Swefford and Tarbell

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL

[2013] FamCA 39

FAMILY LAW – CHILDREN – interim – where the mother asserts Rice & Asplund is not good law – in the alternative, the mother asserts the deterioration of the child’s mental health is a significant changed circumstance – where it was held that regard must be had to Rice & Asplund – where it was held there have been no significant changed circumstances, or in the alternative that the current arrangements are in the child’s best interests – application dismissed

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT:

Ms Swefford

RESPONDENT:

Mr Tarbell

INDEPENDENT CHILDREN’S LAWYER:

Christos Christaki

FILE NUMBER:

SYC

889

2008

DATE DELIVERED:

30 January 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

22 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

KDB Holmes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Pending further order:

Applications 7, 8 and 9 in the mother’s Amended Application in a Case filed 15 November 2012 are dismissed and order 7 as sought by the mother in her Application in a Case filed 10 October 2012 is dismissed.
The father have sole parental responsibility in respect to all long term issues relating to the child D Tarbell born … August 2004. Before making and implementing decisions about long term issues, the father is to give 21 days written notice to the mother of the decision he intends to make and consider any view expressed by the mother in writing within 14 days after giving her the notice.
Application 2 in the father’s Response filed 20 November 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swefford & Tarbell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 889 of 2008

Ms Swefford

Applicant

And

Mr Tarbell

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This is another application by the mother for interim parenting orders in relation to the child D (“the child”). At the date of this interim hearing, it had been exactly one year since Loughnan J had made parenting orders on an interim basis. The mother unsuccessfully prosecuted an appeal against those interim orders. The mother says it is unclear, given the evidence, why she was unsuccessful before Loughnan J (paragraph 5 of the mother’s written submissions) and why the Full Court did not address the errors made by his Honour (paragraph 51 of the mother’s written submissions).
The mother has asked me to look again, on an interim basis, and change the existing parenting arrangements.

DOCUMENTS RELIED UPON

These are set out in Schedule 1.

APPLICATIONS

The mother made an application for alteration of existing parenting orders. Her amended application of 15 November 2012 applies for the following orders:
7.Pursuant to s 60CA: Child’s best interests paramount consideration in making a parenting order and s 60CC(2)(b), the order is made for the child [the child] to live with the mother pending a final hearing.
8.In the event that Order 6 [sic: I assume that should read order 7] is not accepted by the court then pursuant to s 60CA: Child’s best interests paramount consideration in making a parenting order and s 60CC(2)(b), the order is made for the child [the child] to spend half of each week with the mother pending a final hearing.
9.The Court impose penalties on [the father] for repeatedly failing to provide the Mother with details of [the child’s] school arrangements in breach of 28 February 2011 Orders 3(c).
The mother in oral submissions indicated that she thought she should have sole parental responsibility for the child but conceded that that was not her formal interim application and she made no oral application for sole interim parental responsibility.
Further, an order was sought in the form of order 7 in the mother’s Application in a Case filed 10 October 2012 in the following terms:
7.That, if the Court wishes, an independent psychologist/social worker with specialised knowledge in child abuse and domestic violence be appointed to monitor [the child] during this period and report on [the child’s] welfare. The independent psychologist is permitted to view subpoenaed records, affidavits and visit the home of either parent. The independent psychologist/social worker is not to be associated with … or … CAMHS or any other service that has had extensive inaccurate communication from [the father].
During oral submissions the mother indicated that she would like the supervision done by somebody at AA House, although she had not provided any evidence in relation to that part of her proposal.
The principal of AA House is Ms V. The involvement of that person as an expert who would provide a report in the case was rejected by me in a previous judgment (which is currently the subject of an appeal to the Full Court).
The mother seemed in oral submissions to modify her application so that there would not be any reporting to the court by AA House but rather they would provide the facility for play therapy.
The father in a Response filed 20 November 2012 has sought the following orders:
1.That pending further Order, the Father, [Mr Tarbell] have the sole parental responsibility for the child [D] born … August, 2004.
2.That, pending further Order, on four weekends in each calendar year, the Father be at liberty to suspend time for [the child] with his Mother, such occasions to be not more than twice in one month and only with not less than 3 weeks written notice to the Mother.
3.The Application in a Case of the mother, [Ms Swefford], be otherwise dismissed.
The Independent Children's Lawyer:
11.1.Opposed the orders that the mother sought for unsupervised time of any nature;
11.2.Opposed the father’s application for weekend time with the child;
11.3.Initially opposed an order being made for sole parental responsibility in the father’s favour but during final submissions, indicated that that opposition would not be maintained if orders were put in place which gave the mother the ability to have some input into the discussion about whether or not a particular decision is made, before the father made a decision.

CHRONOLOGY

This matter has had a long history which has been documented in other decisions, but a brief chronology is as follows.
The father was born in 1953.
The mother was born in 1962.
The parties commenced cohabitation in 2003.
The parties married in August 2004.
The child of the marriage, D, was born in August 2004.
The parties separated on 1 January 2008.
On 18 February 2008 the father commenced proceedings in this court seeking sole parental responsibility for the child and for the child to live with him.
On 29 February 2008, on the basis of statements the mother said the child had made to her which she took to mean that he had been sexually assaulted by the father, this court made orders to the effect that the child spend time with the father supervised by C Contact Centre.
On 3 April 2008 Dr W’s report was completed.
In April 2008 the mother removed the child from Australia.
On 1 May 2008 the father filed an application seeking the child be placed on the watch list and that the mother surrender the child’s passport.
On 7 May 2008 the father filed an application seeking inter alia a recovery order. This court ordered inter alia that the child live with the father and a recovery order.
On 27 May 2008 Dr W produced a supplementary report.
On 5 June 2008 a warrant was issued for the mother’s arrest on her return to Australia.
On 15 September 2008 this court ordered that the father have sole parental responsibility in relation to the child’s passport or other travel related documentation in the child’s name including the making of requests for the cancellation of the child’s passport.
On 11 June 2009 the NSW police issued a warrant under the Criminal Procedure Act 1986 (NSW) for the arrest of the mother in relation to the mother’s alleged offence under s 65Y of the Family Law Act 1975 (Cth).
On 6 September 2009 this court extended the recovery order for a period of 12 months.
On 6 September 2010 the mother was arrested in the Netherlands. The child was placed in a child protection facility.
On 27 October 2010 an application was made to the State Central Authority in the Netherlands for the return of the child to Australia.
On 6 or 7 December 2010 the child was released into the care of the father.
On 14 December 2010 the court in Amsterdam ordered the child to be returned to Australia pursuant to the Hague Convention.
On 18 January 2011 the child and the father left the Netherlands for Australia.
On 24 January 2011 the child and the father arrived in Australia.
On 10 March 2011 the mother was extradited back to Australia and held in custody at a prison.
In early June 2011 the mother was released from prison on bail.
On 29 June 2011 the mother filed an application seeking orders inter alia to the effect that the child live with the maternal uncle and the mother’s sister-in-law and that the mother have liberty live with those people and that the mother have unsupervised time with the child and the father have supervised time with the child.
On 18 August 2011 the court ordered inter alia to the following effect:
1. That the mother spend time with the child supervised by the [S] Children’s Contact Centre for 2 hours each week.
2. That the mother have telephone communication each Monday and Wednesday at 5.00pm.
On 15 November 2011 the mother filed an Application in a Case seeking inter alia that the child be returned to live with the mother at her brother’s home, or alternatively that the child live with the mother’s brother and sister-in-law and their family and that the father have no time with the child.
On 22 November 2011, there was an interim hearing in relation to parenting orders for the child. On that day, Loughnan J inter alia dismissed the mother’s application filed 15 November 2011 and delivered his reasons for judgment.
The effect of the current orders relevantly is that:
42.1.The child has time with his mother for two hours on a Saturday at C Contact Centre (the order provides for such longer period as the centre can accommodate but two hours seem to be the maximum time they are able to accommodate).
42.2.Such further time for the mother to see the child as can be arranged with S Children’s Contact Centre. That order was originally made in August 2011 and remade by Loughnan J on 22 November 2011. It is common ground that that order has never been able to be implemented and that the S contact centre have declined to accept this family because of the amount of management that would be involved and because the mother was seeing the child for some period of time at another contact centre.
42.3.Telephone time on Mondays and Wednesdays between 5pm and 6.30pm with the mother to SMS the father 24 hours ahead to say what time the call should take place and for the father to initiate the call.
On 19 December 2011 the mother lodged a Notice of Appeal to the Full Court.
On 2 February 2012 the father lodged a cross appeal.
On 13 June 2012 the Full Court dismissed the appeal and the cross appeal.
The mother has lodged an appeal against the orders that I made for the preparation of a new report by Dr R. Although it happened after this hearing, I note without requiring the matter to be rementioned, that the Full Court stayed the orders so that scheduled interviews with Dr R on 18 and 19 December 2012 would have been cancelled at short notice.
The Full Court is yet to hear the mother’s appeal and it is not expected the Full Court will hear that appeal until March 2013.

APPLICATION 9 FILED 5 NOVEMBER 2012

Dealing first with the mother’s application 9 filed on 15 November 2012, the application seems to seek that the father be dealt with for contravention of a parenting order.
The mother did not make any submission as to how it would be the court could make an order in the form that she sought. An order cannot be made in the form that is sought by the mother. The mother has not complied with Rule 21.02 Family Law Rules 2004 (Cth) (“FLR”). I accordingly will dismiss the mother’s application as sought.

THE MOTHER’S APPLICATION FOR NEW INTERIM PARENTING ORDERS

I entertained the mother’s further interim application in circumstances where ten days that had been set aside for the final hearing of the matter had been vacated because of the inability to obtain a Chapter 15 expert report and because of the adjournment of the hearing of the mother’s criminal trial.
In oral submissions the mother argued that Rice & Asplund (1979) FLC 90-725 and the cases that follow it are not good law. She relied upon a statement by Dr Sarah Middleton in an article “Time for Change? Shared parenting, variation of orders and the rule in Rice and Asplund” in 2006, to the following effect:
The High Court of Australia has consistently rejected the application of presumptions in the context of parenting orders as being inimical to a proper case by case assessment of the best interests of a child.
The mother also relies upon particular passages from Ms Middleton’s article as she sets them out at paragraphs 60 through to 64 of her written submissions (Exhibit 24).
The mother conceded that if her submission was correct, there was no fetter at all on a parent bringing back to the court the same application that had just be adversely determined by the court in hope of an opposite result in circumstances where nothing had significantly changed.
I am bound by the decisions of the Full Court.
In order to be persuaded to alter the existing interim orders, I must be satisfied that there has been a significant change in the child’s circumstances since Loughnan J decided the matter. In the context of an interim hearing, whilst having regard at all times to what is in the child’s best interests, in order to determine if there has been a significant change in circumstances, I am primarily concerned with matters that are uncontroversial or matters where objective evidence wholly points in one direction.
It is possible, but by no means certain, that the final hearing will happen some time in 2013. The mother during the proceedings indicated that her criminal trial will almost certainly happen in May 2013 but that will remain to be seen. The mother has previously said that she wants the expert report prepared in these proceedings to be available for her use in the criminal trial. It was anticipated that Dr R’s report would have been prepared by February 2013 but that will no longer be the case. In the event that I am correct in my assessment that there are no substantial grounds of appeal available to the mother in relation to that appeal, and Dr R continues to be prepared to do the report, the report will become available for the parties in time to prepare the matter for a hearing some time this year.
Certainly up until now the mother has used the lack of a Chapter 15 expert report as part of the basis upon which she has obtained adjournments of trial dates that have been set in relation to the criminal charges against her for wrongful removal of the child from Australia in 2008.
The mother has filed and otherwise relies upon a volume of material and submissions.
I indicated to the mother at the commencement of the hearing that I would not be taking into account as a changed circumstance, anything that predated 22 November 2011 (being the date that Loughnan J dealt with the previous interim hearing which was then the subject of an appeal by the Full Court in respect of which Loughnan J’s decision was confirmed by the Full Court), unless the mother satisfied me that the information was not available to her at the time of that hearing.
As a second part of the mother’s argument, she assumes that the rule of Rice & Asplund applies and argues that there has been significant change since the decision of Loughnan J. Those changes are what she asserts to be a severe deterioration in the mental and behavioural health of the child, attending a third school in a matter of months and on ever increasing medication.
The mother says that her submissions are simple. The child was well in her care and has declined in his father’s care. She understands an expert will make an assessment but submits that in the interim the risk of leaving the child where he is means that he will decline and fail to improve, regardless of the intervention that he is currently receiving.
She also points to what she asserts is the father’s fragile mental status which she further says is treatment resistant and therapy resistant.
Overall, the mother asserts that the child’s situation has not been properly investigated and that he is clearly not doing well in his father’s care. The mother says that the child has told her and told AC CAMHS that his father repeatedly hits him, locks him in his room until he goes to sleep and the child was frightened on numerous occasions.
The mother asserts that the child is showing renewed signs of sexualised behaviour and playing sexually with other children at AC School and on play dates. The mother also asserts that the father made misrepresentations to various people, particularly to Senior Constable MS of GE Police Station in relation to her mental status.
The factual accuracy of these assertions and the weight to be placed upon them will be matters for determination at the final hearing. The mother at the final hearing will have an opportunity to explore with the single expert some of the extraneous material she quotes in her submissions and whether it has any relevance to the facts in this case.
The mother relies upon a document that she said was not available at the hearing before Loughnan J. The document is found at Annexure L of the mother’s affidavit sworn 20 June 2012 and filed 27 June 2012. The mother submitted it goes to the child’s wellbeing in December 2010. The mother submitted that the document shows that as at December 2010 the child was not assessed as having any physical and/or mental handicap, any psychiatric and/or psychological problems, or any serious behavioural problems.
The document is a translation of a safety indicators checklist and is a document that was prepared in the course of proceedings in the Netherlands. I accept the submission by the lawyer for the father that it would be unsafe in the context of an interim hearing to draw meanings from some of the markings on that document.
The mother goes on to argue that currently the child has been diagnosed with what she says are four psychiatric conditions, listing them as “oppositional defiance disorder, anxiety disorder, attachment disorder [and] heightened ADHD” and that he has been placed on medication. She asserts that Loughnan J did not know about these diagnoses when he decided the interim proceedings before him. Annexure G1 to the mother’s affidavit filed 10 October 2012 is a letter dated 5 December 2011 written by Dr G. Dr G diagnosed the child with Oppositional Defiant Disorder, Anxiety Disorder (I note paragraph 60 of the mother’s affidavit filed 10 October 2012 incorrectly identifies this as “Attention Deficit Disorder”) and Attachment Disorder.
Whilst the mother says that Loughnan J was not aware of these diagnoses, his Honour was cognisant that the child had significant behavioural problems (see the first three sentences of paragraph 26 of his Honour’s reasons of 22 November 2011).
Annexure G2 to the mother’s affidavit filed 10 October 2012 is a letter dated 4 July 2012 written by Dr F. The father annexes the same letter to his affidavit filed 22 November 2012. Dr F opines that the child has made good progress with emotional and behavioural stability, though some difficulties persist. Dr F diagnosed the child with Attention Deficit Hyperactivity Disorder as he had continued to “exhibit inattentiveness and distractibility”. Dr F prescribed the child Ritalin. The mother disputes this diagnosis saying it was “based on [the father’s] recall of [the child] at an early age and observations of [the child’s] current behaviour problems at [AC] school, not a history of ADHD.” She says the father’s history of the child’s presentation at an early age was incomplete.

The mother also points to the child’s movements between schools. Since February 2011, the child has moved from H Public School, to AC School, back to H Public School, and now ER Public School. The mother says that the child’s performance in school in 2012 has been poor. At paragraph 65 of the mother’s affidavit filed 10 October 2012, the mother quotes a report written by Ms SN (the child’s teacher) in March 2012 which says “[[The child]] struggles to complete comprehension activities without teacher support… [the child] is struggling with number, patterns and algebra, measurement and space and geometry concepts and needs one on one assistance… [the child] has not got many friends and has difficulty mixing with his peers.”
In reply the father’s lawyer says that it will be the father’s case at the final hearing that there has been an improvement in the child in the last twelve months.
At paragraph 64 of the mother’s affidavit filed 10 October 2012 she reads paragraph 13 of the father’s affidavit filed 1 August 2012 in which the father says:
I have recently had a meeting with the Principal of [H] Public School…who has advised me that a school with more specialist teacher skills and smaller class sizes would be preferable for [the child]. The Principal has suggested [ER] Public School… as an appropriate school for [the child].
It is almost impossible, without a proper airing and testing of the material that I have been given, to make any assessment as to which parent’s assertion about the child’s psychological health and schooling is accurate. It is likely at the final hearing the court will have the assistance of evidence from a single expert appointed under Chapter 15 FLR.
As the parties would be aware, Loughnan J in his judgment of 22 November 2011 set out (particularly at paragraphs 13 and 14) normal principles that apply to interim proceedings and in particular, the fact that it might not be possible for a court to make findings of fact in relation to any particular matter without tested inquiry which is not possible on the papers alone. Also the court has to behave in a conservative way in interim proceedings because of that very fact. It goes without saying that as a general proposition, in cases such as this where his Honour observed there to be a large number of disputed issues between the parents, the court is not at liberty to make findings of fact on a disputed issue of fact unless there is independent evidence that excludes one version of events or wholly supports another.
As discussed during the hearing, the legislation as it existed prior to 7 June 2012 applies in this case. There are two primary considerations under s 60CC(2) Family Law Act 1975 (Cth) (“FLA”).
In relation to the first primary consideration, Loughnan J concluded that there was a meaningful relationship between each parent and the child. There is no undisputed fact that would lead me, on an interim basis, to conclude otherwise. I do not yet have the benefit of a single expert report.
It is the second primary consideration (s 60CC(2)(b) FLA) that will be the focus of the final hearing and is the focus of the mother’s submissions on this interim hearing.
In relation to the child’s exposure to physical and psychological harm, some terrible things have happened to the child.
It is not a matter of controversy that the mother removed the child from his father and Australia without the father’s consent in 2008.
The above chronology sets out some of what happened after that date.
The mother’s case at the final hearing will be that there is an unacceptable risk that the father has in the past and will in the future sexually abuse the child. The mother complains that Dr W failed to accurately forensically assess the child and this denied the court the ability to accurately assess the risk. I am unable on an interim basis to conclude that there is any substance to the mother’s fears that the father has sexually abused the child. Dr W’s untested evidence points in the opposite direction.
It is the gravamen of the mother’s case that the child was psychologically well with her and now he is not. She asserts that placing the child with her on an interim basis will restore the child’s psychological health back to where it was.
But, as Loughnan J said at paragraphs 19 and 22 of his Reasons for Judgment of 22 November 2011:
19. In any event the child has experienced extraordinary changes in his life as a result of him travelling overseas in 2008, and he has been separated from his parents as a consequence of that, each of them in turn, for significant periods…
22. The problem is, whether it is examined under this provision or elsewhere, there is no doubt the child has been subjected to psychological harm. The issue for the ultimate trial will be as to whether the source of that can be identified, or whether there is an unacceptable risk of that harm from a particular source.
At paragraph 49 of her written submissions, the mother asserts that Loughnan J concluded at paragraph 22 of his Reasons, that the deterioration has occurred during the course of 2011 and 2012 but that is not what the paragraph says. At the final hearing the mother may be able to establish that it is entirely or mostly the father’s conduct that has led to the problems the child now has. It seems to be the mother’s position that the child suffered no significant emotional or psychological trauma as a result of being separated from his father by his removal overseas by his mother. I am not prepared to find that the mother’s propositions should be accepted, on untested evidence on an interim basis.
The father’s case is, in part, that the mother is a flight risk. The mother says she left Australia because at that time at least she was firmly of the view that the child was being sexually abused by his father. I have insufficient evidence to be able to accurately assess what current level of flight risk the mother poses. On the face of it, in 2008 the mother had a certain belief about the father’s behaviour. A number of things that the mother said during these proceedings before me would indicate that she still holds similar views about the risk that the father poses to the child and the risk the child is at whilst he is in his father’s care. The mother was at pains to attempt to explain to me why she would not attempt to leave the country again. The mother says that in 2008 she had no idea that she was committing a criminal offence. She submitted the court would be confident given that she now knows she is committing a criminal offence, that she would not do so. Secondly, the mother asserts that she would not do so because she understands that such an action would be fatal to any chance that she had in obtaining a court order that the child return to primarily live with her. The mother is highly intelligent and the preparation of her material shows she is quite resourceful. Subject to full inquiry I am not prepared to assume that placing the child in the mother’s care on an unsupervised basis would not expose the child to being secreted again from his father as he was in 2008. Counsel for the Independent Children's Lawyer submitted that I should not take that risk and I agree in the short term it is inappropriate to do so. The mother may well be able to convince the court at a final hearing that she is no longer a flight risk.
In relation to additional s 60CC(3) matters, Loughnan J discussed these at paragraphs 28 to 40 of his judgment of 22 November 2011. Not a great deal has changed in relation to those matters, except the child’s time with the mother at S Contact Centre could not be facilitated by that service. The mother reports that the child has said he wanted to spend more time with her.

CONCLUSION IN RELATION TO WHERE THE CHILD SHOULD LIVE

In relation to the mother’s interim application to change where the child lives, the mother has not established by independent evidence which wholly supports her view or excludes the father’s view, that any significant change has occurred since Loughnan J made interim orders that would warrant me changing them.
In the event I am wrong about approaching the matter in that way, and look afresh at the child’s current situation, I conclude the current interim arrangements are in his best interests until there is a full ventilation of all contested matters.

PARENTAL RESPONSIBILITY

The mother seeks an interim order for equal shared parental responsibility. The father seeks an interim order for sole parental responsibility on the basis that he would first consider any view expressed by the mother before he makes any final decision.
The mother asserts that the order for sole parental responsibility with the condition the father take into account the mother’s views is inappropriate and not in the child’s best interests because the father is not cooperative and, she asserts, has a history of not abiding by court orders. She also says that he is mentally ill and should not be a person with whom parental responsibility is solely entrusted.
The mother submitted that the sole parental responsibility order would lead to a situation where she was blocked from going to the school and meeting with the principal or meeting with people from Coral Tree, but that would not be the effect of such an order.
There has not been any previous determination in relation to the issue of parental responsibility. The court made an order on 15 September 2008 for sole parental responsibility in favour of the father but limited to all issues relating to the child’s passport and other travel-related documentation in the name of the child D Tarbell, including making requests for the cancellation of any current passport held by the child.
In his Honour’s Reasons of 22 November 2011, Loughnan J at paragraph 12 said:
I don’t think it would be practicable in the short term for them to have equal shared parental responsibility. In any event it would not be in the best interests of the child.
The father in a cross appeal in relation to Loughnan J’s orders complained that Loughnan J had failed to make an order for sole parental responsibility in favour of the father on an interim basis notwithstanding that finding. The difficulties for the father in pressing that appeal point before the Full Court was that the father had made no submission to the trial judge in support of an order for sole parental responsibility being made in his favour pending further order of the court. The father conceded on the appeal that it would have been a denial to the mother of natural justice had the order been made for sole parental responsibility by his Honour in the absence of an application. That application is now before me.
The father correctly submits that the mother opposes the current schooling for the child, the medication that the child is currently receiving, the medical practitioners who are currently treating the child and that the mother continues to believe that the child is at risk of sexual abuse on a daily basis while in the care of the father.
The father annexes to his affidavit sworn 20 November 2012 email correspondence between his solicitor and the mother. Annexure RKT2 is an email dated 15 November 2012 sent to the mother and the Independent Children’s Lawyer. I set out part of that email below:
[The child’s] psychiatrist reviewed his medication yesterday & has begun a trial of Concerta to replace the Ritalin…
It should see [the child’s] ability to concentrate etc remain at a more consistent level throughout the course of the day….
[The child] also takes 50 mg of Catapres each evening. The psychiatrist believes this dosage needs to be increased but wants [the child] to have an ECG before this is done. This is currently being arranged….
Annexure RKT3 to the father’s affidavit sworn 20 November 2012 is the mother’s reply. I set out part of the mother’s email below:
All the psychiatrists you are using are in close association with [the father], were referred by his personal psychologists whom he has been in a privately paid relationship with for over 4 years now. None of these psychaitrists [sic] have spoken to me at all. They have accepted at face value reports from [Mr W] and lies about [the child] having lived an unsettled or isolated life in Europe. This is biasing their views inappropriately as this information is highly inaccurate…
It is impossible that he [[the child]] is suffering from ADHD!!. He does display ADHD type symptoms, but ADHD is not the cause – the cause is ABUSE. He has been reduced to a severely disturbed child highly medicated – since being placed in [the father’s] care. This can’t continue…
On the face of it, it is clear that the parents are in high conflict. There is no indication that they can reasonably be expected to reach a mutual decision in relation to medical and schooling matters in relation to the child. It is the mother’s strongly held view that the child’s treating mental health professionals have misdiagnosed the child’s disorders. As indicated above, the mother is firmly of the view that the child’s diagnosis of ADHD by the child’s treating medical practitioner, Dr F, is flawed.
I am being asked to make an order that hopefully will only be good for about twelve months or so. Somebody has to have the ability to make final decisions in relation to serious issues relating to the child’s health and education and any other important longer term decision that needs to be made in respect of his welfare.
The child has lived with his father since December 2010. Given that, based on this decision, the child will continue to live in his father’s care for most of the time, the father should be that person. As foreshadowed however (and agreed to by the father and the Independent Children's Lawyer), such decision should be made after the mother has been given an adequate opportunity to provide her input into the issue upon which a decision is being made and the father has had some chance to consider her input. I will construct the order accordingly.
The order that I make for interim sole parental responsibility does not prohibit the mother from having consultations with members of the child’s school or persons who are providing medical treatment for the child. Obviously she should do so in a way that does not jeopardise the child receiving the advantage of professional assistance from such people.

THE FATHER’S APPLICATION

The father has made what in other circumstances would not be an unreasonable request, namely that the child be able to spend some whole weekend time with him (which would enable them to go away). The difficulty is that currently the child only has two hours a week with his mother given the limitations that supervision places upon the amount of time that can be made available. I accept the Independent Children's Lawyer’s submission that the child’s continued relationship with his mother is very important. Given at this time there is no practical alternative that is acceptable in relation to further supervision, then I am loath to in any way interfere with the limited amount of time the mother is currently spending with the child. Accordingly, I decline to make the order which the father seeks.

CONCLUSION

There will be a final hearing in this matter at some point.
The fact is, it is important that we press on in an attempt to have a final hearing of all issues in this case as soon as that is practically possible. Issues concerning the mother’s challenge to the order for expert evidence first need to be resolved by the Full Court.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 30 January 2013.

Associate:

Date: 30.1.2013

SCHEDULE 1

Amended Application in a Case filed 15.11.12
Application in a Case filed 10.10.12
Response filed 20.11.12
Mother’s Affidavit filed 10.10.12
Other paragraphs in other affidavits and documents relied upon by the mother include –
Paragraphs 14, 15, 21, 23, 25, 26, 43 & 49 (and particularly Annexure L) of affidavit filed 27.6.12;
Annexures S and T of affidavit filed 24.9.12
Paragraph 13 of the father’s affidavit filed 1.8.12
Notice of Abuse filed 30.3.12
Mother’s submissions (exhibit 24)
Father’s affidavit filed 20.11.12
Father’s case outline
Independent Children's Lawyer’s case outline

[2013] FamCA 39

30 January 2013

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Procedural Fairness

Appeal

Remedies