Sauber & Caito
[2021] FedCFamC2F 179
•14 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sauber & Caito [2021] FedCFamC2F 179
File number: DNC 152 of 2011 Judgment of: JUDGE YOUNG Date of judgment: 14 October 2021 Catchwords: FAMILY LAW – concerning a child who is fifteen years old – whether the child should live with the father in Town B or with the mother in Darwin – whether the child should spend time with the mother – where the child lives with the father – where the father unilaterally relocated to Town B with the child – where the child has not spent any time with the mother since October 2019 – where the child has expressed a wish to remain living with the father in Town B and not to spend time or communicate with the mother – where there is a high level of conflict between the parties - where the child is aligned with the father – where the child suffers from an eating disorder – where the child's medical condition has improved since the relocation to Town B – where the improvement of the child's medical condition may be attributable to the child not being directly exposed to the parental conflict – where the parties have significantly different parenting styles particularly in relation to the treatment of the child's medical condition – where there is evidence the father's more lenient parenting style is a significant factor in the child's alignment with the father – where there is evidence the child would benefit from having a meaningful relationship with both parents – where there is evidence that if there was an order for the child to return to live with the mother in Darwin it would adversely impact her physical and mental health – where there is evidence the parties and the child would benefit from engaging in individual and family counselling – where the father has previously failed to engage in family counselling and has failed to facilitate or encourage the child to engage in family counselling – where the parties accept the child should remain living with the father in Town B and spend time with the mother in Darwin Legislation: Evidence Act1995, s 135
Family Law Act 1975 (Cth), ss 11F, 60CC, 65DAA, 67W
Division: Division 2 Family Law Number of paragraphs: 66 Date of hearing: 27-30 July 2021, 6 August 2021, 8 October 2021 Place: Brisbane Solicitor for the Applicant: Ms Farmer of Withnalls Lawyers Counsel for the Respondent: Mr Mort Solicitor for the Respondent: Darwin Family Law Counsel for the Independent Children's Lawyer: Ms James Solicitor for the Independent Children's Lawyer: Arafura Legal ORDERS
DNC 152 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SAUBER
ApplicantAND: MR CAITO
Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
14 OCTOBER 2021
THE COURT ORDERS THAT:
Parental Responsibility
1.That the parents have equal shared parental responsibility for X, born in 2006 (''the child").
2.That the parties will make a genuine effort to come to a joint decisions about all major long tern decisions including:
(a)The child's education;
(b)The child's religious and cultural upbringing;
(c)The child's health; and
(d)Any change to the child's living arrangements in the event that they impact upon one parent's ability to spend time with the child.
Parenting Arrangements
3.That the child live with the Father in Town B Western Australia.
Reportable Intensive Family Therapy
4.Pursuant to Division 7.1.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the parties and the child, X born in 2006 attend upon Dr G, Clinical Psychologist, as a single treating expert witness to engage in Reportable Intensive Family Therapy ("the RIFT Program") as directed, with the RIFT Program to commence with Dr G within 28 days.
5.Pursuant to Rule 7.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the costs of the RIFT program and any report shall be paid equally between the parties.
6.For the purposes of paragraph 4 hereof the Independent Children's Lawyer provide true copies of the following to Dr G:
(a)The Child Inclusive Conference Memorandum dated 23 April 2020;
(b)The Family Report dated 22 January 2021;
(c)The Affidavit of Ms J filed 26 May 2021.
(d)The Court’s orders and reasons for decision.
7.At the conclusion of the RIFT Program, the Independent Children's Lawyer shall request Dr G to prepare and furnish a report with recommendations to the parties who shall implement such recommendations unless otherwise agreed between them in writing with any costs to be shared equally between them, and further should Dr G agree to do so she shall make recommendations as to spending time and communication between the mother and the child.
8.That the Father shall do the following:
(a)take the child to one paediatrician at all times recommended by the paediatrician and not less than twice per annum AND provide written confirmation to the mother within 24 hours of the appointment being made AND within 24 hours of the attendance by the child at the appointment.
(b)take the child to General Practitioner Dr H for blood pressure, heart rate and weight monitoring at a minimum of every 3 months and otherwise as required by the child AND provide written confirmation to the mother of the results and any diagnosis within 24 hours of attendance.
(c)the Father shall be responsible for the child's health expenses in referred to herein.
9.That the Father shall keep the Mother informed of the name and contact details of the child's paediatrician and health professionals AND FURTHER the Mother be authorized to liaise with such persons in terms of the child's diagnosis, prognosis and treatment plan(s).
10.That the Mother be at liberty to produce a true sealed copy of these orders by way of proof of authority.
Spending time and communication
11.That the child spend time and communicate with the Mother as provided for by the following orders, upon completing of the RIFT Program or the Western Australian school holiday periods.
12.In terms of spending time, the child shall spend the following time with the mother, unless otherwise recommended by Dr G after the parties have completed RIFT Program, and subject to the child’s agreement, as follows:
(a)School holidays:
(i)in 2021 for the first half of the Christmas and mid-year (from 2023) school holiday period and in each alternate year thereafter; and
(ii)in 2022 for the second half of the Christmas school and mid-year holiday period and in each alternate year thereafter; and
UPON NOTING:
A.the Christmas and mid-year holiday period shall commence on the day after school term concludes and cease two days prior to the resumption of school term the following year;
B.the school term holidays period shall commence the day after school term concludes until the day prior to the resumption of school term
AND IT IS FURTHER ORDERED:
(b)During school term for up to 14 consecutive days in Town B provided the Mother notified the Father not less than 14 days prior to the intended time and the child attends all school and extra-curricular activities, with the Mother to advise the Father as to her proposed address and contact particulars.
13.In terms of communication:
(a)By telephone, FaceTime or text on a reasonable basis, with the Father to ensure that the child's communication devices are unblocked and available for communication purposes;
(b)By cards, letters or gifts, with the Father to ensure that such items are provided to the child upon delivery.
14.For the purpose of order 12 herein:
(a)the Father is to arrange the flights for the child to travel to Darwin and notify the Mother in writing not less than 30 days prior to any such travel with such notice to include the child's itinerary and departure and arrival terminal(s) for changeover purposes, and further the father is to pay for those flights;
(b)that the mother shall book and pay for the child's return flights and provide the father with those details prior to the child departing for Darwin;
(c)In the event there are border closures or lockdowns arising from COVID-19 the time spent shall occur at a location nominated by the mother if in Darwin and the father if in Western Australia and the child upon return shall quarantine in Western Australia at the parties shared cost.
15.That the Father shall do all acts and things necessary to arrange and attend counselling with a therapist, as recommended by Ms G, for the purposes of obtaining counselling, parenting education and information, including and as follows:
(a)As to his co-parenting role with the Mother;
(b)As to his responsibilities as a parent; and
(c)As to how he can ensure and better facilitate the child having a positive and fulfilling relationship with the Mother.
16.That the counselling of the father is such counselling as is recommended by Dr G, and the father shall pay all costs of the counselling and shall pay as many sessions as a recommenced by the counsellor and further shall provide to the Mother with written confirmation from the therapist of his attendance at the sessions within 48 hours of each appointment.
17.That pursuant to s.68B(l) of the Family Law Act 1975 (Cth), except as otherwise agreed between the parties in writing each parent shall be and is hereby restrained, by himself or herself, or their respective servants or agents:
(a)From approaching, entering or remaining at any place where the other parent is living, working, staying, visiting or located EXCEPT via or in the presence of a solicitor, family dispute resolution practitioner for the purposes of these proceedings making arrangements for the children, or in accordance with a Parenting Plan, or Family Law Order
(b)From causing harm or attempting or threatening to cause harm to the other parent;
(c)From causing damage to property, or attempting or threatening to cause damage to property, of the other parent;
(d)From denigrating, insulting, abusing, rebuking or belittling the other parent; and
(e)Exposing the other parent or the child to family violence.
18.Each parent shall forthwith enrol in and attend and complete the “Tuning into Kids” parenting program, or similar program and provide the other parent with the certificate of completion, as soon as practicable.
19.That each party shall notify the other, as soon as practicable of any emergency medical or dental treatment or significant illness arising when the child is in their respective care.
20.Each parent shall keep the other informed of their residential address, postal address, telephone number and email address and notify the other party in writing of any changes within 24 hours of any such change.
21.Each parent be at liberty to request from the Principal of any school attended by the child for copies of any school reports, event notices, application forms for school photographs and for information concerning any issues pertaining to the child at school.
Injunctions
22.That each parent be restrained and an injunction issue restraining the parties as follows:
(a)From physically disciplining or restraining the child or permitting a third party to do so;
(b)From discussing the Court proceedings with the child or allowing the child to read or view any Court documents save and except for explaining the time spent arrangements;
(c)From direct and indirect verbal abuse, including but not limited to name calling, putdowns, blaming, insulting, belittling, rebuking or otherwise denigrating the other party or the party's partner or members of that party's family in the presence of or within the hearing of the child and each party remove the child from the hearing of anyone else who may be denigrating the other party or that party's partner or family;
(d)From exposing the child to abuse (including verbal abuse) or family violence and that the parties will take all measures necessary to remove the child from any act of family violence should such circumstances arise;
(e)From posting to any social media account negative or derogatory comments including photos or information in relation the child, the parties or these proceedings;
(f)From using the child as a conduit to pass messages to the other party.
Other orders
23.The Independent Children's Lawyer shall explain these Orders to the child.
24.The parties shall share equally in the costs of the Independent Childrens' Lawyer as assessed by the Northern Territory Legal Aid Commission.
25.The Independent Children's Lawyer is to be discharged upon completion of her obligations pursuant to these Orders.
26.Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975 (Cth), the particulars of the obligations of 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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Caito & Sauber has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG:
This is a parenting matter about X, who is 15 years old. X is a vulnerable child who suffers from a serious mental illness, an eating disorder, which is currently in remission. Regrettably, in recent times X’s parents have been unable to agree on most aspects of X's care and welfare.
The event precipitating the commencement of proceedings by the mother was the unilateral relocation by the father with X from Darwin to Town B in Western Australia in 2020. The mother sought a recovery order pursuant to 2014 consent orders of the Family Court of Australia which provided that X should live equally with the parents. That recovery order application was refused and since 2020 X has continued to live with her father in Town B. She has not spent any time with her mother since prior to the relocation and refuses to do so.
The father's position at the beginning of the trial was that X should continue to live with him in Town B and spend time with the mother in accordance with her, X’s, wishes. The trial extended beyond its estimated four days and was adjourned part-heard. At that point the parties indicated that they had an in-principle agreement. During the adjournment the father proposed, in writing, new orders providing for the parties and child to attend intensive family therapy, and subject to a favourable recommendation from the family therapist, that the child thereafter spend school holiday time with the mother. In final submissions the father proposed, additionally, that whether X spent time with the mother was to be subject to X’s wishes.
The evidence of an earlier failed attempt at family therapy might give rise to some doubt about the genuineness or practicability of the father's proposal for family therapy. On the adjourned date the parties indicated that they had not been able to conclude an agreement. Further, the father’s counsel said that he was instructed that the child had attended at the Town B police station over the previous weekend and complained that the mother had assaulted her about 18 months ago in Darwin. Counsel sought leave to reopen his case to give evidence about that allegation. No such allegation had previously been recorded despite at least two interviews of the child by the Family Consultant, the tender in evidence of a number of medical and psychological reports about the child and her family relationships, and the filing of trial affidavits. The application was refused pursuant to s. 135 of the Evidence Act1995 because the probative value of such evidence was outweighed by the danger it might cause or result in undue waste of time.
The mother's proposals have evolved. At the commencement of the trial she proposed that the child live with her, that the child be placed in an intensive psychological or family therapy program called "Family Bridges" for a relatively short period, with a recovery order to issue authorising the use of force in the event the child attempted to run away from the program, and an order that the child not spend any time with the father for a period of three months. She also sought orders that the father engage in family therapy. The expert report tendered about the "Family Bridges” program said that the father's co-operation was a condition of the success of the program.
Initially at least, the mother’s proposal seemed to be adopted by the Independent Child’s Lawyer (ICL). Apart from the uncertainty about whether the condition of the father’s genuine co-operation was likely to be satisfied, I expressed misgivings to the parties about the appropriateness of a proposal which appeared to involve, potentially, dramatically coercive measures to enforce the participation of a vulnerable 15 year old child in a program of psychological or family therapy.
As noted, when the trial resumed the parties informed the Court that they had not been able to conclude their “in-principle” agreement. I understood, from discussion in Court, the position of the mother and the ICL to be similar to the father’s proposal with, however, the significant difference that, in the event that the father did not genuinely participate in family therapy, or encourage the child’s participation, then a financial penalty was to be imposed on him and a recovery order was to issue. The financial security was to be secured by way of a sum paid into the mother’s lawyers’ trust account.
This was in substance the position of the mother and the ICL at the conclusion of the trial. The sum sought to secure the father’s compliance with orders was $12,500. It was proposed that if the father failed to comply with the orders, including orders for the child to spend time with the mother, then the father was to “deliver up” the child to the mother and the mother was to have sole parental responsibility. The orders contemplated the child thereafter spending time with the father during part of the school holidays and if the child was not returned to the mother a recovery order was to issue. The recovery order was to remain in place for 2 years (which appears to be inconsistent with the 12 month limit specified by s 67W of the Family Law Act1975 (Cth) (the Act)). The notable aspect of this proposal is the contemplation of the use of a recovery order or orders, authorising the use of force by the relevant authorities, to ensure that a 15 year old child, if she did not so wish, should live with her mother and that coercive power might be exercised for up to 2 years, when the child would be 17 years old.
Credibility
Generally, I found the mother to be a reliable historian and credible witness. I did not find the father to be reliable or credible. It was apparent to me that his evidence was almost invariably transmitted through the distorting lens of his hostility to the mother. Where the evidence of the parties is in conflict I prefer the evidence of the mother. In the case of the other witnesses, each of whom were expert witnesses or treating doctors, psychologists or other witnesses engaged in an expert capacity, I prefer the evidence of each of those witnesses to the father where it is in conflict.
Background
The parties separated in 2008. From 2009 to 2019 the child spent equal time with each parent. Orders were made in the Family Court made in 2014 for an equal time arrangement. Later in 2014 and in 2015 the parties applied to the Court to resolve travel disputes concerning the child. These appear to have been resolved at a relatively early stage. Nevertheless, there are clear indications that the parties were and are highly mistrustful of each other. In mid-2018 the child chose to live full-time with the mother and spend time with her father. This apparently followed the father's remarriage. In mid-2018 there were also indications that the child was seeking to reduce her food intake. In February 2019 the child was expressing a wish not to spend time with the father. Also in February 2019 the child was diagnosed with body image disorder. On occasions from February 2019 to June 2019 the child ran away from her mother's home. The mother said, and I accept, that in March 2019 the child was also expressing a wish to spend less time with her father.
In 2019 the child was referred to a paediatrician, Dr K who diagnosed the child as suffering from an eating disorder and recommended intensive, multidisciplinary treatment involving a paediatrician, a psychologist and a dietician.
In 2019 X was admitted to hospital with a medically unstable eating disorder. She had lost 25% of body weight over the previous eight months and had developed bradycardia, hypotension and hypothermia. She was discharged from hospital in 2019 on ward leave to her father’s home. She was told she should not exercise other than "mindfulness stretching". She was then almost immediately re-admitted to hospital for two nights because, while she had apparently been compliant with her meal plan, she lost 1 kg in over three days at her father's home.
X was then discharged from hospital to her mother's home but had “difficulty” with an afternoon snack. She became acutely distressed and ran away. The police were called and she was eventually located and taken by ambulance to Hospital L where she was re-admitted. After her discharge she refused to return to the care of her mother and went to live at her father's home. According to Dr K’s report, she was doing a small amount of "illicit exercise" but was able to be "redirected" by her father. During a consultation with X on 31 July 2019 Dr K noted that X would not say why she did not want to return to the care of her mother but was open to the idea of spending time with the mother. Dr K emphasised in her report that it was important that both parents be involved in X's care in order to reduce the “anxiety that was driving the eating disorder”. Following this consultation with Dr K the father decided to cease Dr K’s involvement with the child. X then began to see another paediatrician, Dr A, a colleague of Dr K's.
In evidence the father said that he ceased Dr K’s involvement because she was "pressuring" the child to return to live with her mother. I find that claim to be implausible and I do not accept the father's claim about that. I feel unable to make a finding about the father's precise motivation for stopping the involvement of Dr K in X’s care but I suspect Dr K emphasised the importance of communication between the parents and a co-operative approach. I am satisfied that the father has, at the least, difficulty accepting or acting on such advice. Further instances will be given below.
X last spent time with her mother in October 2019. From December 2019 to January 2020 the father and X were on holiday in Town B. The father by this stage had ceased full-time work to care for X, as he put it, “24/7”. He also sought a child support assessment against the mother.
In 2020 the father unilaterally relocated with X to Town B where, it appears, both the mother and the father have extended family. The mother then sought a recovery order and the application was listed for interim hearing. In March 2020, in preparation for the hearing, the father filed an affidavit from Dr A. Dr A said he last saw X in 2019. He said that until then X had an outpatient care team comprising of a dietician, psychologist, adolescent nurse and paediatrician. Dr A said that over the period he had been treating X she had “gone from strength to strength”. He believed she lived with her father only during this period. He said X and her father have a good rapport and X did not wish to see her mother because it adds to her anxiety. He said that the mother had respected X’s wishes. Dr A concluded his affidavit by saying:
X has a medical condition that can affect her judgment and it is a condition that thrives in discontent among family members as it detracts attention away from the disorder and allows it to thrive. How much of the eating disorder and what percentage is ‘the real X’ is debatable, but X has made it very clear to myself that she would refer to reside with the father and under his care full-time.
On 20 April 2020 a family consultant interviewed the father, mother and the child. It was conducted by video due to pandemic restrictions, and a report was released soon after. In the report the consultant recorded that the mother accused the father of assault and emotional abuse. The father accused the mother of being a liar. The father expressed the view that the child's eating disorder was caused by the mother. Both accused the other of restricting contact between her or him and the child.
The mother acknowledged that the child's physical needs were being met by the father because she had gained weight. She denied that the child's psychological and emotional needs were met by the father. This has largely remained the view of the mother. It is agreed, however, that the child has gained weight while living with the father in Town B and her physical condition has stabilised.
In the interview X claimed that her mother was "controlling". She said her mother had "told me I was fat". She was unable to describe anything positive about her mother and did not remember what she did with the mother. X said that she had "blocked" her mother from contacting her. She said that if she were forced to live in Darwin she would "run away and scream" and had "no idea" where she would run to. She wanted to remain living in Town B.
The family consultant expressed the view that the child's presentation and expressed views and wishes could have been based on her experiences of her parents but also expressed an opinion that her medical condition could be contributing to as well. She thought that generally there ought to be a therapeutic intervention and the child's overall "well-being is an issue that has to be addressed and supported by specialist medical practitioners". The family consultant recommended that the family engage in family therapy.
The interim hearing was subsequently conducted and the mother’s recovery application was refused.
After the release of the memorandum pursuant to s. 11F of the Act, the parties negotiated and agreed on the appointment of Ms J, an experienced family therapist, in Town B to assist the family.
Following the failure of family therapy Ms J prepared a report for the Court and gave evidence in the trial. The sessions of family therapy were conducted online due, in part at least, to pandemic restrictions. Ms J provided a summary of her detailed report:
The initial session of family therapy was an online session with X facilitated by her father in his home followed by 5 online joint sessions with Ms Sauber and Mr Caito and one individual session with Mr Caito. In the initial session with X, she expressed some anger towards her mother and was hesitant about attending family therapy sessions but with the appropriate boundaries she was open to the idea however this was withdrawn when her father joined the session, this appeared to be more to appease her father’s stress rather than overt pressure from her father. X did not participate in any further sessions.
In the 5 joint sessions with the parents, Ms Sauber demonstrated a willingness to work on the dynamic between the couple and to look at her part in the unhealthy nature of the parental relationship. Mr Caito demonstrated limited motivational willingness to work on the parental relationship and consistently expressed that he did not believe there was any value in attending family therapy. This attitude towards family therapy appeared to be born from his unwavering belief that Ms Sauber was an abusive parent, and she was the cause of X’s eating disorder. When asked if he would encourage X to attend family therapy, he compared asking X to have a session with her mother with asking a rape victim to speak to the rapist.
Mr Caito’s main focus in sessions was to prove that Ms Sauber was an unfit parent and quoted frequently from reports from other professionals that have been involved with the family in the past. While Mr Caito reports that he has not dissuaded X from attending sessions, he has admitted that he has encouraged her to read all correspondence from the courts, legal representation, and Ms Sauber so she can make her own mind up.
Mr Caito was not open to the idea that X’s recovery and recent gains in health could be attributed to her having been removed from the toxicity of the parental relationship, preferring to believe that it was due to having no contact with the mother. It is believed while Mr Caito continues to hold these beliefs and remains reluctant to accept that Ms Sauber has a vital role in X’s life, is unlikely that X will be able to repair the relationship with her mother.
In her oral evidence Ms J elaborated on her conclusions about Mr Caito. She pointed out that she considered Mr Caito was genuinely psychologically and emotionally unready to participate in family therapy. Ms J expressed the view that she saw little scope for the relationship between X and her mother to be repaired other than by the passage of time and the development of a more mature and balanced view by X.
I found Ms J to be a balanced and reasonable witness. Her summary observations are consistent with the other evidence in the case. I accept her evidence and opinions.
The evidence of the father was marked by the hostile and unbalanced tone identified by Ms J in the summary reproduced above.
One of the more remarkable passages of evidence by the father was his response to a question about how X may have come to believe that her maternal grandfather had committed child sex abuse against the mother’s sister or sisters. The father accepted that X held this belief but he said that he did not himself believe it was true. The father said that X may have overheard him speaking on the telephone to a friend when he said something to that effect. When he was asked why he said did not take immediate steps to correct X’s mistaken belief once he learned of it the father was unable to provide a satisfactory answer. I consider that the father’s failure to correct X’s mistaken belief reflects his own distorted and deeply hostile view of the mother. A parent’s failure to correct a false belief that a member of the other parent’s family was guilty of a serious crime against a child or children is difficult to fathom. Of course, the motivation may simply be all consuming malice but, having regard to Ms J’s view of the father’s motivation, I consider that the more likely explanation lies in the father’s seriously distorted view of the mother and his consequent incapacity to properly assess or act in the best interests of the child.
When X and her father left Darwin in 2020 X was under the combined care of a paediatrician, Dr A, a psychologist, Ms C, a dietician and an adolescent nurse. The father gave evidence that Dr A and Ms C had supported his plan to relocate with X to Western Australia. An affidavit was filed on behalf of Dr A. He was not required for cross-examination. In his affidavit Dr A emphasised that both parents ought to be involved in X’s care. He said nothing about supporting relocation. I do not accept that Dr A supported the relocation. Ms C said in a letter to the mother which was put in evidence that the father had mentioned the possibility of leaving the Northern Territory “in passing”. She made it clear that she was not told of any definite plan to relocate to Western Australia. I do not accept the father’s claims.
In 2020 X consulted Dr D, a psychiatric registrar with Mental Health Service N in Western Australia. Dr D noted X’s medications as olanzapine for anxiety and sleep and sertraline for anxiety. He noted that X’s eating disorder appeared to be in remission. He recommended that X continue to see a psychologist. He also recommended that X undergo regular general practitioner health checks at least monthly until menstruation restarted and including blood pressure, heart rate and weight.
X continued to consult Ms C for a period by video but that ceased in about May 2020. She then commenced monthly counselling in Western Australia with Ms M, a psychologist. This counselling ceased in January 2021.
Although X did not consult a general practitioner strictly in conformity with Dr D’s recommendations she consulted a general practitioner on seven occasions between 2020 and 2021. The first consultation was to obtain a referral to a psychologist. During the second consultation she was noted to be suffering from secondary amenorrhoea as a consequence of her eating disorder. She had ceased olanzapine as she was said to be sleeping without it. She was noted to be still receiving sertraline. In subsequent consultations she was treated for swimmers’ ear or for a sore throat. In October 2020 it was noted that menstruation had recommenced. Her weight had increased from 50 kg in July 2020 to 58 kg in October 2020. In January 2021 she weighed 64.5 kg. She was said to be engaged in swimming to a “national training level”. In May 2021 the doctor noted “No eating disorder. No weight loss. No weight gain.”
It appeared to be accepted by the parties that X’s weight has stabilised at a normal level, although the mother expressed concern about the level and intensity of X’s exercise regime which had previously been associated with her eating disorder and used by X as a measure to control her weight. Given that the medical evidence is that her eating disorder is a long-term disorder, and is in remission rather than cured, X’s focus on physical exercise takes on an ambiguous character. I share the mother’s concern.
X wrote an e-mail letter to her mother in 2020. It is unnecessary to discuss the letter in any detail. It is a diatribe against the mother, accusing her of controlling behaviour, causing X’s eating disorder, refusing to eat meat or ice cream, referring to the mother’s father’s sexual abuse of the mother’s sister or sisters and extolling the virtues of her father among other things. The letter also refers to “countless so-called ‘medical professionals’ that really did not help me in the slightest”. She refers to the “restrictions” her mother placed on her with “the excuse being ‘I’m still malnourished’ or ‘I still have an eating disorder’”.
As mentioned, it is noteworthy that the father, who was aware of the email, acknowledged that the claim against the mother’s father was baseless, although he did not correct the child’s misapprehension. Other aspects of the letter: the discounting of the advice of medical professionals, the blaming of the mother for the child’s eating disorder and controlling behaviour, are themes the father developed at different times. The overall impression from the letter is of a psychologically troubled child who holds some distorted views, including about her medical condition, her parents and her extended family. Her alignment with the father appears to be complete.
The family report
The family consultant identified the two main issues in the matter as being the nature of X’s resistance to spending time with her mother and if, and how, the poor parenting relationship is affecting X’s overall physical and emotional well-being.
The family consultant observed that the mother had a good insight into X’s eating disorder and what was necessary for her recovery but also observed that it was possible that the mother promoted unrealistic diets for the child which were not helpful. The family consultant observed that eating disorders “thrive” in an environment in which restricted diet, vigilant calorie intake, strict weight monitoring, overactivity, and unrealistic body images exist. However, she also observed that it is
… natural for X to want to blame someone and it would appear that her mother is the easiest target for this. When X was discharged from hospital, it is highly likely that X was still trying to control her food intake, as this behaviour is indicative of an eating disorder. It would have been more difficult, in my view, for X to influence her mother, who overall does present with the professional knowledge and more understanding of the complex nature of an eating disorder than the father does.
It is beyond the scope of this Court’s role to determine the complex origins of the child’s eating disorder. While it is possible that some of the factors suggested by the family consultant were present I am satisfied that the mother, reflecting medical advice, was properly insistent upon the child having proper nutrition after her discharge from hospital and avoiding physical exercise. That was the firm medical advice given to the parents. The reason for X’s initial involuntary re-admission to hospital was X’s resistance to that regime. Although the family consultant acknowledged that the father was aware of the serious nature of the child’s medical condition, the family consultant was of the view, a view I share, that the father was more flexible and less insistent than the mother on the child following her medical advice to the letter. I am satisfied that this is a significant factor in the child’s alignment with the father.
The family consultant acknowledged that X has gained a healthy weight and is physically and emotionally healthier than she was when she lived in Darwin. The family consultant acknowledged that the child may have a genuine preference for living with her father but she believed that a significant factor in the improvement in X’s health has been that while living in Western Australia she has not been directly exposed to her parents’ conflict.
The family consultant acknowledged that the father has good insight into X’s physical health needs. However, she did not consider that the father is promoting X’s relationship with her mother.
The family consultant said that it would be beneficial for X to have a relationship with both parents but that:
… the father needs to give X emotional permission to contact her mother and demonstrate to his daughter that his love for her is not conditional upon her not contacting her mother. It is important for X to know all of her family for her own self and family identity. In my view, X does lack some emotional maturity and she requires her parents to guide her in that respect.
The family consultant was of the opinion that neither of the original proposals of the parents was in the child’s best interests. She considered that the mother’s original proposal involved a high risk that the child would abscond and there was a potential risk of relapse in her eating disorder, as well as a negative impact on her educational, social and psychological needs. She considered that the father’s proposals did not support a relationship of the child with her mother.
The family consultant recommended that the child remain living with her father in Western Australia and that the family engage in individual and family counselling.
I accept the family consultant’s analysis, opinions and recommendations. They are entirely consistent with my own assessment of the issues, evidence and the parties.
It is noteworthy that by the end of the evidence the parties have come to much the same conclusion as the family consultant. They appear to accept that X should remain living with her father in Western Australia and the parents and X should engage in individual and family counselling. It is apparent from Ms J’s evidence that, as desirable as this might be, there is little present indication that the father will willingly participate in such counselling or encourage X’s participation. It is obvious that the outlook must be pessimistic in that regard.
Regardless of the lack of any present evidence that counselling is likely to assist this family it is not to be contemplated, in my view, that there be an order that this psychologically vulnerable child cease living with her father and begin living with her mother. I am aware that the lack of relationship between X and her mother is likely to be harmful for her in the long-term. However, the short-term risk of such an order is as described by the family consultant, including, if the child suffered a relapse of her eating disorder, a risk of death.
The legislative pathway
The resolution of a parenting dispute under the Act requires adherence to the legislative pathway set out in Part VII of the Act.
In determining what is in the best interests of a child the Court must consider the matters in subsections (2) and (3) of section 60CC of the Act.
Turning to subsection 60CC(2), the primary considerations in determining the best interests of the children 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.
When applying section 60CC(2) factors, the Court is to give greater weight to the consideration set out in (2)(b).
I am satisfied that there is benefit to the child in having a meaningful relationship with both her mother and her father. At present, X does not have a meaningful relationship with her mother. Her relationship with her mother, most particularly, but also with her father is distorted by the conflict between her parents. This constitutes a long-term risk to her psychological and emotional health. While I am not satisfied that the behaviour of the parties at relevant times constitutes family violence as defined in the Act, I am satisfied that the child is at risk of psychological harm from exposure to parental conflict.
I will now turn to the additional considerations in subsection 60CC(3).
In relation to (a), the child’s views, the child is 15 years old and expresses a clear wish to live with her father. She does not seek any relationship with her mother. I am satisfied that the child’s views are distorted to some degree by her illness and by her experience of parental conflict. Nevertheless, given the child’s age it would not be appropriate to make an order that the child did not accept and would be likely to resist. Further, I am satisfied that any such order would have unpredictable, and potentially very serious, effects on her mental and physical health, and that such an order would, therefore, not be in her best interests.
In relation to (b), the nature of the relationship of the child with her parents and any other persons, the child is strongly aligned with her father. She is resistant to a relationship with her mother and, it appears, unresponsive to overtures from the maternal family resident in Town B. The father does not encourage a relationship between the child and the maternal family.
In relation to (c), the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decision-making about major long-term issues for the children and spending time with and communicating with the children, both parents have been actively involved in all aspects of the child’s life until the father’s unilateral relocation with the child to Western Australia in early 2020.
In relation to maintenance of the child under part (ca), the evidence did not focus on this issue but it appears that when the child entered the father’s full-time care the father resigned his employment and the mother thereafter paid child support. The father has since resumed employment.
In relation to (d), the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of their parents or any other child or other person with whom they have been living, it is not proposed to change the child’s present circumstances which reflect a unilateral relocation by the father from Darwin to Western Australia in early 2020. However, the relocation has significantly affected the child’s relationship with her mother.
In relation to (e), the practical difficulty and expense of the child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents, there does not appear to be any practical impediment to the child spending time with the mother in Darwin, rather the impediment is the child’s refusal.
In relation to (f), the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, I am not satisfied that the child’s complaints against the mother are well-founded. I am satisfied the mother is motivated by a genuine concern for the child’s welfare and that she has the capacity to provide generally for the child’s needs, including her emotional and intellectual needs with this reservation: I am concerned by the mother’s willingness to pursue coercive measures concerning a 15 year old child which, in my view, risk catastrophic consequences. My concern is that this shows a lack of insight into the child’s experience. The family consultant expressed the view that the mother saw the problem of the child’s bad relationship with her as solely the result of the father’s manipulation. The family consultant said she believed the problem was more complex and reflected, at least in part, X’s experience of her parents’ conflict. I accept the family consultant’s opinion.
I am satisfied that the father, reflecting his hostility to the mother, has failed to promote a relationship between the child and the mother. Consequently, I am satisfied the father does not have the capacity to provide adequately for the child’s emotional needs.
However, both parents have exposed the child to parental conflict for a long time and this reflects on the capacity of both of them to provide for the child’s needs.
In relation to (g) the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child the court thinks are relevant, there is nothing requiring further consideration.
In relation to (h), the child is not an Aboriginal or Torres Strait Islander child.
In relation to (i), the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both parents love the child but their capacity as parents suffers from the limitations described above.
In relation to (j), any family violence involving the child or a member of the child’s family, both parties alleged they were the victim of family violence perpetrated by the other prior to or at the time of their separation in 2014. These matters are historical and I have not found it necessary to resolve the competing allegations.
In relation to (m), any other fact or circumstance that the court thinks is relevant, there is no other such fact or circumstance.
As there will be an order for shared parental responsibility the court is required by s 65DAA to consider whether the child spending equal time or substantial and significant time with each parent is in the best interests of the child. Neither parent proposed equal time. The mother proposed that the child spend school holiday time with her but ultimately appeared to recognise that the court would not make orders in the circumstances of this case that were vehemently opposed by the child. Having regard to the matters discussed above I am not satisfied equal time or substantial and significant time with each parent is in the best interests of the child or is in any way practicable.
Ultimately, the parties agreed that there should be orders for family counselling. The mother and the independent children’s lawyer submitted that such an order should be “backed up” by the threat of a financial penalty if the father did not co-operate or comply. While I understand the reason for attempting to provide maximum encouragement for the father to participate, given his earlier lack of ability or willingness to participate in family counselling, I consider that such an order is likely to lead to further litigation and dispute. I consider that it is in the child’s best interests and that of the parties that litigation should be brought to a conclusion. I decline to make such an order.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 14 October 2021
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