Sitch and Jacobs
[2014] FCCA 419
•7 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SITCH & JACOBS | [2014] FCCA 419 |
| Catchwords: FAMILY LAW – Parenting orders – whether adjournment to facilitate psychiatric assessment of mother – long history of co-operation post separation between parties – alleged injury to child’s penis – whether too frequent medical examinations of child – alleged self-harm by child – whether change of interim live with and time spent arrangements necessary – consideration of factors. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 62B, 65AA(1), (2) and (3), 65DA(2) |
| Carnegie v Ginter [2013] FamCA 331 Hall & Hall (1979) 5 FamLR 609 |
| Applicant: | MS SITCH |
| Respondent: | MR JACOBS |
| File Number: | MLC 10230 of 2009 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 28 and 29 August, 26, 27 and 30 September 2013 |
| Date of Last Submission: | 30 September 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 7 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Weerappah |
| Solicitors for the Applicant: | Bayside Solicitors |
Counsel for the Respondent: | Ms R Teicher (28 August 2013) | ||
| Solicitor for the Respondent: | Nicolaides & Associates (to 29 August 2013) | ||
| In person (29 August and 26, 27 and |
| Counsel for the Independent Children's Lawyer: | Mr N M Eidelson |
| Solicitors for the Independent Children's Lawyer: | McKean Park |
ORDERS
That the child of the marriage, X, born (omitted) 2004, live with the Mother.
That the Mother and Father share equal parental responsibility for the Child.
That the Child spend time with and communicate with his Father as follows:
(a)on each alternate weekend from Friday at the conclusion of school until the following Monday at the commencement of school;
(b)on each Wednesday from the conclusion of school until the commencement of school on Thursday;
(c)during school term holidays for one half as agreed, but failing agreement from school breakup until 5.00pm on the second Saturday of the holidays;
(d)during summer holidays for one half at a time agreed, but failing agreement in the first half in 2014/15 and each alternate year thereafter and the second half in 2015/16 and each alternate year thereafter;
(e)from 24 December 2014 at 4.00pm until 25 December 2014 at 4.00pm and each alternate year thereafter and from 25 December 2015 at 4.00pm until 26 December 2015 at 4.00pm and each alternate year thereafter;
(f)on Father’s Day weekend from Saturday at 5.00pm until the following Monday at the commencement of school and in the event that the Father’s time with the Child pursuant to these orders occurs on the Mother’s Day weekend, then his time shall be suspended on that weekend from Saturday at 5.00pm.
(g)on the Child’s birthday as follows:
(i)on a school day from school breakup until 7.00pm, the Father to collect the Child from the school and return to the outside of the Mother’s home;
(ii)on a non-school day from 1.00pm until 6.00pm, the Father to collect and return the Child from and to the outside of the Mother’s home, and in the event the Child is otherwise in the Father’s care on the non-school day pursuant to these orders, he shall be returned to the Mother from 1.00pm until 6.00pm on that day;
(h)at such other times as maybe agreed upon in writing.
The Child may communicate with the Father and Mother by telephone or electronic means of communication at any time.
The Father shall by these orders be authorised to receive from the Child’s school a copy of all printed material, including photos, at his expense if any, which the school produces for release to parents in relation to the Child’s social and academic progress.
The Father be at liberty to attend all school functions which parents are at liberty to attend including school concerts, school sporting events and parent teacher meetings.
The Father and Mother be restrained from permitting the Child to be interviewed or examined by any psychologist, counsellor or medical practitioner in relation to any allegations of abuse concerning the Child, save for where the interview or examination occurs by mutual written agreement of both parents or by order of the Court, except in an emergency.
The Father and Mother, their servants and agents, including members of their family or their partner, be restrained from:
(a)discussing these proceedings or any affidavits or reports which form part of these proceedings with the Child or within his hearing;
(b)denigrating, insulting or abusing the other parent or any member of their family or their partner, to the Child or within his hearing.
Except where otherwise specified in these orders, changeover shall be at the (omitted) in (omitted), outside of the front entrance.
All extant proceedings be dismissed.
The appointment of the Independent Children’s Lawyer be discharged.
The provisions of ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) apply hereto.
Certificate for Counsel.
If either party seeks costs, then written submissions should be filed within 14 days and any written reply to those submissions within a further seven days and the issue of costs will be determined by the Court on the papers.
IT IS NOTED that publication of this judgment under the pseudonym Sitch & Jacobs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10230 of 2009
| MS SITCH |
Applicant
And
| MR JACOBS |
Respondent
REASONS FOR JUDGMENT
Introduction
It is fair to observe, as Counsel for the Independent Children’s Lawyer did in final submissions, that this is a difficult, complex and finely balanced case. Essentially, following several years of co-operative parenting concerning the child of their relationship (X, born (omitted) 2004),[1] the mother (Ms Sitch born (omitted) 1977)[2] and the father (Mr Jacobs, born (omitted) 1976)[3] disagreed fundamentally concerning the causes and treatment of a condition regarding the Child’s penis and a later alleged attempt at self-harm by the Child and which consequently destroyed the previously co-operative relationship between the Mother and the Father.
Orders sought
[1] “Child”.
[2] “Mother”.
[3] “Father”.
Mother
The orders sought by the Mother are that:
a)the Mother and Father have equal shared parental responsibility for the Child;
b)the Child live with the Mother;
c)the Child spend time with the Father each alternate weekend, on Wednesday of each alternate week and for half of the school holidays and the usual special days and by telephone at reasonable times;
d)that changeovers occur at the (omitted) train station, when not occurring at school;
e)there be restraints in relation to bathing or showering with the Child, denigration of the other parent or their family and being under the influence of alcohol;
f)authorisation for each parent to communicate with medical practitioners, school and to attend school functions and to advise of any serious illness; and
g)the Child attend school unless he has a certificated medical illness.
Father
The Father seeks orders for:
a)sole parental responsibility for the Child;
b)the Child to live with the Father and spend time with the Mother on alternate weekends, holidays and special days and by telephone;
c)various orders with respect to restraining the Mother in relation to medical and quasi-medical examinations;
d)the usual restraint type provisions with respect to discussion of the proceedings and notification of any illness or injury suffered by the Child; and
e)an order restraining the Mother from instituting proceedings without leave of a Judge of the Court first had and obtained.
Independent Children’s Lawyer
In essence, the Independent Children’s Lawyer[4] recommended in final submissions, orders that the Child continue to reside with the Mother, with alternate weekends and one night in the other week with the Father and the usual orders for half of the holidays with the Father. The ICL also seeks ancillary orders with respect to issues associated with comment and non-denigration of the other parties and restraints on medical and quasi-medical examinations other than with the written agreement of each party.
[4] “ICL”.
Evidence
The evidence which the Court has considered for the purposes of these reasons includes:
a)affidavits filed by the Mother dated 16 November 2012; 14 June 2013; 15 July 2013; 26 July 2013 and 7 August 2013;
b)the affidavit of Ms S (the maternal grandmother) of 7 August 2013;
c)various police and medical records including records from the (omitted) Medical Service, the (omitted) Medical Service, various subpoenaed material from Victoria Police and a letter from a paediatrician, Dr C;
d)affidavits of the Father of 29 November 2012; 9 May 2013; 3 July 2013; 22 July 2013 and 20 August 2013;
e)affidavit of Ms J, the Father’s current partner,[5] of 20 August 2013;
f)a Department of Human Services[6] case note[7] dated 18 July 2013; and
g)the Family Report by Dr B.
[5] “Father’s Current Partner”.
[6] “DHS”.
[7] “DHS Case Note”.
Background prior to incidents leading to the current application
The Father and Mother were married on (omitted) 2003 and separated in either December 2007 or June 2008. It is unnecessary to decide precisely when they separated. A parenting plan was subsequently agreed for the Child in the latter part of 2008 and in late 2009 or early 2010, the Mother and Father divorced. The Father subsequently met the Father’s current partner, they commenced to go out and began to reside together approximately a year later in mid-April 2011. In April 2012 the Father and the Father’s current partner began living in a home they purchased in January 2012.
The events primarily the subject of this application
The events primarily the subject of this application are as follows:
a)in June 2012 the Mother took the Child to see the family doctors at the (omitted) Medical Clinic in relation to a complaint by the Child of painful urination or an irritated penis which resulted in a doctor noting that the Child had a urinary tract infection;
b)in July 2012 the Mother returned to the (omitted) Medical Clinic on three occasions and on the third occasion as a consequence of seeking a second opinion, saw two different doctors in relation to the Child’s penile symptoms, which on the third occasion included complaints of a red foreskin and red urethra (as noted by one doctor) and a simple inflammation and hygiene issues (as noted by another doctor);
c)in August 2012, the Mother raised the issue with the Father indicating that the Child had a medical problem or, on the Father’s account, had been “tampered with”;
d)on 22 August 2012 the Mother, Father and Child attended on a consultant paediatrician, Dr C, who examined the Child’s penis and who advised that in his view there was no major abnormality and no review was necessary;
e)on 17 September 2012 the Father obtained attendance records from the Child’s school, which indicated significant absences between 23 June 2012 and 13 September 2012 for medical reasons. The Father took the Child to see another doctor who provided the Child with a clearance to attend school and who also examined the Child’s penis noting that there was mild redness but no ulceration;
f)the Father alleges that on and from 12 October 2012, the Mother withheld the Child contrary to the terms of the parenting plan which had been adhered to since November 2008;
g)in mid-October 2012 the Mother took the Child to the (omitted) Hospital,[8] and ultimately saw Dr S, the details of which are set out further below;
[8] “(omitted) Hospital”.
h)in the latter half of October 2012, DHS received reports concerning the Child alleging he had had either ulcerations or a blister on his penis for approximately five months and that he had been taking naked spa baths with the Father and the Father’s current partner and exhibiting sexualised behaviours. The Child was interviewed by the Sexual Offences and Child Abuse Investigation Team[9] and made no disclosures and likewise made no disclosures which were relevant to any allegation of sexual assault to medical and allied health professionals at (omitted) Hospital. Part of the case work done by DHS is set out in further detail below;
[9] “SOCIT”.
i)in November 2012 the Mother obtained an interim ex parte intervention order and made further allegations in relation to the penile symptoms suffered by the Child and the Child’s general welfare (and in particular to his clothing and eating) when in the care of the Father;
j)on 16 November 2012 the Mother filed an initiating application in this Court and in her affidavit alleged that the Child had been exposed to naked spa baths with the Father and that the Father had been intoxicated when with the Child at various times;
k)in late November 2012 the first return of the intervention orders occurred;
l)on 1 December 2012 the Father alleges that he was denied time with the Child on the Child’s birthday;
m)on 3 December 2012 on the first return in the then Federal Magistrates Court, interim parenting orders were made by then Federal Magistrate Burchardt;
n)in December 2012 there were further accusations by the Mother made to the police and the (omitted) Clinic concerning the Father’s care of the Child and on Christmas Day 2012, a report was received by DHS’s after-hours emergency service that the Child had disclosed that the Mother had been taking photos of his penis;
o)on 22 January 2013 the Child was interviewed by SOCIT officers in relation to the allegations of penis photographing by the Mother, but made no disclosures except to say that he thought he was there in relation to the Father’s current partner slapping him on the face but when questioned on that, disclosed that his Mother had made him say that and that it was not true;
p)on 24 January 2013 the Mother was contacted by DHS and acknowledged having taken photographs of the Child’s penis (at a much earlier stage) and said that she had been advised to do so by police and by her lawyers. She also admitted performing Reiki techniques on the Child, but said that this occurred clothed and was not on his penis;
q)in February 2013 a Magistrates Court hearing with respect to the intervention order was adjourned;
r)in mid-February 2013 DHS were contacted by the Mother alleging that the Child had disclosed that the Father tongue kisses the Child, puts his finger in the Child’s anus and that the Child had seen the Father having sex with the Father’s current partner. The Child was subsequently interviewed by SOCIT officers and advised that the Mother had told him to say these things but none of them were true;
s)in March 2013 the Father was required to attend upon the police in relation to an alleged minor breach of the intervention order;
t)in April 2013 the Father says that he was advised by SOCIT that the Mother had coached the Child in relation to certain allegations, exposed the Child to adult concepts and punished the Child for failing to say things that she required to the police;
u)in June 2013 DHS expressed concern with respect to possible harm to the Child emotionally and psychologically if the Mother was coaching the Child to say things about the Father which were untrue; and
v)in July 2013 the Father reported an alleged attempt at self-harm by the Child, the detail of which, together with the DHS case work, are set out below.
The referral to Dr S at (omitted) Hospital
The Child was ultimately the subject of a referral by his general practitioner to a Dr S at the (omitted) Hospital. In October 2012, the Child went to see Dr S. The Mother expressed her faith in Dr S and indicated that she accepted her opinion that the injury to the penis was not the subject, or the result of, sexual abuse.
Dr S provided a written report to SOCIT about the Mother’s concerns that the Child had been sexually assaulted, consequent upon comment by the Child that he, his Father and his Father’s current partner had been in the spa bath naked together and that the Child had had a five month history of penile symptoms.
Dr S recounted the history at considerable length but it is a history which is not inconsistent with the overall thrust of the matters set out above, namely that the Mother had a concern about the Child’s penile symptoms and raised those concerns with various medical practitioners as well as the Child’s school and SOCIT. On 18 October 2012, Dr S conducted an extensive examination, both physical and by way of discussion with the Child and ventured her opinion as follows:
a)that it is difficult to determine the exact cause of the Child’s penile signs and symptoms but it may have been caused initially by having a macerated, that is waterlogged, penis following potentially long periods spent in the spa bath (at the Father’s house), which was then exacerbated by the Mother’s treatment of the injury, including continuing to apply Betadine daily for some months;
b)an ano-genital examination of the Child was entirely normal;
c)that it is possible that psycho-social issues are impacting on the Child’s perception of ongoing pain and in this context, noted that the Mother had been anxious and had had the Child’s penis examined a number of times during the preceding 12 months but that the cessation of the Betadine applications may also have contributed to the pain settling;
d)the initial description of the Child’s penile signs, as described by the Mother, would be unusual injuries to result from sexual assault;
e)that the Child has never alleged that he has been sexually assaulted but had confirmed that he had been in what is described as a spa bath situation at his Father’s, which includes having regard to earlier parts of the report, which on at least one occasion sets out the Child’s account of bathing naked in the spa bath with the Father and the Father’s current partner;
f)that displays of sexualised behaviour by the Child do not constitute definite indicators of sexual assault or sexual grooming but cannot be completely discounted, although unlikely;
g)the Child’s sexualised behaviours might indicate exposure to sexually explicit information or acts;
h)that there appeared to be differences in parenting styles with different views regarding parental nakedness, cigarette smoking and the consumption of alcohol and the playing of video games whilst in the Father’s care; and
i)moving between households can be unsettling and reports concerning the Child’s sleep patterns and irritability may relate to his being unsettled and tired as a consequence of such moving and the parents’ acrimonious relationship.
Dr S made the following recommendations:
a)that the Mother stop applying creams to the Child’s penis but continue to monitor his symptoms;
b)that the Child receives counselling with the school counsellor;
c)if there are ongoing concerns regarding the Child’s behaviours and learning then a general paediatric review might be beneficial;
d)that the parents remain clothed in the presence of the Child and implement the same boundaries regarding privacy between the two homes, with the Child to bathe or shower by himself; and
e)the Child’s family doctor to organise follow-up blood tests and provide ongoing medical care.
There appears to be an acceptance by both parties and the ICL, that the Mother’s conduct in 2012-2013 resulted in medical over-servicing of the Child and was potentially damaging to the Child. The evidence is conclusive that the Child was not sexually abused by anyone at any stage. The Mother realises she says, that she made an error in judgment in taking the Child to see so many medical practitioners over a short period of time but says that until she saw Dr S, she did not obtain a proper appreciation of all of the circumstances or a proper diagnosis of the Child’s penile symptoms.
It is arguable that the Mother persisted with the examinations in an attempt to obtain a particular outcome that is, to sabotage the relationship between the Father and Child but in this regard she failed.
The Father asserts that unsubstantiated claims of sexual abuse can result in a change of residence upon application.[10]
[10] Carnegie v Ginter[2013] FamCA 331.
The self-harm incident – July 2013
The Father alleged self-harm incidents in July 2013 whilst the Child was in his care involving the Child tying a blanket around his lower legs, a toy snake around his mouth and neck and a hand-knitted football scarf around his upper body pinning his arms. There was also an assertion that the Child had disclosed to a carer that he gets angry and tries to hurt himself. These incidents were reported to DHS by the Father. The Father also reported an incident to DHS where the Child allegedly had blood on his head.
The Court believes that the self-harm incident occurred in the manner described by the Father and the Father’s current partner. The incident is, in the Court’s view, open to a variety of interpretations. The Father and his partner appear to have adopted the worst possible interpretation of the self-harm incident. It is easy to be critical in hindsight of the Father and the Father’s current partner adopting such an interpretation and it is only with the benefit of hindsight that a judgment can be made that they did in fact overreact to the self-harm incident.
The overreaction by the Father and his partner to the self-harm incident did, however, set in train an intense period of activity marked especially by a particularly prompt and thorough investigation and examination of the circumstances of the self-harm incident and the likelihood of self-harm by the Child by DHS. That investigation and examination revealed a number of important aspects of issues associated with this case which might otherwise have been obscured but for the prompt and thorough work carried out by DHS.
With respect to the report that the Child had “blood on his head”, the Father did not take the Child to a doctor. The Court has to question why and the answer may perhaps be that the Father considered that the Child had seen too many doctors of recent times but if there was a genuine concern that there was blood on his head, then the Father’s failure to take the Child to a doctor is a significant one. Instead, the Father returned the Child to the Mother. The Father did so in circumstances where he had advised DHS of the fact that he thought that the Child may be self-harming. Consequently upon return to the Mother, the Child was interviewed by DHS. At this time (subsequent to the Mother attending the parenting course) she evinced a concern as to the Child’s welfare and took the Child to a general practitioner for a physical examination which, in the circumstances, was quite proper because of the Father’s allegations of self-harm.
The doctor who examined the Child reported to DHS that the Child was comparatively fit and healthy with no injuries to speak of and that the “blood” was in fact oil and that there was no injury to the Child’s scalp.
The Father and the Father’s current partner, engaged in a period of intense activity with respect to the allegations of possible self-harm by the Child, in circumstances where the Child was on the point of being returned to the Mother. It is arguable that the allegation was made to raise a concern that the Child did not want to return to the Mother.
On the basis of the evidence, there was no credible evidence of any actual self-harm by the Child or any intention by the Child to self-harm.
The DHS investigation
As a result of the self-harm allegations made by the Father, there was a DHS investigation. Part of that investigation involved an interview with the Child at his school by a social worker. The Case Note prepared by the social worker as a consequence of that interview is instructive and relevant to the disposition of this matter and is set out in large part hereunder:
…
X presented as healthy and happy. X was dressed in clean and appropriate school clothing. X had just got a hair cut and had his hair in a mow hawk [sic: mohawk] which he appeared very pleased about. X appeared calm, chatty and did not present with any emotional distress during the visit.
…
In relation to the school holidays with mum
- X advised that he watched movies with A who’s the next door neighbour
- X advised that they ate popcorn
- X advised that they went to an almost fancy restaurant
- X advised that he played board games with his mum and they played snakes and ladders and monopoly
In relation to school holidays with dad.
- X advised that he played (omitted)
- X advised that his dad passed the scropion [sic] boss
- X advised that he didn’t do much at all
- X advised that went to the park and played cricket and footy with his dad
In relation to how things are at mum’s house
- X advised that things are pretty good
- X advised that when he was at his dad’s house his friend B was looking for him because he wanted to play with him
- X advised that he was missing them but he has friends at both houses
In relation to school
- X advised that his dad took him to a new school and said he would be going to two schools
- X advised that he thinks (omitted) Primary School is a bit better because it has more space
- X advised that his dad showed him the new school and told him that he didn’t want the judge to know that he had two schools
In relation to the judge
- X advised that his dad said that the judge is vicious sometimes
- The writer asked X what he meant by vicious and X advised that he meant that he could be nasty
- X advised that his dad reckons that the judge told him to actually send me back to his mums
- The writer asked X if there was something wrong with going back to his mums
- X advised that his dad hates his mum
- X advised that Ms J hates his mum more and said she’s a bitch and that (omitted) the dog would kill her
- X advised that he feels very upset when his dad and Ms J say these things because his mum is nice
- X advised that Ms J reckons that the judge is a bitch
- X advised that he felt good about going home to his mum because he was missing his mum
- X advised that his father was crying to death when he had to go home
The writer asked X how he felt about what the report said
- X said he felt good
- X advised that he likes his dad too
- X advised that he feels good whever [sic] he’s going
- X advised that he feels good about everything
In relation to safety
- X advised that there’s nothing that made him feel unsafe
…
In relation to worries
- X advised that he didn’t have any worries
In relation to feeling angry
…
- X advised that his mum and dad make him mad but he didn’t want to tell the writer why
- …
In relation to feeling upset
…
- X advised that his parents don’t make him upset unless they give him a smack when he’s done nothing wrong
- X advised that this didn’t happen very often
…
In relation to people X can speak to if he’s feeling upset, angry, unsafe or worried
- X advised of the following people
- The writer (Ms L)
- Mum
- Dad
- Teacher
- Mr L (Principal)
…
- The writer asked X what would he like to see happen if he got to pick
- X advised that he would like his mum and dad to marry and he would like to live with both of them in the one home. X advised if this didn’t happen he just wants to go from house to house and live with both parents.
The Family Report
The Family Report noted that relations between the parents had broken down during 2012, with the Mother making various accusations in relation to the Father including allegations of sexual abuse. The Family Report writer observed that the Father presented as unassuming, sincere and not disingenuous, which was in stark contrast to the Mother who in the Family Report writer’s view was intent on besmirching the Father’s parenting capacity and raised issues concerning the Father’s care of the Child. The Family Report writer notes that the Child had about 30 different appointments, assessments and interviews with police, DHS, doctors, social workers and a psychologist in relation to the Mother’s allegations of sexual abuse but that the Child had not mentioned the allegations of sexual abuse to any of those persons. The Family Report writer also expressed concerns about alleged coaching of the Child by the Mother in relation to what the Child was to say at those appointments but that the Child had made no disclosures of any sexual abuse to anyone during the period concerned. It was further observed that the Child revealed no apprehension or discomfort in the presence of the Father.
The Family Report writer also noted that the Father raised concerns about the Mother’s mental health and the Family Report writer observed that there had been no formal appraisal of the Mother’s mental health for present purposes. Based on what was said to be a fundamental inability to incorporate the feedback of professionals together with her unshakable belief that the Child had come to sexual harm, the Family Report writer said that he had substantial concerns regarding the possibility of mental illness. It was suggested that the Court may benefit from a specialist assessment via a psychiatrist or clinical psychologist.
The Family Report writer expressed concern about the Mother’s taking the Child to so many interviews and assessments and that the Child indicated that he had been coached to say things that were untrue. In the Family Report writer’s view, this may have confused the Child. The Family Report writer also raised a question as to whether or not the Mother’s treatment of the Child’s penis, by applying inappropriate topical treatments, might have irritated and exacerbated the Child’s discomfort, although noting that this was a medical question requiring a medical opinion.
The Court is concerned that the Family Report writer has expressed views in areas outside of his area of expertise as to the possible psychiatric condition of the Mother and as to her medical treatment of the Child. Although the views were qualified, the thrust of the views which the Family Report writer was not qualified to give, were adverse to the Mother.
The Family Report writer noted single instances of both the Mother and Father bathing naked with the Child.
The Family Report writer noted that it had been suggested that the Child had engaged in splitting-type behaviours but suggests that the Child was uncomfortable concerning the Mother’s alleged attempt to influence his disclosures.
The Family Report writer observed that the Child did not evidence any apprehension, disinterest or avoidance when with each parent and appeared to feel relaxed and familiar with both parents.
The Family Report writer did not consider that any reduction in time with the Father (as suggested by the Mother) was likely to be in the Child’s best interests as the Child had a positive relationship with the Father. The Family Report writer expressed concerns about the Child living solely in the care of the Mother based upon the potential for the Child to continue to be unnecessarily presented to professionals and to be coached and emotionally manipulated.
The Family Report writer suggests that a change in residence is a realistic option for the Child if the Court were to be satisfied as to four key factors identified by the Family Report writer. The Family Report writer suggests four factors which might tell against the Mother with respect to the issues in contention. The first was that she allowed excessive interviewing and examination of the Child by medical practitioners. The Mother does not now seriously dispute this issue but says that following her attendance at a post-separation parenting course, she realised that what she did was wrong. She does however say that at the time she was following advice and at least on some occasions this may have been true. Secondly, the Family Report writer suggests that the Mother has misrepresented or falsified the Child’s statements. In the Court’s view the Child has said what the Child has said to various of the parties and others involved in this matter and the parties have tended to believe what the Child has said to them and acted upon what the Child has said to them often in a somewhat irrational manner. This applies both to the Mother’s propensity to have the Child medically examined and the Father’s allegations of self-harm. Thirdly, the Family Report writer says that the Mother encouraged the Child to be dishonest with the authorities. For reasons set out above, neither party encouraged the Child to lie to the authorities, albeit that the Child might have been encouraged to do so by the reactions of the Mother and Father to what he said. It is fair to observe that the Child has in the Court’s view, engaged in splitting behaviour which is not uncommon in the circumstances but the Court does not consider that the Mother or the Father has encouraged the Child to be dishonest with the authorities. Fourthly, the Family Report writer says that the Mother has endeavoured to sabotage the relationship between the Father and the Child. In the Court’s view, there is no significant evidence in relation to this. The Mother took a particular view as to the necessity to have the Child examined in relation to the injury to his penis and whilst this might have been unwise, the Court is in no doubt that it was motivated more by a desire to ensure the Child’s safety than damage the relationship between the Child and the Father. It was, for better or worse, a somewhat stupid overreaction to how the Child was presenting although the Mother does say that she was following medical advice in having the Child examined. In any event, it is clear from the Mother’s evidence and her participation in the post-separation parenting course, that she is more likely to be supportive of a relationship between the Father and the Child than the Father is to be supportive of a relationship between the Mother and the Child.
The Family Report writer ultimately recommended that, subject to the Court’s views on the above four factors, the Child should transition into the home of the Father with regular time spent with the Mother. It was also suggested that it would be prudent for the Court to place some restriction on the Mother’s capacity to take the Child for medical appointments or assessments and that the necessity to do so be canvassed with both parents.
In relation to the Family Report, the Court notes that the determination of what is in the best interests of the Child is ultimately one for the Court to make and not the Family Report writer.[11]
[11] Hall & Hall (1979) 5 FamLR 609.
It is of concern that certain excerpts from the Family Report were disclosed to the Child by the Father. That is indicative of the Father not endeavouring to maintain a positive relationship between the Child and his Mother but rather seeking to reinforce his own position by reference to what was said by the Family Report writer.
A significant difficulty with the Family Report is that the Family Report writer failed to interview the Child as to the Child’s views about who he wanted to live with. The Family Report writer concedes that this is a significant omission.
The Court has determined that it ought not request a further Family Report as seemed to be suggested in passing by some of the submissions from both the Mother and the Father, as the Court agrees with the ICL that there is a need for finality ongoing certainty in this matter rather than a referral for a further Family Report.
The Mother’s mental health issues and the necessity for a psychiatric assessment
The Father sought to raise at the hearing issues associated with the Mother’s mental health. It is admitted that the Mother had a mental health issue when the Child was one year old (ie, more than seven years ago now). There have been no mental health issues since that time although the Father seeks to draw a line between the conduct of the Mother in 2012 and her earlier mental health issues. The Father concedes that the Mother had no mental health issues and that her mental health was good in his view, until the time of the incidents the subject of this application from about June 2012 onwards.
The Father’s position on the necessity for a psychiatric assessment of the Mother changed in final submissions and he urged that the Mother be required to undergo a psychiatric assessment although as was pointed out by the Court and not demurred from by the Father, this would probably be unnecessary if orders were granted in the Father’s favour.
The Father sought an adjournment for a psychiatric assessment of the Mother to be conducted. Interestingly, the Mother was prepared to undergo a psychiatric assessment.
The position of both the Mother and the Father at the outset of the hearing was that psychiatric assessment of the Mother was not sought.
The position of the ICL was that there should be no psychiatric assessment of the Mother. The ICL submitted that there was no evidence to warrant a psychiatric assessment of the Mother. The Father’s case rose no higher than trying to draw a line between the Mother’s earlier mental health episode in 2005-2006 and her conduct in 2012-2013 in relation to the allegations of sexual abuse of the Child by the Father. In those circumstances, it was submitted by the ICL that ordering a psychiatric assessment of the Mother was not warranted on the evidence. The ICL further submitted that what was required in this case was finality, because that was in the best interests of the Child who was concerned and affected by the ongoing conflict and argument between the Mother and Father as revealed by the Child’s DHS interview.
The Father’s suggestions are those of an unqualified person and his change of position in final submissions to seeking an order for psychiatric assessment appears to be:
a)without any basis in any recent act by the Mother; and
b)opportunistic and based upon the Family Report writer’s comments.
Insofar as the Father’s submissions suggest that the Mother’s actions in 2012-2013 suggest the need for a psychiatric assessment, it is appropriate to observe that whilst the Mother’s actions might have been ill-advised, there is nothing to suggest that they arise from any psychiatric illness.
There was nothing in the Mother’s approach to the proceedings which, in the Court’s view, is indicative of any need for psychiatric assessment.
There is no or no sufficient link between the events of 2005-2006 when the Child was one year old and the present and more particularly, the Mother’s conduct in the period 2012-2013, including her conduct in relation to allegations of sexual abuse made against the Father which would warrant an order for psychiatric assessment.
In the circumstances and given the necessity to bring this matter to some degree of finality, the Court does not consider that it is necessary to either order a psychiatric assessment of the Mother or to adjourn to allow a psychiatric assessment of the Mother to be conducted. The Court agrees with the submissions by the ICL that there is a necessity to bring some finality to this matter and not to have ongoing interim orders. To do so is in the best interests of the Child. In any event, there is no sufficient evidence which would properly support the necessity for a psychiatric assessment of the Mother.
Parent’s compliance with Court orders
Mother
The Mother has been involved in no contravention of or interference with any orders in this matter since orders were first made on 3 December 2012 by the then Federal Magistrate Burchardt. It is a significant factor that she has complied with and adhered to the orders therefore enabling the Child to have a proper relationship with the Father.
Father
The Father failed to comply with the orders in this matter in July 2013 at the time that he raised allegations of potential self-harm by the Child. In this regard, the Father pre-empted the making of orders by the Court but says that he did so out of concern with respect to the Child’s potentially self-harming. The Father withheld the Child from school and involved DHS as a consequence of the Child’s alleging self-harm. On the evidence, however, the Father significantly overreacted as there was no particular evidence of potential self-harm by the Child.
Consideration
The Court sets out below its consideration of the primary (s.60CC(2) and other (s.60CC(3)) factors for consideration. In so doing, the Court is cognisant of the necessity to have overall regard to the best interests of the Child.[12]
Benefit to the Child of having a meaningful relationship with both parents – section 60CC(2)(a)
Parental facilitation and encouragement of a close and continuing relationship between the Child and other parent – section 60CC(3)(c)
[12] Section 65AA(1), (2) and (3).
Attitude to the Child and parental responsibilities – section 60CC(3)(i), (4) and (4A)
There is a very long history of cooperation post-separation between the parents without the need for Court orders. There has been respect, cooperation and shared parenting historically without a scintilla of a problem until the events which commenced in June 2012.
On the evidence at hearing, it appears that the Mother is more prepared to foster a relationship between the Child and the Father than the Father is prepared to foster a relationship between the Child and the Mother. The Father and the Father’s partner evinced no idea as to how to repair the damage done to the relationship by recent events. There is a very real risk in those circumstances that they would not endeavour to repair the relationship with the Mother if the Father’s application for change of residence for the Child were to be successful. The Father specifically observed that it was difficult for his family to be kindly disposed to the Mother. The Father’s view in relation to these matters is not assisted by the Father’s current partner who appeared overtly hostile to the Mother.
In terms of future parenting, the Mother gave credible and creditable evidence with respect to respecting the Father’s role and his right to have a relationship with the Child. On the evidence, the Mother evinces a greater future capacity to ensure that the Child maintains a proper and appropriate relationship with the Father than does the Father with respect to the Child’s maintenance of a relationship with the Mother and as indicated above, the latter is not assisted by the possibly negative influence of the Father’s current partner in that regard. Whilst the Father did indicate that he was desirous of the Child maintaining a relationship with the Mother, he was devoid of ideas to how this might be facilitated if there was a change of residence.
The facts of the Father’s new partner’s intense dislike of the Mother are views which have been made known by her to the Child. If the Child were to live with the Father, the Court is concerned that the impact of those views and the seeming acquiescence in them by the Father would be damaging to the long-term relationship between the Child and the Mother which has been the primary care-giving relationship to date in the Child’s life and moreover, until the events of April 2012, one in respect of which there appear to have been no or no significant problems. It is also not without significance that the Child leaves the Father’s current partner off the list of persons whom he would trust when asked about that by DHS.
In the circumstances, the Court is of the view and agrees with the ICL in this regard that the Mother is more prepared to foster a relationship between the Child and the Father, than the Father is prepared to foster a relationship between the Child and the Mother.
The Mother has done a post-separation parenting course which is entirely appropriate and which she says has assisted her to realise the difficulties that she caused by having the Child examined so frequently and which has assisted her in general terms, to take the view that she ought to move forward and not back and in realising the importance of the parental role in relation to the Child.
The Mother undertook the post-separation parenting course voluntarily. Neither the Father nor the Father’s partner has undertaken such a course.
The Court considers that what the Mother said with respect to the parenting course was sincere and she did not strike the Court in any way as dissembling.
There can be no doubt that the Child ought to have the benefit of a meaningful relationship with both parents. At the present time, the Child does have the benefit of a meaningful relationship with both parents notwithstanding the events of 2012 and 2013 in relation to the numerous medical, police and DHS examinations, primarily as a result of the Mother’s conduct but also in part, as a consequence of the Father’s conduct. It is clear from the material before the Court, particularly the DHS Case Note and the Family Report, that the Child has a meaningful relationship with both parents and loves both parents equally. This is evident from his comments that he wished that they would remarry. Significantly, however, the Child does not include the Father’s current partner amongst those whom he trusts.
The Mother, apart from the 2012-2013 events, has facilitated a meaningful relationship between the Child and the Father throughout the years of their separation. The events of 2012-2013 had significant potential to harm, perhaps irretrievably, the relationship between the Father and the Child. They did not, however do so and apart from the serious allegations made, there is no evidence that the Mother took extraordinary steps to further damage the relationship between the Father and the Child. The evidence before the Court now indicates that the Mother realises that what she did in relation to the events of 2012-2013 was wrong and now and in particular having done the post-separation parenting course, she realises that it had the capacity to damage the relationship between the Child and the Father. At hearing, the Mother gave cogent evidence in relation to her present understanding and intentions with respect to fostering the relationship between the Child and the Father and there is no reason on the evidence to suggest that she will not do so. Furthermore, if the Mother does so in the manner that she has done in the past, save for the events of 2012-2013, then there is no reason to believe that the Child will do anything other than develop a solid and meaningful relationship with the Father (within the normal limitations of Court orders which limit the amount of time that the Child spends with the Father).
The Father and the Father’s current partner no doubt have the Child’s best interests at heart but have probably made errors of judgment in relation to the self-harm incident. The Court has no doubt that the Father will ultimately seek to foster a relationship with the Mother, although at hearing he was concerningly bereft of ideas as to how this might occur.
The Mother must be given significant credit as the primary caregiver for the Child since his birth. Her role in that regard cannot be ignored or cast aside and all the indications are that apart from the Child’s “splitting” behaviour and perhaps a minor propensity to be dishonest, that he is making good progress both socially and at school. The Mother has also facilitated time with the Father without the necessity for Court orders until December 2012 and then in compliance with the Court’s orders.
The relationship with the Father is facilitated by the Mother’s compliance with Court orders and save for the incident in July 2013, the Father has facilitated the Child seeing the Mother in accordance with the Court orders. The Mother has participated at school appropriately with the Child.
Both parents appear to have overreacted to certain situations concerning the Child and the Child appears to have been engaging in behaviour known as “splitting”, which arises as a consequence of intense conflict between parents and results in a child behaving differently in each house. Significantly, when interviewed by DHS, the Child was equally critical of both the Mother and Father in the sense that he queried why they argued so much and why they could not simply remarry.
In relation to the alleged disclosure to DHS by the Child that the Father had allegedly told the Child that he would be attending a new school, the Father accuses the Mother of coaching the Child as to what to say. At this time, however, the Mother would have had very little opportunity to do so as the Child had been in the Father’s care for the prior 11 days and when the Child returned to the Mother, there was an intense period of activity where the child was involved with DHS and its investigation of the allegation of self-harm made by the Father.
The Father concedes taking the Child to the playground of the school which the Child says he nominated as the Child’s new school and in circumstances where the Father in all likelihood considered that the Family Report suggested that the residence of the Child would change, the Court is prepared to infer that the Father did refer to this school as the Child’s new school, or use words which effectively suggested that to the Child.
Given that both parties have acted in a manner which is adverse to the Child’s interests in relation to the events of 2012 and 2013 and albeit that the Mother’s actions were probably the more egregious as a whole, the Court is not satisfied that there is sufficient evidence to warrant a change in the present live-with and time-spent arrangements at least to any significant degree. Rather, the present evidence suggests and in particular, the evidence over the long term and in particular prior to the events of 2012-2013, that a meaningful relationship with both parents will be best facilitated by the Child living with the Mother and spending such time as the Court orders with the Father.
Risk of Harm to the Child – section 60CC(2)(b)
Each party has made allegations of various forms of harm, abuse or neglect in these proceedings which the Court has considered.[13] The significant allegations of sexual abuse, physical and emotional abuse have not been made out. There is no doubt that the Mother overreacted and that the Child was seen, examined and investigated more than was necessary in 2012-2013. But at the end of the day, all of the reports appear to indicate that the Child is reasonably normal and aside from splitting behaviour, which is not unusual in these circumstances, a reasonably well-adjusted child who is doing well at school and socially. There is some evidence of minor outbursts and minor dishonesty on the part of the Child, but nothing which appears to take the Child’s conduct outside of any normal range of behaviour for a child of his age and physical and mental development.
[13] As to which, see W & W [2005] FamCA 892.
As with the Mother, but not to the same extent, the Father manifestly overreacted to the circumstances in relation to the allegations of self-harm by the Child. The Father also acted inappropriately in not taking the Child to see a doctor, whereas the Mother quite appropriately in those circumstances did so. The fact that the Father having alleged self-harm by the Child and alleged that the Child had blood in his hair, failed to deal with the Child’s own circumstances and own needs in an appropriate manner is of concern. The Mother in this instance dealt with the issue appropriately including her cooperation with DHS.
It is difficult to know what to make of the allegations with respect to the Child being in the spa with the Father and the Father’s current partner all allegedly naked. It may as Dr S suggested, simply reflect different boundaries and approaches to the issue of nakedness in the family. Alternatively, it might reflect and the Court suspects this to be the case, a different attitude on the part of the Father to matters relating to sexual conduct, drinking and leisure activities (such as engaging in video games) than that of the Mother. But again, on the evidence, no particular harm appears to have been suffered by the Child. The evidence in this regard and the evidence as to alcohol consumption by the Father, do not warrant the making of particular orders concerning bathing the child or consuming alcohol in the Child’s presence.
It doubtless goes without saying but if either parent were to reengage in activities similar to those engaged in in relation to the events of 2012-2013, that might constitute grounds for the Court considering an application to vary any orders that it makes as a consequence of the applications presently before it. The Court considers in all of the circumstances, that a repeat of the events of 2012-2013 is not a significant possibility but the parties should be in no doubt as to the possible future outcomes of a repeat of that conduct.
In all the circumstances, the Court is not satisfied that a change in the existing live-with and time-spent arrangements is necessary to protect the child from the risk of harm. Furthermore, given the events of 2012 and 2013, both on the part of the Mother and the Father and having regard to the evidence given by each, the Court is of the view that neither would in the future deliberately expose the Child to any risk of harm.
Views expressed by the Child – section 60CC(3)(a)
Although the Child was only eight years of age at the time of the DHS Case Note and although the Child was not specifically asked by the Family Report writer as to the live-with and time-spent arrangements, the Court has had some regard to the views otherwise expressed by the Child to both DHS and the Family Report writer. The Child did not express an adverse view about the time spent in either the Mother or the Father’s home but insofar as the Court can place weight upon the Child’s view, it would appear that the Child would be happy in either the home of the Father or the Mother.
Relationship of the Child to parents and other significant persons – section 60CC(3)(b)
The relationship with the Child’s parents is dealt with in large part above in relation to the relationship issues between the Child and the parents. In terms of other significant persons, the maternal grandmother has had some involvement with the Child and gave evidence. For reasons set out above in relation to the Mother, the Court is of the view that if the Child were to live with the Father, the Child’s significant relationship with the maternal grandmother might, similarly and by extension, be adversely affected. The Father’s current partner is also a significant person in the Child’s life and overall, despite the Child not including the Father’s current partner as a person that he would trust, it does not appear that there is any significant difficulty in the relationship between the Child and the Father’s current partner when the Child spends time with the Father.
The Court also notes that the Child’s current school principal and teacher were said by him to be people that he trusted. To that extent and bearing in mind the limited weight to be attached to the Child’s views given his age, the principal and teacher are significant persons in the Child’s life and it would be preferable not to disturb that relationship if possible.
Likely effect of changes in the Child’s circumstances – section 60CC(3)(d)
The Child has generally been functioning well at school and making good progress socially, mentally and academically. DHS interviewed the school principal as part of the self-harm issues in July 2013 and the principal raised no issues of concern in relation to the Child’s progress at school. The Child is doing well at school and has made friends and has stable relationships within the school community.
The Child’s schooling constitutes a significant and stable element in his life and there is a sound argument to support the proposition that in those circumstances, there should be no change of school and hence no change of residence.
The Court notes that the Child’s primary spheres of activity at his current age revolve around his Mother and his Father’s residences and school and the relationships arising out of the school environment including the principal, his teacher and friends from school. In the circumstances, a change of residence resulting in a change of school would be likely to be contrary to the best interests of the Child as it would adversely affect those relationships.
Practical difficulty and expense of Child spending time and communicating with parents – section 60CC(3)(e)
The parents live about 45 minutes apart. There is sufficient proximity between the places at which they live to make it practical for the Child to spend substantial and significant time with whichever parent he is not living with. Aside from the events of 2012-2013, there is no evidence of a practical difficulty with the Child spending time in communicating with his parents. Whilst there is some evidence of the Father’s non-compliance with Court orders during the period of 2012-2013 and whilst that action ought not be condoned, it does not suggest that in the future practical difficulties are likely to arise with the Child spending time with the Mother and there is no evidence of additional expense or lack of communication otherwise. Furthermore, as the Child grows into his pre-teen years, the Court considers that other means of communication rather than physical time spent are likely to be important and the Court does not consider that any limitation ought to be imposed upon the Child’s telephonic or electronic communication with either the Mother or the Father.
There was some evidence in relation to the working commitments of the Father and the Father’s current partner, but no evidence that any of the existing arrangements arising from their working commitments were such as to cause difficulty with the Child spending time and communicating with the Mother and Father.
Capacity to provide for the needs of the Child – section 60CC(3)(f)
There does not appear to be any issue as to the financial capacity of the parties to meet the ongoing needs of the Child on an everyday basis. Such evidence as there is of the financial capacity of the Mother and Father, would indicate that they are capable of meeting the Child’s everyday physical needs. The conduct of both the Father and Mother during 2012-2013 does, for reasons set out above, present some cause for concern in relation to the emotional and intellectual needs of the Child. That said, there is no evident effect upon the Child in either intellectual or emotional terms when one has regard to his school record (and noting that notwithstanding his absences in 2012 he appears to have done relatively well at school) and the views expressed to both DHS and the Family Report writer. Whilst the potential for damage arising particularly out of the Mother’s actions in having the Child constantly the subject of examination and investigation in 2012-2013 might have potentially caused the Child damage, it does not appear to have done so (at this stage) and for reasons otherwise set out above, the Court is confident that there will be no repeat of the events of 2012-2013 by the Mother. There should, however, be an order requiring the Child’s medical treatment to be by consent except in an emergency.
Maturity, sex, lifestyle and background of the Child and Parents – section 60CC(3)(g)
The Court’s views in relation to this issue are sufficiently otherwise canvassed above.
Aboriginal and Torres Strait Islander Child – section 60CC(3)(h)
Not applicable in this case.
Family Violence or Family Violence Orders involving the Child or a member of the family– section 60CC(3)(j) and (k)
As indicated above, there is no evidence to sustain the allegations of child abuse and there is no or no significant evidence of any family violence, save for some minor conflict in and around changeover which seems to primarily relate to the events of 2012-2013. In the circumstances, the Court is of the view that family violence is not likely to be a future issue in relation to this matter. There is currently no intervention order which is relevant to these proceedings. The issue of suitability of venue of changeover is dealt with further below.
Order less likely to lead to further proceedings – section 60CC(3)(l)
Having regard to the history of the matter, including the fact that the Child has lived with the Mother since the time of separation, the Court is of the view that on balance, an order that the Child live with the Mother and spend substantial and significant time with the Father, together with an order for equal shared parental responsibility would be an order less likely to lead to further proceedings. An order that the Child live with the Father and spend substantial and significant time with the Mother would involve a significant dislocation in the present arrangements and would, even if only in the short term for a year or two, be more likely to result in further proceedings as any such arrangements were bedded down. In any event, for reasons otherwise set out, the latter is not an order that the Court proposes to make.
Other matters
Equal shared parental responsibility
The presumption of equal shared parental responsibility ought to apply in this case and an order for equal shared parental responsibility ought to follow. The evidence suggests that the parents of the Child have over the long term, demonstrated a capacity to deal with the issues arising in relation to the Child’s care and although the events of 2012 and 2013 are concerning, both the Mother and the Father continued by and large, to exercise shared parental responsibility during this period. There is nothing in the circumstances of this case which on the evidence would require the Court to give serious consideration to an order other than one for equal shared parental responsibility.
Equal time
Neither party seeks an order that the Child spend equal time with both parents. An order for equal time, whilst theoretically possible, would impose significant burdens in terms of the practicalities of everyday life and in particular, the Child’s schooling given that the parents live 45 minutes apart and the Father’s residence is a similar distance from the Child’s school. Those considerations make it impracticable in an everyday sense for the Child to spend equal time with each of the parents.
Substantial and significant time
In circumstances where the Court has reached the view that the Child ought to live with the Mother, it is appropriate that the Child spend substantial and significant time with the Father as the Child has been doing since the time of separation. Having regard to the factors considered above, the Court is satisfied that it is in the Child’s best interests to spend substantial and significant time with the Father, including one night every week rather than every alternate week.
Changeover
The parties could not agree on the place for changeover. Save where otherwise specified in the orders, the Court considers that the changeover should take place outside of the (omitted) on the corner of the (omitted) and (omitted) in (omitted). Although not exactly equally distant between the parties, it is sufficiently so to be an appropriate changeover point.
Future proceedings
In the Court’s view, an order restricting the Mother from taking future proceedings as sought by the Father is unnecessary. The current matter is the first time that the issues have been fully ventilated between the parties and apart from the interim proceedings before Judge Burchardt, (as he now is) and the intervention order proceedings in the Magistrates Court, there has not been a plethora of proceedings such as to warrant an order of the type sought by the Father.
School absences – medical certificates
The Court is of the view that it is unnecessary to make an order with respect to absences from school for the Child being required to be covered by a medical certificate. The Court as indicated above, is optimistic that there will not be a repeat of the events of 2012-2013. In any event, children miss school for reasons other than medical reasons and for that reason alone, such an order is not appropriate at this stage in this matter.
Conclusions and orders
The Court has concluded that the parents ought to have equal share parental responsibility, that the Child ought to live with the Mother and spend substantial and significant time with the Father and that there ought to be the usual orders with respect to facilitating the Father’s attendance at and information concerning the Child’s school and orders for the parties to be restrained from commenting and other ancillary orders in accordance with the foregoing reasons.
If either party seeks costs, then written submissions should be filed within 14 days and any written reply to those submissions within a further seven days and the issue of costs will be determined by the Court on the papers.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 7 March 2014
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