SACHS & RAIGANS
[2020] FamCA 133
•17 February 2020
FAMILY COURT OF AUSTRALIA
| SACHS & RAIGANS | [2020] FamCA 133 |
| FAMILY LAW – CHILDREN – Orders by Consent – Order that mother have sole parental responsibility for the child – Order that the child live with the mother – Order that father have no time or communication with the child – Specific issues orders. FAMILY LAW – CHILDREN – Orders by Determination – Order that child not be home schooled and attend an appropriate formal school for the purposes of her education. |
| Family Law Act 1975 (Cth) s 60CC |
| J v C in [1969] 1 All ER 824 Yamada & Cain [2013] FamCAFC 64 |
| APPLICANT: | Mr Sachs |
| RESPONDENT: | Ms Raigans |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Murray |
| FILE NUMBER: | LNC | 479 | of | 2014 |
| DATE DELIVERED: | 17 February 2020 |
| PLACE DELIVERED: | Launceston |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 17 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gibson |
| SOLICITOR FOR THE APPLICANT: | Charmaine Gibson |
| COUNSEL FOR THE RESPONDENT: | Mr Turnbull |
| SOLICITOR FOR THE RESPONDENT: | Bishops |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Murray |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Murray & Associates |
Orders
BY CONSENT
Subject to the following orders, Ms Raigans (‘the mother’) have sole parental responsibility for X born … 2010 (‘the child’).
The child live with the mother.
There be no orders for time or communication between Mr Sachs (‘the father’) and the child.
The Independent Children’s Lawyer be directed and is given leave to provide to the child’s General Medical Practitioner a copy of the following:-
(a)the report of Dr B dated 27 August 2019;
(b)the amended family report dated 13 April 2017; and
(c)a copy of these orders.
IT IS REQUESTED that the child’s General Medical Practitioner (‘the child’s GP’) provide a copy of the reports and this order to any subsequent General Medical Practitioner/s of the child.
The child’s GP (or subsequent General Medical Practitioner) may provide copies of these orders and reports set out in paragraph 4 above to other medical professionals to whom the child is referred AND IT IS NOTED that the mother requests that no identifying material be provided to the father, in terms of the mother and the child’s address.
IT IS FURTHER REQUESTED the child’s GP (or other medical professionals) not provide the child or mother’s residential address to the father.
The mother keep the father informed, from time to time, as to the child’s health and keep the father updated as to the name of the child’s General Medical Practitioner/s and any other health care practitioners and the father is authorised, pursuant to these orders, to have discussions with such health care professionals, provided at all times that the mother and the child’s address is not disclosed to the father.
The mother, or someone on the mother’s behalf, provide to the father, at the father’s expense, within seven (7) days of their issue to her, copies of the following:-
(a)all school reports and other school information generally provided to the parents by forwarding the same to the father at his nominated postal and/or email address;
(b)provide to the father, at his expense, any school photographs or any other documents generally available for purchase from the school by the parents; and
(c)keep the father informed as to the child’s progress and attendance at school and IT IS NOTED this may be undertaken by provision of the school reports.
The father be authorised to speak to the Principal of the school and/or the child’s teachers provided the teachers and Principal are provided with a copy of this order noting the Court’s request that any identifying information as to the child or mother’s address is not provided to the father.
The mother notify the father as soon as practical of any serious injury or health issue concerning the child and provide him with the name of any hospital or any other health care facility where the child may be a patient.
The father be permitted to forward to the child via, the child’s maternal grandmother, or such other person as is agreed between the parties, by ordinary pre-paid post, courier service or the like gifts and/or cards for the child’s birthday and as a seasonable gift at the end of each year.
In the event the child requests the mother that she would like to respond to any gift or card received by the father, or the child would like to initiate any communication with the father, the mother will facilitate such communication.
IT IS FURTHER ORDERED BY DETERMINATION
The mother ensure the child attends C Primary School for the remainder of her primary school education and attend at an appropriate High School for the purpose of her High School education.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant applications are dismissed.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS NOTED
The role of the Independent Children’s Lawyer will cease at the expiry of twenty eight (28) days following the date of this order.
IT IS DIRECTED
A copy of the reasons for these orders be taken out and placed on the court file.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
Sachs & Raigans has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT LAUNCESTON |
FILE NUMBER: LNC 479 of 2014
| MR SACHS |
Applicant
And
| MS RAIGANS |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
X (‘the child’) is aged nine. Her parents Mr Sachs (‘the father’) and Ms Raigans (‘the mother’) have been engaged in high-level conflict in respect of the parenting arrangements for the child. This matter was in the Magellan list, and was listed before me and heard before me on 25 and 26 July 2018, and was to be heard over a further two days later that year in Burnie.
The parties engaged Dr B to see whether they could find some way to resolve the hideous conflict into which this child had been delivered. The matter has been in my list ever since, and has been the subject of intensive work by Dr B, work by the parties and counselling for the child. What has now happened is that the father has determined not to pursue his application that the child live with him or spend time with him, and has taken a step back from the conflict. Accordingly, the orders have been made by consent, which will be attached to the front of these reasons.
I acknowledge that this may in many ways have been a difficult decision for the father, but given the matters to which I will refer to later on it is probably for the child the right decision, as it spares her the continuation of the litigation and the conflict. The only issue left for me to determine today is the question as to whether the child should be permitted, if the mother determines, to be home-schooled or whether she should continue to be schooled at a public education facility.
This decision cannot be made in the light of the narrow submissions only that were put to me by counsel earlier today and by the Independent Children’s Lawyer. This has been the subject of significant conflict over a number of years. The parties had been in an unstable relationship which culminated in a family violence incident in April 2012. The father was charged with aggravated assault and pleaded guilty to that charge. The father asserts that the relationship had broken down around that time. The mother asserts that the relationship had broken down at some other time.
The father has a history of violence, and it is clear on the evidence that he understated the violence. Although there is no evidence of recent violence, it seems that the father, on the evidence of Dr B has not fully acknowledged the extent of the violence, nor fully come to terms with it.
There is evidence, also, before me that the mother had been isolating the child. She has isolated the child, allegedly, from members of the paternal family, and there is evidence that despite the mother being given photographs of the father and members of the family, they have not been provided to the child or promoted. The mother has absented both children from school, both this child and the child of an earlier relationship, and that the children at that time had a poor record of attending school.
Dr B’s evidence is that the mother had been encouraging the child in her thoughts and beliefs about the father and his behaviour. The consequence is clear that, whether the child has been abused or not, and I am not making that decision today, she believes she has been abused.
In mid-2015, events occurred and the mother formed the view the child had been abused, and these proceedings have been running in the vain attempts to overcome that, although that was not the subject of significant cross-examination. Family reports were prepared, and I have had regard to those reports, and family therapy was put in place through Ms D.
THE EVIDENCE
When the matter came before me, evidence was provided in the form of:-
a)a 2015 police audio tape;
b)the evidence of the family consultant;
c)the evidence of the principal from C Primary School; and
d)the evidence of Ms D.
Further evidence was provided by the child’s paternal grandmother, albeit she was not cross-examined and had the case been continued, there would no doubt have been cross-examination.
Orders were made in 2018 that the child be re-enrolled at C Primary School. At that time, the father relied on his:-
a)case outline filed 20 July 2017;
b)his application filed 20 November 2015;
c)his affidavit filed 26 June 2018;
d)the paternal grandmother’s affidavit filled 19 June 2018; and
e)a Notice of Risk filed 20 November 2015.
The mother relied upon her two case summaries: one filed July 2017, and the other filed July 2018. The mother filed an amended response on 26 June 2018, setting out the orders she wanted at that time. In addition she relied upon her three affidavits of 5 July 2017, 19 July 2017 and 26 June 2018, and I have had particular regard to parts of that affidavit in terms of the child’s health today, that I was taken to by counsel for the mother.
The Independent Children’s Lawyer provided a case summary. He relied upon the amended family report and an earlier family report.
The Independent Children’s Lawyer provided evidence of Ms E, the principal of C Primary School, and Ms D, to whom I have referred. Since that time, further material has been provided to me. The Independent Children’s Lawyer provided a written submission to which I have had regard in terms of his oral submissions. The Independent Children’s Lawyer was not relying upon the amended family report of 13 April 2017, but Mr Turnbull, who represents the mother, was.
I had before me the report of Dr B of 27 August 2019. Of course, the evidence in that report was not tested. However, the material was significant. I had the case outline of the orders proposed by the father; I had an affidavit of the father’s solicitor filed 14 February 2020, and the child’s school report annexed to the mother’s affidavit of 12 February 2020. I had regard to those in the father’s case.
I also had from the mother submissions made by her counsel, the her case outline[1] and the orders sought by the mother, an affidavit of the mother filed 12 February 2020, which went to the conflict and her home education of the child, and an affidavit of Ms F,[2] in relation to her assessment of the mother’s approach to home schooling.
[1] Filed 13 February 2020.
[2] Filed 12 February 2020.
THE LAW AS TO PARENTING
The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(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).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. 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 either 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 family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(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).
(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).
(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 extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The House of Lords in J v C in [1969] 1 ALL E.R. at page 824 Lord MacDermott said when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration said the following:-[3]
3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases. The parental rights however, remain, qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbin, L.J. in re: O’Harra [1900] 2 I.R. at page 240
4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance. For all I know that may have been true in some cases containing dicta to that effect. But I think a growing experience has shown that it is not always so and that serious harm even in young children may, in occasion, be caused by such a change. I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion. But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.
[3] Page 824.
These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.
The Full Court, comprising of Murphy & McMillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’. Their Honours went on to reject that argument. The basis for that rejection was set out from paragraph 19 onwards.
The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest. Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per say. The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] Fam CAFC 16 and said:-
25. In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].
(Bold emphasis added).
26. Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:
It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …
and more broadly, at [75]:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …
The Full Court in Yamada & Cain (supra) went on to conclude:-
27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
I will endeavour to apply the principles of law to the facts.
Mr Turnbull, counsel for the mother, addressed me in relation to the effect of a sole parental responsibility order and the care that I should take when making orders which limit those powers. I have had regard to those submissions, although whilst the approaches are different, I am satisfied that it is clearly open for me to make such orders as I think meet the best interests of the child given the circumstances, whether they be by way of a parenting order, a parental responsibility order, or whether it be by way of an injunction.
I had particular regard to paragraphs 75 to 80 of the updated family report of 13 April 2017 which said the following:-
75.[The child] turns seven years old next month. She spent the first two or three years of her life living with both her mother and father (and [the child’s elder sister]) in the family home. These years were not described as happy and enjoyable by either parent so they most likely were not for [the child]. It appears a verbally irritable and at times physically volatile lifestyle existed. [The child] would have witnessed and been affected by this acrimony at a young and impressionable age. This may have caused [The child] to feel anxious and apprehensive when her parents were in close proximity.
76.Since her parent’s separation, it would seem that [the child] has only had either 12 months approximately (if separation was 2013) or 24 months (if separation was 2012) of time with her father, on a regular and consistent basis. This time was also neither agreeable nor harmonious for her parents. For approximately three years of [the child] seven years of life, she has spent no time with her father, and the time she has spent with him has been punctuated with resentment and conflict between her parents. This may cause [the child] to feel neither safe nor secure in the care of her father.
77.[The father] stated that he has sought to have time with [the child] since separation. He acknowledged that he has at times made poor parental choices such as the time he left [the child] and [the child’s elder sister] on their own but said that a lot of [the mother’s] complaints were not valid and that he has endeavoured to parent [the child] in a loving and protective manner. He said that he was never able to perform to [the mother’s] standards nor was he always agreeable to her demands. He said that [the mother] has consistently undermined his relationship with [the child], not promoted his role as her father and is now through, what he considers, her false or embellished allegations, attempting to cease all time between [the child] and himself. From [the fathers’] perspective, his frustration with the current parenting dispute is understandable.
78.[The mother] stated that [the father] has never been the type of father she wanted for [the child], stating “She [the child] wants a Dad like [the elder child’s father] or [the maternal uncle].” [The mother] stated that [the father] was not like [the elder child’s father] and that she has never been able to co-parent with him as harmoniously as she could with [the elder child’s father]. She stated that she has tried to co-parent with [the father] in the same manner as she did with [the elder child’s father], but that [the father] was not protective enough and put [the child] in danger. It would seem that [the father] has constantly disappointed [the mother], and his parenting efforts have not been seen favourably by her. Further [the mother] said that [the father] was violent towards her in subtle ways such as flicking cigarettes at her and in more overt and aggressive ways such as verbal put downs, shoving and punching her.
79.[The child] was seen to have a close and dependant relationship with her mother, and a mutually enjoyable one with her half-sister Y. Whilst it is possible that [the mother] has over-reacted to [the child’s] comments/disclosures and possibly embellished [the child’s] statements as exampled by the final disclosure to the Family Consultant, it is also possible that [the child] has been sexually abused in a manner that corroborating evidence is difficult to obtain. In either case, [the mother] seems genuinely motivated by a desire to protect and safeguard [the child] from harm. In the context of the acrimonious relationship that exists between [the mother] and [the father], this protective parenting is understandable. This behaviour may however make it difficult for [the mother] to ever support time between [the child] and her father.
80.[The child] was seen to have an uncertain and somewhat anxious relationship with her father. She displayed however more interest and curiosity towards her father than her mother expected or described her as having. It is not surprising that [the child] would be anxious about seeing her father. If the disclosures are true she would have unpleasant memories, and be possibly fearful of him. If the disclosures are untrue and she is aware that they are, she may be fearful of his response to her. The source of [the child’s] uncertainty towards her father may also be caused by exposure to her mother’s anxiety. It is important for [the child] to have a resolution to the parenting impasse which she has been placed in the centre of. A continuation of this dispute and subsequent ongoing acrimony between her parents is likely to have a long term deleterious effect on her.
I had regard to the risk factors and allegations in terms of the police interventions in 2012, 2014 and 2015. In terms of schooling, I had particular regard to the report of Dr B, albeit untested. She assessed the mother as a woman whose general demeanour is of high anxiety and hypervigilance to threat. Dr B went on to say of the mother:-[4]
…She impresses as someone who is quite naive. Her logic and thinking was sometimes confused and circular. She was not wholly cooperative to therapy, and often her behaviour suggested she was not happy when [the child] and [the child’s elder sister] showed less anxiety with [the father]. She frequently relied on what she said with (sic) the opinion of others to support her contention that [the child] is at risk in her father’s care. …
[4] At page 23.
Dr B said psychometric testing suggested that the mother appeared open in her approach to testing, but made admissions about some significant psychological vulnerabilities around confused and possibly delusional thinking, hypervigilance to threat, and a history of anti-social behaviours, and paranoid thinking that included propensity towards physical violence. She went on to say, in relation to the father, that:-[5]
Psychological assessment of [the father] indicated a man who is stressed by his living situation and the conflicts with [the mother]. He provides a spare account where he denies the allegations and claims [the mother] exhibits problem behaviours that included explosive anger. He was cooperative in therapy. When challenged, he was calm and measured in his responses. He was kind and patient with the children. He spoke insightfully about his own behaviour and easily conceded mistakes and poor judgment in his relationship with [the mother]. He spoke in a sensitive and a kindly way about [the child] and [the child’s sister]. Psychometric testing was unremarkable.
[5] Ibid.
Dr B was concerned about the mother’s home-schooling of the children. It was submitted to me by counsel for the mother that I should give this little weight, as it may be outside her areas of expertise. I have not had the opportunity of having the parents give evidence before me and be cross-examined, so doing the best I can with what I have, I have given that report some weight.
I have also given the positive reports from the child since she has returned to school and the evidence of the school principal some weight. I am conscious that the history of home-schooling for this child is of a limited period of time, and that it was in the context of significant conflict between the mother and father and ongoing concerns. In relation to the home-schooling of the mother, Ms F said the following:-[6]
The mother has been compliant with our requirements.
[6] At paragraph 23 of her affidavit filed 12 February 2020.
Further, she says:-[7]
I have specifically seen the HESP submitted by [the mother], and I am of the view that it is of a high-quality standard, and one of the better ones submitted, as it provided a very broad range of learning across many areas for [the child’s elder sister]. I am aware that [the child’s elder sister] has been able to participate in triathlons at C Primary School in 2018 and 2019, and that [the elder child] is able to play football.
[7] Ibid at paragraph 24.
It probably comes as no surprise to the parties that I read all of this information again before I came into court, because this is probably about the most precious thing that the parties can deal with, which is one of their children. I am concerned about the mother’s ability to manage home-schooling, given the history of this matter and given the impact of the proceedings and the impact of the violence that occurred to the mother, and the mother’s approach since separation.
On balance, the onus is on the mother to persuade me that home-schooling is in the best interest of the child rather than normal, traditional public school education. I am not satisfied on the evidence that the mother ought to be permitted to home-school the child into the future, although that may be something the mother can do in circumstances with the consent of the father or further application to the court exercising jurisdiction under the Act. As such, I intend to make the order that the child attend public education for the remainder of her school time, and I will make that order.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 17 February 2020.
Associate:
Date: 4 March 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Procedural Fairness
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