Sparkes and Dalton
[2016] FCCA 130
•28 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SPARKES & DALTON | [2016] FCCA 130 |
| Catchwords: FAMILY LAW – Parenting – change in child’s residence at earlier interim proceedings – very strong recommendations made by family consultant concerning risk of harm to child if he remained with his Mother as well as that the Mother should undergo a psychiatric assessment – Mother refused to undertake such assessment – Mother unable adequately to parent and care for child resulting in a role reversal – Mother’s relationship with child distorted with Mother refusing all assessments that the child does not have any relevant disorder – the Mother believes vehemently that the child suffers from a disorder such as autism – formal assessments reject the Mother’s view – the Father considered to be the better parent and the Father’s family with many siblings the best environment for the child. |
| Legislation: Family Law Act 1975, ss.11F, 60CA, 60CC(3)(a) – (m), 65DAA |
| Goldrick v Goldrick [2007] FamCA 1260 In the Marriage of Kress (1976) 30 FLR 508; 13 ALR 309; FLC ¶90-126 Mulvany v Lane (2009) 41 Fam LR 418 Walters v Fleetwood [2015] Fam CAFC 235 |
| Applicant: | MR SPARKES |
| Respondent: | MS DALTON |
| File Number: | CAC 1357 of 2009 |
| Judgment of: | Judge Neville |
| Hearing date: | 21 & 22 May 2015 |
| Date of Last Submission: | 26 June 2015 |
| Delivered at: | Canberra |
| Delivered on: | 28 January 2016 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms K James |
| Solicitors for the Applicant: | Barker & Barker |
| Counsel for the Respondent: | Self represented | |
| Solicitor/Advocate for the Independent Children's Lawyer: | Mr K Robinson | |
| Solicitors for the Independent Children's Lawyer: | Robinson + McGuinness | |
ORDERS
All previous parenting orders (inclusive of previous Airport Watch List Orders) be discharged.
The Father shall have sole parental responsibility for the child, X (“the child”) born (omitted) 2003.
The child shall live with the Father.
Notwithstanding Order 2 hereof, the Father shall inform the Mother in writing (which includes by text message or email or other electronic means) at least fourteen (14) days before making decisions about the following matters:
(a)Any change in the child’s school;
(b)Any non-emergency surgery or serious medical treatment the child is to undergo;
(c)Any proposed relocation of more than 50 kilometres of his present residence.
The child shall spend time with the Mother as agreed in writing, and failing agreement:
(a)For three (3) hours from 10.00 am to 1.00 pm on the second Sunday of each calendar month;
(b)For three (3) hours on the Sunday closest to X’s birthday ((omitted) 2015) from 10.00 am to 1.00 pm;
(c)For three (3) hours from 10.00 am to 1.00 pm on 25 December 2015 and each alternate year thereafter.
(d)For three (3) hours from 10.00 am to 1.00 pm on 24 December 2016 and each alternate year thereafter.
The Mother is permitted to communicate with the child by telephone each Wednesday and on the child’s birthday between 6.00 pm and 6.30 pm.
In the event the child is not able to spend time with the Mother in accordance with Order 5 hereof, the Father is to notify the Mother no less than three (3) days prior to the scheduled time and the child shall spend time on the following Sunday with the Mother by way of make-up time.
The child shall attend (omitted) School to the conclusion of his primary education and thereafter shall attend high school as determined by the Father and the Father is to advise the Mother in writing of any change in the schooling arrangements of the child.
The Father shall authorise any school being attended by the child to provide to the Mother copies of any newsletters, school photographs, invitations and flyers for school events and school reports. The Mother is to contact any school being attended by the child to provide to that school her contact details for such purpose.
The child is permitted to travel internationally with the Father in accordance with section 65Y(2)(b) of the Family Law Act and for this purpose the Father is permitted to apply for the issue of an Australian passport to the child under the provisions of section 11(4)(b)(i) of the Australian Passports Act 2005.
The child’s passport is to remain in the Father’s possession at all times.
The Father is to provide an itinerary and contact details to the Mother no less than twenty-eight (28) days prior to embarking on any international travel with the child.
Pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Sparkes & Dalton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1357 of 2009
| MR SPARKES |
Applicant
And
| MS DALTON |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns parenting orders in relation to 12 year old X (born (omitted) 2003).
At many levels, the matter has been extremely complicated, not least because of a period of time when X was being home-schooled by his Mother, and some somewhat unusual late-night activities by X, and in my view, an initially less than diligent Department of Education assessment of his educational progress. At another, more basic level, the matter is quite straight-forward. In the course of these reasons I will be seeking to follow the more straight-forward path and not chase too many rabbits (or cats – explained below) down too many burrows.
X has now been living with his Father, and his significant number of siblings (who all live in a rural setting known as (omitted), which I understand is quite near the picturesque rural town of (omitted), and some 98 kilometres from Canberra, a drive of approximately 1½ hours), since orders were made changing X’s residence on 3rd November 2014. By all accounts (from the Father and the family consultant) things are going quite well with this arrangement, with the Father making proper and regular provision for X to spend regular time with his Mother, who resides in Canberra.
For the reasons that follow, the orders proposed by the Father and the Independent Children’s Lawyer (“the ICL”) are, in my view, plainly in X’s best interests in accordance with s.60CA of the Family Law Act 1975 (“the Act”).
Preliminary Matters & Issues in Dispute
On 19th May 2015, the ICL filed a Case Outline and a detailed Chronology, both of which provide a helpful overview of the more recent orders of the Court, the general orders sought by the parties, the issues in dispute, and the factual background of and context to the matters to be determined. That part of the Case Outline relating to the recent orders of the Court and the issues identified as being in dispute (which I accept) provided as follows (emphasis added):
1) The Father has filed a case outline wherein he seeks orders for the child of the relationship, X, to live with him and that the Father have sole parental responsibility. The Father proposes X spend time with the Mother on alternate Sundays between 10.00 am and 1.00 pm, for three hours and also for three hours at Christmas. The Father proposes weekly telephone time. The Father also proposes the Airport Watch Order be discharged.
2) The Mother filed a case outline on 30 October 2014 and has indicated she continues to rely on this document. The Mother seeks orders that X live with her and that she have sole parental responsibility. The Mother also seeks an order that X “visit his Father regularly, but not without his whole consent”. The Mother also seeks orders directed to X’s education and health.
3) The Independent Children’s Lawyer has prepared a Minute of Orders Sought as annexed hereto. The ICL broadly supports the orders sought by the Father.
SUMMARY OF ISSUES IN DISPUTE
4) Following the release of the Family Report on 28 October 2014 an interim hearing was conducted on 3 November 2014 that resulted in the residence of X moving to his Father. The Family Consultant, Ms M, identified in the course of her report, a number of concerning factors regarding the mental health of the Mother such that Ms M recommended the Mother undertake a full psychiatric assessment and that the time X spend with his Mother be limited to three hours on alternate Saturdays.
5) Pursuant to order 12 made 3 November 2014 the Mother was to indicate within 28 days of her willingness to undertake a full psychiatric assessment. On 21 November 2014 the Mother advised the ICL she was not willing to undertake a psychiatric assessment.
6) The ICL met with X on 16 December 2013 and his views at that time are reflected in paragraph 5 of the submissions of the ICL dated 23 December 2013. The ICL met with X again on 12 May 2015. X expressed to the ICL that he would “leave it up to the Judge”.
7) The issues remaining in dispute are:
a) With whom should X live?
b) What order for parental responsibility should be made?
c) Is the presumption in favour of an order for equal shared parental responsibility (section 61DA) rebutted?
d) Is the Mother’s failure to provide a full psychiatric report a relevant factor in determining whether the presumption is rebutted and/or the time that X should spend with the Mother?
e) Is the Mother’s conduct throughout the proceedings a relevant factor in determining whether the presumption of equal shared parental responsibility is rebutted and/or the time X should spend with the Mother?
f) What order should be made for X to spend time with the non-resident parent?
g) Is the quantum and frequency of time presently spent by X with his mother promoting and supporting his best interests and should such time be increased or decreased?
h) The psychological health of both parents, but in particular the Mother.
i) The risk of psychological harm to X in either living or spending time with his Mother, until such time as the Mother receives appropriate treatment.
j) The time to be spent by X with the non-resident parent during school holiday periods.
k) Where should changeover occur to give effect to the orders for X to spend time with each parent.
l) The frequency of telephone contact for the non-resident parent.
m) What, if any, arrangements should be made to enable X to travel overseas and which parent should hold X’s passport.
The ICL’s Chronology, albeit with its description of events necessarily being somewhat abbreviated, helpfully provides (as I have said) an overview of the background to the contest. Slightly amended, it provided as follows (emphasis in original):
| Date | Description |
| (omitted) 1976 | Mother born |
| (omitted) 1976 | Father born |
| (omitted) 2001 | The Father’s child D is born. |
| (omitted) 2003 | X born. At the time of the child’s birth the Mother was residing in Canberra and the Father was residing in (country omitted) [sic] in the (employer omitted). |
| 09.2003 | Father returns to Australia and lives in Sydney where he was posted on a (employer omitted). Father states that he visits the child on a monthly basis. |
| 10.2004 | Father moves to (omitted). Father states that at this time he began caring for X 50% of the time. Child spends six weeks with each parent which continued until October 2007. |
| 2005 | Therapy ACT report records commencement of six week about arrangement. Father transfers from the (employer omitted) to the (employer omitted). |
| 2006 | Father commences relationship with Ms R. |
| 2007 | Mother alleges that the child was sexually assaulted at this time by a family friend of the Father whilst the child was in the father’s care. Father denies these allegations. Six week about arrangement for care of the child ends. Father states the care arrangement for X ended in October 2007. Interim Domestic Violence Orders were made for the protection of the Mother and child. |
| 02.2007 | Father moves to (omitted), NSW where he lives with Ms R and her two children, E (born (omitted) 1998) and F (born (omitted) 1999). |
| 08.10.2007 | Incident occurred during changeover at (omitted) McDonalds. Allegations of pushing. Mother obtains DVO by consent. |
| 2008 | Father alleges that the child develops Selective Mutism. |
| 24.01.2008 | Speech Assessment Report prepared by Therapy ACT in relation to the child. |
| (omitted) 2008 | Father marries Ms R |
| 30.04.2008 | Mother enrols child at (omitted) Primary School. |
| (omitted) 2008 | Father’s child A is born |
| 25.07.2008 | Mother alleges that child stopped speaking around this time. |
| 09.2008 | Child referred to Child at Risk Health Unit after recommendation from Therapy ACT due to concerns that the child had not spoken since August 2008. |
| 2009 | Father seeks to attend mediation with Mother and alleges Mother would not engage in process. |
| 01.2009 | Father commences proceedings to resume contact with child. Supervised Time once per month at Marymead. |
| 13.03.2010 | Cognitive Assessment Report prepared by Therapy ACT in relation to the child. Child presented with Moderate Receptive Language Impairment. |
| 26.05.2009 | Parties enter into Consent Orders in relation to the care of the child. |
| (omitted) 2009 | Father’s child B is born |
| 09.05.2010 | Parents and child attend Family Conference. |
| 08.07.2010 | Orders made: - That the Child live with the Mother - That the child spend time with the Father from the last Friday each month from 5.00pm Friday until 5.00pm Sunday |
| 23.11.2010 | Autism Assessment Report prepared by Therapy ACT in relation to the child. |
| 15.12.2011 | Mother and child attend upon Family Consultant, Ms L. Father is interviewed by telephone. |
| 24.09.2012 | Incident where mother reportedly hits child in face with bag. Mother states incident was an accident. |
| 05.2013 | The Father alleges the Mother withholds all contact between the Father and the child. |
| 27.06.2013 | Father files Initiating Application and Affidavit. Father alleges he has not had time with the child for 8 weeks. Father alleges that the Mother has had pattern of not making child available to spend time with the Father over the previous two years. Mother alleges that the child was not made available to spend time with his father because the child did not want to leave his home and that the child complained of feeling that “his brain was being renovated” and was suffering headaches, stomach aches and sleeping issues. The Mother alleges that the Father showed no interest in the child’s “mental health/behavioural disorder” and that he was “hostile and uncompromising”. |
| 12.08.2013 | Court Event – First return date – Parties self represented- Orders made: - Parties ordered to attend Child Inclusive Conference with child. - Matter adjourned to 5 November 2013. Father asserts Judge recommended X spend time with Father and that Mother refuses to make X available for contact. |
| 13.09.2013 | Mother makes application for provisional registration for the child to be home schooled. |
| 02.10.2013 | Father attends Child Inclusive Conference with Ms M. Mother and child do not attend. |
| 23.10.2013 | Mother files Application in a Case and Affidavit. |
| 05.11.2013 | Court Event – Parties unrepresented – Orders made: - Independent Children’s Lawyer is appointed - Mother to provide Father with medical and schooling information in relation to X - Matter adjourned to 3 December 2013. Notation A that Ms Dalton's Affidavit naming his Honour, Judge Neville as a party is to be removed from the file. |
| 22.11.2013 | Independent Children’s Lawyer files Notice of Address for Service |
| 26.11.2013 | Father alleges he sent an email to the Mother to request that X spend time with him over school holidays and that she did not respond. |
| 03.12.2013 | Court Event – Parties self-represented – Orders made inter alia: - For preparation of a 69ZW Report - That the ICL meet with the child - Parties file Minute of Orders Sought and written submissions |
| 16.12.2013 | Father alleges he sent an email to the Mother asking that X spend time with him over the school holidays. Father alleges the Mother did not respond. |
| 23.12.2013 | ICL filed written submissions |
| 01.01.2014 | Father alleges he sent an email to the Mother asking that X spend time with him over the school holidays. Father alleges the Mother did not respond |
| 02.01.2014 | Mother files written submissions |
| 26.02.2014 | Father alleges Mother sent him an email to advise that X would not be available to spend time with him on 21 February 2014. ACT Department of Education and Training conduct Home Visit, which is held at the Offices for the Department at (omitted). |
| 03.03.2014 | Child is registered for ACT Home Education until 25 February 2016. |
| 14.03.2014 | Court Event – Father self-represented- Mother not in attendance – Orders made: - That the child spend time with the Father one weekend per month for the next two months - At the conclusion of the two months, every second weekend - That the parties have equal shared parental responsibility for the child |
| 21.03.2014 | Psychological Report prepared by Therapy ACT Autism Service. Child did not receive diagnosis of Autism Spectrum Disorder. |
| 22.03.2014 | Child to spend time with Father until 24 March 2014 in accordance with Orders of 14 March 2014. Father acknowledges that the child spent time with him over this weekend. Father alleges that the Mother contacted Police to advise that the child had been taken by the Father and that there were no Orders in place to allow to the child to spend time with the Father. |
| 24.03.2014 | Father alleges that NSW Police attended his home at about 10.30pm. |
| 25.03.2014 | Father alleges he does not see X from this date until 2 May 2015 |
| 11.04.2014 | Father alleges he attended mother’s residence but child not made available. |
| (omitted) 2014 | Father’s child C is born. |
| 24.04.2014 | Father alleges that he sent that Mother an email to ask if the child would be made available for contact with the Father on 2 May 2014. Mother emails 2 May 2014 stating child will not be made available. |
| 02.05.2014 | Father alleges he sent the Mother an email to ask for X to be made available. |
| 08.05.2014 | Father alleges that the Mother sent him an email to advise child would not be made available on 9 May 2014. |
| 21.05.2014 | Court Event – Matter relisted at request of ICL. Orders made including: - The child live with the mother - The child spend time with the father from Friday to Monday every second weekend and half of the ACT school holidays - Notation placing mother on notice of obligation to comply with court orders. |
| 23.05.2014 | Child not made available to spend time with the father. Father contacts Police to request welfare check and alleges Police advised X was at home and there were no concerns for his safety. Mother alleges she did not know of time as did not have a copy of the orders. |
| 06.06.2014 | Child spends time with the father. Mother allegedly not home when father returns. Father sought to return X to Mother on 9 June 2014, but Mother was not at home. Child returned to mother on 11 June 2014. Mother files application for recovery order. |
| 16.06.2014 | Mother files Notice of Discontinuance of Application in a Case filed 10 June 2014 seeking a Recovery Order. |
| 17.06.2014 | Court Event – Order made by consent to facilitate re-enrolment of the child at (omitted) Primary School as and from the commencement of Term 3 2014. |
| 20.06.2014 | Child is to spend time with the Father until 23 June 2014 in accordance with the Orders of 21 May 2014. |
| 25.06.2014 | ACT Department of Education and Training conduct Home Visit of the Mother’s residence. |
| 02.07.2014 | Mother has meeting with Principal of (omitted) School, Deputy Principal and School Counsellor. |
| 06.09.2014 | Father alleges Mother requested Police to conduct welfare check on X whilst spending time with Father. |
| 10.09.2014 | Mother alleges that the child stopped attending (omitted) Primary School on this day |
| 19.09.2014 | Child does not spend time with the father. Mother sent email to Father to advise that X stopped attending school |
| 22.09.2014 | Mother and child attend upon Family Consultant. |
| 23.09.2014 | The Father alleges that he had a conversation with the Principal of (omitted) Primary School and that she advised him that the child had not been attending school since 16 September 2014. |
| 24.09.2014 | Father files Application in a Case and Affidavit. Mother files Application in a Case and Affidavit. |
| 25.09.2014 | Mother files Application for Domestic Violence Order on behalf of X. Matter is heard by a Registrar and no interim Orders were made. The matter is then heard by a Magistrate and no interim orders are made. |
| 26.09.2014 | Court Event – Parties self represented – Orders made: - Mother’s Application in a Case filed 24 September dismissed - Self-executing orders made re time with the father and attendance at school. |
| 01.10.2014 | Parties attend upon Family Consultant |
| 07.10.2014 | Parties attend Domestic Violence Hearing at the ACT Magistrates Court. Father alleges mother took child into courtroom. |
| 24.10.2014 | Court Event – Pre hearing directions – hearing date confirmed - Orders made by Consent allowing X to attend (omitted) Primary School Camp in (omitted), New South Wales from 27 October to 31 October 2015. |
| 30.10.2014 | Court Event – Family Report released to parties – final hearing date vacated. - That X spend time with his father over 31 October 2014, following his return from school camp. - Permitting the Mother to ask five simple questions to the Family Consultant - Final hearing adjourned. |
| 03.11.2014 | Court Event – Interim Orders made: - Father have sole parental responsibility for X - X live with the Father - X to spend time with the Mother as agreed, or for 3 hours each alternate Sunday and for 3 hours on 24 December 2014 - X commence attending (omitted) School in (omitted), NSW commencing 6 November 2014 on Thursday and Friday and commence full time attendance at (omitted) School from 24 November 2014 - That the Mother provide X’s passport to the ICL within 7 days - That the Mother advise if she is willing to attend upon a psychiatrist for a psychiatric assessment X begins living with Father. |
| 08.11.2014 | X commences spending time with Mother for three hours each alternate Saturday |
| 19.11.2014 | X transitioning attendance at (omitted) School, (omitted) |
| 14.01.2015 | Court Event – Orders made listing matter for two day hearing commencing 21 May 2015. Order made by the ACT Magistrates Court that the application for Domestic Violence Order dated 25 September 2014 is discontinued. Mother advises parties and Court that she is unable to locate X’s passport. Mother advises she is unwilling to seek a psychiatric assessment. |
| 04.2015 | The Father sought that X’s time with the Mother occur on the Sunday of the weekend of 25-26 April 2015, in order that X could attend a school related Anzac Day event. The Mother did not agree to this variation. |
| 13.04.2015 | Family Report Addendum released |
As recorded in the Case Outline (and detailed further later in these reasons), the family consultant, Ms M, noted a number of concerning factors regarding the mental health of the Mother. Ms M recommended that the Mother undertake a full psychiatric assessment and that the time X spend with his Mother be limited to three hours on alternate Saturdays. As also noted, the Court gave the Mother a period of approximately four weeks to consider Ms M’s recommendation to undertake a psychiatric assessment. The Mother advised the ICL that she would not do so.
Both on the recommendations of Ms M, and from the Court’s observations of the Mother in the course of the very significant history of the matter, and in particular the Mother’s conduct during the course of the trial, the Court shares Ms M’s significant disquiet about the Mother’s ability to parent the child, and more generally her grasp of daily reality. Certainly, the Mother’s refusal to undertake the assessment recommended placed her and everyone else involved in the trial at quite a disadvantage. However, as a result of the lack of psychiatric assessment, the Court was essentially left with the unchallenged evidence of the family consultant, supported in many respects by other reports from authorities (e.g. the psychological report from Therapy ACT – generally see the documents that became Exhibit F), all of which must result in the orders being made as sought by both the ICL and the Father.
Further, because of the nature of the trial and the evidentiary deficiency on the Mother’s side to which I have referred (i.e. the lack of relevant psychiatric evidence), and the overwhelming evidence in favour of X living with his Father and his large number of siblings, the main focus of these reasons is on the evidence from Ms M and drawn from the other reports. Indeed, because of the substance of the family reports (Exhibits A1-3), Ms M gave her oral evidence at the outset of the trial. It is to that evidence that I now turn.
The Evidence of the Family Consultant: The Reports
There were three reports before the Court from Ms M: the first report (Exhibit A3) is a short report pursuant to s.11F of the Act. It is dated 27th September 2013. The Other two reports are dated respectively 28th October 2014 (pursuant to s.62G of the Act; Exhibit A1), and an Addendum, dated 16th January 2015; Exhibit A2).
The Mother and child did not attend the first consultation with Ms M for the s.11F report. While the reasons for the non-attendance were somewhat debated, it is sufficient to note the matters reported by the Father, recorded in that Report, not least because of their consistency with the Father’s later evidence, and more particularly, the evidence in reports from various organisations to which I refer later.
In the s.11F report, the following brief matters were canvassed:
Issues in dispute
1) The parents are in dispute over the time the child spends with the father. The father proposes that the child spend time with him every second weekend from after school on Friday to before school on Monday and half of the school holiday period.
2) The father reported that the child is now being home-schooled by the mother. He said that he has spoken with the principal of (omitted) Primary School who is supportive of the mother removing the child from school and that the child is to be integrated to the classroom from the commencement of school in 2014. The father agrees to the child being home-schooled at this time provided he is integrated back into school next year.
Risk factors
3) The father stated that he is concerned for the child’s health due to his poor sleeping habits. He alleges that the mother imposes no daily routine for X and that the child has informed him that he works on his website until early in the morning. The father reported that when living with him the child’s time using “electronics” is limited.
4) The father reported that the mother has informed him that she is taking the child to “doctors” regarding the child’s issues with sleep and headaches. He alleges that the health issues of the child are likely due to his staying up until 1.00-2.00am on his computer while in the mother’s care.
5) The father stated that he is concerned for the child’s health due the mother keeping nine cats that are not de-sexed or house trained. He reported that X has commented to him that he cannot attend school because he needs to stay home to care for his mother and their nine cats and that the child has a website dedicated to the cats.
6) The father is concerned about that the child’s living environment with the mother is unsafe and unhealthy with nine cats which have not been de-sexed. He seeks an order from the Court requiring the mother to take the appropriate action to rectify this situation.
7) An enquiry was made to the Domestic Animal Services regarding the ownership of pet cats. It is understood that ownership is limited to three cats per home and that all cats must be de-sexed.
Co-parenting relationship
8) The parents appear unable to communicate about matters to do with the child’s education and welfare. The father reports he has been provided with no medical or educational documentation regarding the child.
Because of its significance, what follows are large extracts from Ms M’s primary [s.62G] report (Exhibit A1). In relation to the co-parenting relationship, Ms M said, at par.16 of the Report (emphasis added):
There appears to be little trust between the parents. There is a history of disputes regarding the care arrangements for X and an inability to effectively communicate and negotiate arrangements for their son. There have been brief periods when the parents have maintained a consistent predictable pattern of X spending regular time with the father interrupted by crisis points of mutual allegations of the other parent failing to provide adequate care for X and this has resulted in time with his father being suspended. The mother has indicated that she wants no further involvement by the father in her or X’s life.
The highlighted text from the Report is consistent with the Mother’s evidence at trial who said that she regrets ever having advised the Father of X’s birth, and that if she had her time again she would never have advised the Father of X’s existence. The Mother’s exact response at trial was as follows; in my view, the Mother’s comments speak for themselves – on many levels (emphasis added):[1]
[1] Transcript (21st & 22nd May 2015) p.186. Hereafter all transcript references will simply be “T” followed by the relevant page number.
HIS HONOUR: Sorry. This is a difficult question I’m – and I mean no offence. Do you regret having X?‑‑‑No. I regret telling Mr Sparkes that X is – that he is the biological father to X, yes.
Wouldn’t that mean then that X wouldn’t ever know his father if you had not told him?‑‑‑Yes, your Honour, and I have thought about that throughout this court proceedings for the past five years. I thought the right thing to do at the time was to notify Mr Sparkes because he has a right to know, but now I would think twice should an incident like that occur where I have to notify the biological father of my unborn child which I would not in the future because that – this conduct has been absolutely inappropriate. Just unwholesome, not healthy. There has been no scope to sit down and talk about issues which would have been really necessary. It’s just a hostile if not racist approach towards the care on the welfare a child that belongs to me.
Racist approach?‑‑‑Well, it’s extremely hostile and I can’t help but think that perhaps Mr Sparkes’ prejudices towards me as the parent has something to do with his time working in the military and the fact that, you know, there had been a war and he may consider me as a foreigner.
Sorry. Could I suggest that that’s way beyond ‑ ‑ ‑?‑‑‑The scope.
‑ ‑ ‑ anything? Yes?‑‑‑Sure.
Regarding X’s developmental and social adjustment issues, Ms M recorded the following. It is important to set out this troubling section in full, from pars.18 – 32 of the Report (emphasis added):
[18] X has a history of language delays and selective mutism. The parents each report that X exhibited selective mutism for a two year period from 2007, soon after he turned five years and was commencing kindergarten to 2009. Up to the end of 2007 X was living in a shared parenting arrangement, spending six weeks about with each parent. X then spent no time with the father for a period of thirteen months. These arrangements likely caused X confusion and anxiety in the critical developmental years when children require a stable, predictable and secure routine with one parent as a primary caregiver and regular time with the other parent.
[19] A speech assessment report by Therapy ACT in January 2008 identified X to have significant language delays and he was seen for speech pathology. An assessment by the Early Intervention School Counsellor in May 2008 found X would benefit from enrolment in an early intervention group to assist with speech and language development, focus on task and fine motor skills and further consider his readiness for school in 2009.
[20] X participated in the (omitted) Language Intervention Unit, part of the ACT Education Directorate Early Intervention Programs, from July 2008, for one 4 hour session each week participating in a group of ten children and commenced attendance at (omitted) Preschool in Term 4 for 3 half day sessions each week. Some of X’s early social development problems are identified in the review of his individual learning plan.
[21] X was referred to the Child at Risk Health Unit (CARHU) by his mother on the recommendation made by psychologist, Ms M of Therapy ACT and the service was involved with the X and the mother from September 2008 to May 2010. Notes from the CARHU indicate X became selectively mute in August 2008 and that the mother believes his mutism was influenced by the trauma of the previous year when he allegedly witnessed his father assaulting his mother. The mother also reported X to have experience difficulties on contact with his father as a result of the father’s new relationship and believes it was possible he experienced emotional and physical abuse from his father’s new partner and his children.
[22] X’s “readiness for counselling” was assessed by CARHU in February 2009 and he participated in 21 sessions of Parent-Child Interaction Therapy (PCIT) with his mother from October 2009 to April 2010. PCIT is a form of behavioural-parent training for children ages 2–7 and their caregivers. PCIT is an evidence-based treatment for young children with emotional and behavioural disorders that places emphasis on improving the quality of the parent-child relationship and changing parent-child interaction patterns.
[23] The CARHU documentation notes that PCIT was aimed at helping the mother improve her ability to direct X and create a structured play environment at home for X, improve play skills and communication and reduce X’s controlling behaviours. In the reasons for closure it is noted that the mother withdrew from the program because she was concerned about how she was being treated in PCIT and believed she was being judged based on rumours in relation to “a Court case”.
[24] X was assessed for possible Autism by Therapy ACT in 2010 and did not receive a diagnosis of Autism Spectrum Disorder. It was recommended that X be reviewed in two years’ time. In the months prior to the assessment for the psychological report prepared by Therapy ACT in March 2014, X was being home-schooled, with limited access to peer relationships or the mainstream curriculum and had a previous history of poor school attendance.
[25] The report indicates X presents with “severe language impairment” in receptive language and a “moderate impairment” in expressive language. The current assessment was seen to represent a significant decline in his language ability compared to his previous language assessment results and attributed to his recent limited access to curriculum rather than reflecting an underlying Language Disorder.
[26] X’s cognitive capacities as assessed by the WISC-IV places him as average or below average range for each of the four indexes, with his processing speed falling within the Extremely Low range. It is noted that X does not meet sufficient criteria for a diagnosis of Autism Spectrum Disorder and his difficulties in peer relationships are seen as likely a product of his environment rather than reflecting an underlying developmental disability. It is strongly recommended that X is provided access to relationships with other children his own age and supported to access appropriate educational opportunities.
[27] The mother reported that she does not accept the assessment by Therapy ACT as valid and is seeking a second opinion. She alleges that the report stated X “was a retard” and that “Mr Sparkes has paid her off to write this report”. She stated that the reporter did not observe X at school so cannot comment on his not maintaining friends.
[28] X was referred by CARHU to the Child and Adolescent Mental Health (CAMHS) first in 2009 and not followed up because CARHU reported they would be following through with an assessment. X was subsequently referred to CAMHS in June 2013 by (omitted) Aboriginal Health Clinic for assessment of his anxiety symptoms, insomnia, persistent school refusal and possible diagnosis of Asperger’s Disorder.
[29] A full assessment at CAMHS on 4 September 2013 resulted in no interventions being offered by CAMHS, as it was determined that Therapy ACT was a more suitable service for X’s ongoing needs. Records indicate that the mother was abusive to clinicians and reported that she felt invalidated and wanted something done for her son.
[30] The mother stated that she worked with the school and X overcame his difficulties in communication. She stated that Year 3 at school was a “dream” year for X when she reported she had no concerns regarding his behaviour and development. She said that in April 2013 X’s behaviour and sleep deteriorated significantly and he began experiencing heightened social anxiety such that he had difficulty attending school and no longer wanted to spend time with his father. The father reported that X does not experience anxiety or problems to do with social adjustment while he is in his care.
[31] The mother alleges that the father has shown no real interest in addressing X’s health concerns and that X suffers accumulating psychological harm every occasion he spends time with his father. Records of the various services involved indicate that the father has participated in interviews with each of the services providing assessment and intervention for X.
[32] There appears to be a pattern to the mother’s involvement with each service of initially engaging and then disputing the outcome of each assessment before disengaging with the relevant service. The mother appears selective in the advice of the various treating health professionals involved and will accept an assessment only if it meets her agenda.
In relation to X’s educational needs, Ms M commented, at par.33 of the Report:
X has attended (omitted) Primary School from kindergarten. The mother reported that from May 2013 his school attendance was irregular and in September 2013 she was given initial approval by the ACT Education Directorate to home-school X. There have been two reviews conducted by the ACT Educational Directorate in January 2014 and June 2014. A further review was conducted in June 2014. The report of June 2014 indicates that Ms Dalton was adequately meeting X’s educational needs.
It needs to be noted here that this assessment by the Department of Education was, ultimately, established to be based essentially or primarily on the Mother’s reporting of X’s progress. A later report, and reports by other agencies, showed a much more alarming picture of X’s isolated and unstructured existence in his Mother’s care. These concerning matters cannot be emphasised too much. Among other things, in my view they are very significant considerations, for example, in relation to the Mother’s parental capacity under s.60CC(3)(f) of the Act.
In comments reported by both parents, and or X himself, Ms M noted firstly, at pars.46 (the Father) and 92 (X), that (emphasis added):
[46] The father asserts that the mother asked X to write “top things I hate about my Dad” and has used the Court issues to turn X against him. For example, he alleges that the mother told X that his father was responsible for the intervention with his cats and for going back to school. He stated that when X does not get his own way he will “sulk and be very stubborn” and will sit in “time out” and “doesn’t believe his done anything wrong.”
[92] These were “sometimes when he talks about Court I don’t feel safe, he makes long talks lecturing and suggested I live with him, I hate him and don’t want to spend time with him and don’t know why I am forced; he reported my cats to the RSPCA and they took two away; he was on one of my social media sites; he forces me to do things when I should be at my mother’s and not talking to him; he says I learnt bad things from my mother, learnt my attitude; I hate him; I could find a better Dad on the street; he bothers me; he eavesdrops; if he was chained somewhere I would not help him; he is no Dad; he makes too many orders; he puts me in timeout for no reason; he is an idiot; I could tear him limb by limb.”
Ms M confirmed that it was she who reported the large number of cats to the RSPCA, and not Mr Sparkes. It was plain from this, and other matters, that the Mother had mis-informed X about matters allegedly involving his Father.
The Father confirmed (at par.47) how much X loves playing with his younger siblings, and how they love X. The Father also confirmed to Ms M (at par.49) his belief in the importance for X of doing outdoor activities (e.g. sailing, fishing and hiking) with him.
At par.52 of her primary Report, Ms M commenced her observations of the Mother by saying that “the Mother appeared disaffected by the Court process, and at par.54:
The mother conveyed the negative nature of her relationship with the father, referring to him repeatedly as “Mr Sparkes” and to their relationship as “malignant”. She stated “he (the father) would have been better to move away and not get involved; he has a malignant attitude to anything in my interest. He is aggressive, trying to ruin what we (X and her) have, like trying to kill us, suffocate us” and believes that “when he’s (the father) not in our lives our relationship is perfect.” She stated that “he had a systematic way of breaking down my relationships, break down and try and suffocate you.”
And at par.58, Ms M reported the Mother’s comments as follows:
The mother believes that X has been caused “psychological harm” by the father’s insistence that X continue to spend time with him and attend school. The mother alleges she could not always make X available and the father did not wish to negotiate options for when he would spend time with X. She said “it’s always about him (the father) and not X” that he uses “macho antics” and believes the father is using X and the Court “to teach me a lesson.” She commented that the father “is using the Courts to destroy us. We just want him out of our lives. I wish he would get out of our lives, my son wants it and doesn’t want to spend any further time with Mr Sparkes.”
Regarding X attending school, Ms M reported the Mother stating (at pars.59 & 60) (emphasis added):
[59] The mother said in Year 4 X developed a “new set of phobias” and could not sleep and one occasion threatened her with a butter knife. She stated that X stopped attending school because “you can’t put him in an environment that will harm him psychologically.” She believes that X “needs to find a place where he can relax and be himself” and while being home-schooled X was doing well and studying online courses pertaining to developing software applications, building websites and computer programming. Regarding his other skills she stated that X’s reading is “not bad with articles” and his maths skills are “good in terms of engineering.”
[60] The mother described X’s social anxiety as “isolation and hopelessness” and maintains that when X does not spend time with his father and is home-schooled his anxiety is reduced. She described her relationship with X as “very close”. She commented she has spent “hours” working out routines at home for X because there are “certain things he has to have” such as set foods at particular times of the day.
Again, the comments made in this part of the family report highlight, in my view, the Mother’s dangerously unrealistic assessment of X and his needs, and her inability properly to meet them.
To the matters just referred to, Ms M commented, at pars.62 and 63 (emphasis added):
[62] The mother’s comments suggest she is extremely anxious regarding X’s welfare when he spends time with his father. For example, she believes X has been left in a room to entertain himself and “that’s the scope of his time with the father, like a cell, with no nourishment.” She said she was “freaked out because of lack of communication by the father and I can’t maintain assurance he could look after X.”
[63] Regarding X’s list of “top things I hate about Dad”, the mother stated that X wrote this on his iPad while he was spending time with his father. She believes the father “comes up with an excuse in shifts responsibility” and that the father is a “pathological liar.” She stated “my child is put in harm’s way by being put with this person.”
At par.69, Ms M recorded the Mother’s general assessment of X as being:
The mother stated X becomes “quite frustrated” if he does not get his way and said she tries to moderate his behaviour rather than “shutting him down or stopping him.” She believes that X has Autism and is high functioning. Of X’s behaviour the mother stated that “as long as Mum is there and Mum is doing it with him he is okay. I don’t force him to do anything against his will because it upsets him too much.”
Yet again, this assessment of the Mother reinforces the Court’s view that the Mother is not capable of making mature, reflective and child-focussed decisions in relation to X. Her assessments of X are not supported by any relevant health or educational authority. In fact, the Mother’s assessments are challenged and flatly rejected. But she continues to be obsessed with her evaluation of X as having the disorders about which she speaks. And she lets X run his and her lives, a complete inversion and abrogation of parental responsibility.
In relation to the parties’ Personality Assessment Inventory (PAI), Ms M said of the Father (at pars.75 and 76):
[75] Certain of the father’s validity scores on the PAI fall outside of the normal range, suggesting he may not have answered in a completely forthright manner and the scores may give an inaccurate impression of him. The father’s pattern of responses suggest that he tends to present himself in a consistently favourable light, and as being relatively free of common shortcomings to which most individuals will admit. This is not uncommon in the context of a Court dispute. Given these apparent tendencies, the interpretive hypothesis in this report should be reviewed with caution as the clinical profile may underrepresent the extent and degree of any findings.
[76] The PAI clinical profile of the father is within normal limits and reveals no elevations that should be considered to indicate the presence of clinical psychopathology. The self-concept of the father appears to involve a generally stable and positive self-evaluation. He is normally a confident and optimistic person who approaches life with a clear sense of purpose and distinct convictions. These characteristics are valuable as they allow him to be resilient and adaptive in the face of most stressors.
Of the Mother’s PAI assessment, Ms M noted, at pars.77 – 81, and 83:
[77] Of the mother’s PAI, some of the validity indices fall outside of the normal range, suggesting she may not have entered in a completely forthright manner and may have given an inaccurate impression. With respect to negative impression management (NIM) there are indicators that the mother tended to endorse items that present an unfavourable impression or represent extremely bizarre and unlikely symptoms. This result suggests that the profile may exaggerate complaints and problems and may have been the result of confusion or careless responding.
[78] Elevations in this range could also be indicative of a “cry for help”, or an extremely negative evaluation of oneself and one’s life. Although this pattern does not necessarily indicate a level of distortion that would render the test results invalid, the interpretive hypothesis presented should be viewed with caution because the clinical scale evaluations are likely to over represent the extent and degree of significant test findings in certain areas.
[79] The mother’s PAI clinical profile is marked by a significant elevations indicating the presence of clinical features that are likely to be sources of difficulty for her. They suggest she has significant thinking and concentration problems, accompanied by prominent hostility, resentment and suspiciousness. Her sensitivity in social interactions would likely create an obstacle to establishing close interpersonal relationships and she is likely to be withdrawn and isolated, feeling estranged from, mistreated and to mistrust the motives of those around her. Her judgement of others is probably fairly poor and she is likely to be chronically tense and pessimistic about what the future may hold.
[80] A number of aspects of the mother’s self-descriptions suggest noteworthy peculiarities in thinking and experience. It is likely that she experiences unusual perceptual or sensory events including unusual ideas that may include magical thinking on delusional beliefs. Her thought processes, although relatively uncompromised, may occasionally be marked by some confusion and difficulty concentrating. The mother reports that drug use may be the source of some problems in her life, describes herself as rather moody and indicate some concerns about physical functioning and health matters in general.
[81] The mother describes certain problems potentially associated with elevated and variable mood. Although she may be herself as active outgoing, ambitious and self-confident others may perceive her as impatient and somewhat demanding. She reports some difficulties consistent with relatively mild or transient depressive symptomatology and indicates she occasionally experiences mildly maladaptive behaviour patterns aimed at controlling anxiety.
[83] … She does report experiencing periodic and perhaps transient thoughts of self-harm and is probably pessimistic and unhappy about her prospects for the future. Specific follow-up, regarding the details of the mother’s suicidal thoughts and the potential for suicidal behaviour is warranted.
Very briefly in relation to her engagement with X, Ms M noted, at pars.87 and 90:
[87] Regarding his experience of home-schooling, X stated that “I actually get to complete things, get to do my own stuff, my own work; I can educate myself (I’m) more free.” Asked who he regularly had contact with when home-schooling, X indicated this was his pets and then commented that he did not wish to talk about his pets with the Family Consultant.
[91] X indicated that he does not like spending time with his father because “I don’t like his bossiness, he lets his own age get to his head, not too fun, he tells me what to do like, turn off the tank, feed the dog.” X stated that his father “talks bad things about my mother like my Mum is stupid, lazy.” At this point X requested if he could refer to the list on his iPad of “Top things I hate about my Dad.” X was permitted to do so and the following is some of the items on his list as read out by X.
More specifically in relation to his Father, X commented, followed by Ms M’s comments, at pars.94 – 96:
[94] Asked to describe himself X commented that he was “smart, happy with cats, doesn’t want his father.” Asked in what way he wants to be like his mother when he grows up X stated “just want to do my own stuff” and in what way he wants to be like his father he said “no way, not like my father in almost everything.” X stated, “I don’t like how Dad is ordering too many things, like going to school. I know he lies at Court a lot. He judges me by what he sees on my social media and I had to block him from my Facebook page.” X thought that “without Dad and without school” he had been able to complete an animation and “made a huge signs saying Beta with a shiny white line.”
[95] X’s comments suggest his view of his father has been influenced by his experience of living primarily with his mother and that he finds the parental dispute stressful. He demonstrates insecurity in his relationship with his parents and confusion regarding his relationship with them and what is an appropriate parent-child relationship, for example his comments about his father being “bossy.”
[96] This suggests X has not had his emotional needs met over the years by his primary carer, his mother, and in stating his wish for “my own house” he may conceive of his future as solitary and reliant on no one. These are concerning tendencies as an inability to relate well to others in a developmentally appropriate way and have a representational mental model of the world as hostile and menacing is often an antecedent to psychopathology in adulthood.
In observations of X with his six siblings, Ms M commented (at pars.101 – 103):
[101] X returned for a second interview with his father his partner and their six other children namely, E, F, D, A, B and C. On this occasion X was observed interacting in the family group setting. He was observed to adopt a similar sullen countenance and reluctance to participate, as was seen with his mother. His father commented that X’s demeanour had changed that morning on knowing he was coming to the Court building, that he did not wish to attend and that X was “completely different” to how he would usually present in the company of his siblings.
[102] The children were observed to readily fall into play with each other, X choosing to sit slightly removed from the group on the couch adopting the stance of an observer. E focused on trying to engage X in a game and demonstrated kindness and enthusiasm to buoy X’s spirits. Although initially sullen and withdrawn, X slowly responded and began talking with the others and eventually could not repress a smile and laugh.
[103] When X became aware he was being observed by the Family Consultant he would revert to having a frown. Having seven children together in one room was busy however the children were observed to engage in joyful, harmonious and playful interaction with each other. X was observed to be kind and considerate towards his siblings.
In her formal evaluation, beginning at par.104 of her Report, Ms M noted the following:
[105] … The parents’ inability to effectively coordinate care arrangements for X has led to X being unable to have a stable arrangement of spending reliable and predictable time with his father and siblings.
[106] Such unpredictable care arrangements in the context of parental conflict, frequently leads to anxiety in young children. It seems likely that X’s developmental problems, in particular his selective mutism and history of non-compliance and school refusal, have been an extreme reaction to radical and unsettling changes in his environment and routine from an early age and the ongoing and open hostility between the parents.
[107] The mother’s psychological and interpersonal style observed for this assessment is of concern. Her comments suggest she often feels pessimistic and suspicious of others and attributes negative intentions and distorted conclusions from the actions of others such as the suspicion she expressed around the involvement of the CARHU therapists. She is particularly suspicious of the father’s involvement. For example she interpreted as X not being returned by his father as “that of the ransom” , perceived X’s “top things I hate about my Dad” as meaning he “does not feel safe” and believes the father is using the Court action to “teach me a lesson.” Her concerns for X’s welfare in the care of the father such as believing X to be locked in a cell at his father’s with no light and attention, appear exaggerated to the point that they lack a basis in reality.
[108] The interpretive information from the PAI, when combined with the information from the parents’ reports and the services involved with the mother seems to present a consistent picture of the mother demonstrating significant thinking distortions characterised by hostility, resentment and suspiciousness which appears to present an obstacle to her development of close interpersonal relationships. In the light of the mother’s results on the PAI indicating the potential for suicidal behaviour and possibilities of delusional or personality disorders, the Court may wish to consider obtaining a thorough psychiatric assessment of the mother.
[109] The mother bases her claim that X should not attend school or spend time with the father on the grounds that he experiences heightened anxiety in both these situations. However the reports from CAMHS and Therapy ACT found no underlying disorder to which they could attribute X’s anxiety and recommended he returned to mainstream schooling.
Because of the seriousness of her findings, the following paragraphs from her Report need to be set out in full (pars.113 – 120):
[113] Children also experience anxiety when they do not have their emotional needs met by their caregivers. If a child experiences their caregiver as emotionally inconsistent or unavailable and poorly attuned to their needs, children become anxious and unable to organise their own internal emotional world and struggled to develop the ability to engage in reciprocal interaction with others.
[114] X’s relationship with his mother is concerning. Her passivity and helplessness as a parent, her lack of reciprocity and role reversal, with the mother failing to take the executive role and X assuming a parental role, suggest dysregulation in the caregiving system. The notes from the mother’s involvement in PCIT of a breakdown in interactive coordination and communication between parent and child suggest a disrupted caregiving relationship exists between the mother and X.
[115] The mother does not appear able to provide X with the emotional safe haven or secure base he needs to organise and regulate his emotions. She appears to experience heightened anxiety and psychological abandonment when X is not in her care and becomes helpless, such as spending an entire weekend in bed, not eating or drinking when X spent time with his father.
[116] The mother’s description of her relationship with X and observations of their interaction indicates that she provides him with no boundaries, guidance or structure and he has complete freedom to run his life as he chooses. He does not refer to his mother as a trusted adult and would be more likely to share worries with his aunt Ms S than his mother who he would talk to “hardly ever.” X also appears unfamiliar with being required to do anything against his wishes likely making his father’s requests appear bossy and unpalatable.
[117] The mother’s comments suggest she is opposed to X having a meaningful relationship with his father and has not facilitated him spending regular time with his father. She appears to have involved X in Court matters. Both these factors suggest that the mother lacks an awareness of what is child focused and in X’s best interests.
[118] If the mother’s mental functioning is compromised then she will be unable to make appropriate and well informed decisions regarding X’s welfare and development. This is demonstrated in her inability to act on advice provided by professionals involved in assessment and intervention with X.
[119] For X to develop in a healthy manner he requires positive relationships with his carers who are able to meet his psychological, emotional and social needs. The current care arrangements for X do not appear to adequately meet his needs. The information available suggests that the mother has not adequately addressed X’s social and academic needs. In spite of recommendations by Therapy ACT and an order of the Court she has chosen not to send X to school and to facilitate him spending time with his father.
[120] The combination of the factors stated above suggests that X is at risk of psychological harm in the care of the mother. While in the primary care of his mother, X appears to have developed poor psychological functioning and is failing to acquire the skills and abilities that will allow him to integrate, participate and contribute in a meaningful way within the broader society. For each of these reasons, it is recommended that X live with his father.
Ms M commented further on her concerns about the Mother’s psychological state, at par.123:
[123] Spending time with his mother may undermine X’s adjustment to an entirely new living arrangement. Observations and psychometric testing during this assessment suggests that the mother is experiencing psychological problems the nature of which requires further assessment. Until the mother’s psychological health is more thoroughly assessed it is recommended X spend limited time with the mother with longer term decisions pending the results of such an assessment.
Ms M formally made the following recommendations (for current purposes, it is sufficient to note only those at pars.126 – 131)
[126] That X lives with his father.
[127] That the Court considers a full psychiatric assessment of the mother from a psychiatrist such as Dr J, Dr B or Dr L.
[128] That until such an assessment is finalised, that X spends limited time with his mother such as each alternate Saturday for 3 hours.
[129] That X completes the current academic year at (omitted) Primary School and attends (omitted) School from the commencement of the school year in 2015.
[130] That Mr and Ms Sparkes attend Therapy ACT for information and professional advice on addressing X’s developmental issues.
[131] That Mr and Ms Sparkes and X attend joint counselling.
In the light of all the evidence, I record here that I accept Ms M’s evidence, both in her reports and given during the trial. It follows that I accept her recommendations as I have recorded them.
In my view, in the light of the evidence of Ms M (with more noted below), and the Mother’s evidence set out later in these reasons, the Mother has a very poor grasp of day to day reality. Her judgments are poor, and she seeks to justify, and in turn to obfuscate and cloud, her actions by more and more extreme diagnoses of X. Her abject refusal to accept, for example, the report and its findings from Therapy ACT that X does not have autism is a good example where it is a case where “the Mother knows best”. And when an organisation, such as Therapy ACT, does not provide the relevant diagnosis to support the Mother’s assessment, then it is time, in her view, to move on to another organisation that might do so.
Ms M’s third report, formally an Addendum (Exhibit A2), arose out of a series of [limited] questions which I permitted the Mother to put in writing to the family consultant. There is nothing in that very brief Addendum Report that I need to address here except to note that at par.7 of that Addendum, the following is stated (emphasis added):[2]
The subsequent assessment and psychological report prepared by Therapy ACT in March 2014, is reported in paragraph 26 of the Family Report: “It is noted that X does not meet sufficient criteria for a diagnosis of Autism Spectrum Disorder and his difficulties in peer relationships are seen as likely a product of his environment rather than reflecting an underlying developmental disability. It is strongly recommended that X is provided access to relationships with other children his own age and supported to access appropriate educational opportunities.”
[2] I note again that the Psychological Report from Therapy ACT, to which Ms M referred, became Exhibit B.
Family Consultant – Oral Evidence
In her oral evidence, beginning with questions put to her by the Father’s advocate, Ms James, regarding X’s “mutism”, Ms M said:[3]
The father instructs me that X didn’t speak to him for the first few times that he had contact – when they had contact – those supervised visits at Marymead in 2009. However, some time after, X did start speaking to him. Are you able to comment on any of that? Why he might not have spoken to him and then commenced speaking to him?‑‑‑I think the selective mutism is, in part, a defence mechanism. It’s a way of coping with what would have been quite a traumatic experience and so it would take him a period of time to even comprehend that his father was there, that he hadn’t died or, you know, disappeared forever and – he need – I would have thought, at that stage, he needed a chance to re-establish the relationship and so he would have begun talking when he started to feel comfortable.
[3] T 11.
Regarding the parent’s inability to co-parent, the Mother’s proposal that she have sole parental responsibility (which the family consultant rejected out of hand), and the Father’s capacity to facilitate a relationship between X and his Mother, Ms M said:[4]
[4] T 12.
In your opinion, are these parents able to communicate with one another in relation to the care arrangements for X?‑‑‑I don’t believe effectively enough to maintain a functioning co-parenting relationship.
And is that the same opinion that you hold in regards to, like, long-term decisions such as schooling?‑‑‑Yes. They have completely opposed ideas.
The mother, in her proposal in your report, seeks that she have sole parental responsibility, home school X and that X have no contact with the father at least until he has undertaken a psychological test. Did this seem a reasonable proposal to you based on your knowledge of both of the parties?‑‑‑By – the proposal by the mother?
By the mother?‑‑‑Not at all.
Is it true to say that on the father’s presentation to you, he would facilitate a relationship between X and the mother?‑‑‑Yes. And I think he has demonstrated that he has done that in the past.
That’s contrasted with the view of the mother though. She – is it true that she states that she doesn’t want X to spend any time with the father?‑‑‑Yes.
The mother reports to you that she had concerns for X because there was a possibility of abuse occurring when X spent time in the father’s house. Is there anything that you’ve seen or read which suggests that that may be occurring?‑‑‑No.
I need only note that Ms M agreed that the number of organisations with which she had involved X would constitute “systems abuse.”[5] Ms M further commented on the Mother’s conduct in this regard:[6]
I think she has an unreasonable and unrealistic fear that there’s something fundamentally wrong with X.
[5] T 12.
[6] T 13. See also her comments on the Mother’s general anxiety and its likely negative impact on the child: T 14.
Ms M confirmed that she was aware that the Father and his Wife, for different reasons, both have suffered from (and sometimes still do so) post-traumatic stress disorder, but that from her assessment, there were no impediments from this disorder in their parenting capacities, including of such a large family.
Regarding the Mother’s insight, or lack thereof, regarding the importance of X having a relationship with his Father, Ms M said:[7]
Does the mother have, in your opinion, any insight of the relationship between Mr Sparkes and his son being a good thing?‑‑‑I don’t think so from the comments she made to me. She seems to want Mr Sparkes out of X’s life, to have nothing to do with him, and regarded him as a malignant influence on X, were her words.
And following on from that, does – in your opinion, does she understand the impact of continually diminishing the father’s role on X? What that might be causing?‑‑‑No.
[7] T 17.
In relation to the importance of the Mother obtaining a psychiatric assessment, and the risks for the Mother more generally regarding her spending time with X, Ms M commented:[8]
If one or both of these factors were present in the mother, what effect would that have on X if she was his primary carer?‑‑‑The delusional ones are concerning because it doesn’t allow the person to have a strong grip on reality to be able to then facilitate what needs to happen for the child. So parents are, you know, responsible when children are young for structuring their environment and making them – making it possible for them to participate in school, social activities, social relationships so that, in a way, a parent is a bit of a foregoer in those areas; shows children how it’s done. If there’s delusional thinking and anxiety, then the parents aren’t able to do that for the child so the child just becomes increasingly hopeless and helpless.
You also say that – in your conclusions, that there is a disrupted care-giving relationship between the mother and X. Is that one of the reasons why you think that X should live full time with the father?‑‑‑Yes.
And you stand by that recommendation that X should live with his father going into the future?‑‑‑I do.
And if the mother refuses to obtain a psychiatric assessment or undergo any form of mental health care, would you continue to recommend that she spend limited time with X?‑‑‑Yes.
Would you recommend that she spend any time with X?‑‑‑I think there’s a concern if it continues to be regular, whether he’s getting anything positive out of that time with his mother. If she hasn’t sought any help, then I would have a concern that it was potentially detrimental if it was too frequent. I mean, I guess, in making that recommendation, as I did, regarding three hours a fortnight, I was hoping that, relieved of the day‑to‑day care of X – that Ms Dalton would be able to use that three hours in a positive way to have – you know, create a positive connection with X. If that hasn’t happened, then I think it’s possibly even detrimental to be spending time where he’s having all of those things reinforced or re‑experiencing, reliving those experiences from when he previously resided with his mother.
[8] T 19. See also further comments at T 20 and the possible risk of the Mother’s mental health deteriorating further.
A large part of the questions put to Ms M by the Mother focussed on the family consultant’s experience, her experience in dealing with single parents (Mothers in particular), and when or why X was or was not part of the interview/assessment process at any particular time. None of these questions assisted me.
Shortly after the Mother questioned the ‘lack of normal humanity’ of the Father, Ms M did comment at one stage on how well the large group of Sparkes children all engaged together in such a small room where the assessments were being carried out.[9] The Mother suggested that the good behaviour of the six or so Sparkes children was something of a stunt, to which Ms M said that it would be very hard to get such a number of children, of diverse ages, to orchestrate things in such a manner. She did not think there was any acting at all by anyone.
[9] See T 34 & 35.
Ms M also categorically resisted the suggestion by the Mother that one or more of the Sparkes children had been or was the subject of abuse by the Father (or his Wife).[10]
[10] T 37.
Ms M confirmed that she had no concerns about the parenting capacity of either Mr or Ms Sparkes.[11]
[11] T 46.
In answer to a question from the ICL, particularly in relation to X spending time with his Mother in the light of Ms M’s concerns about the Mother’s mental health, there was the following exchange:[12]
HIS HONOUR: Can I ask this: under what circumstances might it be considered appropriate to increase the time between X and his mother?‑‑‑Well, this is – I guess goes to the issue of the psychiatric report. And I guess the problem is that we don’t have that information. So it’s very hard to know what to do. But in the absence of that report, I guess the court has to take a fairly conservative view of the level of risk to the child.
So you would say that really from your professional perspective that it’s not something really that the court could properly do in the absence of there being a psychiatric report. That’s your view?‑‑‑Yes. And what – because, you know, people’s mental health changes over time so, you know, what’s the trajectory for that? Is it improving, deteriorating?
I see. Yes?‑‑‑That sort of thing.
Thank you.
MR ROBINSON: So if the mother were to obtain that report and to follow any recommendations that may be made having been assessed and to be able to demonstrate an improvement in her mental health, that that may be a matter that would warrant the parties considering a review of the types of arrangements that are presently in place?‑‑‑If more information was available through that, yes.
And in the absence of that, it remains the case that, as indicated in your report, you would be concerned that X was at risk in the care of the mother?‑‑‑Yes.
And a period of seven months has now passed since that order was made and that invitation was extended to the mother to obtain that report. And during that period there, X has spent every fortnight – you gave evidence prior to lunch in terms of recognition time, as it were, and the frequency of that. Is there anything that you would wish to add to that, noting that there has already been that lapse of seven months?‑‑‑Well, others who have spent time with X in that seven month period are probably better than me to comment on how he’s travelling and how he finds that time with his mother.
[12] T 50.
The Parties’ Evidence
The cross examination of the parties was relatively brief. In my view it added very little to what was before the Court from the family consultant, other documentary evidence, and the affidavits of the parties. It is sufficient to note the following brief matters.
The Father’s Evidence: The Father’s oral evidence was very confined. He confirmed that he has facilitated X’s relationship with the Mother’s family (notably the Mother’s two sisters), and that he would continue to do so. He also said that it was “absolutely” important for X to have a relationship with his Mother, which he would facilitate.[13]
[13] T 72 & 73 – 74.
Ms M commented favourably on the Father’s account of events and presentation to and engagement with her. Likewise, I was impressed with the Father’s persistence in seeking to spend time with X, and with his general candour. I accept his evidence – limited as it was.[14]
[14] The Father’s Wife also gave limited oral evidence. I need not traverse it other than to note that she impressed as a very competent woman who looks after a significant number of children, including X, apparently without undue difficulty and revels in that task along with quite a number of outside- the-house-activities and interests. She also noted how co-operative and helpful X was at home especially with his younger siblings. See T 96 – 97.
The Mother’s Evidence: In no derogatory way, the Mother’s answers and comments were often, to put it somewhat colloquially, rather “off-beat” and unusual. Other characterisations are apposite. For example, at the outset of her cross examination she insisted that she had been X’s primary carer “since conception.”[15]
[15] T 106 & 110.
She did confirm that she could not communicate with Mr Sparkes about care arrangements for X.[16] She also confirmed that it was normal for her to contact the police to check on X when he is not in her care because of her significant anxiety about the Father’s care of the child.[17] That said, she indicated that her anxiety is less than it once was.
[16] T 108.
[17] T 108.
In answer to a number of questions regarding the general care of X in the early stages of Mr Sparkes’ marriage with his Wife, the Mother referred to the Father thinking that he was in a relationship with her, whereas she thought she was having a relationship with him, even though it was acknowledged that X’s conception was as a result, literally, of the proverbial “one night stand.” Part of this evidence was as follows:[18]
Sorry, Ms Dalton. We talked about that 12 month period – that you say is 12 months, and my client says is two years – of the shared care?‑‑‑Yes.
Did you make the decision for that to stop?‑‑‑Yes. I think it was me to stop because there were concerns when Ms Sparkes – Ms Sparkes, who was Ms R’s ploy at the time, taking care of X where I had some very serious questions. And Mr Sparkes refused to respond to them. He thought I was just acting as a jealous girlfriend, when I had some legitimate questions about ‑ ‑ ‑
But you were never his girlfriend, were you?‑‑‑No. He – I think he assumed that I was – I think he portrayed me to his military mates that I was just some, you know, psychic lover who’s just desperate for his attention and ‑ ‑ ‑
[18] T 109.
Then in relation to the Mother’s concerns about the Father’s parenting capacity, she said:[19]
[19] T 110.
And do you agree with me if I say that you don’t allow Mr Sparkes to become involved with X in making decisions; day-to-day decisions?
HIS HONOUR: So this is obviously in the past.
MS JAMES: Yes, in the past. Sorry?‑‑‑I was concerned about Mr Sparkes’ ability to parent X because of his emotional immaturity. Yes, I think I have, in the past, prevented him from making decisions where I think that he could potentially be putting the child at risk. To what extent was, I think that’s my error. I think maybe ‑ ‑ ‑
And that’s a belief that you hold, isn’t it?‑‑‑Yes, I do hold that.
She said that she was not sure if she still had this view because she was re-assessing the Father’s capacity, but she still has “concerns” in this regard in any event.
The Mother confirmed that she continues to believe, notwithstanding expert evidence to the contrary (from Ms M and from Therapy ACT), that X suffers from high-functioning autism or social persuasive disorder, which includes anxiety. She also maintained that he suffers from a sleeping disorder. There followed a lengthy discussion about (a) the child being put on sleeping medication by the Mother, and (b) the Mother improbably claiming to know how well (or not) the child had been sleeping claiming during the seven month period since X had been living primarily with his Father. The Father’s evidence was that upon assuming primary care of X, his sleeping medication had ceased and that X was sleeping very well.[20]
[20] T 113 – 118.
The Mother does not believe that X is a happy, stable child who is enjoying his home environment with his Father and family of siblings, and that he is happy at school.[21]
[21] T 118.
In relation to questions put to the Mother confirming that no assessment has diagnosed X as having autism, the following brief exchange is very significant:[22]
Have you received a diagnosis, though, from any organisation of autism in regards to X?‑‑‑No, unfortunately….
[22] T 119. The matter is further explored at T 120 – 125.
Indeed, a little while later in her cross examination, the Mother confirmed:[23]
You give evidence in a number of affidavits that are currently before the court that X attends a series of regular consultations with health services, but you do note that X’s existing condition still remains undiagnosed. Is that still your position?‑‑‑Yes.
[23] T 125.
The Mother confirmed that she had “very strong difficulties” accepting the report from Therapy ACT that X was not on the autism spectrum.[24] She also confirmed that she had been told by the Child and Adolescent Mental Health Services that X’s sleeping problems might be as a result of the Mother’s conduct in the home. The Mother said that she took offence to this and considered it to be inappropriate.[25]
[24] T 126.
[25] T 126.
The Mother was asked questions about her ‘style’ of parenting, and whether it was ‘care-free and without boundaries.’ She said:[26]
Okay. No, I’m not suggesting that. Would you describe your parenting style as carefree with few boundaries?‑‑‑No.
How would you describe it then?‑‑‑I would describe it as a series of thought processes that goes to developing a set of boundaries for social settings and personal boundaries to make it consistent with a healthy and happy environment.
HIS HONOUR: So, sorry, what does that mean?‑‑‑That means that I always try and consider people’s thoughts or I always try to consider the views or – especially of X under this ‑ ‑ ‑
If you pardon me saying this, it sort of sounds a bit like a committee meeting. But, you know, what does it mean practically in day-to-day terms?‑‑‑X has grown up with routines, quite frankly. These routines are developed with programs about parenting, books about parenting and certainly ‑ ‑ ‑
[26] T 131.
After agreeing that X would spend hours at night on the internet “researching” and discussing “cats”, the Mother confirmed again that in her view X had undiagnosed needs which also meant that she could be very flexible in determining whether or not X would attend school, or instead continue to be home-schooled. She confirmed that school records showed that while in her care in term 3 in 2014, X only attended 23 out of 48 school days.[27]
[27] T 133 – 134.
On one occasion – 6th September 2014 – the Mother had a video chat with X while the child was at his Father’s residence. On the basis solely of that video chat, the Mother surmised that X was being kept in a room (sometimes the terminology was “locked in a cell”) all day by himself with only a keyboard to entertain him.[28] In fact, X had been in his bedroom when on the video chat with his Mother. But so anxious was the Mother that she called the police who then turned up at the Father’s residence to check on X. The Mother refused to concede that having the police turn up unexpectedly might have been disconcerting for X, not to mention others in the household.[29] This too was a clear example, in my view, of the Mother’s alarmist and inappropriate assessment of X and his needs.
[28] The family consultant, Ms M, referred to this incident in her primary Report, which I have recorded earlier in these reasons.
[29] T 145 – 147.
On another occasion, on the basis of emails from my Associate sent to all parties, the Mother thought that someone was impersonating me. She sent emails to my Chambers warning me about someone allegedly impersonating me. The Mother insinuated that the Father had something to do with this alleged impersonation.
The Mother confirmed that it was not her role or responsibility to promote or facilitate a relationship between X and his Father, and that in fact she would like all contact between them to cease. She said that she did not hold that view now but did not know what view she should now hold, although she varied this stance later, saying that it was not her role to facilitate the relationship between Father and son.[30]
[30] T 152 & 154.
Again, the Mother said that she did not think that the Father was a responsible parent. She also held the view that responsibility for the litigious contest between – on and off for the past five years – rested with Mr Sparkes.[31]
[31] T 155.
The ICL put to the Mother an incident when X was aged 9 years reported in the report from Therapy ACT, and she confirmed that following X not being able to access WI-FI at the Children and Adolescent Mental Health Services office, he reacted emotionally which resulted in him attempting to lock his Mother in her room, and at 3am, to threaten her with a butter knife. The Mother further confirmed her agreement with the proposition that, whenever X is with her, it is X who “calls the shots.”[32] This included the Mother leaving the child to decide whether or not he went to school. In my view, this was a clear abrogation of the Mother’s parental responsibility for X.
[32] T 176 – 179.
The Mother also agreed, in a manner of speaking, that X was a happier person since living with his Father, and also said that since that had occurred, she had had a greater opportunity to spend time with X socially, meaning that she was (in her words) “doing a lot less work to take care of him”. They now had more fun together.[33]
[33] T 182 – 183.
Again the Mother confirmed that she did not accept the recommendations and the report more generally of Ms M, and that she still had some hostility and resentment towards Mr Sparkes.[34]
[34] T 184.
In my view, the Mother’s evidence confirmed very clearly that she is a parent who is incapable of placing proper boundaries for her son. More often than not she would leave significant decisions to X, which was a clear abrogation of her parental responsibility. At times her evidence was implausible and bordering, in my view, on the delusional. I agree with the evidence of Ms M to the effect that the Mother’s grasp of reality, at times, is highly questionable. Her abject refusal, and or inability, to accept that recognised bodies such as Therapy ACT do not consider X to have any relevant disability is extremely troubling. The converse is also true, where she believes most earnestly that the child has a disorder which, so far, has not been diagnosed.
The evidence of both parties clearly establishes that the parental relationship is completely dysfunctional. And should it need to be stated, to the degree that it is relevant or necessary, where there is any discrepancy between the accounts of certain events by the parties, I should be taken to prefer the evidence of the Father to that of the Mother.
Submissions
Because the Father’s and the ICL’s submissions are congruent, in my view it is sufficient to note only those of the ICL. And because the Mother’s written submissions are relatively brief, I will deal with those submissions first before outlining those from the ICL.
The Mother’s Submissions: The first part of the Mother’s submissions seek to summarise the more recent procedural course of the matter before submitting that there were many “discrepancies and incongruities that came to light” during the trial which must lead the Court to return the child to the Mother’s care. Unfortunately, none of the “discrepancies and incongruities” are identified by the Mother.
The Mother sought to focus on largely unsubstantiated claims of “family violence” levelled against the Father (which he denied in his evidence), that his PTSD remained untreated, and that he held a firearm permit. The Mother questioned why there were no witnesses at the trial that relevantly dealt with the Father’s alleged history of violence, or of his alleged mental health issues, which would lead the Court to conclude that he posed a risk to the care of X.
Unfortunately, the Mother ignored in these respects the evidence from Ms M who was firmly of the view that there were no reasons for her to doubt the competence of the Father (and his Wife) properly to care for X.
The Mother’s submissions must lead, she said, to the child being returned to her primary care and that the child spend time with the Father only on a supervised basis.
The Mother’s orders sought (par.37 of the Mother’s submissions), which were part of her submissions, effectively sought a declaration that the Court recognised that X has “a condition and that an official diagnosis is still being sought for an appropriate course of treatment/care-plan for his health and development.”
Because I agree with and accept them in their totality, I set out in full the ICL’s submissions. In doing so, and because of their thoroughness, in my view, it is unnecessary for the Court to duplicate matters by traversing exactly the same statutory pathway/scaffold set out in Part VII of the Act. Indeed, it would be utterly repetitious, and therefore otiose, to traverse matters again that are otherwise accepted without qualification by the Court.
The ICL’s Submissions
The ICL’s submissions were in the following terms:
1) A two day final hearing was conducted on 21 and 22 May 2015 concerning the parenting arrangements to operate for X born (omitted) 2003.
2) The Applicant Father is [sic] represented by Ms James. The Respondent Mother appears [sic] on her own behalf.
3) The Father has filed written submissions confirming the Father’s position as being in line with the Minute of Orders Sought filed at the commencement of the hearing with the exception that the Father adopts the Independent Children’s Lawyer’s proposed orders in relation to the frequency of time X spends with his Mother.
4) The Mother’s position at hearing was in line with her Case Outline filed in November 2014. In her written submissions the Mother maintains a position that X live with her and seeks that his time with his Father be supervised (Mother’s submissions paragraph 30).
5) The proceedings were initially listed for final hearing in November 2014, however these dates were vacated and an interim hearing conducted on 3 November 2014 following the release of the Family Report on 30 October 2014. Interim Orders were made on 3 November 2014 providing that X’s reside with his Father and spend limited fortnightly time with his Mother. Orders were also made directed to the Mother obtaining a full psychiatric assessment.
Evidence presented at the Final Hearing
Ms M – Family Consultant
6) With the agreement of the parties Ms M presented her evidence at the beginning of the hearing. Ms M gave evidence in line with the Family Report prepared by her and released to the parties on 30 October 2014. Ms M’s oral evidence supported the findings and conclusions contained in the Family Report.
7) During the course of cross examination by Ms James in relation to the various medical interventions sought by the Mother, Ms M gave evidence to the effect that the Mother never felt completely satisfied with the interventions and diagnoses made by the medical professionals who had assessed X and this would not assist in X’s development. This was particularly the case in relation to the assessments undertaken by Therapy ACT and which formed part of the evidence. Ms M was of the opinion that such interventions have the potential to amount to “systems abuse”.
8) Ms M raised concerns about X’s social development and the risk of him being socially isolated if he were to be in the care of the Mother, that the Mother is unreasonably anxious and this anxiety had the potential to transfer to X. Ms M noted that X would not seek out his Mother if he felt threatened notwithstanding that at the time of the report interview X was in the Mother’s full time care. Ms M raised serious concerns about the Mother’s mental health and recommended the Mother undertake a full psychiatric assessment.
9) Ms M supported orders whereby X lived with his Father and spent some time with Mother. Ms M was asked about the frequency of such time and gave evidence that she was “not sure” that time should be severed and concluded that if the time was not positive for X than once per fortnight may be too frequent. Ms M gave evidence that once per month may be satisfactory “unless it interferes with X’s activities”. This last comment relates to the failure of the Mother to reschedule X’s time with her so that he could participate in a school function on Anzac Day. In response to questions from the Independent Children’s Lawyer, Ms M gave evidence to the effect that in the absence of a psychiatric report for the Mother, the Court should take a “conservative view” of the risk to X in spending time with his Mother.
10) The Mother sought to challenge Ms M in cross examination, however was not able to establish any incorrect conclusion in Ms M’s report or in the Personality Assessment Inventory conducted by Ms M. In response to suggestions by the Mother that the Father would not be able to cope with the addition of X in view of the large number of children already in his household, Ms M responded to the effect that she was struck by the way seven children could behave so well when they all attended with the Father for the purposes of the Family Report interview.
Mr Sparkes - Father
11) The Father gave evidence consistent with his affidavit material. The Father was cross examined by the Mother in relation to the allegations of domestic violence and his history of Post Traumatic Stress Disorder and, it is submitted, gave credible responses to those issues and, in particular, demonstrated an insight into his own mental health and the identification of any re-emergence of symptoms.
12) The Father gave evidence of the involvement of X in schooling and extra-curricular activities since X had come into the Father’s care. Further the Father gave evidence of the steps he had taken to involve X with both the extended paternal and maternal families since X had come into his care. The Father demonstrated an insight into X’s best interests through his concession that he would be willing to consider X spending increased time with the Mother if the Mother was receiving appropriate treatment for any mental health issues.
Other witnesses for Father
13) The Father’s partner, Ms R also gave evidence. Ms Sparkes gave evidence of the arrangements that operated in the Father’s household. Ms Sparkes expressed the view that if X were to spend time with his Mother on Sundays, instead of Saturday, there would be a greater opportunity for the children, including X, to participate in weekend sporting activities, etc.
14) The Affidavit of the Father’s mother, Ms S was admitted into evidence without objection. Ms S was not required for cross examination.
Ms Dalton – Mother
15) The Mother gave evidence broadly consistent with her affidavit material and case outline. The Mother remains of the view that X does not wish to live or spend time with his Father and this view should be respected and be determinative of the present proceedings. The Mother acknowledged she is anxious when X is with his Father although conceded she was now re-assessing those concerns. The Mother however holds concerns regarding the Father’s ability to care for X and attend to his needs. This is notwithstanding the evidence of X’s improved engagement with school.
16) The Mother maintains X suffers from anxiety, social persuasive disorder and a sleeping disorder notwithstanding the evidence from medical professionals. The Mother does not accept the Father’s evidence, supported by X’s general practitioner, that X is no longer taking medication to assist him to sleep. The Mother gave evidence that it was “unfortunate” that Therapy ACT had not diagnosed X as being on the autism spectrum. Throughout her evidence the Mother maintained X has special needs.
17) The Mother demonstrated a lack of insight in the parent/child relationship. For instance, if X said he did not want to see his Father or attend school then the Mother would not facilitate these activities notwithstanding orders to the contrary. The Mother gave evidence that if X is upset or angry she removes herself to her own bedroom until X calmed down and he would “have the run of the house” and that it is part of her parenting strategy that X “takes control” of the parenting relationship.
18) The Mother maintained that X should live with her and spend time with the Father in accordance with his “whole consent”. The Mother appeared not to have contemplated a circumstance where X may not wish to spend time with his Mother.
Legislative pathway
60CC(2)(a) – benefit of having a meaningful relationship with both parents
60CC(2)(b) – need to protect child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.
19) It is submitted the evidence clearly establishes that X is at risk of psychological harm in the care of his Mother. Reports from Therapy ACT, X’s general practitioner, schools and the Family Report together with the Mother’s own evidence and submissions establish the extent of the risk while ever the Mother’s presenting mental health symptoms remain untreated. It is most unfortunate that the Mother has declined to be psychiatrically assessed and treated as, had she done so, she may have been able to demonstrate a greater insight into X’s needs and best interests.
20) The failure of the Mother to obtain appropriate treatment exposes X to risk of psychological harm and therefore the time he spends with his Mother should be limited such that a relationship may be maintained whilst mitigating that risk.
Additional considerations
21) 60CC(3)(a) – views of the child: X expressed to Ms M – at a time when he was in the full time care of the Mother – that he wished to remain in the care of the Mother. By the time of the trial, and following a period of approximately six months with the Father, X wished to leave the matter to the Court and expressed no particular view (see ICL Case Outline, paragraph 6). In any event, it is submitted, the risk X would be exposed to in the care of his Mother militates against undue weight being given to X’s view as recorded in Ms M’s report.
22) 60CC(3)(b) – nature of the relationship between the child and each of the parents: X has been in the primary care of his mother for most of his life. The Family Report identifies numerous issues in the relationship between the mother and X including the failure of the relationship to properly reflect a parent/child model. The evidence establishes that X has settled well in his new family environment with his Father.
23) 60CC(3)(c) – the extent to which each parent has taken, or failed to take the opportunity to participate in decision making: The evidence establishes that where X has been in the care of the Mother, the Mother has made decisions exclusive of the Father.
24) 60CC(3)(ca) – the extent to which each of the parents has fulfilled their obligations to maintain the child: The Mother, through her failure to address her own mental health issues, has failed to make decisions and provide for X in his best interests. There is no evidence the Father has not met his obligations.
25) 60CC(3)(d) – the likely effect of any changes: X’s residence was changed on an interim basis following the release of the Family Report. The further changes contemplated are a change of day for X to spend with his Mother (to Sunday) to facilitate his participation in sporting activities, and to reduce the frequency of time to once each calendar month.
26) 60CC(3)(e) – practical difficulty and expense of child spending time with and communicating with a parent: It is anticipated the Father shall continue to bear the cost of travel associated with X spending time with his Mother.
27) 60CC(3)(f) – capacity of each of the child’s parents to provide for the child’s needs, including emotional and intellectual: The Mother, through her failure to address her own mental health needs, is not able to provide for X’s emotional and intellectual needs. There are no such concerns in relation to the Father’s capacity.
28) 60CC(3)(g) – maturity, sex, lifestyle and background of child and parents: There are no specific matters under this heading that will assist the court.
29) 60CC(3)(h) – Aboriginal/TSI: Not applicable.
30) 60CC(3)(i) – attitude to the child, and to the responsibility of parenthood, demonstrated by each of the parents: The evidence of Ms M and the Mother herself demonstrates that the Mother is not able to maintain an appropriate parent/child relationship.
31) 60CC(3)(j) – family violence and 60CC(3)(k) – family violence orders: There are no extant family violence orders. The Mother makes much of an alleged history of family violence but was not able to establish any recent or present instances of family violence perpetrated by the Father.
32) 60CC(3)(l) – whether it would be preferable to make an order that would be least likely to lead in further proceedings: It is not known whether the Orders proposed will be least likely to result in further proceedings.
33) 60CC(3)(m) – any other fact or circumstance: There is no other fact or circumstance that has not already been considered.
Parental responsibility
34) It is submitted that in circumstances where the Mother’s mental health symptoms remain untreated, parental conflict remains entrenched, and the positions of the parties remain opposed that, in the absence of a specific order for parental responsibility, difficulties will continue in relation to addressing X’s schooling and medical treatment. An order for sole parental responsibility in favour of the Father is supported. The Father should be required to inform the Mother of any major decisions concerning X.
Consideration & Disposition
I have commented already that I accept without qualification the submissions of the ICL. This includes that there should be an order for sole parental responsibility in the Father’s favour, but also that he be required to keep the Mother informed of major decisions concerning X. In making an order for sole parental responsibility, there is no requirement to consider s.65DAA.
I also accept without qualification the evidence of Ms M. This includes the assessment of the risk of psychological harm if X was to live with his Mother.
Because they were also essentially unchallenged, I also accept the submissions made on behalf of the Father.
In addition to the ICL’s submissions, and obviously in the light of all the evidence, it seems to me that the following matters are crucially part of the Court’s consideration under either s.60CC(3)(ca), (f) and (i), and or under s.60CC(3)(m). In relation to these particular parts of the legislative scaffold, I am mindful of the following, guiding comments. For example, in Goldrick v Goldrick, the Full Court said, at [41] (emphasis added):[35]
In our view, it is clear that, while the impact of any parent’s relevant actions should, if the evidence permits, be identified, the references … [relevantly in the Act] demonstrate that the actions of each parent in the relevant respects are to be evaluated for something beyond consequence alone; namely what those actions say of the person’s capacity to parent.
[35] Goldrick v Goldrick [2007] FamCA 1260. The Full Court was here dealing with an obviously earlier iteration of Part VII of the Act. However, the basal principle, in my view, remains applicable.
Rather earlier in time, in Kress Goldstein J said (at ALR 319):[36]
Given the overriding consideration of the welfare of the child, the Court must consider the conduct of the parents, not with a view to rewarding one or punishing the other, but to ascertain from such conduct whether the welfare of the child will be better served in the custody of one or the other.
[36] In the Marriage of Kress (1976) 30 FLR 508; 13 ALR 309; FLC ¶90-126.
The decisions in Goldrick and in Kress ought properly be considered in relation to s.60CC(3)(ca), (f) and (i). And finally, if it needs to be noted, the Full Court in Mulvany v Lane observed that there were in effect no limits, under s.60CC(3)(m), of the matters which may be considered by a court. In their joint judgment, May and Thackray JJ said, at [77]:[37]
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
[37] Mulvany v Lane (2009) 41 Fam LR 418.
In the light of these comments, I note the following.
First, the Mother’s refusal to undertake a psychiatric assessment, as recommended by the family consultant, means (among other things) that Ms M’s assessment formally remains unchallenged. In the light of all the other evidence available to the Court to which reference has been made, that assessment was soundly based.[38]
[38] See generally the recent Full Court decision in Walters v Fleetwood [2015] Fam CAFC 235, which dealt with, among other things, issues concerning the weight afforded to a report prepared by “a consultant family therapist and registered mental health worker”, who diagnosis the Mother in that case with “post traumatic embitterment disorder”, and where a later expert recommended (at [132]) that a psychiatrist would be able to assist the Mother with “wisdom therapy”, which related to “a complex process of relationship therapy, attempting to assist the person to come to terms with and move on from the issues … that they continue to doggedly live in the past about.”
And in the light of it and the other evidence, there exists, in my view, more than a significant risk that were the child to remain in the Mother’s care, or even to spend significant and substantial time with her, X’s unstructured and undirected life would continue to his detriment. And this would be in circumstances where the Mother continues to believe strongly that X suffers from an undiagnosed disorder, such as autism, notwithstanding expert opinion/reports before the Court that no such diagnosis is warranted. The Court cannot allow X to continue to live in such circumstances.
Secondly, the evidence clearly demonstrates, in my view, that the proper, structured parental relationship between X and his Father, including in particular the routine and stability which the Father’s household has provided in recent times, has led to an appreciable improvement in X’s psychological (and general) well-being. X no longer requires sleeping medication, and is now regularly attending school (which he was not doing while in his Mother’s care). Given X’s previous mental health challenges (e.g. selective mutism, anxiety) throughout his short life, the Court must have regard to the impact the relationship with his Mother has had, and will have in the future.
Since commencing to live with his Father, Ms Sparkes and his siblings, the evidence of both Mr and Ms Sparkes is that both adults in the Sparkes household have and will continue to foster X’s relationship with his Mother, and the Mother’s family. I accept their evidence. The Mother’s clear evidence is that she does not want X to have any relationship with the Father. The Court may reasonably assume that, in the light of the Mother’s evidence, she would not facilitate and promote the child’s relationship with his Father. This would, in my view, clearly not be in X’s best interests.
It would also follow from the Mother’s evidence to which I have just referred that her conduct would impair X’s relationship with his many siblings.[39] This too would not be in X’s best interests.
[39] Cf. s.60CC(3)(d).
On the Mother’s evidence, it seems reasonably clear that she finds parenting and disciplining X to be challenging and generally difficult. Without making a formal finding, it may be that the Mother’s obsession to find a formal diagnosis of some description regarding X’s mental and psychological well-being is something akin to her seeking to find an excuse to justify her lack of proper parenting of X, such as allowing him to stay up all hours of the night on the internet researching and “chatting” about cats, or her retreating to her room and permitting X to have the run of the house until he settles down.
I have earlier remarked that there is essential congruence between the positions of the Father and the ICL regarding X continuing to live with his Father (and his lively household of siblings) and to spend regular but limited time with his Mother. In my view, the orders proposed by the ICL are plainly in X’s best interests.
The Court so orders.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 28 January 2016
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