SELLERS & BARLOW

[2020] FamCA 1140

FAMILY COURT OF AUSTRALIA

SELLERS & BARLOW [2020] FamCA 1140

FAMILY LAW – CHILDREN – Interim Parenting Orders

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60CA, 60CC(1), 60CC(2), 60CC(2A), 60CC(3)

APPLICANT: Mr Sellers

RESPONDENT: Ms Barlow

INDEPENDENT CHILDREN’S LAWYER: Silkwoods

FILE NUMBER: ADC 3611 of 2012

DATE DELIVERED: 12 November 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Mead J

HEARING DATE: 12 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roberts of Counsel

SOLICITOR FOR THE APPLICANT: Thomson and Associates

COUNSEL FOR THE RESPONDENT: Respondent appeared in person

Orders

1. That the time referred to in paragraph 8 of the order of 24 April 2020 be varied such that the Skype calls occur between 6.00 pm and 6.30 pm on Thursday of each week.

2. That in addition thereto B born … 2010 and C born … 2012 have further Skype communication with the mother on each of:

   (a)       … November 2020 from 4.00 pm to 4.30 pm being B’s birthday; and

   (b)       25 December 2020 from 8.00 am to 8.30 am being Christmas Day.

3. That the mother be at liberty to forward gifts for B and C to the office of the father’s solicitor.

4. That the father collect any presents so delivered and ensure that the children receive same and appropriately thank the mother either in writing or during the Skype calls.

5. That the father be at liberty to arrange for and facilitate B’s attendance on Q Psychologists at their earliest possible convenience without the necessity of the mother consenting to same.

6. That directions only as to a continuing trial date (NOTING 3 days required) be adjourned to 7 January 2021 at 9.30 am by Global Meet Telephone Conference.

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 Sellers & Barlow 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 ADELAIDE

FILE NUMBER: ADC 3611 of 2020

MR SELLERS

Applicant

And

MS BARLOW

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has been before me for nine days.  The matter was listed for trial in September of this year.  It was anticipated it would be concluded within five days.  That unfortunately has not been the outcome of the matter.  I adjourned it part heard until Monday 9 November 2020, allowing a further three days.  Again, my optimism was misplaced.

2. We are now at the end of four days and the evidence has not concluded.  Importantly, the evidence has not concluded from the perspective of Ms R attending, being the expert in the matter, to be questioned with respect to her report and also be appraised of matters that have arisen during cross‑examination.  The Independent Children's Lawyer has also not finished, at this stage, cross‑examining the mother.

3. I am of the view that realistically, including addresses, we are probably looking at another three days.

4. Not unexpectedly, the mother seeks, as her preferred option, a week-about care arrangement for the children pending the resolution of the trial and, no doubt, in due course, judgment thereafter.  In particular, she is seeking to spend at least weekend face-to-face time with the children.  It is B’s birthday soon, and, of course, Christmas is looming upon us.

5. As a result of orders made by this Court, the children have not spent face‑to‑face time with their mother since February of this year when I ordered that they go into the care of the father.

6. The Court must determine parenting orders, both interim and final, according to the matters laid out in the various relevant provisions of the Family Law Act 1975.  Section 60B sets out the objects and principles underlying Part VII, which relates to children.

7. Section 60B(1) states the objects underlying Part VII 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.

8. The principles underlying those 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 the other subparagraph is not relevant to this matter.

9. Section 60CA is in the following terms:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

10. Section 60CC(1) explains to the Court how to determine what is in a child’s best interests in the following terms:

    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).

11. Section 60CC(2) is headed Primary Considerations.  They 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.

12. The note to that section is in the following terms:

    Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b)

13. Section 60CC(2A) provides that:

    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), namely:

    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

14. Section 60CC(3) is headed Additional Considerations, which 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);

    c)the extent to which the child’s parents have 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 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;

    Subparagraph (h) is not relevant to these proceedings.

    i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

    The next two subparagraphs, (j) and (k) relate to issues of family violence.

    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;

    and,

    m)any other fact or circumstance that the court thinks is relevant.

15. I initially intend to deal with the additional considerations set out in subsection (3).

16. I am well aware that the children have expressed a view to see their mother.  We have heard numerous audio tapes and video tapes where the children have clearly expressed a desire, most plaintively in some circumstances, to see their mother, spend time with her and have a hug with her.  There is no doubt at all that that is the view the children are expressing.  However, I have to look at those views in the context of the children’s maturity or level of understanding in order to determine what weight should be placed on them.

17. B is almost ten, C is eight.  B has been diagnosed with autism and a level of intellectual disability and C has been, at least provisionally, determined to be on the autism spectrum at a level that in earlier days was referred to as Asperger’s Syndrome.  She is described as high‑functioning, and according to Mr T, the principal of F School where both children attend, does not require any additional school assistance other than mainstream learning.

18. This is in stark contrast to B.  He is in the special school part of F School, where he gains very high levels of assistance and works on a modulated curriculum.  According to Mr T, B is currently functioning at approximately Year 3 level where he is in Year 4, but it is expected that he will proceed through the years of school with his cohorts.  It is not the practice of the school to hold children back.

19. These children have been caught now for many, many years in what is frequently referred to as a high conflict situation.  They have no memories other than their parents not getting on, their parents not communicating and, not having any capacity whatsoever to have a close and loving relationship with both of their parents.

20. For some years prior to Berman J’s 2018 judgment, there had been, according to his findings, non-compliance by the mother with orders for time spending and complaints made to child protection authorities that had been found ultimately to be without merit, other than in 2015, the Department for Child Protection determining that there was substantiated risk to the children as a result of what they considered to be emotional abuse inflicted on the children by the mother.  The Department was not satisfied that there was any other level of risk, nor was Berman J.

21. Paraphrasing Berman J’s judgment, it was determined that the children should remain in the primary care of the mother.  A significant reason for so doing was his view that the father had been less than diligent in applying himself to learning and acquainting himself with the children’s additional needs and the therapies being undertaken whilst in the care of the mother.  His Honour’s view was that the mother was best equipped to deal with those issues, and once the matter was finalised he was hopeful, if not confident, that compliance with orders for time spending would thereafter occur and the matter would settle down.

22. Nothing could have been further from the reality.

23. The extent of compliance with the order such that the children just transitioned into their father’s care on the basis as determined by Berman J, was so limited and the concern of the Court so significant, that, in February of this year I took the unusual step of removing the children from the care of the mother.  I did so because it was abundantly obvious, even on an interim basis, that the children were being afforded no capacity whatsoever to form a relationship with their father whilst they were in the care of their mother.

24. There was no evidence that the children were at any risk from the father, notwithstanding various investigations by the Department for Child Protection and South Australia Police.  The children have lived with the father since February of this year.

25. I am satisfied, taking into account the maturity of the children, the challenges that they face with regards to their intellectual development and the level of understanding that they have of the concepts to which the Court is alive in this matter, that the Court should not place any weight on the views of the children, save to acknowledge that they are the views of the children and that these are children who love their mother.

26. As to the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child, I am satisfied that these are children who have a good relationship with both of their parents.  I have no doubt that they have a closer emotional relationship with their mother than with their father.

27. For the reasons referred to at length by Berman J and which have formed very significant parts of the evidence in the nine days that the matter has been before me, the mother has been the children’s primary caregiver not because of any wish on the part of the father for that to occur, but because the mother’s actions have deemed that to be so.

28. Mr T tells the Court that the children’s behaviour and attendance at the school this year have been very similar to what they were last year and that the school has no real concerns for their wellbeing.  Indeed, Mr T referred to a time when a plan had to be put in place with the assistance of the father to encourage C to separate from him at the commencement of the school day for a period of time.

29. I am satisfied that these children have a good relationship with their father, but, as I say, at this point in time, whether it is in their best interests or not, probably have a closer emotional relationship with their mother.

30. The next relevant section for the purposes of this interim argument is the likely effect of any changes in the child’s circumstances, including the likely effect on the children of any separation from either of his or her parents or any other child or person with whom the children have been living.

31. I made orders in February of this year that caused a dramatic change in the children’s circumstances.  I have little doubt that at periods of time the children have struggled with that decision, that it has been hard for them, that they have missed the level of intensity of emotional relationship that they clearly had with their mother, and that there is, I suspect, from time to time, a feeling on the part of the children that what they have in terms of a parental relationship with their father comes a bit of a poor second to that with their mother.

32. Nevertheless, what has been apparent is that the children have progressed this year very much in accordance with how they were progressing last year.  There has not been any significant psychological effect on the children although I accept there must have been significant feelings of sadness.

33. I am certainly concerned that if I re-instituted face‑to‑face time between the children and their mother prior to the finalisation of these proceedings and the delivering of judgment, the very issue to which Ms Olsson referred in her submissions may well arise, namely, that in ordering physical time spending the Court could anticipate that significant problems would arise.  If this were to occur we could find ourselves back here, possibly being set back on this path again.  This of course was a very significant concern of Berman J when the matter came back before him so soon after the 2018 judgment.

34. I am not satisfied that the children have a capacity, having observed them in the presence of their mother over several hours of tapes and audio recordings, to sustain any independent thought processes in the face of the determination shown by the mother to foster the relationship between she and the children to the exclusion of the father.  The children would, to my mind, to use a colloquial expression, be ‘putty’ in the hands of the mother.

35. As to the capacity of each of the child’s parent and 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, I’m satisfied that both of these parents can put a roof over the children’s heads.  I am satisfied that both of the parents love the children and would do their best to provide for them, but I am not satisfied as to the capacity of the mother to provide either for the children’s emotional or their intellectual needs.

36. She has certainly facilitated, to her credit and very successfully, the children’s attendance at F School, where there is no doubt what might be described as a ‘gold class’ of service for children with intellectual and other disabilities.  I am also satisfied however that she has been in significant conflict with the school.

37. There have been issues that have arisen at school, as a result of disputes primarily caused by the mother’s refusal to comply with court orders and insistence on collecting the children, which has placed the children in the middle of a significant dispute between the parents at the school grounds.

38. Those issues have put pressure on the children and put pressure on the school.  I am not sure that the mother understands the very real need, for the intellectual benefit of the children, for schools to be a place of great safety and certainty, removed from any parental or family conflict.

39. I have very serious concerns about the capacity of the mother to provide for the children’s emotional needs.  I am concerned about the intensity of the mother’s relationship with the children.  I am concerned that it is indicative of a need on the part of the mother as opposed to, or certainly complimentary to, her genuine love of the children.

40. I am concerned about the mother’s capacity to view the children’s disabilities in a balanced light rather than seeing any ordinary behaviour exhibited by the children in the light of illness or incapacity or disability.  I am concerned that the mother’s attitude in that regard raises a very real possibility of the children seeing themselves as suffering from illnesses and disability, and so therefore framing their own concepts of self in terms of disability rather than ordinary children who have some challenges in life that can be assisted in so many ways.

41. Ms Olsson cross-examined the mother about negative and positive inputs from the mother to the children, things that make the children feel good instead of feeling insecure or sad.  I was very concerned about observations of interaction between the children and the mother.  These interactions frequently concentrated on sadness, illness, injuries and concern, interspersed by what might almost have been described as manic hilarity, including when issues relating to the children’s father were mentioned.

1. For those reasons, on which no doubt I will elaborate in my final judgment, I am very concerned about the mother’s capacity to provide for the children’s emotional needs.

2. These proceedings involve a young boy and young girl.

3. Taking into account their maturity, sex, lifestyle and background, it would be ideal for them to live between their parent’s households, have a close and loving relationship with each of their parents and be free to enjoy those relationships.

4. That is not, however, the position in which these children find themselves.

5. That is the very reason that we are back here in Court and have been here for another nine days, to say nothing of the various interim matters along the way, following a judgment as recently as 2018.

6. If those orders had been complied with, if the mother had ameliorated her attitude towards the father and the children had just gone to their father’s on alternate weekends and half the holidays, the reality is we wouldn’t be here as there would have been no need.

7. As to the attitudes of the children and the responsibilities of parenthood demonstrated by each of the child’s parents, the mother’s evidence would suggest that she has devoted herself, to the exclusion of her career and any of her own personal issues, to being a responsible parent.  There is no doubt at all that she has facilitated the children’s attendances on various experts, that she made sure that they got to their appointments, and that the children have clearly benefited from the input of that therapy.

8. I find however that when the mother’s view about what kind of therapy ought to be offered to the children was challenged by anyone, including the father or various experts, the mother was dogged in her view that “trauma” should be the focus of the therapy.  It is hard on the evidence to see where that came from.  Even in circumstances where it is suggested that doctors referred the children on that basis, the evidence is that the doctors referred on that basis because of input from the mother.

9. The various therapies that B has benefited from don’t fall into that category.  They are therapies provided by experts other than therapies relating to emotional and intellectual issues, and to that extent the mother has done an extremely good job.

10. Nevertheless, the father has exhibited a significantly different attitude to those issues than was evident in the first trial.  He has acquainted himself with the needs of the children and has done his best to facilitate ongoing therapy.  That has been a difficult thing to achieve in circumstances where there has been opposition on the part of the mother.

11. This again is an issue that just never should have arisen.  There are arguments happening in this matter about these children’s lives that are completely and utterly unnecessary.

12. The mother alleges family violence.  She alleges that the father is a paedophile and a child rapist.  She alleges that that is the view of South Australia Police and the Department for Child Protection.

13. There is no evidence whatsoever in any material that was before either Berman J or produced in these proceedings that would give any credence to such outrageous allegations, and, of course, they underpin the attitude of the mother to the children and flow into my significant concerns about the capacity of the mother to provide for the children’s emotional needs.

14. Going back then in the context of those issues to subsection (2), which contain the primary considerations, the first is the benefit to the child of having a meaningful relationship with both of the child’s parents.  That goes without saying for just about all children, but from time to time there are factors that arise that mean that the particular circumstances do not suggest that such a relationship would be in the child’s best interests.

15. I find, at least on the evidence that I have heard to date in this matter, that at the moment I can’t be satisfied that it is to B and C’s benefit to have a meaningful relationship with the mother other than to the extent of the Skype communication that has now been in place for some months.  Quite frankly, I am not satisfied that the Court could trust the mother to comply with orders and not further influence the children, thereby creating a great sense of confusion and insecurity for them when they have now have several months to settle in the care of the father.

16. As to the more important factor, being the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, I am satisfied these children do need to be protected.  I am satisfied that they need to be protected from the overwhelming influence of the mother.

17. I find that the influence that the mother exerts over B and C is tantamount to abuse.  I find it has the effect of making the children insecure and preventing them from being able to enjoy a meaningful relationship with their father.

18. I find that if there was to be face‑to‑face time at this stage the children would inevitably be subjected and exposed to the behaviours of the mother to which I have already referred.  I do not consider that is in the best interests of the children.

19. I am very concerned about the children not being able to spend time with their mother.  This is one of the very few matters where I have ever had to make such sad comments and where I cannot facilitate, to the extent that I would like to be able, the wishes of the children.

20. For the reasons that I have given however I am not satisfied that I can do so and afford safety to the emotional wellbeing of B and C.

    ORDERS DELIVERED

21. I’m going to make an order that the father be able to facilitate B’s attendance upon Q Psychologists.

22. I am mindful now that there has been a break for some months.

23. I am satisfied on the evidence, not from that psychology rooms, but for B having psychology generally that there is NDIS funding in the rollover scheme available.

24. I am satisfied on the evidence to date that the mother’s refusal to facilitate that attendance has caused a hiatus in B’s attendance for therapy and that this order is in the best interests of B, and it is certainly supported by the Independent Children’s Lawyer.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 12 November 2020

Associate:

Date: 24 February 2021