] born. Now aged 13 years & 11 months. |
| 12/4/2007 | Father files Initiating Application in relation to spending time with [X]. |
| 12/2/2008 | Final consent orders providing for child to spend alternate weekends with her Father. |
| 20/3/2009 | Father files Contravention Application. |
| 13/8/2009 | Father files Initiating Application. |
| 7/12/2009 | Family Report prepared by Ms T |
| 22/12/2009 | Dr. M appointed as Court Expert by consent |
| 12/2/2010 | Dr. M’s 1st Report released. |
| 25/2/2010 | Final Hearing before FM Altobelli. Interim Consent Orders reached. Family therapy to commence with Ms B. [X] to spend time with Father on a graduated basis from day only to overnight. Liberty to ICL to relist if non-attendance at therapy or non-contact with Father. |
| 31/3/2010 | Mother cancels future appointments with Ms B. |
| 7/4/2010 | Dr. M prepares 2nd Report (short) for the matter to be relisted due to the Mother’s non-attendance at Therapy. Order made for Mother to bring [X] to Court on 9/4/2010. |
| 9/4/2010 | Interim Orders made for child to live with Father. Spend time with Mother but suspended for 3 months. |
| 31/8/2011 | Dr. M’s updating 3rd Report released. |
| 4-6/10/2011 | 3 day Final Hearing in Sydney Federal Magistrates Court. |
| 17/11/2011 | Date of Orders and Reasons for Judgment by Federal Magistrate Altobelli. The Orders provide, inter alia, for:- · [X] to live with her Father. · The Father to have sole parental responsibility for [X]. · [X] to spend time with the Mother each alternate Saturday from 10.00am to 2.00pm, extending to 4.00pm once [X] commences High School. |
| Jan 2012 | The Mother sends a series of text messages to [X]’s mobile. |
| 10/4/2012 | Email sent by the Mother to the Father. |
| 21/4/2012 | Father alleges the Mother approaches him in his car at [omitted] Shopping Centre (NSW Police records). |
| 27/4/2012 | AVO application by Police against the Mother. |
| 23/5/2012 | Interim AVO application adjourned until 4 July 2012 at [omitted] Local Court. |
| 16/6/2012 | Father alleges [X] informs him that the Mother brought a boy named [omitted] to the visit and [X] and the boy went to the movies unsupervised. [X]’s friend [Y] spent time with the Mother (Ms. Choate) and Ms. Choate facilitated [Y] having her ears pierced, contrary to [Y]’s parents wishes. (F’s affidavit filed 13/7/12 para.5). |
| Father alleges the Mother made derogatory comments regarding him to [X] and [Y] who relayed them to her Mother (F’s affidavit filed 13/7/12 para 6). | |
| 17/6/12 | Father alleges text messages were sent by the Mother to [X]’s friend [Y] to obtain another friend’s mobile number in order to contact [X]. (F’s affidavit filed 13/7/12 para.7). Father alleges [Y]’s mother sends Ms. Choate a text message requesting she not contact her daughter again. Mother replies (F’s affidavit 13/7/12 para.8). Father alleges text messages sent by [X]’s friends referring to the Father as ‘psycho’. (Annex C, F’s affidavit filed 13/7/12 para 9). |
| 3/7/2012 | Father alleges text message sent by Mother to [Y] in order to speak to [X]. (Annex D, F’s affidavit filed 13/7/12 para.11). |
| 21/6/2012 | [X] attends upon Ms. B for therapy. Ms B writes to Father expressing her concerns in relation to [X]’s contact with her Mother and advises him to suspend [X]’s contact with her Mother as it is having a negative effect on her psychological health due to the following: · The incident involving the Mother organising [X] to spend time with a boy and condoning sexual activity. · The Mother posing as her friend’s ([Y]) Mother to have [Y]’s ears pierced without consent of her Mother. · Making derogatory comments regarding the Father to [X] and her friends. (Annex E, F’s affidavit filed 13/7/12 para.12) |
| 29/6/2012 | Father emails the Mother informing her he is ceasing all time between herself and [X] due to the behaviour of the Mother and [X] at [omitted] Shopping Centre. |
| 3/7/2012 | Mother files Contravention Application and Affidavit. |
| 4/7/2012 | Interim AVO granted against the Mother and naming the Father and [X] as protected persons. |
| 13/7/2012 | Father files Initiating Application and Affidavit for interim and final orders discharging Orders 4, 5, 6,7 of final orders dated 17/11/2011. |
| 21/7/2012 | Father alleges [X] attends a friend’s birthday party in [B] with consent of the Father. Father is informed by [Y]’s mother that [X] and [Y] had acted inappropriately with 2 boys at the party. The school principal, Ms R confirmed this with the Father in a school meeting. |
| 26/7/2012 | The Mother attends [omitted] Police Station and makes report regarding [X] attending party at [B] and sexual activity occurred between boy and [X]. (NSW Police Records). |
| 1/8/2012 | JIRT receive report re [X] and [B] party incident. Contact with Father who advises Ms B should be spoken to about whether [X] should be interviewed. (NSW Police subpoenaed records). |
| 3/8/2012 | Email from Father to JIRT and FaCS. Father informs them that he does not want [X] to undergo a formal police interview so no further police action is required in relation to [B] party incident. (F’s affidavit filed 19/10/12 Annex I) |
| 13/8/2012 | Mention before FM Altobelli. Interim orders providing: · Matter adjourned for interim hearing 25/10/12 · ICL reappointed · Direction for filing of affidavit material by 18/10/12 · Suspension of child’s contact with Mother · The Mother refrain from commencing any communication between herself and the child. · Notation: Subject to Ms B availability she will give evidence by telephone at the interim hearing. |
| 16/8/2012 | Father alleges he becomes aware of [X] self-harming from phone call from school principal. Father also alleges [X] self-harm in primary school which was reported to him by a teacher. (F’s affidavit filed 19/10/12 page 5) |
| 13/9/2012 | Mother emails Associate to FM Altobelli informing of [X]’s attempt at self-harm. |
| 19/10/2012 | Father files affidavit |
| 25/10/2012 | Interim hearing before FM Altobelli. Orders made pending further order: · Previous orders in relation to contact between Mother and [X] continue to be suspended. · The Mother refrain from commencing any communication between herself and the child. · Order for the appointment of Dr. M to prepare updating report |
| 29/11/2012 | Release of Dr. M’s updating Report. |
| 11/12/2012 | Interim hearing before FM Altobelli (ex-tempore judgment) · Discharge of face-to-face contact order. · Restraint on Mother having communication whatsoever until the child attains the age of 16. · [X] to spend time with Maternal Grandmother supervised by the Maternal Aunts as agreed between the Father and the Maternal Aunts. · Matter listed for final hearing on 14 & 15 October 2013. |
| 4/1/2013 | Father alleges the Mother left a voice message on [X]’s phone. The Father alleges the message was distressing for [X]. |
| 31/3/2013 | Father alleges Mother left another message on [X]’s phone on Easter Sunday while [X] visiting Maternal Aunts. |
| 1/5/2013 | Mother contacts Associate to Judge Altobelli indicating that [X]’s “life was in jeopardy”. |
| 23/9/2013 | Father files affidavit. |
| 16/12/2013 | Final hearing before Judge Altobelli |
Schedule Two – Mother’s Proposal
I am Ms Choate the Mother in these proceedings.
I am wanting shared care in these proceedings. She needs “Both” her Parents!
I am wanting [X] returned into my Care/Full time Care.
I feel her Father, should be given alternate weekends with [X], share School Holidays, Christmas, Easter ETC.
Given [X] will have a sibling in April 2014, I think it is in her best interest to be living with I, her Mother. I feel it’s imperative she form a bond/relationship with her sibling.
[X] also needs to see/spend time with her Maternal Grandmother, who is very ill with Alzheimer’s Disease, they haven’t seen each other in over 19 MONTHS. She is deteriorating.
I also feel [X], nearly 14 should have more of a say in these proceedings.