SHANKS & JOBLING

[2016] FCCA 3028

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHANKS & JOBLING [2016] FCCA 3028

Catchwords:

FAMILY LAW – Interim arrangements for child with special needs aged six years – final orders made in 2014 – high conflict – dispute about school and handover arrangements – child independently represented – role of ICL – best interests.

Legislation:  

Family Law Act 1975 (Cth), ss.4, 68L

Applicant: MR SHANKS

Respondent: MS JOBLING

File Number: ADC 3944 of 2012

Judgment of: Judge Brown

Hearing date: 11 October 2016

Date of Last Submission: 11 October 2016

Delivered at: Adelaide

Delivered on: 11 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Childs

Solicitors for the Applicant: Rossi Legal

Counsel for the Respondent: Ms Kari

Solicitors for the Respondent: Clelands

Counsel for the Independent Children’s Lawyer: Ms Reed

Solicitors for the Independent Children’s Lawyer: Legal Services Commission of SA

ORDERS

UNTIL FURTHER OR OTHER ORDER:

1. The parties are directed to confirm the child’s (X born (omitted) 2010) enrolment at the (omitted) Primary School so that the child can attend that school for the remainder of the school year.

2. Order 4 of the orders made 17 February 2014 be varied so that the child is exchanged between the parties at the child’s school on each day that the child attends school.

3. The mother be restrained and an injunction be granted restraining the mother from being present at school when the child is either collected from school or returned to school to give effect to these orders.

4. On non-school occasions the child be exchanged at McDonalds (omitted) with the father to collect and return the child.

5. The mother be restrained and an injunction be granted restraining the mother having the child psychiatrically or psychologically examined without the written consent of the father.

6. Further consideration of the matter is adjourned to 15 November 2016 at 4.00 pm for interim argument.

IT IS NOTED that publication of this judgment under the pseudonym Shanks & Jobling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADC 3944 of 2012

MR SHANKS

Applicant

And

MS JOBLING

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally, immediately following the interim hearing concerned.  The proceedings are characterised by significant controversy.  The parties have request that the reasons be transcribed and released to each of them.

2. The parties to the proceedings are Mr Shanks “the father” and Ms Jobling “the mother”.  They are the parents of X, who was born on (omitted) 2010.  Accordingly, X is about six-and-a-half years of age, at present.  It is also the case that X has significant special needs, as she suffers from autism.

3. By way of background, the parties have been in dispute with one another, since at least October of 2012, in respect of arrangements for X’s care.  The first round of proceedings was finally resolved, with a consent order, which was made on 17 February 2014.  That order was made by my former colleague, Judge Simpson.  With his retirement, the case has come into my docket of matters.

4. The parties agreed that they would have equal shared parental responsibility for X and that she would live predominantly with her mother.  Clearly, at the time of these orders, X, was just under four years of age and some way off starting school.

5. As a consequence, the orders envisaged an arrangement which would see the father spending gradually increasing periods of time with the child, culminating with school term periods from the conclusion of school Friday, or 3.30 pm on a non-school day, until the commencement of school the following Monday or 8.45 am on a non-school day. Other orders were made in respect of school holiday periods.

6. The orders noted that the parties had agreed that X would attend the (omitted) Kindergarten but would begin at the (omitted) School at the start of the 2015 school year.  These proceedings have occurred because of difficulties which have arisen in respect of X’s enrolment at (omitted) School.  These difficulties have led to considerable conflict between the parties.

7. The orders envisaged the parties having a review of these arrangements, with an appropriate dispute resolution practitioner, around July of 2016.  It would seem that a family assessment report prepared towards the end of 2013 was a significant factor leading to the parties being able to reach final agreement in respect of X’s care in February of 2014.

8. The proceedings come back to court, on the father's urgent application filed on 26 August 2016.  At his request, the matter was listed urgently, initially on 26 September 2016.  In support of his application, the father filed an affidavit of some 94 pages, including annexures.  The respondent mother has also filed extensive material. 

9. From the extent and nature of that material it is, I think, abundantly clear that historically there has been a significant level of conflict between the parties and that this conflict has continued until the present time. It is reflected in the oppressive level of affidavit material which has been filed.

10. In the past, it was ordered that X be independently represented.  Such representation does not happen in every case involving children.  It is a significant thing.  I do not know what have been the financial implications of that representation for each of you. 

11. Children are only represented in proceedings, when one of a number of conditions has been satisfied.  One of the criteria for the independent representation of children is that there is intractable conflict between the parents concerned.  Another relates to the special needs of any child concerned in the proccedings.

12. It would seem that the high level of conflict between the parties, when coupled with the X’s special needs, were the factors which led to her independent representation.  In the earlier proceedings, X’s representative was Mrs Reed, a highly experienced family lawyer, employed by the Legal Services Commission of South Australia.

13. Independent Children’s Lawyers have a number of significant statutory obligations arising under the Family Law Act 1975. Most significantly they are required to consider all the evidence available to them and advocate the position, to the court, which they consider will best serve the overall interests of the child whom they represent.[1]

    [1]  See Family Law Act 1975 at section 68LA

14. The issue which brought the parties back to court hinged on the (omitted) School.  As I have indicated X has some significant special needs.  She has been described as having autism and possibly some form of intellectual delay.  She is a child who, from the mother's perspective, is difficult to get to school because of her issues.  It is also the mother’s position that X has been displaying anxiety about spending time with her father. 

15. The father commenced these proceedings because, from his perspective, the mother had had some altercations with senior staff at the (omitted) School, which had led to the school electing to withdraw the child’s enrolment at the school. 

16. From his perspective, he was concerned that this withdrawal of enrolment had occurred as a consequence of the mother's manipulation of the situation to satisfy some ulterior motive of her own, unrelated to X’s best interests. 

17. It was his case that he regarded (omitted) School highly and did not want X to lose her place there, particularly as the parties had agreed that this was to be her school and this agreement had been reflected in the court’s order. 

18. In these circumstances, as it seemed to be apparent that the principal of the school was no longer prepared to work with the mother, the only alternative to ensure that X could go back to the (omitted) School was that she should come and live predominantly with him.  He sought urgent orders to this effect.

19. From the mother's perspective, the officials concerned at the school, including the principal, were petty martinets, who had taken a set against her for no proper reason.  She denied that her alleged oppositional or confrontational behaviour was the reason for the child’s exclusion from the school.

20. It is her position in essence that she was doing the best she could with a child, who was very challenging to get to go to school and, for reasons about which she can only conjecture, the school were unsympathetic about her problems and very difficult and uncooperative.  As a consequence, it is her view that (omitted) School is not an appropriate one for X.

21. Anyway, it is her position that the child was, in effect, expelled and this state of affairs cannot be attributed to her.  It seems extraordinary that a six-year-old child would be expelled, presumably for bad behaviour.  From the father's perspective, the problem was with Ms Jobling rather than X.   He submits that the school took the actions which it did because the mother was impossible to deal with and the school authorities had, in effect, reached the end of their tether, so far as dealing with Ms Jobling was concerned.

22. In any event, unilaterally, the mother has enrolled the child at another school, (omitted).  It is her case that that this school is not only cheaper than (omitted) School but also better suited for X’s special needs. 

23. On 26 September, the matter was adjourned until today, 11 October, which is the Tuesday before school resumes for the final term of the year, so that I could, if necessary, make a decision about which school the child should attend, against this extremely difficult background. 

24. At that stage, given what appeared to me a significant level of conflict between the parties, I requested the Legal Services Commission to re-engage Ms Reed, as the independent children's lawyer for X. Thankfully, from my perspective, the Commission has responded to my request and Ms Reed has been re-engaged. 

25. Ms Reed, as the parties will be aware, is a diligent and professional person, who has extensive experience in the role of being an independent children's lawyer. She is also familiar with the parental dynamic between the parties, which can only be described as extremely difficult.

26. As one would expect of such a person, she has made some inquiries, and her submission from the bar table, which I accept is reliable and which has not been challenged by either of the parties, is that the (omitted) School have indicated to her that they have not expelled X because of any misbehaviour or deficits in her conduct, rather, they say they cannot work with Ms Jobling.  Where the truth lies in respect of this issue is not able to be discerned by me at this interim stage of proceedings. 

27. Ms Reed has also spoken to the staff at the (omitted) Primary School.  From their perspective, X has settled in well at the school.  They are pleased with her behaviour and how she has responded to other children at the school.  They are pleased with the resilience X has displayed in making the significant transition of changing schools.  It is common ground between the parties that, because of her special needs, X does not react well to changes or alterations in her routine.

28. As I indicated at the beginning of the proceedings this afternoon, I would have had very significant concerns about changing longstanding arrangements for the care of this little girl, given her special needs.  The orders of February 2014 reflect the fact that X has lived more with her mother than her father.

29. In these circumstances, I think it is unlikely and improbable that I would have changed these longstanding living arrangements, which had resulted from a consensual agreement, at an interim stage, only on the basis of the school issue, no matter how contentious.  Having said that, I also acknowledge, from the father's perspective, he is uncomfortable that the child's school has been changed unilaterally, in what he regards as a draconian and high-handed manner. 

30. However, notwithstanding his disquiet as to how the situation came about, Mr Shanks, after hearing what Ms Reed has said, does not now seek that X return to (omitted) School. In my view, it is to his credit that he accepts that the child is doing well there and it would not be helpful for more changes to occur in her life.  Although, from Mr Shanks’s perspective, issues still remain about what is the best school for X in the longer term. 

31. So, at this stage, an order can be made that the parties confirm the child's formal enrolment at the (omitted) Primary School for the remainder of the school year.  I hope there will be no more precipitous changes in arrangements for X’s care.

32. The remaining area of dispute between the parties concerns issues relating to how significant matters in respect of X’s education and health needs are to be decided in the context of the court’s orders of February 2014, particularly that the parties should hold equal shared parental responsibility for X.

33. What an order means when parties have equal shared parental responsibility for their child is relatively easy to find out from looking at the Family Law Act 1975. The words are not empty tokens. They are not mere shibboleths or something that should be disregarded. Parents who have responsibility for their child, which is shared equally between them, have a responsibility to consult with one another about what are termed major long-term issues to do with their child or children.

34. The expression "major long-term issues" is defined in the Act.[2]  It concerns issues to do with long-term care arrangements for a child pertaining to health; education; religious orientation; what name the child should bear; and any change in the child's residence, which make it significantly difficult to spend time with the other parent concerned. 

    [2] See section 4

35. There is no great mystery about these issues.  They are what everyone regards as being the big ticket items about being a parent – that is the things that you really want to know about and be consulted about when you are parent and are concerned about the long term care welfare and development of your child. 

36. The law is unclear about what happens when parents do not agree about those big ticket items.  As a consequence of omissions in the Act and by necessary implication, a person in my position has to adjudicate such disputes, within the framework provided by the legislation, particularly in the light of what is found to be in the best interests of the child concerned. 

37. What is clear is that, in general terms, the law eschews parents taking things into his or her own hands in respect of major parenting issues because such actions creates more rather than less problems, particularly in high conflict situations. 

38. As I indicated, I have read all the emails that have been exchanged between the parties and, with respect, yours is a high conflict situation and has been for many years.  I also note the intention in the order that you attempt alternative dispute resolution before coming back to court.  That suggests you recognise that it is not a good thing to be back in court. 

39. I do not think it is a good thing that you are back in court.  It is going to cost you potentially quite a lot of money, I suppose, which I would rather see – much as I have the highest regard for Ms Kari and Mr Childs –  in your pockets going to pay for X’s needs than in going to them. 

40. But that ultimately is a matter for you, I suppose.  In addition, as you know, as result of  your own experience, these types of proceedings do not assist parties to see eye to eye and focus on the bigger term picture, so far as their child is concerned.  To the contrary, they exacerbate problems and differences between parents. 

41. I would be naïve to think anything other than X is a highly vulnerable child.  She has quite significant special needs.  It is not helpful to any child to be exposed to conflict, but it is likely to be more difficult for X. 

42. Exposure to conflict is likely to cause children to question their loyalties and to try and think of ways how they can stop the conflict occurring.  This can be emotionally burdensome for them.  It may also cause them to act out in unpredictable and perhaps volatile ways, which is not helpful to them in the longer term. 

43. Parental conflict is bad for children.  It is easy for me to tell people to bite their tongues, when placed in a stressful or conflicted situation, but this is what they must do.  But I am well aware that such comments are just empty words, unless people take them to heart. 

44. I frequently say to people that I do not have a welcome mat outside the door of my courtroom.  I do not think that I have all the answers to the problems of the world, in terms of how to parent children and resolve disputes about them perfectly.  I don't.  I don't.  I am a necessary evil. 

45. My function is to resolve disputes, when the parents themselves are stuck.  I try and do it as best I can but, necessarily, I cannot keep everybody happy.  Rather I must remain focused on what I think is best for the child concerned, being aware that, in an ideal world, parents should make all the necessary decisions required in respect of their children. 

46. The issue today is about arrangements for handover, now that X has a different school and arrangements necessarily must be changed to some degree or other.  In general terms, the mother asserts that she finds it very difficult to get X to separate from her and go and spend time with her father.  The father asserts that the mother does not encourage the child to separate and she is either passively or actively trying to undermine his relationship with X.

47. From my perspective, the important thing is that the child is, as far as possible, shielded from any conflict arising between her parents because that conflict is your conflict, not hers.  She is just aware of it and exposed to it.  No doubt, her preference would be that the conflict goes away, if she was asked about it. 

48. From the father's perspective, the most natural place for the child to be exchanged would be at her school and this is what the order of 17 February 2014 envisages:

    4 (a) Handovers shall take place as follows:  at the child's day care or school on a day that the child attends school or day care. 

49. It is his position that it is not sensible that the parties come into immediate contact with one another and school provides a location, which is both familiar to X and does not require both parents to be present.   But if an order is made that the mother not be present at the handover, this will also achieve the desired outcome. 

50. Ms Reed supports that position.  She has had some consultation with the staff at (omitted) School whom, as I say, have indicated to her that X has done well and is adapting well at the new school.  In those circumstances, Ms Reed supports the father's proposal. 

51. It is the mother's position that the father is a bullying and coercive person, who is not insightful about the special vulnerability of X.  It is her position that the child needs to be exchanged somewhere where each party has ready recourse to authority, if one of them misbehaves.  As a consequence of these factors, she proposes that handover be at the (omitted) Police Station. 

52. It is her case, as I say, that in difficult circumstances she is doing her level best to ensure that the child gets to spend time with her father.  She has taken advice from a number of experts to whom she has been referred by Autism SA, who say that what X needs above all is consistency, predictability and stability in her life. 

53. On that basis, it has been recommended to her that X needs to have a visual calendar or set of social stories which support arrangements for her care and allow her to transition between her parents according to pre-set cues, particularly visual ones. 

54. These are manifest by such things as the child having a particular dress, which she wears when she goes to see her father, known as the "daddy dress", so that the child is prepped emotionally to go and spend her time by wearing the daddy dress.  By wearing the daddy dress, X will be prepared emotionally and will understand that this is a daddy day. 

1. Necessarily, in order to prepare in this way, X will not be able to be exchanged at her school but will have to come home to put on the right dress and go through the appropriate cues.  This will in turn mean that the parties will have to manage handovers directly with one another.

2. From the mother's perspective, if there is any change to such a regime, the court is dicing with unpredictable consequences.  The mother has arranged for the child to see a psychiatrist, a Dr J.  That was on referral from the general medical clinic, which Ms Jobling and X attend. 

3. Dr J has provided a report dated 8 August, which reports that the mother has indicated to Dr J that she is finding it very difficult to manage X’s time with her father, particularly because the child does not want, from her experience, to spend time with her father.  X was reported to become a dead weight in anticipation of seeing her father.

4. Ms Jobling has reported to Dr J historical concerns about the father's care of the child which, no doubt, was the background to the orders of early 2014.  These include a fracture to the child's arm whilst in her father's care, a burn to her hand, again in her father's care, and what is described as a rash on the child's back. 

5. Some of these incidents have apparently involved investigation by Families SA but at this juncture I do not know what were the results of those various notifications, other than they seem to have preceded the consent orders. 

6. In summary, Dr J opines that X has a severe anxiety disorder triggered by her anticipation of having to leave her usual routine with her mother. Dr J believes this disorder is likely to relate to the child's autism, which means changes in her routine are very hard for her to cope with. 

7. Mr Shanks is somewhat critical that he was not consulted about X’s involvement with Dr J and therefore the psychiatrist did not get his perspective on the issue.  I should say, for her part, Ms Jobling is critical that she was not consulted about X going on a trip to (omitted) recently with her father. 

8. X was described by Dr J as being initially comfortable with the doctor but to become very distressed when the issue of going to spend time with her father was raised with her, indicating to the doctor that she (X) did not want to see her father because he was dead.  She was reported to be massaging her chest and sucking her dummy in a stereotypical manner, when she made this report, which required some form of emotional regulation to resolve. 

9. In those circumstances, Ms Jobling proposes that the child come home after school on a school day, be prepped with the appropriate dress so that she can go to her father.  As a consequence of these matters, she asserts that the only place, which is safe for all concerned for the exchange, is at a police station. 

10. Mr Shanks fears that the child coming home will only place more barriers in the way of an easy exchange because X will pick up on her mother’s feelings.  When the school is not available, it is Mr Shanks' position that a neutral but public place could be utilised for handover.  It has been proposed by Ms Reed that the (omitted) McDonalds be utilised. 

11. Mr Shanks is concerned that to utilise the police station as a permanent intervention will lead to the child associating spending time with him with the police, who will be regarded by X as authority figures, to whom recourse is had only when someone is in trouble.

12. In these circumstances, he fears that there will be a negative association in X’s mind between the police and spending time with him because of that which will not be helpful to X being able to separate easily and naturally.   This is a submission which finds favour with Ms Reed. 

13. From my perspective at this early stage when, quite clearly, there are lots of issues in contest between the parties, and I have a lack of independent expert evidence - and I mean Dr J no disrespect, but she has it would seem only heard part of the story so far as the aetiology of the conflict to which this child has been exposed - that there are significant advantages and disadvantages of both parties' positions. 

14. From my point of view, school represents a natural place with which the child is comfortable for her to be exchanged.  If the mother is not there, there will be no conflict between the parties on which X will pick up. 

15. The problem with that is that X will not have the necessary cues and preparation.  I hear what Ms Reed says about the positive views that the school has said and, from my point of view, that is the factor which tips the balance in favour of the school at this juncture. 

16. I am also at this stage open to at least the exploration of alternatives other than police stations.  At the end of the day, police stations are not to be used to exchange children between parents, certainly not on a long-term basis.  Police stations are for police to conduct their business of investigating crimes and doing what police do, and I have to think about the long-term sustainability of police stations. 

17. Similar criticisms can be made of McDonald's.  They are there to sell hamburgers, but I am told that the mother does not necessarily approve of McDonald's and I am not unsympathetic to that.  But I think at this juncture there are some advantages in using somewhere that is neutral but is not a police station. 

18. I am going to make the injunction in the short to medium term about further medical evaluations by Dr J and others because I do not think that is in keeping with the orders to which the parties agreed that they would have equal shared parental responsibility for their child that one parent alone can arrange significant medical interventions for X.

19. For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:  29 November 2016