Raymond and Choate
[2011] FMCAfam 1108
•17 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAYMOND & CHOATE | [2011] FMCAfam 1108 |
| FAMILY LAW – Parenting – mother with enmeshed relationship with child. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Raymond & Choate [2010] FMCAfam 451 MRR v GR [2010] HCA 4 |
| Applicant: | MR RAYMOND |
| Respondent: | MS CHOATE |
| File Number: | SYC 2546 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 4-6 October 2011 |
| Date of Last Submission: | 6 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2011 |
REPRESENTATION
| Applicant: | Self-represented litigant |
| Respondent: | Self-represented litigant |
| Counsel for the Independent Children’s Lawyer: | Mr Barry |
| Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
That all previous parenting orders are discharged.
That the Father have sole parental responsibility for the Child [X] born [in] 2000.
That the Child live with the Father.
That the Child spend time with the Mother as follows:
(a)Each alternate Saturday from 10.00am until 2.00pm (extending to 4:00pm once the Child commences high school in 2012) at either [omitted] Shopping Centre or [omitted] Shopping Centre, [address omitted], Sydney, or such other venue as the parents agree from time to time.
(b)In the event that the child's birthday does not fall on a day she would be spending time with the Mother in accordance with Order 4 (a) then on the Child's birthday from 10.00am to 2.00pm.
(c)In the event that the Mother's birthday does not fall on a day the Child would be spending time with the Mother in accordance with Order 4(a) then on the Mother's birthday from 10.00am to 2.00pm if it is a non-school day and from 4.00pm to 8.00pm if the Mother's birthday falls on a school day.
(d)On Mother's Day from 10.00am to 4.00pm.
(e)On Christmas Day from 9.00am to 1.00pm in odd-numbered years and from 1.00pm to 5.00pm in even-numbered years.
(f)Any variation to the above as agreed between the parties in writing.
That for the purpose of changeover in Order 4 (a) herein the Child will be delivered by the Father or a nominee of the Father to the main entrance of the shopping centre at the commencement of the time and collected by the Father or a nominee of the Father at the same location at the conclusion of the time or as agreed between the parties.
That for the purpose of changeover in order 4 (b), (c) and (d) the Father or the Father's nominee is to deliver the Child to the Mother's residence at the commencement of time and the Mother or her nominee is to return the Child to the Father's residence at the conclusion of time, but neither parent is to leave the motor vehicle that they are in.
That the Child’s contact with the Mother in accordance with Order 4 above is to be suspended once per year for no more than two weeks, provided that the Father gives one month written notice to the Mother of his intention to spend time with the Child.
That the parties be restrained from speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant manner in the presence or hearing of the Child.
That within 14 days of these orders and within 14 days of the Child's subsequent enrolment at any school the Father do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the Child may attend from time to time, that school forward directly to the Mother copies of the Child's school reports and any written material pertaining to the Child's academic and extra-curricular activities.
That the Father shall keep the Mother informed of any significant medical treatment the Child receives or in the event the Child is hospitalised.
That each party advise the other party and keep the other party advised of their current address and contact telephone numbers and advise the other party of any changes to these details within seven days of such change occurring.
That in the event the Father intends to take the Child on a holiday for a period of time in excess of two weeks the Father is to give the Mother one month's notice in writing and any time that the Mother does not spend with the Child as a result of the Father's actions shall be made up to the Mother as soon as reasonably possible.
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 MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2546 of 2007
| MR RAYMOND |
Applicant
And
| MS CHOATE |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X] who is 11 years old. Her father is the applicant, and her mother the respondent. In these reasons for judgment I explain why I have made the orders I make in relation to where [X] will live, and how much time she will spend with the other parent.
Background
Most of the matters to which I will now refer are not in contention between the parties. If a matter is in dispute, I will indicate this and explain briefly why I have decided certain facts.
[X]’s father is 42 years old and her mother 37 years old. They both live in Sydney. They started living together in April 1996 and separated in May 2001, over ten years ago. [X] was born [in] 2000. She is in her last year of primary school, and will commence high school in 2012.
In December 2002, [X]’s parents entered into consent orders which provided for [X] to live with her mother, and to have contact with her father overnight twice per week. In March 2007 an apprehended violence order was made against the mother, for the protection of the father, for a period of three years. In April 2007 the father commenced proceedings in this court alleging that the mother had refused him contact with [X], going back to the end of 2006. On 17 September 2007 the parents were able to enter into interim consent orders which provided for [X] to spend time with her father on alternate weekends from Saturday at 9.30 to 4:00pm, and on Sunday from 10:00am to 4:00pm. The parents entered into final consent orders on 12 February 2008, which provided for [X] to spend time with her father each alternate weekend from 10:00am Saturday until 6:00pm Sunday, as well as during school holidays and on special days.
In mid-2008 the father commenced a relationship with his then partner, Ms R. There was friction between [X]’s mother and Ms R, and this resulted in an AVO being made against the mother, protecting Ms R. In December 2008 the mother was charged with breaching that AVO.
In March 2009 the father commenced contravention proceedings in this court, alleging that he had not been spending time with [X]. The mother was given the opportunity to file an application to vary the current orders, and an Independent Children’s Lawyer was appointed on 8 April 2009.
On 20 August 2009, after a period when the father had not spent time with [X], at the suggestion of [X]’s lawyer (the Independent Children’s Lawyer, Ms Power) the father was to meet [X] on level two of the court building and then take her out to lunch, and then return her to her mother. The mother provided undertakings to the court that she would comply with the order facilitating the above, not undermine the orders, and indeed stay away from level two until such time as notified by the Independent Children’s Lawyer. The family consultant who supervised this, Mr L, noted that [X] was very reluctant to engage with her father but eventually went with him for lunch and he returned her to the mother that afternoon.
The father continued to experience problems with spending time with [X], though he did spend time with her for four hours on Father’s Day 2009.
Pursuant to an earlier order made, Ms T prepared a Family Report dated 7 December 2009. In this report she expressed grave concerns for [X] continuing to live with the mother. In effect, she found that the mother was undermining [X]’s relationship with the father, and seemed to have no insight as to the emotional damage this was causing [X]. The family consultant was of the view that [X] felt emotionally responsible for her mother.
When the matter came before me on 11 December 2009, I appointed a Part 15 Expert, Dr M, as well as expediting the final hearing of this matter. The parents and [X] in fact attended on Dr M on 11 and
12 January 2010, and Dr M’s report was released to the parties on
12 February 2010.
The matter came before me for final hearing on 25 February, but the parties entered into interim consent orders that provided for equal shared parental responsibility, for [X] to live with her mother, for the family to attend on Ms B for family therapy, for [X] to spend time with her father on a graduated basis from day only and then to overnight, and with liberty to relist.
By the end of March 2010, the mother had cancelled her appointments with Ms B and this precipitated Dr M preparing a further report.
The matter came before me on 9 April 2010. I made orders for [X] to live with her father, and to spend time with her mother on alternate weekends, though I suspended the order for contact for three months. My reasons for judgment in the interim application were published as Raymond & Choate [2010] FMCAfam 451. These reasons are quite comprehensive and reviews the Family Report and Dr M’s first two reports in quite considerable detail. I do not intend to go over this evidence again. The mother sought a stay of the orders that I made but this was declined. The mother filed an appeal but this was subsequently struck out.
There was a period of three months when [X] did not spend time with her mother. During the period when [X] was living with her father, she was receiving family therapy from Ms B, a clinical psychologist. I deal with Ms B’s evidence in more detail below.
In May 2010 the police were called to the mother’s home as she was threatening self-harm. She was taken to the [omitted] Hospital by police. That month the mother made contact with the [omitted] Mental Health Service. She says that she was diagnosed with borderline personality disorder. As it turns out Dr M disputes this diagnosis, and I will discuss this in further detail in my reasons below. In any event, the mother was accepted into a program called dialectical behaviour therapy (“DBT”). I discuss the mother’s progress with her therapy in more detail in the reasons below.
In June 2010, the mother assaulted the father by hitting him on the face. The father says that the assault occurred in the presence of [X]. The mother says that [X] was inside when the assault occurred. Whether or not [X] physically witnessed the assault is irrelevant in the circumstances. What is clear from the evidence is that [X] witnessed the immediate aftermath of this assault. The evidence of Ms B clearly indicates that [X] was quite emotionally upset as a result of this incident. The mother was charged with contravening an apprehended violence order, and recklessly wounding the father.
On 9 July 2010 the matter was relisted before me in view of the preceding events. I suspended the interim orders that I had made on
9 April for contact, and ordered supervised contact at a contact service instead. The mother was also permitted to send a letter to [X] once per week, but through the Independent Children’s Lawyer who had the ability to veto it if considered appropriate.
In August 2008 a number of things were happening. Firstly, the mother commenced individual DBT sessions. Nextly, she filed an Amended Response seeking sole parental responsibility, for [X] to live with her, and to spend time with her father each alternate weekend. This was clearly the proposal that the mother believed was in [X]’s best interests at the time, notwithstanding the events over preceding months. On 24 August the mother was convicted for contravening the apprehended violence order and sentenced with a bond under the supervision of the New South Wales probation and parole service. She was also convicted for assaulting the father, and sentenced to seven months suspended imprisonment and a bond.
On 26 August 2010 the matter was again mentioned before me. The mother was very emotional on this occasion. She told me that she would not be writing to [X] and that she would not be having supervised contact. I continued the orders that I had made.
December was another traumatic time for the mother. Her father was gravely ill in hospital. On 25 December 2010, whilst apparently under the influence of alcohol, the mother self-harmed by cutting her forearms. Indeed, the scars on the mother’s arms were observed by the supervised contact centre when the mother visited [X] on 30 January 2011. I do not accept the mother’s evidence that there were no visible scars. I prefer the independent business records of the contact centre in this regard.
In early February 2011, and contrary to the undertaking that the mother had given not to attend the hospital when [X] visited the maternal grandfather, the mother in fact confronted [X] at the hospital and spoke with her in relation to these proceedings. Ms B again reported that [X] found this a stressful event.
In March 2011, it appears as if the mother had again threatened to discontinue supervised contact at a contact centre. Notwithstanding this, the mother did apparently persist with supervised contact.
On 25 August I made orders permitting [X] to travel overseas with her father, and in relation to passports. The matter was listed for final hearing before me commencing 4 October 2011.
Proposals at the final hearing
At the commencement of the final hearing, the father’s proposal was contained in a minute of order dated 4 October 2011. He proposed that [X] remain living with him, that he have sole parental responsibility, and that there be supervised contact at a supervised contact centre for a period of six months whilst the mother continued her therapy, and subject to the monitoring of the Independent Children’s Lawyer. If this progressed satisfactorily, it would move to unsupervised contact once a fortnight at a shopping centre, and then progressing to longer days each fortnight. An explicit part of the father’s proposal was ongoing monitoring by the Independent Children’s Lawyer, and hence, any orders I will be asked to make would be interim ones. By closing submissions the father’s position had changed and he had, albeit somewhat reluctantly, adopted the proposal of the Independent Children’s Lawyer.
At the commencement of the hearing the mother’s proposal was that contained in her Amended Response filed 26 September 2011. This provided for [X] to live with her and to have contact with the father. During the course of the hearing, however, the mother’s proposal also changed. The final orders she sought were in accordance with a handwritten document which provided for immediate daytime contact, an entire week during the school holidays, two overnight visits each week and holidays, and then once [X] recommences school each alternate weekend from Friday after school to Monday morning, as well as every Tuesday night. She also proposed that from the beginning of January 2013 there be an equal shared parenting arrangement.
The order proposed by the Independent Children’s Lawyer was contained in a Minute of Order which is reproduced in the first schedule to these reasons. The Independent Children’s Lawyer proposed that the father have sole parental responsibility, and that [X] lives with him. [X] was to spend time with her mother each alternate Saturday from 10:00am until 2:00pm at a shopping centre. In addition, [X] would spend time with her mother on special days including her birthday, the mother’s birthday, Mother’s Day, and Christmas Day, with no limitation as to the venue for contact. As I indicated above, by the time the final submissions, the father had adopted the Independent Children’s Lawyers’ proposal.
Evidence at the final hearing
The mother and father each filed affidavits and gave evidence at the final hearing. The family report prepared by Ms T was in evidence, but she was not required for cross-examination. Dr M’s Part 15 Expert reports were also in evidence, and he gave oral evidence. Ms B’s reports were in evidence, and she also gave oral evidence. There was documentary evidence about the therapy that the mother had been receiving. A number of documents were tendered, mainly having their source amongst the subpoenaed documents.
Both the mother and father were self-represented. The Independent Children’s Lawyer, Ms Power, was represented by her Counsel,
Mr Barry.
Interim orders made at end of evidence
After hearing the evidence on 5 October I made interim orders that provided for [X] to live with her father, for him to have sole parental responsibility in relation to [X]’s education, and for [X] to spend time with her mother each alternate Saturday commencing from 8 October at a shopping centre. I explained to the parties that I wanted to make interim orders as I was not sure how long it would take for me to provide these reasons for judgment and I felt it was necessary both to provide a framework for [X] to spend time with her mother as soon as possible, as well as to deal with what was a contentious issue at the hearing, i.e. where [X] would go to school next year. These were pressing matters that, in my opinion, required an urgent decision.
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).
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.
Evidence of Dr M, Part 15 Expert
By way of a report dated 31 August 2011, Dr M provided a report supplementary to his reports dated 10 February 2010 and 7 April 2010.
In relation to the mother, Dr M noted:
2. … She clearly expressed her emotional distress and decompensation in her mental health following the removal of her daughter. She described her disbelief regarding this event. She indicated her respect for the Court and previous assessments and described her experience in a manner generally consistent with her affidavit material. She however minimised the intensity and disruptive nature of her behaviour during this period.
3. She described her active pursuit of psychological intervention. She recognised that she had been acting in a selfish and immature manner with regard to her parenting of her daughter. She took responsibility for not enforcing [X]’s contact with her father and for exposing [X] to her views regarding the father through her discussions with other parties. She enthusiastically ascribed to a diagnosis of Borderline Personality Disorder despite not fulfilling the diagnostic criteria for this disorder. She had assertively pursued psychological intervention with ongoing attendance at an established Dialectical Behaviour Therapy program (DBT), with regular attendance at both individual and group sessions. She presented me with two letters from her treating therapist indicating her attendance (except for 2 months from March 2011) at the program and progress in her skill development. She was identified to be a highly motivated participant in the program.
4. The mother acknowledged having withdrawn from the therapy with Ms B. She had subsequently refused to maintain supervised contact. She had also physically assaulted the father in the context of her distress regarding the loss of contact with her daughter. She minimised the intensity of these problematic interactions.
5. The mother’s mental state examination was unremarkable. She [was] highly excited by the prospect of seeing her daughter for the first time in 146 days. She acknowledged that this was a direct result of her actions. She hoped that it would be possible to re-establish contact and residence in the near future. She was seen to have insight into her circumstances and actions. She indicated a willingness to engage in further recommended intervention, although this was inconsistent with her previous action and some of the affidavit material perused.
In relation to the father, Dr M noted:
8. He described the dramatic circumstances which had impacted upon the family. He spoke about [X]’s experience in a concerned manner. He acknowledged that the transfer of her residence had been a challenging process as predicted. Over the first couple of weeks, [X] had been acutely distressed and non-compliant. These problems had quickly settled and a normal routine had been established. It was evident that he had prioritorised his daughter’s needs. This had included taking the first three weeks off work, losing his relationship, and driving three hours per day to maintain the stability of [X]’s school placement. He had also maintained the regular therapeutic intervention with Ms B and followed her recommendations regarding the gradual reduction in frequency of their sessions. This was consistent with Ms B’s subsequent communication.
9. In this context, [X] had settled and become a child again. He had no doubt that it had been in her best interests to be removed from the influence of her mother. He was respectful of the Court process, assessments and therapeutic intervention.
10. He regarded the mother as continuing to exhibit signs of emotional and behavioural disturbance, which was consistent with his long term experience. This included her behaviour towards [X], the physical assault of himself and members of her extended family and the precipitous cessation of the supervised contact visits. He viewed her as incapable of acting in [X]’s best interests. In his view, there was no alternative but to maintain supervised contact into the future.
In relation to the child [X], he noted:
12. [X] was reluctant to establish a rapport with the report writer. Although she spoke in a positive manner about her experience, friendships and experience with her father, she expressed her anger about being removed from her mother’s home and cessation of contact. She had a clear understanding of the circumstances. There was no indication that she had been coached by her father to make any statements to the assessor. She was seen to identify strongly with her mother’s position and wanted to return to her care. Her ongoing loyalty to her mother was evident in her communication.
13. When seen with her father, [X] was subdued. The father expressed appropriate concern for her experience. [X] was limited in her response. In contrast, a highly animated interaction was observed between [X] and her mother. This continued in a flurry of intense excitement and the sharing of numerous experiences for well over an hour. The rapport between mother and daughter was intense.
14. The issues raised by the mother were generally focussed on the sharing of experiences. [X] delighted in response to her mother’s communication. The mother provided [X] with small gifts. [X] appreciated these knick-knacks. The mother also provided [X] with two photographs of mother and daughter embracing. [X] commented that she no longer looked like this.
15. It was of concern that the mother told [X] that she had enrolled her in [O], the local Catholic high school, which her peer group was to attend. [X] was both hesitant and then excited by this proposal. The mother indicated that she had paid the deposit for this placement and encouraged [X] regarding this. When this issue was later explored with the father, it appeared that this placement was unlikely to proceed due to the distance from his place of residence.
16. [X] became tearful and distressed on two occasions. The first was when the mother raised a concern about an issue regarding her use of an inappropriate site on the Internet. [X] became tearful and agitated and did not wish to explore this further. At the conclusion of the assessment, she became distressed when it was time to say goodbye to her mother. Her father provided appropriate support at this time.
I note that Dr M refers to various events and factual matters raised by each of the parents and [X]. Having regard to all the evidence before me I am satisfied that these matters are in fact based on facts and not mere assertions by the parents and [X].
Dr M provides his opinion at paragraphs 18 – 22:
18. A consistent picture emerged within the documentation perused. This highlighted the emotional and behavioural vulnerability of the mother in the context of her Borderline Personality (Cluster B) traits. This was consistent with the long standing expressed concerns of the father and the initial report of the report writer. It was evident that the mother had difficulty in separating her own needs from those of [X]. She had experienced a profound emotional decompensation following [X]’s removal from her care. It was evident that she had lacked the ability to reflect on her experiences and circumstances. Instead, she had responded in a highly reactive manner which had impacted significantly on her relationship with her extended family over time. Her lack of respect for the Court process and established boundaries and limits had resulted in her incarceration for breach of AVO and the repeated suspension of contact visits. This was a most unfortunate circumstance.
19. It was, however, most encouraging that the mother had engaged in an appropriate program of intervention. Dialectical Behaviour Therapy (DBT) has been shown to be the most effective strategy to manage such behavioural vulnerabilities. The father’s concern that this apparent change is superficial and without substance is yet to be tested. The mother’s approach to [X]’s schooling, enrolling her and encouraging her to attend a school, which is likely to be impractical whilst continuing to reside with the father, is indicative of her continued difficulty in reflecting on the most appropriate way to support [X].
20. It was evident that [X] has adjusted well to her new circumstances, whilst experiencing a great sense of loss in response to the change of residence and loss of contact with her mother. Her desire to reunite with her mother and reside with her again is indicative of the closeness that she experienced in this relationship.
21. I formed the opinion that the father had managed the challenging transition in [X]’s care well. He was seen to have exhibited an appropriate attitude to the responsibilities of parenthood and had prioritised [X]’s needs. He was seen to be both empathic and effective in his parenting style. Her school reports are indicative of the positive progress made in this regard. Interestingly [X] denied that there was ever a problem with regard to such issues.
22. The recommendations regarding contact in these circumstances are challenging. There is a clear indication that [X]’s primary residence should be maintained with her father. She has benefited from the stability and structure which he has been able to provide. [X], however, also desires an ongoing relationship with her mother. This was understandable in light of the intense emotional bond between mother and daughter. The interactions observed were more akin to extremely close adolescent girlfriends rather than a typical mother-daughter relationship. It will be difficult for the mother to provide effective structure and boundaries in the context of her personality style and the dynamics of this relationship. The mother’s decision to suspend all contact with her daughter rather than to continue with regular supervised contact was acknowledged by her to be a self-destructive act.
The emotional and behavioural vulnerability of the mother, and the risks this poses to [X], is the clear and consistent theme emerging from Dr M’s evidence.
His recommendations are found at paragraphs 24(b) – (e):
b. Even though [X] has consistently expressed the wish to reside with her mother, in my view this is not in her best interests. It was evident that she has experienced a marked stabilisation in her mental state and behaviour in the context of her relocation. I would propose that she maintain primary residence with her father.
c. The mother will benefit from her ongoing attendance for DBT individual and group sessions. She reported the benefit experienced from this intervention in a glowing fashion. It was, however, recognised that there had been a period of a couple of months when she had discontinued treatment following the death of her father and cessation of contact visits. Coincidentally, there was a change of therapist at this time. This was viewed as highly unfortunate as this would have been a time of particular need, with multiple issues needing to be worked through. Such a response is not uncommon with individuals who have experienced extreme stress.
d. Although the mother described her appreciation of numerous concerns regarding her approach to the responsibilities of parenthood, such as her inability to see [X]’s needs as separate from her own, it was evident that she continued to be ruled by her heart. Her engagement with [X] highlighted the immature nature of this relationship. Her enrolment of [X] in a different school from that planned by her father and active encouragement of this option without consideration of [X]’s disappointment should this not be possible provided a model of future problematic transactions. The mother emphasised her love for her daughter and distress at separation.
e. Whilst in such circumstances an Order for supervised contact may be considered (as requested by the father), in my view this would be likely to have limited impact. It is of course a concern that the mother may use contact as an opportunity to vilify the father and the maternal extended family. It is, however, my view that [X] has now established a secure attachment and residence with her father. She has also benefited from the therapeutic intervention with Ms B. It is likely that she will develop further insight over time into her family circumstances. This therapeutic outlet remains available to her in the future should she require. Under these circumstances I would support [X] and her mother in their desire to have unsupervised contact on a regular basis. Initially, this could be for day only contact on alternate weekends. Once [X] is established in her high school placement I would support overnight weekend contact with her mother to be established. This should be contingent upon the mother’s maintenance of her therapeutic intervention. The mother should understand the importance of maintaining the regularity of such contact. Should there be evidence of vilification of the father by the mother this will limit the ongoing viability of unsupervised contact. It is essential that the mother recognize the importance of this should she wish to maintain contact.
In his report, therefore, Dr M was guarded but nonetheless supportive of regular unsupervised contact initially on a day-only basis, but increasing to overnight weekend contact once [X] was established in a high school placement. This was contingent, however, on the mother remaining in therapy, maintaining regular contact, and not vilifying the father.
Dr M gave oral evidence which was skilfully elicited by Mr Barry, Counsel for the Independent Children’s Lawyer. A number of matters were clearly established. For example:
· Dr M continued to endorse the analysis and recommendations of the Family Consultant;
· Dr M was aware of the mother’s self-harm attempt at Christmas 2010, and the period during which she discontinued supervised contact by her own choice;
· Dr M was aware of the mother’s progress with her therapy;
· He was fully aware of [X]’s progress with her treating psychologist, Ms B;
· He was aware of the mother’s actions in enrolling [X] at [O] for 2012.
I observe that all of the factual matters referred to above are solidly grounded in findings of fact I make.
Dr M explained that the mother’s impulsivity, lack of insight, lack of reflectivity, patterns of intense and unstable interpersonal relationships, difficulty with affect and emotional regularity, and intense emotional reactivity, were all characterological in nature. He explained this to mean that these were personality based problems for the mother, indicative of personality disorder, or maladaptive personality traits. He thought it was probably the latter rather than the former, but in any event was continuing notwithstanding the progress the mother had made in her therapy. He described her progress as nascent improvements. Dr M explained, however, that almost immediately after the positive assessments the mother had received in her therapy, the mother had experienced some significant set-backs, including a disruption to her therapy relating to her father’s death and disrupted contact with [X]. Thus, whilst the mother was developing key psychological competencies, much more work needed to be done, and the mother remained extremely vulnerable.
Dr M was invited to comment on what Counsel described as the mother’s reluctance to take personal responsibility for her own actions, which became evident in her cross-examination. I accept that Counsel’s description accurately reflects the findings I make about the mother’s cross-examination. Dr M explained that this was consistent with his own concerns about the mother. So too was the mother’s lack of willingness to accept Ms B’s observations of [X] (which, I find, the mother found to be biased). Dr M explained that whilst the mother enthusiastically spoke the language reflecting the therapy she had undertaken, her actions did not demonstrate change. Indeed, he emphasised the notorious difficulty in effecting change, and was cautious about the mother’s capacity to in fact change. His concerns were further exemplified by the mother’s actions in enrolling [X] at a school of the mother’s choice, and then actually telling [X], totally oblivious to the impact this might have on [X] depending on the outcome of this case.
Dr M believes that there is no prospect of the mother’s relationship with [X] ever becoming a mature one. It was plainly difficult for the mother to understand the impact of her own actions on [X]. He was concerned about the mother unconsciously vilifying the father to [X] and described this as a “natural tendency” for her.
Counsel for the Independent Children’s Lawyer questioned Dr M about his recommendations for overnight time, explaining that the Independent Children’s Lawyer’s proposal to the Court did not involve further interim orders, or further monitoring, but preferred the making of final orders. Dr M understood that, if final orders were made, it would not be possible to supervise the mother’s therapy, and this thus rendered problematic his recommendation for overnight time. He reluctantly endorsed and agreed with the Independent Children’s Lawyer’s proposal for contact in a public place and in day-time. He explained that this would provide necessary limits on the relationship between the mother and [X] in terms of structure and containment of the mother’s emotional behaviour. Dr M thought this was, in the circumstances of this case, the best proposition, even though such a strong bond exists between mother and child, and that they would both experience a profound sense of loss. Dr M thinks that this sense of loss would be greater for the mother than [X], and he was concerned that the mother’s mental health might be destabilised. The benefits of limiting the mother’s ability to undermine [X]’s relationship with her father, and creating an environment in which the mother’s intense emotions can be contained, warranted making the order proposed.
The father had no questions for Dr M. The mother questioned him about the potential benefits to [X] of contact with the mother in her own home, a familiar environment, rather than in a public place. Dr M explained that there were clear benefits for [X] in so doing, but also significant difficulties in that leaving such a place as her own home so frequently would be very difficult for her, thus amplifying her sense of loss. Dr M acknowledged that four hours each fortnight would make it difficult to achieve a meaningful relationship. When asked by the mother as to whether there was any point in even sustaining her relationship as a mother to [X], Dr M explained that he understood the mother’s distress but reminded her of the importance of the relationship even though contact was limited.
I accept Dr M’s evidence and his recommendations.
Evidence of Ms B
Ms B is a Clinical Psychologist appointed by the Court to provide family therapy, and who then became [X]’s treating clinical psychologist. She first met [X] on 25 March 2010. Ms B’s reports dated 5 May 2010, 30 June 2010, 27 October 2010, 18 February 2011 and 30 May 2011 were all in evidence.
[X]’s progress in therapy in therapy is exemplified by comparing
Ms B’s first and last reports. In her first report dated 5 May 2010,
Ms B reports on how [X] had experienced the transition from her mother’s to her father’s home, particularly in view of the recovery order:
1.The first week following the changed arrangements, [X] was particularly distressed and exhibited signs of a child exposed to trauma. Of note was her distress at recounting the experience of “waiting for the police” on the Friday evening prior to recover; along with her distress at the separation from her mother. She was hostile, tearful and disengaged. Her father attempted to alleviate this distress and organised trips and visits with her maternal cousins and other activities, all the while maintaining an appropriate parental stance. For example, [X] was particularly hostile about the fact that her mobile telephone had been confiscated, following constant communication between [X] and her mother, which served to wind her up and distress her further.
This is contrasted to Ms B’s final report dated 30 May 2011, where she states:
[X] appears to have made enormous grains in terms of psychological maturity, growth and development. She no longer needs therapy on an ongoing basis, although I have continued to see her once every couple of months in order to preserve the therapeutic relationship, in the event that she might need more intense support should the family situation change.
Obviously, much happened in between these two reports. [X]’s hostility to her father was observed to abate and then disappear. Her psychological health generally followed a trajectory of improvement but was clearly set back by events involving her mother. Thus, for example, Ms B’s report of 30 June 2010 records [X]’s response to the mother’s assault of the father:
5.Unfortunately [X] was witness to her mother’s assault on her father. This significantly traumatized [sic] [X] and in the week since this assault, [X] has become tearful and anxious. This more recent trauma has compounded [X]’s previous traumatic experiences including: exposure to the police at the time of relocation and also the visit to the school of the adult male who facilitated contact between [X] and her mother by mobile telephone. Currently [X]’s attitude is confused and anxious about the predictability of her mother. One the one hand she misses her mother and aspects of her old life (including her pets and former bedroom), on the other hand she is frightened of her mother’s behaviour and the contact with police and others that have occurred.
There was a further incident described in Ms B’s report of 27 October 2010:
4.Mr Raymond informed me that [X] had unanticipated contact with her mother recently and that on this occasion she had run away from her mother. I have now spent time with [X] alone to discuss the events of this particular incident. [X] reported to me that she was with her cousins at a Seven Eleven shop buying a “Slurpie” and that they saw her former neighbour and then shortly after her mother appeared in her car and called out to the children, followed them some distance and then got out of the car, all the while calling out to [X]. [X] said that she was “terrified”, not so much that her mother would hurt her, but that “she might do something really silly and get into trouble again”. It seems that this episode confirmed [X]’s view that her mother is unpredictable. She specifically commented that the problem was that she wasn’t able to “prepare” herself on this occasion.
[X]’s response to her mother not attending a contact visit is described in the report of 18 February 2011:
3.On one occasion, [X]’s mother did not attend the scheduled contact visit and this had a significant effect on [X]. In particular, she was unable to understand why this had occurred because her mother had previously assured her that these visits were the most important thing to her. Although [X] has continued to comply with scheduled visits, she appears to have detached slightly from the process and regards her mother as somewhat unpredictable. [X] may need some assistance in understanding, or be given a developmentally appropriate explanation about her mother’s mental health.
These matters obviously also reflect on the mother, and confirm Dr M’s concerns about her.
Ms B gave oral evidence. It should be remembered that Ms B’s primary role was to provide therapy for [X], and that her level of involvement with the mother was limited. Nonetheless in the course of this therapy, Ms B had much contact with the father, and I am satisfied that she was well placed to make observations about the relationship between [X] and the father. She described this as meaningful. He provided stability for [X], and attended to her emotional excessiveness. She thought they were dealing quite well with [X]’s grief arising out of the loss of the relationship with her mother. Ms B thought that [X] was securely attached with her father, and that this was a relationship that needed to be maintained as a priority.
Ms B supported the Independent Children’s Lawyer’s proposal for contact at a shopping centre, explaining that a public venue protects [X] from emotional volatility. She thought that contact at the mother’s home was problematic as it gave [X] a false sense of what was happening in her life. She saw no reason, however, why contact at the mother’s home could not occur on special occasions. Ms B was invited the comment on the evidence about the mother representing to [X] where she would go to school in 2012. She explained that if this promise could not be fulfilled, it would result in anger, resentment and hostility in [X].
There was no doubt in Ms B’s mind that [X] should remain in her father’s care with limited daytime contact with the mother, principally in a public place.
I accept Ms B’s evidence. Where she has referred to reports of events, I am satisfied that this is based on fact.
The mother’s therapy
The mother tendered evidence that provided information about the therapy she received, and the progress she made in that therapy. On referral from her GP, the mother consulted a Clinical Psychologist in May and June 2010 who recommended Dialectical Behaviour Therapy (DBT). On 8 July 2010, Mr A, a Clinical Psychologist, provided a report giving an overview of the mother’s involvement in DBT. The mother was accepted into the program in 2010. Phase 1 would be from July 2010 to July 2011, and Phase 2 from August 2011. By way of a report dated 26 October 2011, Mr S, a Clinical Psychologist provided a progress report. The most recent report is from Ms C, an Occupational Therapist in the DBT program.
There is no doubt that the mother is making progress with her DBT, but it is equally true that the DBT is not completed, and that the mother’s own actions (assault on father, self-harm, cessation of contact) which occurred during the therapy, all indicate she continues to struggle with the matters so clearly articulated in Dr M’s reports. Dr M’s characterisation of the mother’s progress in DBT as nascent improvements is entirely correct.
The father’s evidence
The father impressed me as being a man who was very much committed to the best interests of [X]. He was clearly suspicious and distrustful about the mother, who he felt really could not help herself in terms of consciously, or unconsciously, trying to undermine [X]’s relationship with him. I thought there was also a real element of concern about the mother’s mental health, as well as the impact of this on [X]. I thought he was an impressive man who was prepared to sacrifice his own personal relationships in order to be there and properly care for [X] after she came into his care. He not only managed substantial changes in his personal life, but in his professional life as well. I found him to be attuned to [X]’s needs. His relationship with the mother is probably irreparable. He cannot communicate with her, a matter which is perhaps unsurprising given the very toxic nature of her communication with him over many years. It is clear from his evidence, as well as that of the mother, that the changeovers must be carefully managed so that neither comes into the presence of the other.
Overall, I found the father to be an impressive and credible witness whose evidence, for the most part, I accept. Even though he represented himself, he was able to demonstrate that he was both intelligent and articulate with his oral and written argument. He was clearly surprised, and perhaps taken aback, on being informed that the Independent Children’s Lawyer would not support the making of interim orders, and thus the father’s first set of proposed orders was unworkable.
The mother’s evidence
By the time the mother appeared before me at the final hearing, she had appeared before me in person many, many times over three years. Nonetheless, she was at all times, and continues to be, an emotional person. She was always able to express her views clearly to the court. She was unfailingly polite, and respectful during court, but obviously struggled to see and understand things in relation to [X] in the same way as others did.
The mother’s cross-examination was led by Mr Barry, as Counsel for the Independent Children’s Lawyer. At first, I thought the mother was demonstrating remarkable insights. For example, she explained that yes, in the past, she did once look at [X] and herself as being one person and thus, she explained, whatever bad feelings she was having she would expect [X] to share. She acknowledged that her own negative feelings about the father had infected [X]. She told me in cross-examination that it was not good to alienate the father from [X]’s life, and that [X] very much needs her father. She explained that she realised this far more now, in view of the loss of her own father. She spoke in glowing terms about the benefits to her of the DBT.
As the mother’s evidence in cross-examination continued, however, disconcerting features emerged. She was, for example, clearly sceptical and distrusting of Ms B’s observation in relation to [X]. Thus, for example, she felt Ms B’s evidence was biased simply because the father had spent more time with her, and the father was paying for
Ms B. Whenever the mother was confronted with an incident in which it was asserted she had acted inappropriately, the mother always explained this by reference to her mental instability. Thus, for example, the mother did not deny that she had met and spoken with [X] contrary to court orders. She did not deny the incident at [omitted] hospice where her dying father – during [X]’s visit to him. She did not deny the assault on the father or her self-harm attempt. The common thread of her rationalisation of these events is that she was mentally unwell. Of significant concern, however, was the mother’s inability to understand and appreciate the impact of these events on [X] herself. In so doing, the mother demonstrated a real lack of insight and an inability to distinguish between her needs and that of her daughter’s.
The mother was cross-examined about letters that she wrote to [X] through the Independent Children’s Lawyer. Even the mother agreed in cross-examination that parts of her letter were overwhelmingly emotional and demonstrated lack of restraint. Even though the mother had been provided with Ms B’s regular reports about her therapy with [X], the mother would not admit that this sort of communication was potentially harmful to [X], though she did say that perhaps she “did go a bit overboard”.
The mother was cross-examined about the circumstances in which she had suspended her own contact with [X] in 2011. She explained that, in effect, she was still grieving her late father’s death, that she had had enough of supervised contact that she did not believe was necessary, that she had stopped her DBT and thus was under enormous stress. She agreed that ceasing contact was an act of impulsivity and that it must have caused [X] confusion. Notwithstanding this, the mother was critical of the father for continuing to take [X] to the supervised contact centre in accordance with the court orders, on the basis that he knew that she would not be attending. Again, I think this demonstrates lack of insight on the mother’s part. The act of ceasing supervised contact was an attempt to meet the mother’s own needs, but not [X]’s needs.
The mother minimised her own responsibility and accountability for the assault on the father, the breach of AVO’s, and the necessity for a recovery order because of the mother’s refusal to comply with the order for [X] to go into her father’s care. Indeed, her attitude was to the effect that she was not responsible for “putting all of that on [X]”. The scarcely veiled implication is that it was the father’s fault, and not hers.
The mother’s unwillingness to take on board what Ms B was saying about [X] was most unfortunate. In so doing, she was blocking off much information about [X] which would have assisted her to respond more effectively, and sensitively, to [X]’s needs.
At the end of the mother’s cross-examination, I was left with a strong impression of a woman still struggling to control her emotion and who was having significant problems differentiating between her own personal needs, and the needs of her daughter [X]. So far as [X] is concerned, however, the mother’s actions and inactions are not motivated by malice. I am satisfied that the mother deeply loves [X], but that the concerns expressed by Dr M and Ms B were clearly demonstrated in the mother’s own evidence.
Meaningful relationship
The first of the primary considerations I must consider is the benefit to [X] of having a meaningful relationship with both of her parents. All of the evidence before me confirms that [X] has a meaningful relationship with her father who provides structure, safety, predictability, and emotional regularity in her life. Both Dr M and Ms B speak of the importance to [X] of the present relationship she has with her father, and the importance of this continuing, particularly as she enters adolescence. By contrast, the mothers’ relationship with [X] is both more complex, and problematic. There can be no doubt that they presently have a relationship, notwithstanding past circumstances in which contact has had to take place, and notwithstanding what appears to be [X]’s growing awareness of her mother’s deficiencies as a mother. I am satisfied that whilst the evidence indicates that [X] is well and truly attached to her father, it is also the case that she has not lost her attachment to her mother. I am satisfied that both the father and Independent Children Lawyer’s proposals will maintain for both [X] and the mother the benefit of the meaningful relationship. The mother’s proposal is, however, problematic. The relationship needs to be controlled and limited so that there are less opportunities for the mother to demonstrate to or before [X] her impulsivity, lack of insight and reflectivity, and those patterns of intense and unstable relationships that have characterised the mother’s life so far. The mother’s inability to regularise her own emotion is in fact the biggest problem – to more time.
Protecting [X] from harm
Even though Counsel for the Independent Children’s Lawyer did not expressly articulate this as a consideration in this case, I believe that it is. On the evidence before me, particularly that of Dr M, I am satisfied that there is a risk of psychological harm if [X] were exposed to her mother’s behaviour, as described by Dr M, and as I have referred to it in the paragraphs above. Whether the mother’s behaviour is abusive, or neglectful, really does not matter. There is a risk to [X]. The mother is unable to regulate her own emotions. When this happens she acts impulsively and with no insight. She has demonstrated that she can attempt self-harm, be violent, and ignore authority and the law. The problem with the mother’s proposal is that it exposes [X] far too much to the risks that I have just discussed. The risks that I have identified continue to subsist, notwithstanding the mother’s faithfulness in attending DBT. As those who provide the therapy have indicated the mother is a “work in progress” rather than the finished product.
Views expressed by [X]
I accept that the evidence indicates that [X] has expressed a strong view about living with her mother. I accept that that is an important relevant factor in this case. However, in view of the other evidence in this case, particularly about the mother’s emotional health, it is not evidence that I am prepared to attach much weight to. I accept that [X] is an intelligent and articulate girl, quite capable of expressing these views. But for reasons mentioned elsewhere, it is not in her best interest that I make orders reflecting her views.
Nature of [X]’s relationships
As I have indicated above, [X] has a good relationship with her father, and a good but problematic relationship with her mother. She has close relationships with her cousin on her mother’s side and her aunts on her mother’s side. I am satisfied that the father will foster and encourage these relationships, but not the mother. She seems to have broken relationships with many members of her family, and I think this would be an obstacle to [X] continuing the strong relationships that she already has.
Facilitating continuing relationships
The evidence leaves me with no doubt about the father’s willingness and ability to facilitate and encourage [X]’s relationship with her mother. He has demonstrated admirable commitment to this, in the face of actions, and inactions of the mother that were clearly most disconcerting for him. By contrast, the history of these proceedings demonstrate that the mother really struggles with encouraging [X]’s relationship with her father. This is plainly evident from the early history of this matter. More recently, the mother’s evidence is that she is willing to encourage this relationship but her emotional impulsivity raises questions about her capacity to do so. One of the biggest fears of both Dr M and Ms B is that if the mother’s time with [X] is left unregulated, the mother will seek to undermine [X]’s relationship with her father. Indeed, there is a real sense in which the mother almost cannot help herself in this regard. To make the orders that the mother seeks creates an environment in which the mother may, even unwittingly, seek to discourage [X]’s relationship with her father. This cannot be in [X]’s best interest.
Likely effects of change
The major change in [X]’s life has already happened and the reasons for bringing about this change are set out in my previous reasons for judgment. History indicates that this has been positive change for [X]. This is plainly apparent from Ms B’s evidence. To bring about any significant change to the current level of contact is quite simply contra-indicated on the evidence before me. Both Ms B and Dr M urge caution in terms of making too many changes. The move to unsupervised time seems to be almost inevitable in the circumstances of this case. It will both improve the quality and quantity of [X]’s time with her mother, and yet there is still reason to be concerned about the mother’s capacity to self-regulate emotionally during these times with [X]. I believe that the Independent Children’s Lawyer’s, and father’s proposal, are the ones least likely to effect changes in [X]’s circumstances.
Issues of practical difficulty and expense
I am satisfied that there are no such issues in this case at this time.
Parental capacity
I have no concerns about the father’s capacity to meet [X]’s needs. The history of this matter indicates that he has risen to the challenge and adequately cared for her in difficult circumstances following [X] coming into his care. He has made the necessary changes to his life. The expert evidence indicates that [X] has thrived in his care. By contrast, there are concerns about the mother’s capacity to provide for [X]’s emotional needs. The personality traits that Dr M believes the mother has seems to make it difficult for the mother to draw appropriate boundaries in her relationship with [X]. Even the observation during the Experts’ Report, the process raised concerns in Dr M about this. All of the concerns raised by Dr M and Ms B do raise legitimate questions about the mother’s capacity to provide for [X]’s emotional needs. On this basis, the Independent Children’s Lawyer’s proposal, as limited as the mother might believe it is, is nonetheless necessary to try to protect [X] from the limits of her mother’s capacity.
Attitudes to [X] and to the responsibilities of parenthood
Despite the mother’s protestations that she no longer sees [X] as part of herself, some of her behaviour and actions demonstrates that her words are not reflected in behaviour change. The intensely emotional reunion in front of Dr M, and the intensely emotional letters, all signal an attitude that is more adolescent than parent. At this stage in [X]’s life, entering adolescence as she is, there is an important need for [X] to be a teenager, and for her parents to be adults, and not the other way around. The mother’s attitude, reflected in her actions in ceasing contact, and even raising the possibility of future cessation of contact, again reflects an irresponsible attitude about parenting. In view of this, the limitations proposed by the Independent Children’s Lawyer seem to be in [X]’s best interests.
Family violence
The evidence indicates that there has been family violence perpetrated by the mother against the father of which [X] was aware. I am not satisfied that the mother’s volatility has been completely addressed through her DBT but one hopes that in time this will occur.
Making an order least likely to lead to further proceedings
I accept the Independent Children’s Lawyer’s submission that a further interim order in this case is inappropriate. This litigation must come to an end for [X]’s sake. Litigation about [X] has already been a feature of her life, for many years. My view might have been different if Dr M’s evidence was not that he was sceptical about the mother’s ability to change her personality traits. Indeed, he thought her prognosis in this regard was poor. In these circumstances, there was a real element of futility in making further interim orders. I appreciate that further litigation is not out of the question but, on balance, I think the making of final orders is the least likely event which will lead to further proceedings. I trust the mother will recognise that the stakes are very high for her. She has ceased contact with [X] for no good reason, in the past. If she does so again, one option for the father is to ask the court to simply terminate all contact on the basis that the mother’s inconsistent presence in [X]’s life is actually more detrimental to her than no presence in her life. Were it not for the mother’s emotional deficits, one would be confident that she understood the need and benefit to [X] of her mother’s constant and stable presence in her life.
Parental responsibility
The presumption of equal shared parental responsibility is rebutted in this case. There has been family violence. It is, in any event, not in [X]’s best interests to impose on her parents an obligation to consult in the circumstances of this case. The father seeks sole parental responsibility, and this is supported by the Independent Children’s Lawyer. It is appropriate.
Contact order
I propose to make the orders for contact as proposed by the Independent Children’s Lawyer. I will make three variations, however. Once [X] commences high school in 2012, I think that her time with the mother can be expanded from 10:00am until 4:00pm. Whilst the order stipulates two named shopping centres, and indeed the mother seemed quite content with this, I urge the parents to listen to what [X] says about her preferred choice of venue, provided that it remains consistent with the spirit of the remaining orders.
The orders proposed also mean that [X] can spend special occasions with her mother, in her mother’s home.
I believe it is appropriate to make provision for the father to have holidays during the year and for the mother’s contact to be suspended during this period. I will make an additional order that enables contact with the mother to be suspended once a year, whilst the father enjoys holiday time with [X] for no longer than two weeks, provided he gives one month’s notice.
The last variation is to restrict and limit the opportunities for the parents to come into contact with each other at changeover if they are facilitating this. Neither parent is to leave the car they are in at changeover. [X] is old enough to manage this transition herself.
I am satisfied that the above is as best in [X]’s interest as the circumstances allow.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 17 November 2011
Schedule A
Minute of Order Proposed by the Independent Children’s Lawyer
1. That all previous parenting orders are discharged.
2. That the father have sole parental responsibility for the child, [X] born [in] 2000.
3. That the child live with the father.
4. That the child spend time with the mother as follows:
a) Each alternate Saturday from 10.00 am until 2.00 pm at either [omitted] Shopping Centre or [omitted] Shopping Centre, [address omitted], Sydney.
b) In the event that the child's birthday does not fall on a day she would be spending time with the mother in accordance with Order 4 (a) then on the child's birthday from 10.00 am to 2.00 pm.
c) In the event that the mother's birthday does not fall on a day the child would be spending time with the mother in accordance with Order 4 (a) then on the mother's birthday from 10.00 am to 2.00 pm if it is a non school day and from 4.00 pm to 8.00 pm if the mother's birthday falls on a school day.
d) On Mother's day from 10.00 am to 4.00pm.
e) On Christmas Day from 9.00 am to 1.00 pm in odd numbered years and from 1.00 pm to 5.00 pm in even numbered years.
f) Any variation to the above as agreed between the parties in writing.
5. That for the purpose of changeover in Order 4 (a) herein the child will be delivered by the father or a nominee of the father to the main entrance of the shopping centre at the commencement of the time and collected by the father or a nominee of the father at the same location at the conclusion of the time or as agreed between the parties.
6. That for the purpose of changeover in order 4 (b), (c) and (d) the father or the father's nominee is to deliver the child to the mother's residence at the commencement of time and the mother or her nominee is to return the child to the father's residence at the conclusion of time.
7. That the parties be restrained from speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant manner in the presence or hearing of the child.
8. That within 14 days of these orders and within 14 days of the child's subsequent enrolment at any school the father do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the mother copies of the child's school reports and any written material pertaining to the child's academic and extra-curricular activities.
9. That the father shall keep the mother informed of any significant medical treatment the child receives or in the event the child is hospitalized.
10. That each party advise the other party and keep the other party advised of their current address and contact telephone numbers and advise the other party of any changes to these details within seven days of such change occurring.
11. That in the event the father intends to take the child on a holiday for a period of time in excess of two weeks the father is to give the mother one month's notice in writing and any time that the mother does not spend with [X] as a result of the father's actions shall be make up to the mother as soon as reasonably possible.
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