Sparkes and Dalton - [2016] FCCA 130

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sparkes and Dalton

Details

AGLC: Sparkes and Dalton [2016] FCCA 130
Case: [2016] FCCA 130
Decision Date: 28 January 2016

CaseChat Overview and Summary

This matter concerned parenting arrangements for the child, X, born in 2003, between the applicant Father, Mr Sparkes, and the respondent Mother, Ms Dalton. The dispute centred on the child's residence, time spent with each parent, and the allocation of parental responsibility. The proceedings were heard by Judge Neville.

The court was required to determine the best interests of the child, X, in accordance with section 60CC of the Family Law Act 1975. Specifically, the court had to consider the need to protect X from harm, the importance of a meaningful relationship with both parents, the nature of the relationship between X and each parent, the extent to which each parent had fulfilled their parental obligations, and the capacity of each parent to provide for X's needs, including emotional and intellectual. The court also had to consider the views of the child, although X had expressed no particular view by the time of the trial.

Judge Neville's reasoning was heavily influenced by the evidence presented, particularly that of the Family Consultant, Ms M. Ms M raised serious concerns about the Mother's mental health and its potential negative impact on X's development and social isolation. The Mother's own evidence and submissions indicated a lack of insight into the parent-child relationship and a tendency to allow X to control parenting interactions. The court found that the Mother's untreated mental health symptoms posed a risk of psychological harm to X, and that the Mother had failed to make decisions in X's best interests. Conversely, the Father demonstrated insight into X's needs and had facilitated X's engagement with schooling and extracurricular activities.

Consequently, the court ordered that all previous parenting orders be discharged. The Father was granted sole parental responsibility for X, and X was to live with the Father. The Mother was to have specified limited time with X, and the Father was required to inform the Mother in writing of significant decisions regarding X's schooling, non-emergency medical treatment, and relocation. The court also made orders regarding communication between X and the Mother, international travel arrangements for X with the Father, and the provision of information to the Mother by the Father.

Orders

Orders of the court

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;

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;

(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.

10.

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.

11.

The child’s passport is to remain in the Father’s possession at all times.

12.

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.

13.

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.

14.

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.

15.

All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 HearingMs M – Family Consultant6) 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 - Father11) 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 Father13) 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 – Mother15) 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 pathway60CC(2)(a) – benefit of having a meaningful relationship with both parents60CC(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 considerations21) 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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