SNELL & BAGLEY
[2011] FMCAfam 526
•3 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SNELL & BAGLEY | [2011] FMCAfam 526 |
| FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – equal shared parental responsibility – whether one party should have sole parental responsibility for the child – best interests of the child – where the applicant had no biological connection with the child. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61B, 61DA, 61DB, 64B, 65C, 65DAA |
| Snell & Bagley [2009] FMCAfam 1144 Bagley & Snell [2010] FMCAfam 644 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS SNELL |
| Respondent: | MS BAGLEY |
| File Number: | SYC 5477 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 8 & 9 March 2010 |
| Date of Last Submission: | 9 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Christie |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Ms Cleary |
| Solicitors for the Respondent: | Dettmann Longworth Lawyers |
ORDERS
UNTIL FURTHER ORDER:
The Respondent is to have sole parental responsibility for the child [X] [SNELL BAGLEY] born [in] 2005.
The child [X] is to live with the Respondent.
The child [X] is to spend time with the Applicant as follows:
(a)From after school or childcare each Wednesday until the commencement of school or childcare on the Thursday morning; and
(b)
Each alternate weekend from after school or childcare until
3:00 pm on Sunday.
Notwithstanding the provisions of Order (3) above, the child is to live with the Respondent:
(a)On the Respondent’s birthday; and
(b)On Mother’s Day in each year.
That changeover between the parties should take place at the child’s school or childcare whenever appropriate.
BY CONSENT UNTIL FURTHER ORDER:
The parties are at liberty to show a copy of the Expert Report of Dr W to their treating therapists.
The Applicant, as a condition of these Orders, is to attend upon a psychiatrist to have an assessment of her need for ongoing supportive psychotherapy.
The Respondent, as a condition of these Orders, is to attend upon a psychiatrist to determine whether her anxiety and depression still remain and whether she would benefit from medication.
Whenever the child [X] is with the Applicant and:
(a)Wishes to speak to the Respondent; or
(b)Is distressed and wishes to return to the Respondent
then the Applicant shall facilitate same.
Whenever the child [X] is with the Respondent and wishes to speak with the Applicant then the Respondent shall facilitate same.
In the event that at any time [X] is spending time with the Applicant [X] experiences anything which compromises or affects of health then the Applicant shall immediately contact the Respondent and shall if requested by her so to do return [X] to the Respondent.
IT IS NOTED that publication of this judgment under the pseudonym Snell & Bagley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5477 of 2009
| MS SNELL |
Applicant
And
| MS BAGLEY |
Respondent
REASONS FOR JUDGMENT
Application
This is an application about a little girl called [X] who was born [in] 2005. She is now five years and six months old.
The Applicant is seeking orders that she spend substantial time with the child. The Respondent is the child’s biological mother.
Orders Sought
The Applicant seeks orders set out in her Minute of proposed orders filed in Court on the second day of the hearing. Those orders (summarised) are:
(1)That the parties should have equal shared parental responsibility and make joint decisions in relation to major long term issues affecting the child, including:
(a)the child’s health;
(b)the child’s name;
(c)whether or not the child travels overseas; and
(d)any proposed changes to the child’s living arrangements that make it more difficult for her to spend time with either party;
(2)That the Respondent should have sole parental responsibility for making decisions in relation to other major long term issues affecting the child:
(a)the child’s education;
(b)the child’s religious and cultural upbringing; and
(c)other issues not otherwise specified.
(3)That the parties should have sole responsibility for making concerning other aspects of the child’s care, welfare and development on a day to day basis;
(4)That the parties should consult each other about decisions to be made in the exercise of shared parental responsibility;
(5)Until such time as the child commences school, she should spend time with the Applicant:
(a)in week One, from after child care on Friday until the commencement of child care the following Tuesday; and
(b)in week Two, from 9.00am each Monday until the commencement of child care on Tuesday;
(c)for half of each child care shut down period, so that the child should spend alternating four day block periods with each party;
(6)more extensive time once the child commences school;
(7)arrangements for Christmas;
(8)changeovers if not at child care at the parties’ respective residences;
(9)that the respondent complete the paperwork necessary to have the child’s name recorded as [X];
(10)restraint on removing the child from Australia; and
(11)other ancillary orders.
The Applicant’s counsel handed up a further amended minute, seeking orders on a two week cycle as follows:
Before the child starts school:
a)In Week One:
i)From after child care on Wednesday to 5:00pm on Thursday; and
ii)From after school or child care on Friday to 5:00pm on Sunday.
b)In Week Two:
i)From after child care on Wednesday to 5:00pm on Thursday.
After the child starts school:
a) In Week One:
(i)From after school on Wednesday to before school on Thursday; and
(ii)From after school on Friday to 5:00pm on Sunday.
c)In Week Two:
(i)From after school on Wednesday to before school on Thursday.
The Respondent seeks interim orders as set out in her amended Minute of Orders Sought:
a)That the Respondent have sole parental responsibility for the child;
b)That the child live with the Respondent;
c)That the child spend time with the Applicant at such times as the Respondent agrees, and, failing agreement:
i)On one constant evening in each week from after child care on the afternoon to child care the next morning, and in the event that the evening is not agreed then an evening nominated by the Respondent; and
ii)Commencing on 19th March 2010 on each alternate weekend commencing from after child care on Friday until midday on the Sunday;
d)In the event that any collection or return to the child’s child care cannot occur then changeover is to take place at a place nominated by the respondent;
e)Whenever the child is with the Applicant and
i)wishes to speak to the Respondent; or
ii)is distressed and wishes to return to the Respondent
Then the Applicant shall facilitate same.
f)Whenever [X] is with the Respondent and wishes to speak to the Applicant then the respondent shall facilitate same.
g)In the event (that) at any time [X] is spending time with the Applicant she experiences anything which compromises or affects her health then the Applicant shall immediately contact the Respondent and shall, if requested by her so to do, return [X] to the Respondent.
h)Other than in emergencies all communications between the Applicant and the Respondent should be conducted through a third party nominated by the Respondent;
i)That:
i)The parties show the report of Dr W to their treating medical practitioners or therapists;
ii)Both parties are to attend on separate psychiatrists to determine any ongoing needs, who shall be directed to point 3 of page 46 of Dr W’s report; and
iii)The Respondent to organise for the child to attend a child psychotherapist who shall be directed to point 4 of page 46 of Dr W’s report.
Background
The proceedings concern the child who was born [X] [in] 2005. The child’s birth certificate shows the Respondent as her mother.
The Applicant was born [in] 1956. She is a [occupation omitted] by profession.
The Respondent was born [in] 1963. She is a [occupation omitted].
The parties commenced a relationship in October 2004. The Respondent became pregnant by means of in-vitro fertilisation in January 2005 and the child was born in November of that year. After the child was born the Respondent moved with the child to the Applicant’s home in Newcastle and commenced to live there.
The parties moved to Sydney in January 2006 and commenced living in [suburb omitted]. The Applicant obtained part time work. The Respondent returned to work on a full time basis in January 2007. The child would go into a childcare centre when both parties were at work.
The parties’ relationship deteriorated and in January 2009 they agreed to live separately. The Applicant moved out of the home in May 2009 and commenced living in [omitted]. She deposed that she would see the child almost every day.[1]
[1] Affidavit of Ms Snell affirmed 10.9.2009 at paragraph [39]
The parties attended mediation with Unifam.
The Respondent moved with the child to a home in [suburb omitted] in June 2009.
The Applicant commenced proceedings in this Court by filing an Application for parenting orders on 11th September 2009.
On 21st September 2009 Baumann FM listed the application for an interim hearing on 8th October 2009.
The interim hearing took place before McGuire FM, who handed down his decision the next day (Snell & Bagley[2]. His Honour ordered that:
a)the child would spend time with the Applicant:
i)from the conclusion of child care each Wednesday until the commencement of child care each Friday; and
ii)from 11:00am each Sunday until the commencement of child care each Monday; and
iii)at such other or alternate times as the parties may agree.
b)Except as otherwise provided, the child would live with the Respondent.
c)An expert report be prepared by a forensic child and family psychiatrist.
[2] [2009] FMCAfam 1144
On 22nd October 2009 the Applicant filed an Application seeking a stay of the operation of the parenting orders previously made and that the Expert Report be prepared by Dr W.
On 4th November 2009 McGuire FM made orders by consent that
Dr W prepare the report.
Evidence
The Applicant relied on her affidavit filed 23rd February 2010 and the affidavits of:
a)Ms K filed 23rd February 2010; and
b)Dr M filed 25th February 2010.
The Respondent relied on her affidavit filed 23rd February 2010 and the affidavits of:
a)Ms V filed 22nd February 2010;
b)Ms T filed 22nd February 2010; and
c)Ms L filed 2nd March 2010.
Dr W’s Report was released to the parties. Dr W gave oral evidence and was cross examined by Ms Christie of counsel for the Applicant and Ms Cleary of counsel for the Respondent.
The Expert Report
The report by Dr W dated 5th March 2010 was received into evidence. For the purpose of his report Dr W interviewed the Applicant and the Respondent and observed the child with the Respondent and later with the Applicant.
Dr W noted in his interviews with the Respondent that she wanted to get the Applicant out of her life. She saw the Applicant as making her question her ability as a parent and her relationship with the child. The Applicant treated her in a derogatory manner and undermined everything she said and did.
The Respondent raised concerns about the Applicant’s risk-taking behaviour, including her driving and history of drug abuse. She said that her prime concern was for [X]’s safety and she wanted to lessen the contact between her and the Applicant.
She said that she had impressed on the Applicant that her priority was in having a child, rather than having a relationship. She felt caught and trapped by the Applicant whom she regards as having invaded her life and attempted to undermine her role and authority as a mother.
Dr W noted the child was becoming attuned to her mother’s tension around any mention of the Applicant:
Clearly handover times have become very fraught.[3]
[3] Expert Report page 16
Dr W described the Respondent as “frequently stressed and anxious”. He stated that:
She had limited insight into the complexities of the situation impinging on [X], and had simplified matters in an expedient way. In this sense she was not fully able to think about all the factors which go towards making decisions in [X]’s best interests.[4]
[4] Ibid
The Applicant told Dr W that she had started bonding with [X] in the delivery suite in the hospital straight after the child was born.
Dr W described the Applicant as “being of very high intelligence, but was often not able to apply her intelligence in an insightful way to the complexities of the issues surrounding [X].”[5]
[5] Ibid page 29
Dr W visited the Respondent’s home to observe the child with the Respondent. The child at one stage showed some extreme behaviour and was difficult to contain.
Dr W described the child in this way:
Although clearly a sociable little girl, who has a capacity to engage, [X] showed herself to be currently unable to contain herself in the presence of a stranger. Her excitement had a desperate almost manic quality to it as she dashed in and out of the room where she had insisted I stay put. Her need to have me under her control was extreme, as was demonstrated when I made it clear to her that I intended to leave the room to speak to he mother. I would suspect that this need to have complete control over me mirrored something of an anxiety that she has that her real life does not reflect this constancy in any way (from her perception).[6]
[6] Expert Report at 32-33
Again, Dr W noted that:
When she was physically hurt, [X] sought out her mother who very appropriately soothed and comforted her. The close bond between the two was very evident at this point.[7]
[7] Ibid at 33
Dr W observed [X] with the Applicant and noted that the Applicant related well and easily with her. The child addressed the Applicant as “Mummy”. He said:
Overall it appeared that [X] was securely and affectionately attached to [Ms Snell], whom she regarded as her mother.[8]
[8] Ibid at 37
However, he noted that the child expressed some inner tension, particularly by biting.
In his assessment of the nature of the child’s relationship with each party, Dr W noted that the child appeared to be closely bonded to both the Applicant and the Respondent and referred to each of them as “Mummy”. He said:
I had some idea that [X] is able to be comfortable with either ‘mother’, but is filled with tension which she cannot resolve when she is part of a triangle.[9]
[9] Ibid at 38
Dr W formed the view that the Respondent appeared to be fearful and anxious that she might lose even more of [X] than she already has, which he felt was valid, based on his experience of the Applicant.
Dr W stated firmly that the arrangement of [X] moving between two households was currently unworkable, and was a reflection of the child displaying significant tension and disturbance beyond her capacity to cope. He also considered that whilst the child was significantly attached to the applicant she was not se deeply attached as she was to her biological mother.
Dr W considered the effect on the child if the relationship between her and the Applicant were to cease. He stated:
[X] is strongly attached to [Ms Snell], and identifies her as ‘Mummy’. [Ms Snell], although professing that she understood that from the outset of their relationship, [Ms Bagley]’s primary aim was to have her own baby and that she would support this arrangement, has nevertheless moved into a position where she believes she is entitled to equal rights as a mother.
I would imagine that the loss of [Ms Snell] would be beyond [X]’s capacity to comprehend, and that her reaction to the loss of a loved one would be no different from any child of her age.[10]
[10] Expert Report at 41
Dr W formed the view that it was inevitable that [X] should spend some time with the Applicant, despite the Respondent’s wish to have the Applicant removed from her life. He stated:
[Ms Bagley]’s view of a continuing relationship with [Ms Snell] is that it is an unjust imposition, and that she should be permitted to remove [Ms Snell] from [X]’s life. In this she has not considered the negative short and long-term consequences of such an action on [X].
I suspect that if a position is reached which grants [Ms Bagley] significantly greater time with [X] (than) she is currently having, then [X]’s disturbance will settle, and some sense of order will be returned to [Ms Bagley]. Naturally, from her point of view, this would be a compromise position.[11]
[11] Ibid at 43
Dr W also commented that under the current Orders there was almost no time for the child to have significant contact with her maternal family, which he described as “an important consideration”.[12]
[12] Expert Report at 46
Dr W made four recommendations, which I will set out in full:
(1)That the Court makes Orders such that the parenting capacity of the biological mother is supported, and that the periods of separation for [X] are reduced to a manageable level. A possible working arrangement for contact would be for [X] to have mid-week contact with [Ms Snell] (say Wednesday) afternoon and night contact each week, with alternate weekend contact (from Friday afternoon returning Sunday afternoon).
(2)That the contents of this report are shown to any treating therapists of either adult party.
(3)That both parties attend on separate psychiatrists to have individual psychiatric assessments to determine any ongoing needs (e.g. to determine if [Ms Bagley]’s anxiety and depression remain after the hearing, whether she would benefit from medication. In [Ms Snell]’s case to assess her ongoing need for supportive psychotherapy.
(4)For [X] to be referred to a child psychotherapist to assist her to process and find a way of expressing in play those extreme emotions which she is currently unable to contain.[13]
[13] Ibid
In his oral evidence, Dr W said that there was something about the current balance that was disturbing [X]. She seemed very disturbed and angry when he observed her in her mother’s household, which he described as “a kind of reactive disturbance”. He said that [X] was showing some behavioural disturbance in respect of separation from [Ms Bagley] and he thought that she needed more time with her biological mother.
Whilst he described the child’s attendance at child care four days a week as “neutral”, the formula of contact was the problem, because the week was effectively split, with four nights with the Respondent and three nights with the Applicant. The four nights and the three nights were not contiguous and there was a lot of “back and forth”.
Dr W agreed to a question from Ms Christie, for the Applicant, that one of the ways in which it might be thought best to maintain the relationship by providing for frequent, regular time with each party, but that question assumed that the child was equally attached to each party. He said that it was necessary to look at the recent reactive disturbance. If the child was equally attached there would be disturbance (exhibited) in each household.
He said that he believed the arrangement was unworkable. Looking at the child’s behaviour the situation was out of balance and there needed to be a significant shift.
Dr W expressed the view that the child was feeling insecure and anxious and she needed more contact with her biological mother. She is strongly attached to both women but is more intensely attached to her biological mother. Both parties’ proposals ask that there be alternate weekends with the child, and that was in accordance with his views.
Dr W was critical about the Applicant’s actions in prescribing antibiotics for [X] on one occasion. He said that it was not the position of a mother to prescribe antibiotics for her child. She should have taken the child to a doctor. He said that the Applicant has a theoretical grasp of all things that are important but lacks an empathetic grasp of what it means to the other person.
Dr W agreed that the situation should be reviewed in twelve months, because the applicant and the Respondent had not been able to resolve anything by mediation.
In cross-examination by Ms Cleary for the Respondent, Dr W said that he had looked at the parties’ proposals and believed that the Applicant’s weekend proposal was far too long. The weekend should finish at 3:00pm on the Sunday.
Dr W said that the Respondent saw the Applicant as controlling and overriding. He said that as [X] got older she would come more into contact with those parts of the Applicant’s personality that other people found offensive.
Dr W was asked whether it would be appropriate for the Respondent to have sole parental responsibility for the child. He said that the parties were in conflict because they believed that they had equal rights. The Applicant’s attitude of “we have a child” made the Respondent fear that she was being robbed of her child.
His primary recommendation was to support the biological mother to enable [X]’s disturbance to stop.
Dr W said that he suspected that the Respondent’s attitude to the Applicant would remain negative and it would take a vast effort of will for her to support the relationship with the Applicant. There was a very high level of conflict between the parties.
However, it would be extremely damaging for [X] to have the Applicant cut out of her life.
Dr W agreed that there was a need for other orders to restrain the Applicant from taking unilateral actions in respect of the child. The Respondent should have the ability to make day to day decisions about the child.
Dr W said that he was not in favour of the child spending extended periods of time with the Applicant at this stage, noting her age and level of disturbance. He said that it was undesirable to put any more stress on the child than she could handle. He said he was taken by surprise at her level of anger and frustration.
Dr W believed that the child should be able to telephone one party when she was at the home of the other. She called the Applicant “Mummy” and he felt that whenever [X] comfortably wanted to telephone the applicant that should be a matter for her.
Issues
The issues between the parties are the amount of involvement each party should have with the child and the amount of time she should spend with each one.
Areas of Agreement
The parties’ counsel handed up a schedule headed “Areas of Agreement” in which they set out what proposed orders had been agreed or partly agreed.
The parties agreed on the following:
a)Time between [X] and the Applicant during the week overnight, but the Applicant nominated Monday night and the Respondent sought that she should determine the night;
b)Time between [X] and the Applicant on weekends, although the Applicant nominated from after childcare or school on Friday each alternate weekend to the commencement of school or childcare on Monday, and the Respondent nominated from after school or childcare on Friday to noon on Sunday;
c)Changeover would be at school or childcare when available;
d)The contents of the Expert Report could be shown to the parties’ treating therapists;
e)The Applicant would attend upon a treating psychiatrist to assess the ongoing need for supportive psychotherapy;
f)The Respondent would attend upon a psychiatrist to determine whether anxiety and depression remain after hearing and whether she would benefit from medication;
g)[X] is to be referred to a psychotherapist, whilst the Applicant considered that both parties should be involved in the process at the discretion of the psychotherapists and the Respondent considered that she should select the psychotherapist;
h)The parties agreed with order 6 sought by the Respondent, that says:
That whenever [X] is with the applicant and
6.1 wishes to speak with the respondent; or
6.2 is distressed and wishes to return to the respondent
then the applicant shall facilitate same.
i)The parties agree with order 7 sought by the Respondent, that says:
That whenever [X] is with the respondent and wishes to speak with the applicant, then the respondent shall facilitate same.
j)The parties agree with order 8 sought by the Respondent, that says:
That in the event at any time [X] is spending time with the applicant, [X] experiences anything which compromises or affects her health then the applicant shall immediately contact the respondent and shall, if requested by her so to do, return [X] to the respondent.
It would appear appropriate that those orders to which there is unequivocal agreement by the parties should by recorded as orders by consent.
Submissions
Counsel for the Applicant submitted that the Applicant’s Minute of Proposed Orders reserves to the Applicant certain areas of parental responsibility. Parental responsibility is a way of settling decision making for a child by those concerned with the interests of the child. Some time will be spent with the Applicant and things follow from that. There was nothing in the evidence to suggest that day to day parental responsibility should not lie with both parties.
Ms Christie submitted that the Applicant’s relationship with the child was secure, close and everything that one would expect it to be. The Applicant submitted that the Respondent should have parental responsibility in some areas, such as religion and cultural areas.
The history of this child is of care given by a family. To remove this is not in [X]’s long term interests.
There was no dispute that the Applicant has a longstanding relationship with the child’s childcare centre. To change this arrangement on an interim basis is unwarranted.
It was further submitted that the Respondent unilaterally changed the child’s name whilst these proceedings were on foot. The name “[middle name omitted]” was added at the Applicant’s request. To change the child’s name in circumstances where she knows her name cannot be in the child’s best interests. An order changing a child’s name is not an interim order but a final order.
It was further submitted that Dr W was firm about the child’s weekend time not being extended to the Monday. The doctor could not be confident that the child would cope with such a long period away from the Respondent. The Applicant suggested that the child should be picked up on the Friday and returned to the Respondent at 5:00pm on the Sunday. The child should be given the benefit of a full weekend with each party.
Dr W identified that there should be a day overnight with the Applicant during the week. The Applicant is reverting to precisely what Dr W recommends. The Applicant does not work on a Thursday. Dr W did not see any reason why the child should not spend a day with the Applicant.
As to changeover, the Applicant’s proposed Order 9 provides that the Applicant or her nominee should collect the child from the Respondent’s usual place of residence. The idea of a nominee is to reduce the concerns of the Respondent.
As to the proposal for referral of the child to a psychotherapist, the Applicant submitted that the Respondent should nominate three names and the Applicant should choose one from that list.
It was further submitted that the Applicant had a fear that the Respondent would seek to remove the child from the jurisdiction.
Ms Cleary of counsel, who appeared for the Respondent, submitted that the Respondent should have sole parental responsibility for the child, as she was the only legal parent. There was a need for the Respondent to be reassured that she had the authority to make decisions in the life of her daughter. The Court should make a declaration as to what is already the case. It would also place restrictions on the role of the Applicant.
It was further submitted that [X] has a meaningful relationship with her mother, which needs supporting. She also has a strong relationship with the Applicant. The Court was asked to make an interim order for sole parental responsibly, noting that the question of parental; responsibility would need to be revisited on a final hearing.
[X] is too young to express her views but has revealed herself to Dr W as being at the end of her tether and unable to cope with her own emotions.
There would be an impact on the child if there were to be a change in the circumstances, because the earlier orders saw her never spending more than two nights at a time with either party.
There would be no particular difficulty or expense in making the orders sought by the Respondent, as she was entirely financially responsible for the child.
Further, it was submitted that the Respondent has the capacity to provide for the needs of the child, but is vulnerable to psychiatric anxiety or depression. The Applicant has the capacity to meet [X]’s intellectual needs but is less able to ascertain what is in the child’s best interests. Dr W identified this as a matter of concern.
It was submitted that the child had an inability to express her own emotions and was a disturbed child in trouble.
Ms Cleary submitted that the Respondent sought orders with the intention to follow Dr W’s recommendations, namely:
a)supporting the parenting capacity of the Respondent; and
b)reducing the time that the child spends away from her biological mother.
It was submitted that the changed application by the Applicant did not accord with Dr W’s evidence. The thrust of his recommendation is that the child should spend more time with the Respondent.
The Applicant has Thursdays off work. The only reason that the Respondent has not been able to spend Thursdays with the child has been because of the earlier interim orders. Dr W recommended an afternoon and a night once a week for [X].
It was submitted that the Monday and the Friday were inappropriate and the Wednesday is compromised because the child would be returned on a day when she was not at child care.
Further, on weekends the child will need to be settled down after she returns from the Applicant’s home. Dr W said that 3:00pm would be appropriate and the Respondent was attempting to follow what Dr W has recommended.
Dr W said that it would be a good idea to have clear and specific restraints. The Respondent cannot deal with the Applicant from a position of equality. The Applicant’s orders still speak very strongly of a desire to have a decision making power in a long term context.
Ms Cleary also submitted that there was no evidence of any fear of the parties taking the child out of the jurisdiction.
In reply, Ms Christie submitted for the Applicant that [X] had been financially supported by both parties. The orders proposed to be made will automatically give the Respondent more time with the child.
On the question of the child’s name, it is only important in so far as it is important to [X] and her identity. The time to restore her name to what it was is before the child starts school. The question of the child’s name is a matter for the final hearing.
The Relevant Law
Under the provisions of section 65C of the Family Law Act sets out the categories of people who may apply for a parenting order in relation to a child:
a)Either or both of the child’s parents;
b)The child; or
ba) a grandparent of the child; or
c)Any other person concerned with the care, welfare and development of the child.
Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Curt must regard the best interests of the child as the paramount consideration. To determine what is in the child’s best interests, the Court must have regard to the primary considerations in subsection 60CC (2) and the additional considerations in subsection 60CC(3).
Subsection 60CC(4) of the Act requires the Court to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil their responsibilities as a parent. Further, where the parties have separated, as they have in this case, the Court must have regard to events that have happened and circumstances that have existed since the separation occurred (see s.60CC(4A)).
I have considered all of those matters, where relevant.
Parental responsibility is defined by s.61B of the Act as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. A parenting order may deal with the allocation of parental responsibility for a child (s.64B(2)(c)), and may deal with the allocation of responsibility for making decisions about major decisions about major long-term issues in relation to the child (s.64B(3)).
When making a parenting order, the Court is required by subsection 61DA(1) of the Act to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (see Goode & Goode[14] at [51]).
[14] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
When making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (see subsection 61DA(3)). The Full Court of the Family Court held in Goode &Goode at [78] that s 61DA(3):
…provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.[15]
[15] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 at [78]
However, in making a final parenting order, the Court must disregard the allocation of parental responsibility made in the interim order (see s.61DB).
Where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) to consider the reasonable practicability of the child spending equal time with each parent and whether it would be in the child’s best interests to do so. If the Court does not make such an order, subsection 65DAA(2) requires the Court to consider the reasonable practicability of the child spending substantial and significant time with each parent and whether it would be in the child’s best interests to do so.
I have considered all of those matters, so far as they are relevant.
Conclusions
The best interests of the child [X] are the paramount consideration. This is, of course, an interim hearing. As their Honours said in Goode & Goode[16] at [68], the procedure for making interim orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.
[16] supra
However, in this case the Court has been assisted by the evidence of
Dr W, the single expert, who provided a comprehensive written report and was subjected to cross-examination by counsel for the parties. Thus, this important evidence has been tested and the Court is in a better position to make findings than would normally be the case.
It should be said that Dr W’s evidence is highly persuasive and he was unshaken in cross-examination. Dr W’s expert evidence provides a useful guide to determining the best interests of the child.
I have considered the parties’ competing proposals, which have been modified as a result of the evidence of Dr W. It was not put to the Court that Dr W’s evidence was flawed or that his recommendations should not be followed.
I have considered the issues in dispute between the parties and I have noted the areas where they are in agreement.
Whilst it is the case that the Applicant has no biological connection with [X], I am satisfied that she is a person concerned with the care, welfare and development of the child.
In determining what are the child’s best interests, I turn to a consideration of the factors under s.60CC of the Act.
The evidence shows that the child has a strong attachment to the Respondent, her biological mother. It is of benefit to her to have a meaningful relationship with her.
There is no risk of physical or psychological harm to the child from being subjected to or exposed to abuse, neglect or family violence. The risk of psychological harm, as Dr W’s evidence makes clear, comes from being torn between the households of the Applicant and the Respondent.
[X] is too young for her views to be expressed. However, Dr W considers that her angry and frustrated behaviour comes from a need to spend more time with her biological mother.
The child has a strong relationship with the Respondent. She also has a strong relationship with the Applicant. Whilst the Respondent may well wish to reduce or eliminate the influence of the Applicant on the child’s life, and her own, the evidence is clear that the child would suffer a grief reaction if she were to lose contact with the Applicant.
It is, on the evidence available, fair to say that the Respondent does not have a willingness to facilitate and encourage a close and continuing relationship with the Applicant.
If orders were made removing the Applicant from [X]’s life, the effect on the child would be serious. She sees the Applicant as a mother figure and addresses her as such.
There is no practical difficulty and very little expense involved in the child spending time with the Respondent or with the Applicant.
The Respondent has a capacity to provide for the needs of the child, although her wish to remove the Applicant from the child’s life appears to be based more on her own needs than on the child’s emotional needs. Dr W described her as not being fully able to think about all the factors which go towards making decisions in [X]’s best interests.
The Applicant has a capacity to provide for the child’s needs, but has been described by Dr W as lacking the ability to apply her intelligence in an insightful way to the complexities of the issues surrounding the child.
[X] is a little girl who was born [in] 2005. She is five years and six months old, now of school age. Her background is that her mother has been in a same sex relationship with a woman whom the child also regards as a mother figure. There is no father.
Each of the parties has a concern for the welfare of the child, but their attitude is influenced by their mutual hostility. The Respondent feels intimidated by the Applicant and considers that the Applicant has been trying to “take over” the child and exclude her from a parenting role.
There are no family violence orders in force.
It would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. However, the orders to be made are interim orders and a final hearing is yet to be held.
The respondent is strongly of the view that the applicant has failed to facilitate her participation in making decisions about major long-term issues and day to day issues in relation to the child.
The parties have separated. There is no evidence before the Court that either one has re-partnered or undergone any major change in their lives.
I am not satisfied that it is in the best interests of the child for the Applicant and the Respondent to have equal shared parental responsibility for her. The Respondent is the child’s mother and I consider that she should have sole parental responsibility for her. The high degree of conflict between the Applicant and the Respondent would make equal shared parental responsibility unworkable.
Dr W recommended that orders should be made supporting the parenting capacity of the biological mother. I propose to follow that recommendation. If the Respondent’s role as mother is supported, she will presumably feel less anxious at what she perceives as the negative influence of the Applicant on her parenting of [X].
A further part of Dr W’s first recommendation was that the periods of separation of [X] from the Respondent be reduced to a more manageable level. He believed that the child’s disturbed behaviour reflected her anger and frustration at not spending more time with her biological mother, and I propose to make orders increasing the amount of time that the child spends with her. Dr W also raised the concern that the earlier interim orders did not allow sufficient “block” time with the Respondent, so that there was too much “back and forth”.
In my view, it is in the best interests of the child that she spends time with the Applicant for one night a week and alternate weekends. The weekend time should conclude at 3:00pm on the Sunday afternoon, as Dr W recommended in his evidence. The balance of the time should be spent with the Respondent. In my view, it is important to support the respondent’s role as the child’s biological mother that the child spends Mother’s Day with the Respondent.
The parties have agreed with Dr W’s recommendation that [X] should attend upon a child psychotherapist to assist her to process and find a way of expressing in play extreme emotions which she is unable to contain. The Respondent wants to be able to select the psychotherapist whilst the Applicant submitted that she should be involved in the process.
The Applicant’s counsel submitted that the psychotherapist should be selected by the Respondent submitting three names and the Applicant then selecting one name from that list of three. With respect, that is not an appropriate procedure. Whilst it may be a useful procedure for selecting a valuer for a business or a piece of real estate, it is not at all appropriate for selecting a health professional to treat a child. The Respondent has sole parental responsibility for the child; the decision is one that she should make.
There is no evidence that would justify a fear that either party will remove the child from the jurisdiction and an injunctive order is not necessary.
The question of the child’s name has been raised, and the Applicant has complained that the Respondent has unilaterally changed the child’s name. Orders about changes of name are essentially final orders, not interim orders. The only evidence about the child’s name is the child’s birth certificate on the Court file. That document shows the child’s name as “[X] [Snell Bagley]”, and that is the name by which she will be referred in these Reasons for Judgment.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 1 June 2011
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