Taylor and Lethbridge
[2014] FCCA 2669
•20 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAYLOR & LETHBRIDGE | [2014] FCCA 2669 |
| Catchwords: FAMILY LAW – Children – presumption of Equal Shared Parental Responsibility rebutted – with whom child lives – consideration of un-supervised time conditional on the mother’s engagement with a treating psychiatrist. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 61DAA, 61DAC, 64D, 64DA, 65DAA, 65L Federal Circuit Court Rules 2001, r.16.05(2)(a) |
| Goode v Goode (2007) 36 Fam LR 422 MRR v GR [2010] HCA 4 |
| Applicant: | MR TAYLOR |
| Respondent: | MS LETHBRIDGE |
| File Number: | BRC 4768 of 2012 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 31 March 2014, 1and 2 April 2014 and 2 and 3 July 2014 |
| Date of Last Submission: | 27 August 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 20 November 2014 |
REPRESENTATION
| Solicitors for the Applicant: | The Applicant appeared in person |
| Solicitors for the Respondent: | The Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Ms Lyons |
| Solicitors for the Independent Children's Lawyer: | Forest Glen Lawyers |
ORDERS
That all previous parenting orders be discharged.
That the father have sole parental responsibility for making decisions regarding the long term care, welfare and development of the child X born (omitted), 2007 including but not limited to:-
(a)The child’s health
(b)The child’s education
(c)The child’s religion
(d)The child’s indigenous culture
In the exercise of his sole parental responsibility (in non-emergent circumstances) the father:-
(a)Notify the mother by email in respect of the circumstances requiring a decision to be made and set out his proposed decision and brief reasoning for the decision;
(b)Seek input from the mother by return email within 7 days
(c)Advise the mother of his decision by return email within 2 days.
That the father promptly notify the mother by text message should the child be involved in a serious accident or be diagnosed as suffering from a serious illness.
That the child live with the father.
That this Order permits the mother to obtain information about the child’s health and education directly from any medical practitioner or school at her request and expense.
That the parents have liberty to attend school events such as concerts and parent teacher interviews to which parents are invited.
The mother is restrained and an injunction issue restraining her from attending the child’s school unless in circumstances of Orders 6 and 7 herein and from any before or after school care that the child attends while in the care of the father.
That the parents keep each other informed of their residential address, mobile telephone number and email address and will notify the other of any change within two (2) days.
That the mother communicate by telephone with X each Wednesday evening between 6:00pm and 6:30pm with the mother to make the call and the father to ensure X is available to take the call. Nothing in this Order requires the child to speak to the mother for 30 minutes.
That the mother’s time with the child pursuant to Order 15 herein is subject to the mother commencing and maintaining a course of psychiatric therapy with a psychiatrist of her choice with such psychiatrist to be registered with the Royal Australian and New Zealand College of Psychiatrists. With the therapy to be specifically targeted at treating and maintaining relapse prevention of the mother’s Type 1 Bipolar Disorder and the mother shall attend not less than three appointments, not less than 60 days apart and thereafter continue to attend as directed by her psychiatrist.
In the event that the mother commences the psychiatric therapy prior to the discharge of the Independent Children’s Lawyer, that the mother advise the Independent Children’s Lawyer in writing of the name, address and phone number of the psychiatrist prior to her first appointment. If the mother does so after the Independent Children’s Lawyer has been discharged, that the mother advise the father in writing of the name, address and phone number of such psychiatrist prior to her first appointment.
That these Orders provide authority for the father and Independent Children’s Lawyer (prior to her discharge) to obtain information from the mother’s treating psychiatrist regarding her attendance, compliance with treatment recommendations and prescribed medication as they may request from time to time.
That these Orders provide authority to the mother’s treating psychiatrist or other treating medical practitioners to advise the father of any concerns regarding the mother’s mental health such that she may pose a risk to the child if having unsupervised time pursuant to Order 15 herein.
In the event that the mother enters into a course of therapy as outlined in Order 11 herein and maintains that course of therapy she spend time with the child as follows:-
(a)For four hours each alternate Saturday with the first and last half hour to be supervised at the (omitted) Children's Contact Centre for a period of three months or not less than six visits.
(b)Thereafter for four hours each alternate Saturday for six visits
(c)Thereafter from 9:00am to 4:00pm each alternate Saturday for six visits
(d)Thereafter from 9:00am Saturday to 12:00 noon Sunday each alternate weekend for six visits
(e)Thereafter from 9:00am Saturday to 4:00pm Sunday each alternate weekend.
Upon the commencement of the operation of Order 15(d) herein the mother spend time with the child on special days as follows:-
(a)For mother’s Day from 9:00am to 4:00pm
(b)From 12:00 noon to 4:00pm on the day of the child’s birthday if it falls on a weekend and if not on a weekend then on the Saturday nearest the child’s birthday.
(c)From 10:00am Christmas Day to 10:00am Boxing Day on odd numbered years (or at times to coincide with the (omitted) Contact Centre’s availability to changeover on these days) such time subject to the parents making a booking for changeover on those days.
That all changeovers for the purpose of Orders 15(b), (c), (d), (e) and 16 herein take place at the (omitted) Children's Contact Centre and if the (omitted) Children's Contact Centre withdraws its service or the mother declines the use of the (omitted) Children's Contact Centre at a place nominated by the father in writing to the mother by text message or email.
The mother’s time pursuant to Order 15 herein is suspended on the father’s Day weekend and on Christmas Day and Boxing Day if the child is in the care of her father pursuant to these orders on those days.
Until such time as the mother engages in the course of therapy contemplated by to Order 11 herein or in the event she ceases such therapy, the mother’s time with the child be supervised for two (2) hours each alternate week on the following terms:
(a)The supervised time to occur at the (omitted) Children's Contact Centre;
(b)The parents comply with the terms and conditions of the Contact Centre attended and the parents are to share the costs of the centre attended.
In the event that the (omitted) Children's Contact Centre in not able to accommodate the mother’s time with the child the periods of time are to occur at a contact centre nominated by the father.
That the mother be at liberty to send cards, letters and gifts to the child for her birthday and Christmas to the father’s residential address if she is not able to spend time with the child on those days.
That a transcript of the evidence and cross examination of Dr V be issued to the Independent Children’s Lawyer.
That the Independent Children’s Lawyer be at liberty to provide a copy of all of Dr V’s reports in relation to the mother to the mother’s treating psychiatrist, as well as the transcript of Dr V’s cross examination, Family Reports by Ms C and a copy of these Orders and the Reasons for Judgment in this case. In the event that the mother does not commence treatment until after the Independent Children’s Lawyer is discharged, the father is at liberty to provide a copy of all of Dr V’s reports in relation to the mother to the mother’s treating psychiatrist, as well as the transcript of Dr V’s cross examination, Family Reports by Ms C and a copy of these Orders and the Reasons for Judgment in this case.
That the Independent Children’s Lawyer be at liberty to provide a copy of all of Dr V’s reports, as well as the transcript of Dr V’s cross examination, Family Reports by Ms C and a copy of these Orders and the Reasons for Judgment in this case to the Chief Executive of the Department of Communities, Child Safety and Disability Services (through the Chief Executive’s delegates in the Court Services branch of the Department).
That the mother and father not denigrate one another or their families to or in the presence or hearing of the Child.
That the Independent Children’s Lawyer be discharged nine (9) months from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Taylor & Lethbridge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 4768 of 2012
| MR TAYLOR |
Applicant
And
| MS LETHBRIDGE |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of seven year old X are unable to reach agreement as to her future parenting arrangements. They each want X to live primarily with them. The father has asked for orders that the child’s time with her mother be supervised and the mother wants the child to spend time with the father as agreed between the parents.
The matter had been previously determined by Judge Coker on 16 October 2013. The mother did not attend court that day and final orders were made in her absence for the chid to live with the father and to have supervised time with the mother. His Honour subsequently allowed the mother’s application to re-open the matter but maintained the parenting orders on an interim basis.
The final hearing before me took place over five days in March, April and July 2014. Written submissions followed. Both parents were self-represented although the father had the assistance of a McKenzie friend for the duration of the hearing and the mother had similar assistance for the first three days. The child was represented by an Independent Child’s Lawyer (“ICL”), who at the conclusion of the hearing was supportive of the child living with the father and spending supervised time with the mother.
Brief Background
The father is 43 years of age. He lives in (omitted) and works as a (occupation omitted) for a (employer omitted). The mother is 44 and is also currently living in (omitted) although when the trial commenced she was living in the (omitted) area. The mother is a qualified (occupation omitted) but has not worked in that field since the child was born. She is not currently in full time paid employment although she does earn some income from selling items at a market.
The father is an Aboriginal man of the (omitted) people through his mother’s side of the family.
The father has three older children, X, Y and Z who live in (omitted) and whom he sees regularly. He also has two grandchildren. The mother has no other children.
The mother has a lengthy history of issues with her mental health and has been diagnosed with Bi-polar Disorder.
The parties met in 2004 and began living together in 2006. They married the following year and X was born on (omitted) 2007. They moved to (omitted) in 2009. The parties separated in May 2010 and the child remained living primarily with the mother. Although the father spent time with X he instituted these proceedings as he and the mother were unable to agree about how often and in what way he should spend time with the child. A divorce order was made in December 2011. Neither party has re-partnered.
X has been diagnosed as being within the Autism Spectrum. The mother designed an educative programme from her research into the needs for children with Autism which she used to assist the child whilst living with her. The child is currently attending a main stream school with assistance from a teacher’s aide.
Competing Applications
The father originally sought, in his Initiating Application filed 30 May 2012, orders for the parents to have equal shared parental responsibility for X; for the child to live with the mother and to spend time with him. He did not specify the extent of this time. He amended his application on 4 October 2013 to seek orders for him to have sole parental responsibility and for the child to live with him. He proposed that the child spend supervised time with the mother at the (omitted) Contact Centre for two consecutive weekend days per fortnight as could be accommodated by the contact centre. He also proposed that the mother communicate with the child by telephone on Wednesday evenings after 7pm as well as by email or other forms of written communication. He maintained this position throughout the hearing.
Although the mother has always maintained that the child should live primarily with her, the orders she has sought have changed throughout the course of the proceedings. In her Response filed 10 July 2012 the mother sought orders for her to have sole parental responsibility; the child to live with her; and spend time with the father at a recognised contact centre for two hours every second Saturday until he had completed a number of courses addressing issues such as anger management, parenting skills and disability awareness training. Upon completion of those courses and obtaining support for depression or other mental health condition the child’s time with the father would progress to four hours every second Saturday and away from a contact centre.
The mother filed an Outline of Case Document on 12 March 2014 seeking orders in the following terms:
a)That parental responsibility for X, the daughter of Ms Lethbridge and Mr Taylor, be shared, as possible, until she is 18 years old with supervision by a given social work or other service, chosen by the Court.
b)That this social work service be available to facilitate communication between the parents, and to help them to exchange their ideas in regard to decision making about X’s care, as required.
c)That unless there are incidences of child abuse which have been assessed as of significant danger to X, by the Department of Child Safety, neither parent be refused their parental responsibility or access with the child.
d)That decision making about X’s day to day care, health, medical care and education be the primary responsibility of her mother with input from the father.
e)That X reside with her mother permanently until she is 16years old and upon reaching this age, that her choice of residency be her own decision.
f)That X be provided with regular visits and stays with her father, as arranged between the parents and as supervised / facilitated by the social work service.
On 2 April, the third day of the trial, the mother tendered a new minute of order[1] in the following terms which were meant to be interim orders:
i)sole care and responsibility to the mother
ii)X live with the mother in (omitted) and have weekend time with the father (if at all)
iii)X move to (omitted) State School
iv)These orders be reviewed for final determination in July 2014
v)A recovery order for the child to be returned to the mother.
[1] Exhibit M1
I declined to make interim orders part way through the trial.
The mother updated her orders sought on 3 July seeking the following:[2]
i)That parental responsibility for X, the daughter of Ms Lethbridge and Mr Taylor, be shared, as possible, until she is 18 years old.
ii)that unless there are incidents of child abuse which have been assessed as of significant danger to X, by the Department of Child Safety, neither parent be refused their parental responsibility or access with the child.
iii)That decision making about X’s day to day care, health, medical care and education be the primary responsibility of her mother with input from the father.
iv)That X reside with her mother permanently until she is 16 years old and upon reaching this age, that her choice of residency be her own decision.
v)That X be provided with regular visits and stays with her father, as arranged between the parents.
vi)That a Domestic Violence Protection Order (“DVPO”) be in place to ensure correct conduct between the parents.
[2] Exhibit M2
In her written submissions the mother maintained the orders sought on the last day of trial save for the order in relation to a DVPO, having been advised at the hearing that I did not have power to make that order.
At the beginning of the hearing the ICL reserved her position. In her written submissions the following orders were proposed:
1)That all previous orders be discharged.
2)That the Father has sole parental responsibility for making decisions regarding the long term care, welfare and development of the child X born (omitted) 2007 including but not limited to:-
a)The child’s health
b)The child’s education
c)The child’s religion
d)The child’s indigenous culture
3)In the exercise of his sole parental responsibility (in non emergent circumstances) the father shall:-
a)Notify the mother by email in respect of the circumstances requiring a decision to be made and set out his proposed decision and brief reasoning for the decision;
b)Seek input from the mother by return email within 7 days
c)Advise the mother of his decision by return email within 2 days.
4)That the Father shall promptly notify the Mother by text message should the child be involved in a serious accident or be diagnosed as suffering from a serious illness.
5)That the child will live with the Father.
6)That this Order permits the Mother to obtain information about the child’s health and education directly from any medical practitioner or school at her request and expense.
7)That the parents have liberty to attend school events such as concerts and parent teacher interviews to which parents are invited.
8)The mother is restrained and an injunction issue restraining her from attending the child’s school unless in circumstances of Order 7 herein and from any before or after school care that the child attends while in the care of the father.
9)That the parents keep each other informed of their residential address, mobile telephone number and email address and will notify the other of any change within two (2) days.
10)That the mother shall communicate by telephone with X each Wednesday evening between 6:00pm and 6:30pm with the Mother to make the call and the father to ensure X is available to make the call. Nothing in this Order requires the child to speak to the mother for 30 minutes.
11)That for the provisions of Order 15 to become operational, the Mother will commence and maintain a course of psychiatric therapy with a psychiatrist of her choice with such psychiatrist to be registered with the Royal Australian and New Zealand College of Psychiatrists. The psychiatric therapy is to be specifically targeted at treating and maintaining relapse prevention of the Mother’s Type 1 Bipolar Disorder and the mother shall attend not less than three appointments, not less than 60 days apart and thereafter continue to attend as directed by her psychiatrist.
12)In the event that the Mother commences the psychiatric therapy prior to the discharge of the Independent Children’s Lawyer, that the Mother advise the Independent Children’s Lawyer in writing of the name, address and phone number of the psychiatrist prior to her first appointment. If the Mother does so after the Independent Children’s Lawyer has been discharged, that the Mother advise the Father in writing of the name, address and phone number of such psychiatrist prior to her first appointment.
13)That these Orders provide authority for the Father and Independent Children’s Lawyer (prior to her discharge) to obtain information from the Mother’s treating psychiatrist regarding her attendance, compliance with treatment recommendations and prescribed medication as they may request from time to time.
14)These Orders provide authority to the Mother’s treating psychiatrist or other treating medical practitioners to advise the father of any concerns regarding the Mother’s mental health such that she may pose a risk to the child if having unsupervised time pursuant to Order 15 herein.
15)In the event that the Mother enters into a course of therapy as outlined in Order 11 herein and maintains that course of therapy she spend time with the child as follows:-
a)For four hours each alternate Saturday with the first and last half hour to be supervised at the (omitted) Children's Contact Centre for a period of three months or not less than six visits.
b)For four hours each alternate Saturday for six visits
c)From 9:00am to 4:00pm each alternate Saturday for six visits
d)From 9:00am Saturday to 12:00 noon Sunday each alternate weekend for six visits
e)From 9:00am Saturday to 4:00pm Sunday each alternate weekend.
16)Upon the commencement of the operation of Order 15(d) herein the Mother spend time with the child on special days as follows:-
a)For Mother’s Day from 9:00am to 4:00pm
b)From 12:00 noon to 4:00pm on the day of the child’s birthday if it falls on a weekend and if not on a weekend then on the Saturday nearest the child’s birthday.
c)From 10:00am Christmas Day to 10:00am Boxing Day on odd numbered years (or at times to coincide with the (omitted) Contact Centre’s availability to changeover on these days) such time subject to the parents making a booking for changeover on those days.
17)That all changeovers for the purpose of Orders 15 & 16 herein take place at the (omitted) Children's Contact Centre and if the (omitted) Children's Contact Centre withdraws its service or the Mother declines the use of the (omitted) Children's Contact Centre at a place nominated by the Father in writing to the Mother by text message or email.
18)The Mother’s time pursuant to Order 15 herein is suspended on the Father’s Day weekend and on Christmas Day and Boxing Day if the child is in the care of her father on those dates.
19)In the event that mother does not engage in a course of therapy or ceases therapy pursuant to Order 11 above, the Mother spend supervised time with the child for two (2) hours each alternate week on the following terms:
a)The supervised time to occur at the (omitted) Children's Contact Centre;
b)The parents comply with the terms and conditions of the Contact Centre attended and the parents are to share the costs of the centre attended.
20)In the event that the (omitted) Children's Contact Centre withdraws it service for supervision of the Mother or she declines to use the services of the (omitted) Children's Contact Centre, then if there is no alternate formal Contact Centre in (omitted), the Mother’s supervised time with the child will cease.
21)That the Mother may send cards letters and gifts to the child for her birthday and Christmas to the father’s residential address if she is not able to have time with the child on those days.
22)That a transcript of the evidence and cross examination of Dr V be issued to the Independent Children’s Lawyer.
23)That the Independent Children’s Lawyer be at liberty to provide a copy of all of Dr V’s reports in relation to the Mother to the Mother’s treating psychiatrist, as well as the transcript of Dr V’s cross examination, Family Reports by Ms C and a copy of these Orders and the Reasons for Judgment in this case. In the event that the Mother does not commence treatment until after the Independent Children’s Lawyer is discharged, the Father is at liberty to provide a copy of all of Dr V’s reports in relation to the Mother to the Mother’s treating psychiatrist, as well as the transcript of Dr V’s cross examination, Family Reports by Ms C and a copy of these Orders and the Reasons for Judgment in this case
24)That the Independent Children’s Lawyer be at liberty to provide a copy of all of Dr V’s reports, as well as the transcript of Dr V’s cross examination, Family Reports by Ms C and a copy of these Orders and the Reasons for Judgment in this case to the Chief Executive of the Department of Communities, Child Safety and Disability Services (through the Chief Executive’s delegates in the Court Services branch of the Department).
25)That the Mother and Father shall not denigrate one another or their families to or in the presence or hearing of the Child.
26)That the Independent Children’s Lawyer be discharged six (6) months from the date of these Orders.
27)Pursuant to s.64DA of the Family Law Act the parenting Orders made herein may only be varied by a subsequent parenting Order by the Court and not by a parenting plan entered into between the parents.
Material Relied Upon
The father relied upon:
a)The Initiating Application filed 30 May 2012;
b)The Amended Application filed 4 October 2013;
c)His consolidated Trial Affidavit filed 10 March 2014;
d)The Affidavit of Ms L filed 6 October 2013; and
e)The Affidavit of Ms E filed 16 October 2013.
The mother relied upon:
a)The Response filed 10 July 2012;
b)The Notice of Child Abuse or Family Violence filed 10 July 2012;
c)Her Affidavits filed:
i)10 July 2012;
ii)3 December 2012;
iii)14 December 2012;
iv)27 September 2013;
v)30 September 2013;
vi)28 October 2013;
vii)9 December 2013; and
viii)10 March 2014;
d)The Affidavit of Mr G filed 1 April 2014;
e)Three further affidavits of the mother all filed 12 March 2014 annexing statements from:
i)Ms S;
ii)Ms M; and
iii)Ms K.
The ICL relied upon:
a)The Affidavits of Ms C filed:
i)13 December 2012;
ii)11 October 2013; and
iii)26 June 2014;
b)The Affidavits of Dr V filed:
i)24 January 2013;
ii)13 March 2013; and
iii)22 May 2014;
c)The Affidavit of Ms A filed 11 March 2014; and
d)The S65L Report of Ms P dated 25 March 2014.
The ICL also called as witnesses Ms S from the (omitted) Children's Contact Centre and Ms I from the child’s school. Neither witness had provided an affidavit.
Each party provided outlines of case documents prior to the commencement of the trial and written submissions in accordance with my orders of 3 July 2014.
I have had regard to all of the evidentiary material relied upon, along with the documents tendered into evidence[3] and the oral evidence taken. I have also considered the submissions set out in the outlines of case documents and written submissions.
[3] Exhibit ICL1: Documents produced under subpoena by Dr T.
Credit
Although the father presented as being dismissive of the mother at times, I found him to be an honest and forthright witness. The mother’s evidence was not always responsive to the questions asked of her. Her presentation during the hearing was at times flustered and erratic especially when she believed the court had not grasped the points she wanted to make. Although the mother was firm in her views and clearly committed to advancing her case I did not detect any deliberate attempt by her to mislead the court. She was however in my view not a good historian as her recollections appeared to have been clouded by the dispute with the father. Where their evidence differed I preferred the evidence of the father. Notwithstanding this finding, I accept the mother honestly believed the evidence she gave was the truth.
I was also impressed by the evidence of the paternal and maternal grandmothers. I accept their evidence. Mr G was the mother’s McKenzie friend. He gave his evidence early in the proceedings so that he could then provide assistance to the mother. He also impressed as an honest witness. During the course of the mother’s evidence I had cause to rebuke Mr G for holding up a piece of paper with a message for the mother to read in an attempt to help her. I accept the submission from the ICL that this was likely to be as a result of his lack of familiarity with court processes rather than any inherent dishonesty on his part.
Evidence
Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In order to avoid duplication I will address only some parts of the evidence at this stage. I will consider other relevant aspects of the evidence when I address the best interests factors later in the judgment.
When the parties separated the mother continued to be the child’s primary carer. She gave evidence of the father not being involved in the care of the child until orders were ultimately made for a shared care arrangement but the father complained that the mother was restrictive in the time he spent with X from the date of separation. I accept his evidence. Initially that time was spent in the presence of the mother and in a public place. For a period of time he moved to work in (omitted) but during his time off he would attempt to see the child on visiting (omitted). The mother though would not always permit this and when she did, it was for limited time and supervised by her. On one occasion in 2011 the mother retained the services of a security officer, to accompany her and the child to the father’s home. The father was not informed of the nature of his retainer until the visit. He objected to the man’s presence at the time and the man left. Frustrated with not being able to reach any agreement with the mother to spend unsupervised time with the child the father filed his application in April 2012.
Interim orders were made on 24 August 2012 providing for the child to live with the mother and spend supervised time with the father at the (omitted) Contact Centre for at least two hours each fortnight. This order was not complied with as the mother did not attend the contact centre with the child.
Further orders were made on 26 October 2012 for the child to spend unsupervised time with the father for four hours each Wednesday, Saturday and each alternate Sunday with handovers to take place at the contact centre. A number of the visits pursuant to these orders were cancelled by the mother. On a number of occasions the mother contacted the father by text message offering to meet with the father at a playground rather than take the child to the contact centre. I am satisfied the mother did this in an attempt to supervise the time the child spent with the father rather than comply with the orders for unsupervised time. The father did not take up the mother’s offers.
Orders were made on 18 December 2012 for the child to live in an equal shared care arrangement of a week about nature with each parent. The mother did not comply. The father filed an application for a recovery order on 15 January 2013. When the matter came on for further hearing on 1 February 2013 the father’s application for the recovery order was adjourned pending compliance with the orders.
After court on 1 February 2013 the father collected the child from school and took her to his home. The paternal grandmother noticed the child was not wearing any underwear and was scratching between her legs. The father arranged for a general practitioner to do a home visit. He was advised to take the child to another doctor the next day to obtain a prescription for antibiotics in case she had an urinary tract infection. The father informed the mother and asked her for the name of the child’s doctor. The mother did not provide the name as she also attended the same doctor. The father then arranged for the child to see Dr W who prescribed the antibiotics and Canesten Cream. A urine sample was taken which ultimately showed there was no infection.
The mother sent an email to the father on 10 February expressing serious concerns as to his care of X during the first week of the shared care arrangement. She alleged the child had missed school and was ill with bronchitis. She said the child was dehydrated, had scratches on her face, dirty long fingernails and five large mosquito bites on her. She said the child was in a daze when she was returned and seemed to have been in shock. She said she would not be a responsible parent if she allowed the child to say with the father again and that the child may need extra therapy. She expressed the view that the father’s effort was not good enough for the child’s care requirements and that the child was not safe in his care. The mother did not send the child to school on the day she was next due to spend time with the father and refused to hand the child over to him when he went to collect her from the mother.
The matter came back before the court on 1 March 2013. No new parenting orders were made but from then on there was largely compliance with the orders until late September 2013 when the mother retained the child in her care.
The father’s evidence, which I accept, was that the child showed no signs of anxiety when with him during this period and looked forward to going home to her mother at the end of her time with him. The mother would phone to speak with the child when she was with the father most days but the father would not always put the child on the phone if the child did not express a wish to speak to her mother.
On 26 August 2013 the mother contacted the police and requested a welfare check on the child in the father’s care. They initially attended on the mother’s home to ascertain the nature of the mother’s reason for the welfare check. She informed them that the paternal grandmother may be breast feeding the child as the child had told her she got a drink of milk from the grandmother’s breast. She also told the police that the child had been returned to her on the last occasion with bruising to her forehead. The police recorded in their notes that they were sceptical of the allegation and noted the mother appeared more concerned about her family law dispute with the father than with the child. The following day the police talked to the child at the father’s home. The child did not disclose any actual breastfeeding by the grandmother but said that she had told her mother about breastfeeding and that it was when robbers came of a night. The police noted that the child displayed behaviour consistent with being autistic and difficult to speak with. The police recorded no identified offence and finalised their investigation.
There is no evidence warranting any finding that the child has been breastfed by the grandmother. I found the grandmother to be a credible witness and accept her evidence where she denied any actions that could cause the child to think that she had been breastfed. The mother appeared to maintain her belief that the grandmother had been breastfeeding the child although at one point in her evidence she thought it could have been another person. Her evidence in this regard was vague and lacked any credibility.
The mother said in her affidavit filed 10 March 2014 that on or about 29 September 2013 the child had disclosed to her that she had been sexually abused by her father. The dates in the material tendered from the police and Department of Child Safety would indicate that the date would have been prior to 23 September. In any event the mother gave this evidence:
……She said at around 6pm, ‘mum…, daddy was rude to me’ and I said ‘why, what happened?’ and she said ‘he touched me on my wee wee!’ and I said ‘what!!? – he is not supposed to do that!, - where were you?, when did this happen!?’ and she said ‘he did it in the bathroom after I had a shower’ and I said ‘oh darling I am so sorry that happened!’, and ‘he is not supposed to do that!!’, and ‘you are a good girl for telling me’. I said that she would have to stay with me until we could be reassured she would be safe.
The Department of Child Safety made a Child Protection Notification to the Child Protection Investigation Unit at the (omitted) Police on 23 September 2013 after the mother had notified them of what the child had said. This notification said that the child had disclosed to the mother that “Dad touched me on the wee wee” and that he had kissed her on her legs. It was reported that the mother had complained that the child picked up illnesses at the father’s which she rarely did when in her care and she was particularly concerned that the child may have been subject to poisoning the previous week either wilfully or unknowingly by her father or her school.
The mother attended the police station the next day and told the counter officer that on 21 September the child told her that while she was staying with her father he had “touched her wee-wee” and “she did not like it”. She told the police she did not want the child staying with the father any more. The child was interviewed by police and officers from the Department on 1 October. Upon entering the interview room and before any recording equipment was turned on the child said “Dad touched me on the wee wee and mum made me come in here and say it”. She was asked “What did mum tell you to say?” Her reply was “That dad touched me on the wee wee”. She was further asked “How did dad touch you on the wee wee?” and replied “I don’t know, mum made me come and say it”. When prompted about being touched on her “wee wee” the child went on to tell the police a number of different things about spiders her father and grandmother had to kill. The police discontinued the interview and the mother was informed that they would not be taking any further action as the child had not been able to particularise any offence. The police recorded in their notes that the reporting officer was of the view that “the mother had worded the victim child up”.
The mother’s evidence was that the child continued to raise the topic with her and was anxious and upset. She took the child to see a child psychologist, Dr T for two sessions. The child did not make any disclosures to the psychologist.
On 27 September 2013 the father was to collect the child from the mother so she could spend school holidays with him. He had anticipated difficulties so pre-arranged with the police to have them present. Before the police arrived however the father, who was sitting in his car opposite the mother’s home with his mother, saw the mother put a suitcase in the back of her car. The paternal grandmother walked towards X. The mother told X to get inside. She grabbed the child around the arm and pushed her inside and shut the door. The child was crying. The mother would not make the child available to the father. When the father phoned to speak with the child the following day he heard the mother say something to the child but not what it was. The child then said to him: are you in jail daddy? The father did not see the child until the evening of 16 October 2013.
On 16 October 2013 the mother did not attend court for the first day of the final hearing. Coker J made orders on a final basis for the child to live with the father and had a recovery order issue enabling the child to be placed in the father’s care. His Honour also made an order for the father to have sole parental responsibility. The mother was to have supervised time with the child each alternate weekend as could be arranged by the contact centre. The mother was restrained from attending the child’s school and afterschool care. On 12 December 2013 Coker J gave consideration to the mother’s application pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 and varied the orders to the extent that he made them interim orders pending a further final hearing.
The recovery order was executed on the day it was made. The police record the following:
……… Dwelling safe and tidy. Upon entry child disclosed ‘so Daddy can touch my wee wee’. Mother’s reaction was to quiet the child and mother continued to pack/prepare articles for the child to leave. Mother’s reaction was not concerned with the comment of the child and not the reaction one would expect from a mother who had heard such a disclosure. The child continued to appear and sound happy and went willingly with Police to be with her father. The child did not express any other concern about staying/being with her father. It is believed that the mother may have coached the child with regard to the disclosure.
The comments recorded as having been made by the child upon the police entering the mother’s home are concerning. They certainly raise the prospect of the child having been coached by her mother. The mother denied this. I found her denial unconvincing. When the comments recorded in the police notes for 24 September as to what the child had said about being touched are considered with the notes for 16 October I am left with the impression that the mother must have spoken to the child and told her to tell the police what she did.
I accept the father’s evidence that he did not touch the child inappropriately and find that the child has not been sexually abused by him.
The mother approached the father and child at a shopping centre on 27 October. The father told the mother to contact the contact centre so the time with orders could progress. Two days later the police attended the father’s home for a welfare check. The father’s evidence was that there had been four or five welfare checks conducted since that time.
Once the mother engaged with the contact centre she has been having time with the child for two hours a fortnight. The evidence from the supervisor was that the periods of time had gone well.
Family Reports of Ms C
Ms C is the consultant psychologist retained by the ICL to prepare family reports in this matter. Her first report was dated 5 December 2012 after interviews in October, which also included observations of the child with the parents.
Ms C observed the child to have a great imagination and to use appropriate emotional regulation throughout story telling. She sought and maintained eye contact with the mother. The mother was observed to provide encouragement and interaction as required but became flustered when requesting the child to pack her toys away. The child was very excited to see her father and ran to greet him in the hallway embracing him affectionately. No hesitancy was observed in the child’s interaction with the father. The father was observed to be interactive with the child and was very positive and encouraging. The child was observed to be much calmer with the father but the report writer qualified this observation with the note that the child was tiring by the time she was observed with her father.
The report writer assessed that the child would benefit from a shared parenting arrangement provided the parents remained committed to providing for the child’s needs and the mother remained living in (omitted). The mother had indicated to the report writer that she might move interstate. Notwithstanding the benefit to the child of a shared care arrangement however she opined that consideration should be given to the child’s residence changing to that of the living with the father. In her view child’s residency with her mother was not at that stage providing her with stability and that her educational and emotional needs were not being provided for. She was also concerned that the mother’s desire to relocate interstate might jeopardise the child’s ability to build a relationship with the father. Ms C concluded that the child had an evident emotional attachment with her father but there was limited evidence of a positive attachment between the child and mother. She considered the child sought out confirmation rather than engagement with her mother and had limited affection whereas her attachment with her father was positive characterised by engagement, affection and responsiveness.
An updated report was prepared after interviews in July 2013 and released in October 2013. At this stage the child was living with the parents in the week about arrangement. Ms C formed the view that the mother was continuing to struggle with being a single parent and noted the mother did not see the father as a parent willing to be involved with the care of X. The mother told the report writer that she hoped to find an ‘alternate’ family to care for the child. The mother would not provide the report writer any information as to her treatment or medication. This refusal caused Ms C to be concerned that the mother may not be compliant with medication and treatment which in turn may lead to a relapse of her Bipolar Disorder. This concern was somewhat alleyed by her observation of subpoenaed documents indicating that the mother had been accessing prescriptions regularly.
Ms C expressed concern as to the mother’s identification with the child and the mother’s isolation of the child from educational supports. The mother had been visiting the child at the Outside School Hours Care facility during the week the child was in the father’s care. The report writer was of the opinion that this contact could increase anxiety for X and lead to confusion for her as to her parents’ care.
The report writer stressed the importance of the child having stability and consistency in her care arrangements and proffered three options for consideration. The first option involved a continuation of the equal shared care arrangement provided the father modified his working hours so that the child did not attend after school hours care; the mother refrained from visiting the child during the time she was residing with the father; and that the child have telephone calls with the parent she was not living with every second or third day.
Her second option was for the child to live primarily with the father provided he modified his working hours so the child did not need to attend before and after school care. If this was adopted she recommended the child spend time with the mother on alternate weekends and overnight during the week preceding a non-contact weekend. The father was to also access appropriate therapeutic intervention for the child.
Her third option was a qualified one. Ms C said she would only recommend the child live in the primary care of the mother if the mother would comply with the child attending fulltime schooling in an educational facility; that the mother comply with personal psychiatric treatment; that the mother source appropriate therapy for the child; that the mother not relocate out of (omitted); and the father have alternate weekend time with the child and an overnight in the week preceding a non-contact weekend.
Ms C stressed the research that suggested there were risks to a child’s emotional development in a shared care arrangement characterised by continuing conflict between parents.
A third report was prepared after interviews in May 2014 during an adjourned period of the trial. This report was dated 25 June 2014. The report writer was brought up to date as to the change in the child’s primary care arrangements to living with the father and spending supervised time with the mother at the contact centre. The parties were interviewed as was the child. X told the report writer that she enjoyed going to the contact centre. The child was observed to have put on some weight since the previous report and presented as relaxed and settled in her interactions with both parents.
Ms C concluded that the current arrangement provided structure, stability and consistency across areas of the child’s development and life. However she was concerned about the father’s ability to acknowledge behaviours and characteristics of Autism which might require specific intervention or support. In cross-examination she conceded that much of this issue was now in place but she acknowledged the father may face practical difficulties being available to ensure X attended all of the therapy sessions she needed given his work commitments. The report writer also concluded the mother had no insight into the communication difficulties between the parents as a result of the ongoing litigation, the periods of withholding of the child from the father and the allegations of sexual abuse. Ms C raised as a concern the mother’s admission that she was no longer taking her prescribed medication for the Bipolar Disorder heightening a risk of a relapse and appeared to lack insight into the need for the maintenance of a regular treatment programme. She also expressed concern that the mother presented as having the view that court orders were able to be altered by the primary carer. This latter issue also presented itself during the hearing as the mother would at times appear to appreciate the importance of complying with court orders but at other times express the view that if she was the primary carer she could make decisions for the child inconsistent with the orders.
In this final report from Ms C she concluded that the child should remain in the primary care of the father. She recommended the child’s time with the mother increase from fortnightly to weekly and remain supervised initially but increased to day visits from 9am to 4pm. She proposed that after a period of three months there be an additional day on the same weekend from 9am to 4pm with the first and last hours supervised at the contact centre and the remainder unsupervised away from the centre.
In reading this report it would appear that this recommendation was conditional on the mother obtaining and maintaining consistent and appropriate treatment for the Bipolar Disorder and with compliance with that condition consideration could then be given to overnight visits each fortnight. During her oral evidence however Ms C said that the compliance with a treatment plan was more necessary before a move to overnight time. She said it was important for the child to have extended time with the mother to maintain their relationship and to allow them to engage in different activities which was not possible with short periods at the contact centre. She was of the view that if the mother did not engage in and maintain a treatment plan for her mental health issues the child’s time with the mother would need to be limited to the day only time with supervision at the beginning and end of the periods. The purpose of this supervision was to enable the workers at the contact centre to monitor the relationship between the mother and child and to enable the child to settle into and out of her time with the mother. Ms C was of the view that given the child has autism she may need time to settle down particularly if she is overstimulated or has an increased level of excitement.
During cross-examination Ms C said that over the three reports she had seen a change in the child’s presentation and behaviours. Whereas she had previously presented as quite flighty and distractible she was more settled and relaxed during the third report process. She said that since the child had come into the father’s primary care there had been an improvement in the child’s education both academically and behaviourally and also in her social support. She expressed the view that the father had provided the child with emotional support and stability. She was concerned that if the child was to be removed from the father’s primary care there would be a risk of regression for the child in areas of her behaviour, academic achievements as well as her social and personal development. Ms C did not support a shared care arrangement as being in the child’s best interests citing in particular the poor communication between the parents.
The report writer said in her oral evidence that she was not recommending supervision of the child’s time with the mother from the perspective of ensuring the child is safe from immediate harm but rather risk over the longer term if the mother does not maintain treatment. When informed that the mother had given evidence that she may consider obtaining backpacker accommodation if the child was living with her the report writer expressed concern as to the effect of any displacement for the child which could result in emotional trauma or psychological disturbance including regression in some of her Autism spectrum characteristics.
Report of Ms P
Family Consultant, Ms P prepared a report pursuant to S65L and the orders of Coker J made on 16 October 2013. She was not required for cross examination. Her report is limited in that it was ordered in the context of final orders having been made by Coker J and was to assist in determining whether the mother’s time should proceed to be unsupervised. The family consultant saw the parties and child in February 2014 and by the time the report was prepared the matter had been re-opened. In that context Ms P recommended the supervised time continue until final determination particularly in light of the allegations as to the mother’s attention to her health, her capacity to attend to the child’s educational needs and the mother’s continued belief that the father had sexually abused the child. This report, although instructive, does not assist my determination in the same way as the reports of Ms C and the psychiatric assessments.
Psychiatric Assessments
The ICL retained the services of Dr V, psychiatrist, to conduct a psychiatric assessment of each party. The psychiatric assessment of the father was annexed to Dr V’s affidavit filed 13 March 2013. He did not consider the father as having any psychiatric disorder, personality disorder or abnormal personality traits. He noted a past history of an episode of depression serious enough to require hospitalisation but that was in the late 1990s. He concluded there were no mental health issues affecting the father’s parenting ability.
From the reports of Dr V, the evidence from the mother and maternal grandmother and the subpoenaed documents tendered it can be seen the mother has had a lengthy history of issues with her mental health wellbeing. She was first admitted to hospital at 15 years of age after experiencing psychotic symptoms. Although she received a provisional diagnosis of Schizophrenia the mother believes that she was probably experiencing a manic episode at that time with psychotic symptoms. Her next hospital admission was not for another six years when she was 21 and living in (omitted). She was diagnosed with Bipolar Disorder and started treatment with the mood stabiliser, Lithium. The mother had a further four admissions between 2002 and 2005 all related to relapses with her Bipolar Disorder. The 2005 admission arose whilst the mother was overseas. She needed to be returned to Australia from the (country omitted) after a psychotic episode. Not long after X was born in 2007 the mother sought help and was admitted to the (omitted) Hospital. During her pregnancy she discontinued her Lithium treatment and had not resumed it as she was breast feeding. The mother showed insight into her condition at that stage in seeking help when she felt unwell. That was the last time the mother was hospitalised. Whilst the mother has been living in (omitted) she has engaged with two psychiatrists and a number of general practitioners. The change in the engagement with her first psychiatrist was brought about by the relocation of that psychiatrist away from (omitted). It would appear the mother disengaged with her second psychiatrist after disagreeing with him about her medication.
In his first report, in relation to the mother, Dr V gave the opinion that the mother had Bipolar Affective Disorder, type 1 in remission with treatment. This diagnosis was based on the mother’s report as to her psychiatric history. On the date of the interviews he was of the view that there was no evidence of any thought disturbances or abnormal perceptual experiences suggestive of a major psychiatric disorder. He considered at that time, the mother’s mental condition to have been stable for five years and he was of the view that the mother was able to provide adequate and consistent parenting care to her child. He noted the mother was at that time taking Lithium treatment twice a day and Olanzapine when required. He noted the high risk of relapse if the medication was discontinued and that there had been past history of multiple relapses for the mother.
When he conducted the updated assessment in May 2014 he noted the mother had discontinued her lithium treatment but was taking an antidepressant daily and occasionally Olanzapine. He concluded that there was no evidence of mood disturbances in the mother but she appeared to have misunderstood or misinterpreted a lot of abstract communication between herself and others including the child. In his view she had been affected by a pathological suspicion of the intentions of others. He gave the following opinions:
Mental condition: As stated in my previous report, Ms Lethbridge suffers from Bipolar Disorder, a condition that usually presents with a cyclic course of remissions and relapses when untreated. Ms Lethbridge has had a number of relapses in the past and the risk of future relapses is high without treatment with an effective mood stabiliser such as lithium. Currently she is not on any effective treatment to prevent a relapse.
She is in remission without any mood disturbances at present. However, I suspect that there is some impairment in her ability to understand and interpret communication from people close to her, including X, and to act appropriately. This could be related to her untreated mental condition or in a pre-existing personality trait. This impairment may not be a significant issue for her if she is not under stress and if she is not going to have responsibility for the parenting care of X.
Opinion in relation to parenting: Ms Lethbridge has a close attachment to X and remains very distressed about the separation. In my opinion, there is no significant risk to the safety or well-being of the child, if Ms Lethbridge continues to see X under the current supervised arrangement.
It is possible to consider longer periods of unsupervised contacts with the child in the future if Ms Lethbridge can show that she is actively treated and is regularly assessed by a psychiatrist. If this happens, Ms Lethbridge will also need explicit instructions on the conditions of her spending time with the child, so that she will not misinterpret them.
In his oral evidence Dr V maintained these opinions. He was concerned that unless the mother sought the ongoing assistance of a psychiatrist and returned to using a mood stabiliser such as Lithium she was at a heightened risk of relapse which could have significant consequences for her ability to appropriately care for X. He accepted the mother’s use of anti-depressant medication may be of some assistance to her but would not be of any assistance if the mother was to have a manic episode which in his view was much more disabling than a depressive episode.
The mother submitted that she was able to manage her condition effectively to prevent bouts of illness and was able to maintain good mental health without taking a mood stabiliser. She did not consider there was any danger of episodes of her illness occurring while she is parenting, unless she had experienced several weeks of poor sleep. She invited the court to find that the child was not in any danger of being exposed to her suffering an episode of illness because her condition was currently in remission; was subject to frequent review by her general medical practitioner; she does not suffer from frequent incidences of poor sleep; and she has been well for more than 7 years. She did not accept Dr V’s opinion as to the need for her to attend a psychiatrist regularly but she would do so if and when necessary. She was content with the management of her condition through the assistance of her general medical practitioner.
Dr V rejected the mother’s suggestion that it was sufficient for her to see a general medical practitioner and to self-diagnose the need for medication. He was firmly of the view that she needed the assistance of a psychiatrist on at least a two monthly basis and to maintain the use of a mood stabiliser. He considered the mother lacked insight into the extent of her illness. He opined that she was at a very high risk of having a relapse, even though she considered herself to be fine.
He said that untreated bipolar disorder can be problematic in parenting because of the nature of unpredictability with the condition. He noted the mother has been suspicious of people close to her and has difficulty trusting others. He was not sure if that was part of her mental health issue or a personality trait but accepted the proposition that if the mother was to have a relapse of her bipolar condition any personality traits of a suspicious nature could be exacerbated. In his view if the mother was to return to active treatment for her condition she is likely to have more inner stability in her mental state and therefore be at less risk of changes in her thinking which in turn would enable her to provide a more stable environment for the child.
I accept the professional opinion of Dr V and his evidence. I am not satisfied the mother has the insight into her condition she believes she has. I am satisfied that if the mother was to engage with a treating psychiatrist on a regular basis and followed his or her recommendations she would be in a better position to provide the child with a stable environment and conflict between her and the father is likely to be much reduced.
Legal Principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[4] and must consider the best interests of the child as the paramount consideration.[5]
[4] S.60B
[5] S.60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[6] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[6] S.60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[7] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[8] This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[9]
[7] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[8] S.61DA
[9] S.61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[10] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[11] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[12] A major long-term issue in relation to a child means an issue:
[10] S.61B
[11] S.61C
[12] S.65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[13]
[13] S.4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[14] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[15]
[14] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[15] S.65DAA(2)(c) & (d)
Determining the best interests of the children – the s.60CC considerations
The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors in a thematic way. The father’s Initiating Application which commenced these proceedings was filed on 30 May 2012 prior to the amendments to the Act which came into effect on 7 June 2012. Consequently I am required to consider the best interests principles that were applicable at that time.
The children’s relationships
The benefit to the child of having a meaningful relationship with both of the child’s parents;[16]
[16] S.60CC(2)(a)
The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);[17]
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;[18]
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
[17] S.60CC(3)(b)
[18] S.60CC(3)(c)
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living[19]
[19] S.60CC(3)(d)
Ms C gave evidence that with children in the autism spectrum it is difficult to pinpoint the type of attachment they would have with their primary caregiver. She concluded from her observations that although the mother had been X’s primary carer for the vast majority of her life the child had an almost ambivalent attachment with her. By that she meant that an attachment was evident but not overly strong. The report writer conceded though, in cross-examination from the mother, that the child was quite relaxed and settled when observed with her and there was appropriate engagement and interaction between the mother and child.
The Report writer observed the child to find her emotional support from her father and in her oral evidence accepted that she has a more secure attachment with him. She was concerned that the child’s sense of security would be put at risk if her current stability was altered by a return to her mother’s primary care.
The evidence suggests that the child has a close relationship with her paternal grandmother who travels from north of Brisbane to (omitted) to spend time with and assist the father on a regular basis. The child also has a good relationship with the maternal grandmother although she does not see her as often since she moved to Canberra. The grandmothers have made arrangements for X to visit the maternal side of the family in Canberra this Christmas period.
A significant issue in this case is whether the mother would support a relationship between the child and her father if she is returned to live primarily with the mother. In the second family report the report writer records:
……[the mother] stated that she is not sure if she will stay in (omitted), and is unsure about Mr Taylor being involved in X’s care. She stated that he has other children and she does not, that he has a lot of supports in his life and she does not, and it is a big ask for her to share X’s care when he is not ‘meeting the grade’, and there have been so many issues over the years and it is not fair for X to be dealing with these issues when she has Asperger’s Syndrome.
The report writer went on to say:
[The mother] feels that Mr Taylor has questionable motives for being a parent for X, as he has no interests in being in any kind of relationship with her as X’s mother. When asked if she believes this impacts upon Mr Taylor’s ability to parent X, she stated that if they can’t work together, they can’t parent X, and she will have to suffer by going between us. She feels that X should remain with a primary carer until the other parent is fully ready to be a functioning family member.
It is clear the mother meant the child should live with her as the father was not a functioning family member. In the last report of Ms C the mother said she was looking for someone to be a male role model for the child when she is in her care. Although she acknowledged that the father is this role model when the child is with him she said that when the child returns to her it will just be herself and X.
Despite the mother telling Ms C that she would not “take off” with the child if X was returned to her primary care or had unsupervised time with her, in light of the mother’s long standing view as to the father ‘not meeting the grade’ and her unwavering belief that the father has sexually abused the child, I have no confidence she would be able to foster a positive relationship between the child and her father. The mother’s failure to comply with court orders for the child to spend time with the father in the early stages of these proceedings informs and confirms that lack of confidence.
The mother argued that the father had attempted to exclude her from the child. She accused him of conspiring with members of her family to further undermine her attempts at obtaining family support. I do not accept the mother’s submission in this regard. I found the father to be committed to the child having a relationship with the mother but subject to the child not being exposed to psychological harm should the mother’s health deteriorate or from her encouraging the child to make allegations against him. Rather than working with members of the maternal family to the exclusion of the mother I find that he has engaged with the maternal grandmother to ensure the child continues to have a relationship with that side of her family.
Risk of harm
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[20]
Any family violence involving the child or a member of the child’s family[21]
Any family violence order that applies to the child or a member of the child’s family, if:
(i) The order is a final order; or
[20] S.60CC(2)(b)
[21] S.60CC(3)(j)
(ii) The making of the order was contested by a person[22]
[22] S.60CC(3)(k)
The mother filed a Form 4 Notice of Child Abuse or Family Violence on 10 July 2012. In this form the mother set out a number of concerns she had in relation to the father’s conduct to her and the child. Some of the complaints did not appear to relate to any actual risk of harm. For example the mother alleged the father would not communicate with her and that his ‘silence’ was very intimidating to her. She also complained that the father’s affidavit was slanderous, damaging and discriminatory. She alleged the father lacked an understanding of the child’s condition, brought members of his family to visits without telling her beforehand and had coerced the child to eat excessive amounts of sweets. She went on though, to accuse the father of being violent and aggressive during visits and of harassing her in public. She did not particularise these incidents to any great extent but did allege he had slapped her across the face on one occasion and raised his fist at her threatening to punch her on another.
The mother made no mention in this form of her concerns that the father had acted in a sexually inappropriate manner with the child when she was a new born baby. I will address this allegation below. Nor did she raise her allegation that the father had raped her on occasions during the relationship. These serious allegations were raised by the mother with the family report writer during interviews conducted in October 2012. The mother has not made any complaint to the police about these allegations. She went on to tell the report writer that the father had been aggressive towards her and angry during the relationship but there was no physical abuse.
The mother applied under the Domestic and Family Violence Protection Act 2012 (Qld) for a protection order on 1 November 2013 however this application was dismissed after a contested hearing on 24 February 2014. She filed a further application on 23 June 2014 which had not been finally determined by the conclusion of the hearing before me. As part of that application the mother sought a temporary protection order and stated the following as the reason:
I require an ongoing protection order to protect myself and my daughter from the behaviour of the respondent. He has a reckless disregard for the effects of his discrimination against the aggrieved, who is the mother of the child in his care & former sole carer & autism therapist. He refuses any attempt any process or mediation to reach a remedy to the current situation. He has refused me to have phone calls all year for no reason and he has refused my daughter contact with me on my birthday in March, at Easter, and on her birthday a week ago. It is abuse.
A temporary protection order was not granted.
In the section of that application where the aggrieved sets out the grounds for a protection order the mother said the father had interim family law orders for the sole care of the child but complained he was not providing contact for the child and mother which in her view was an abuse to the child and torture of the mother. The mother did not disclose in this application that the father was complying with the orders of this court.
It is concerning that the mother would attempt to use the jurisdiction of another court to raise matters that are more properly before this court. Whilst I accept the mother is aggrieved by the orders of this court in placing the child in the father’s primary care with only supervised time with her, her actions in bringing these applications which on the face of them appear to be without merit, further adds to the stress of the ongoing litigation for both the mother and the father.
The father denied he was responsible for family violence both during and after their relationship. He also denied the mother’s allegations that he has been sexually inappropriate with the child and that he raped her. He conceded though that there have been arguments between them as a couple and that police have been called. He also denied ever using excessive physical discipline on the child. I accept his evidence.
The definition of family violence that is applicable to this case, in light of the Initiating Application being filed prior to the 2012 amendments coming into effect, is
conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety[23]
[23] S.4 Definition of Family Violence prior to the amendments that came into effect on 7 June 2012
I have not been persuaded that the father has acted in a way that would fall within that definition. Whilst I accept the parties have had arguments I do not accept the mother’s evidence that the father has slapped her across the face or threatened to punch her. I also accept the father’s evidence that he has not raped the mother.
The mother’s perceptions of being a victim of family violence, as a result of the communication difficulties between the parties or by the evidence the father has given in his affidavit material critical of her, are misplaced. The mother conceded in cross-examination that the father had complied with the orders for her to spend time with the child. Any failure on his part to reach an agreement with the mother for her to spend time with the child outside of those orders does not amount to family violence.
For these reasons I do not consider the child to be at risk of exposure to family violence whilst in the father’s care.
In her first interview with the family report writer in 2012, the mother alleged the father had acted in an inappropriate and sexual manner with the child when the parties lived on the (omitted) in July 2007. The child was only one month old at the time. She said that she saw welts around the child’s vagina but had never seen the father do anything to the child. She questioned the father at the time but he denied sexually abusing the child. Notwithstanding these concerns the mother did not report them to anyone. Her evidence was that she discouraged the father from changing the child’s nappy which was not onerous, apparently, as in her view he was not interested in helping with the care of the child. I note that at around this time the mother had been admitted to the (omitted) hospital and she recommenced her Lithium treatment which she did not take during her pregnancy.
Despite the passing of time without any other incidents to cause her concern, the mother raised this allegation with the report writer during the first round of interviews. I am satisfied there is no evidence to establish that the father had in any way acted inappropriately with the child in a sexual manner when she was a baby and I accept his evidence that he did not do so.
The mother raised the more recent allegation of sexual abuse in September 2013 just prior to the original final hearing before Coker J. I have addressed this allegation earlier in this judgment. I found the father had not sexually abused the child. For these reasons I am satisfied this child is not at an unacceptable risk of harm in the father’s care.
I remain concerned however as to the potential risk of psychological harm to this child if the mother is to persist in her allegations of this nature. I share the concerns of the police that the mother is likely to have coached the child into making the allegation that the father had touched her “wee wee”. Nothing the mother said caused me any relief in this regard. She is firmly convinced that the father has sexually abused the child. There is a real risk that the mother will again encourage the child to make allegations of this nature. In light of that risk it may be necessary for any time the mother spends with the child be supervised to avoid the potential for the child to again be interviewed by police. The risk may be alleviated if the mother was able to come to the appreciation that the child was not at risk of sexual harm with the father. Should the mother re-engage and maintain appropriate psychiatric care she may be able to be more objective on this issue.
The child’s views
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views[24]
[24] S.60CC(3)(a)
Given the child’s young age and her autistic condition any views expressed by her would not be determinative. Ms P saw the child in February 2014 and noted that X said she wanted to go home to see her mother as “she may be missing me a lot”. She also said “I just don’t like Dad that much”.
The family report writer however saw the child in the May interviews and she told her that she enjoyed visiting her mother at the contact centre.
Practical difficulties
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis[25]
[25] S.60CC(3)(e)
The parties currently live in the same city. If that remains the case there should be no practical difficulty in the child moving between the parties. The mother was vague as to her future plans. Should she decide to move away from (omitted) there may be practical implications for the child’s time with the parents.
There may also be cost implications if supervised time is continued in the long term.
Parental capacity and responsibility
The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs [26]
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents[27]
The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent[28]
[26] S.60CC(3)(f)
[27] S.60CC(3)(i)
[28] S.60CC(4). Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents: (a) has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and (b) has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child. S60CC(4A) provides that if the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
A number of issues have arisen for consideration in relation to the ability of these parents to meet the child’s needs.
The mother’s living arrangements
The ICL argued that the mother’s living arrangements remain uncertain giving rise to some doubt as to her ability to provide a stable home for the child. Throughout the proceedings the mother mentioned that she has considered moving to Canberra or other places where she may be able to find employment. No detailed plans were presented though and I am satisfied the mother has not formulated a long term plan for where she may want to live in the future. When the proceedings were first filed the mother was living in rental accommodation in (omitted) but had moved to (omitted) to live in a home owned by Mr G by the commencement of the trial. The mother said she had been in dispute with her previous (omitted) landlord in relation to the bond but that was resolved in the Queensland Civil and Administrative Tribunal. The bond has been returned to her.
The mother returned to (omitted) before the completion of the hearing. She said she was living with Ms S but as attempts to contact Ms S to give evidence proved fruitless I am left without any evidence to assist in determining the arrangements the mother has with her as to her future accommodation. The mother’s evidence was that she had been looking for more permanent accommodation and was considering living in a share house arrangement with other people; hotel accommodation and even backpacker accommodation. The mother’s evidence in this regard caused me some concern as to her level of insight into the need to provide some stability for the child and ensure her home environment was safe. The mother had no concerns as to the suitability of the child living in backpacker accommodation on a longer term basis or with people she does not know.
Whilst I make no criticism of the mother for being currently without a long term arrangement to house both herself and the child I do not have any confidence that she is being child focused in her searches for better accommodation. When I compare the mother’s current living arrangements and her evidence as to where she has been looking for the future with that of the father’s stable rental accommodation I am satisfied the father is in a better position to provide stability for the child in regards to accommodation.
The parents’ ability to provide for the child’s health
Paediatrician, Dr A diagnosed X in 2011 with Asperger’s Syndrome. The father was slow in accepting this diagnosis. On 18 December 2012 I made an order for the father to make an appointment with Dr A and to follow his advice. The father has done so and I am satisfied he now has a better appreciation of the child’s needs. The mother has always been supportive of the child’s diagnosis and has taken many steps to be informed about her condition. I will address this in more detail when I consider the child’s education.
The issue of the child receiving medical care whilst with the father has been a long standing issue for the mother. The father complained the mother would refuse to apply creams prescribed for the child’s eczema and thrush. The father had been advised by a doctor to apply Canesten to the child for thrush but the mother has a strong view that this is not appropriate for the child even if recommended by a doctor. It was her view that the use of Canesten on a six year old child was excessive and a child should be treated with alternative therapies for thrush like conditions. She did not believe the child has ever suffered from thrush in any event. On 5 September 2013 the father obtained two tubs of topical cream on prescription for a rash the child had and gave one to the mother. He phoned her a few days later to find out how the child was going but was informed that she was not using the cream. When the child came back into his care on 13 September she still had the rash and he applied the cream. The mother said the father was too willing to use medications and chemicals when she did not need them. She also said that she thought the use of Canesten on X was a form of sexual abuse.
The parties have also disagreed about the use of antibiotics and non-prescription pain relief. The mother gave evidence of seeking alternate opinions from doctors if she did not agree with their recommendations.
It is disappointing the parties are not able to reach agreement as to appropriate care for the child. I am not persuaded the mother is able to objectively assess her child’s needs upon receiving advice from medical professionals. The father appears more open to take such advice. In making this finding I am not suggesting that parents should blindly accept what they are told by medical practitioners. Seeking a second opinion in some cases may be warranted but I was left with the impression the mother usually forms a view first and then seeks a professional opinion to support her view. Such an approach potentially raises the prospect of the child not receiving appropriate medication and care.
The mother was concerned that the child had lost weight whilst in the father’s primary care. She raised these concerns with the family report writer during the last round of interviews and with a supervisor at the contact centre. The report writer thought that the child had in fact put on weight since the previous interview. The contact centre worker’s evidence was that it was not something she had observed but recorded the mother’s concern in the notes as she had raised it. The child’s teacher was asked if she thought the child had lost any weight but said she did not think so. Whilst I don’t have evidence of the child’s weight at various stages, given the evidence of the report writer, contact supervisor and the child’s teacher I find that the child’s weight is not an issue that I need be concerned with.
The day to day needs of the child
The mother sought assistance in the care of the child after separation retaining the services of nannies and respite care. She said that at times the child’s care was very demanding and challenging. I do not doubt this given the diagnosis of autism. She did not believe the father is capable of caring for the child either on his own or co-parenting with her. She said she has looked at obtaining alternative carers for the child. The records of the Department note:
Child Safety have been directly contacted by the mother requesting support in caring for X and the mother has expressed a number of difficulties she is experiencing in caring for X. The mother has reported financial strain, lack of transport and X’s challenging behaviours are all impacting on the mother’s ability to cope with caring for X and the mother has indicated she may have to consider relinquishing care of X to the department without adequate support. Mother has identified a “shared-care” arrangement with a foster care as an option she believes would assist her in caring for X, despite there being a biological father residing in town who is wanting to have access with X.
The mother also gave evidence of having advertised on the internet for a family to share the care of the child with her and having received an expression of interest from a man in Canberra. Although the mother did not follow through with the enquiry I accept the ICL’s submission that the mother appeared to have little insight or understanding as to the danger this may pose to the child.
In her first report Ms C highlighted a number of supports that had been available to the mother which have not been followed through. She noted:
In regards to Ms Lethbridge’s care of X, information obtained through subpoenaed documents indicate that although she sought a diagnosis from Dr A (Paediatrician), Ms Lethbridge has failed to follow through on parental support and referrals provided to X to the (omitted) Early Childhood Development Program (ECDP), (omitted) Kindergarten and the Management of Young Children Program (MYCP). This information indicates that Ms Lethbridge did not maintain consistent attendance for X at (omitted) Kindergarten, (omitted) EDCP, or with MYCP. In addition, reports from MYCP indicate that intensive parenting support was required for Ms Lethbridge, however, no progress was noted to Ms Lethbridge’s ability to manage X’s behaviour.”
Documentation provided by the Department of Child Safety indicated that recorded notifications were assessed on 23 October 2012 as Unsubstantiated with a Moderate Risk Level. This information indicated concerns regarding Ms Lethbridge refusing to take on advice from support services, that she does not provide discipline to X and is very permissive with X. In addition, these documents highlighted concerns that Ms Lethbridge was seeking a “foster family” to provide shared care for X, despite the presence of X’s father who is seeking contact. Concerns were recorded that Ms Lethbridge was “doctor shopping” and changing practitioners if she was not provided with advice or opinion she agreed with, and that X’s contact with her father had been prevented by Ms Lethbridge’s paranoid beliefs about the care provided to X.
I am satisfied the mother has at times recognised the need for assistance in caring for the child. It is alarming however to find that she has advertised on the internet for some of that support. When the mother has sought assistance from professionals and agencies she has not always followed through with the advice and assistance. Whether this is as a result of her personality or her mental health functioning at the time I am not able to determine. What I can find however, given this history, is that the mother may not seek or maintain the appropriate help she will need in the future if the child is to live with her.
The child’s education
The mother’s evidence is that she spent considerable time and effort researching Asperger’s Syndrome and has written an as yet unpublished book on her experiences in attending to X’s care in the context of having Asperger’s. She has advertised this book on the internet through Facebook. She is known on Facebook as ‘X's Mum’. The book is entitled: Healing Asperger’s – An Early Intervention for Autism. A picture of X is on the front cover. The mother considers herself to be an expert in her daughter’s care and in the design of early intervention programmes for children with autism. She is concerned that during the period of the shared care arrangement the child did not cope and the advancements made in relation to her Asperger’s had been set back particularly in relation to her ability to interact, co-operate and concentrate.
The mother has not been happy with the child’s schooling, believing the child has made slow progress compared to when the child was in the her sole care during 2012. The mother initially wanted the child to be home schooled but is now supportive of her having a main stream education provided appropriate supports are in place and at a different school to that which she currently attends. X was first enrolled at her current school in October 2012 but missed many days in what remained of the school year. The child was in the mother’s care at this time. The mother complains though that the school will not engage with her and that the ratio of boys to girls in the class is not appropriate. She would like the child to change schools.
The child’s teacher, Ms I gave evidence. She has been X’s teacher for the last two years. When she arrived at the school the teacher observed her to not seek out company of other children and preferred to be in her own space. Over the last two years this has changed and she now seeks out the company of other children. X is in a small special education class of 10 children and has the assistance of a teacher’s aide. She is being taught the curriculum at a lower level than her age. Her behaviour at school has improved over time. Initially she would cry loudly but now she has become used to the routine and participates in the work assigned to her. Ms I has observed the child’s lunches and was of the view that she eats a good healthy lunch. Ms I was aware of the change in the child’s living arrangements when she went into the father’s full time care. Although she did not notice any immediate changes for the child she has noticed that she is a different child now in that she is more likely to interact with other children, be compliant with adults and is keen to have a go with her work. She has improved academically albeit she is still behind her same-aged peers. She was not concerned about this. Nor was she concerned about the child’s attendance at school. I accept Ms I’s evidence.
I find that the child has improved academically and socially since her enrolment in 2012 and in particular since the child went into the father’s full time care. The father appears to be ensuring the child attends school regularly and has appropriate food for her lunches.
A recurrent theme of the family reports and consistent with the evidence of the child’s teacher is that this child needs stability. The mother’s desire to see the child change school shows a lack of insight into the child’s need for that stability. The mother’s desire for change is also consistent with her changes of medical practitioners and disengagement with supports when she does not agree with their approaches and opinions. To change school would not be in this child’s best interests.
Background issues
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant[29]
[29] S.60CC(3)(g)
If the child is an Aboriginal child or Torres Strait Islander child:
a)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
b)the likely impact any proposed parenting order under this Part will have on that right[30]
[30] S.60CC(3)(h), S.60CC(6)
The father is an indigenous man identifying with the (omitted) people. His mother appeared to have a greater sense of identification. Notwithstanding this and the grandmother’s attendance at NAIDOC week I did not get the impression that their aboriginality was a major issue for the paternal family. Having said that I am satisfied that the grandmother would promote a sense of aboriginal identity for the child. It was disappointing to hear the mother give evidence that she would not have had a child with the father if she had known he was Aboriginal. I have no confidence the mother would promote the child’s Aboriginal heritage.
Limiting further proceedings
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child[31]
[31] S.60CC(3)(l)
When the final hearing before me commenced in March 2014 the mother also had proceedings in the ACT Guardianship Tribunal and the Queensland Civil and Administrative Tribunal. The previous month an application by her in the Queensland Magistrates Court for a protection order had been dismissed but during an adjourned part of the proceedings before me the mother had filed yet another proceeding for a protection order. The mother also indicated that she would appeal any decision of this court which she did not agree with. This of course is her right.
The mother’s application before the Guardianship Tribunal related to the care of her sister who has an acquired brain injury following an accident some 17 years ago. She is a quadriplegic and is unable to speak. The mother has not seen her for 4 years. Notwithstanding this she formed the view that her sister has not been provided with appropriate rehabilitation to see if she could walk or talk. The mother did not have the support of her family in the bringing of this application and appeared to lack any insight as to emotional effects on them, particularly her mother, in making this application.
The mother was successful in her application before QCAT in regards to a dispute with her previous landlord over the return of a rental bond. The mother was not successful in her first attempt at obtaining a protection order and although at the time of the conclusion of the evidence the second application had not been determined I have already addressed my view as to the appropriateness of her application.
The ICL submitted that the mother showed little insight into the effects of ongoing litigation on the parties’ parenting of the child. Counsel submitted:
The best way to protect X from future litigation is for her to remain with her father who will be best placed to shield X from the stress and chaos in the mother’s household whilst the mother continues to pursue these matters.
There is no evidence to suggest the mother was engaged in multiple litigations whilst the child was in her primary care. Although I do not make a positive finding, I speculate that her energies in this regard may well have been brought about by: having more time on her hands in light of not having the care of the child; the breakdown of her relationship with her family; and her ongoing dispute with the father. What concerns me is the potential for non-compliance with orders by the mother. She did not comply with the orders for the child to spend time with the father at the commencement of these proceedings and withheld the child in October 2013. I have little confidence the mother will comply with any future parenting orders if she does not agree with them. This in turn is likely to lead to further proceedings in this court.
The ICL submitted that the mother may continue to seek protection orders in the event that the father wishes to comply with orders that the mother does not agree with. It was argued that the use by the mother of applications for family violence orders in the State jurisdiction was a form of coercion on her part to try and obtain from the father a variation of orders made by this court. The court was invited to consider making an order under s.64D(2) limiting any variation to court orders to subsequent orders rather than parenting plans. Such an approach should only be adopted in exceptional circumstances. S.64D(3) sets out what may constitute exceptional circumstances for the purposes of this section as being the need to protect a child from being subjected to or exposed to abuse, neglect or family violence or where there is evidence that a parent is likely to use coercion or duress to gain an agreement with the other parent. This provision does not limit the operation of s.64D(2). Whilst I am satisfied the father is frustrated with the mother’s use of the domestic violence legislation I did not gain the impression he is likely to be coerced into reaching an agreement with the mother if he felt the agreement would not be in the child’s best interests. Indeed in his written submissions he left open the option of reaching agreement with the mother for supervised time away from the (omitted) Contact Centre in the future. I am therefore not persuaded to make the order sought by the ICL.
Presumption of Equal Shared Parental Responsibility
As I have earlier addressed, the court is required to apply the presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility. This presumption does not apply if the court is satisfied that a parent of the child has engaged in family violence or abuse of the child or another child that was a member of that parent’s family. Notwithstanding the allegations made in this case, I am not satisfied this child has been subject to child abuse nor am I satisfied there is a history of family violence such that the presumption would not be applied. Having said that however the presumption may be rebutted if the court finds that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child.
The ICL and father have argued for an order bestowing on the father sole parental responsibility for the child. The mother sought orders for the parents to have equal shared parental responsibility although some of her orders purported to confer on the mother the right to make decisions in relation to the child’s medical care and education. In effect the mother was seeking sole parental responsibility for those issues.
The history of poor communication between these parents, that has not improved despite both of them completing parenting courses, and the serious allegations made by the mother that the father had sexually abused the child leaves me with no doubt that these parties will not be able to effectively make decisions together for the benefit of the child. Consequently I find that it would not be in this child’s best interests for the parents to share such responsibility. The presumption has been rebutted.
Discussion
The mother submitted that:
It would be best if the parents could cooperate and share X’s care without attending court and find ways to reach joint decisions effectively.
I respectfully agree. However I have no confidence that these parents will be able to achieve cooperative parenting given the history of poor communication. The mother also submitted that the parents should attend a specific cooperative parenting training course and interpersonal communication courses to help them develop the necessary skills for sharing the parenting of this child. Each have already attended a number of parenting courses. I have no confidence any further courses will assist them develop the necessary skills.
In light of the child’s Autism it is not surprising to see the consistent theme in the family reports and in the evidence from the child’s teacher that the child needs routine and stability in her life. I accept the ICL’s submission that the father is in a better position to provide stability and routine for the child than the mother. The mother’s living arrangements are not settled and she appears to be unsure about her future arrangements in this regard. Her openness to living in backpacker accommodation with the child raises concerns as to her level of insight in being able to provide the stability this child needs. The mother also wants to change the child’s school even though the evidence suggests the child has improved both socially and academically since she has been in the father’s care and attending school regularly. The mother of course does not accept the child is receiving the appropriate education and supports from this school. Any change of school though will risk destabilising the child both socially and academically. The mother’s view as to her ability to manage her health does not give me confidence she will be able to remain well enough to avoid a relapse of her condition which in turn raises the risk of instability for the child. The father has however demonstrated a commitment to providing stability for the child and has attended to her medical and educational needs. Accordingly I am satisfied it is in this child’s best interests that she live primarily with her father.
During the hearing and in her submissions the mother expressed frustration at the level of enquiry as to her mental health. She considered this enquiry and the father’s comments in relation to it as a form of discrimination. My task is to determine what is in the child’s best interests and the health of each party is a relevant consideration in doing so. There is no discrimination in undertaking that task. When relevant the Court looks to see how parents are able to manage their health needs and how their health may impact on the child when determining a child’s future parenting arrangements. In this case the mother has a long history of mental health issues and is not currently engaging with a treating psychiatrist. Therefore the issues surrounding her health and how she is able to manage her condition are relevant to my determination.
The mother argued that retaining the services of a psychiatrist is not necessary at this stage. She believes she is managing her condition well through her own insight and her engagement with a general practitioner. The evidence of Dr V was however, that unless the mother had the ongoing assistance of a psychiatrist and returned to using a mood stabiliser she was at a heightened risk of a relapse of her Bipolar Disorder which could have a significant impact on her ability to appropriately care for the child and provide her with the stability she needs.
It is for this reason that the ICL sought orders providing for a different regime of time spent between the mother and child depending on whether she is engaging with a psychiatrist. The mother submitted that she is not a danger to the child and any concern for the safety of X in her care is unwarranted and unnecessary. She argued that there was no need for any of her time to be supervised and that as she had been the child’s primary carer for the majority of her life and had not been accused of abusing the child, X should be returned to her primary care.
Although I accept the mother is aware of her condition, has engaged with psychiatrists in the past and continues to see a general practitioner I am not satisfied she is fully appreciative of the risks to her capacity to parent in the event of a relapse of her condition and how that may impact on the child. There is no doubt the mother rejected the professional opinion of Dr V. In light of this I am satisfied that the mother’s time with the child needs to be supervised given the child’s young age and autism. The risk to the child’s stability should the mother have a relapse, or the child’s psychological wellbeing if coached by the mother to make allegations against the father, warrant a conservative approach to the child’s time with her.
Ongoing supervision of a child’s time with a parent is not ideal however. In the event, the mother engages with a psychiatrist, the risks identified might well be mitigated depending on the level of that engagement. I am satisfied that if she is positively engaged with a psychiatrist and follows his or her recommendations it should not be necessary for the child’s time to be supervised over the long term. It is for this reason that I am persuaded to make the orders sought by the ICL.
The Father agreed with the ICL’s submission that there remains an ongoing risk to the child from the Mother, however he argued that the child’s wellbeing required the mother to remain in her life. He was concerned that the mother had a history of engaging with psychiatrists for a period of time only to cease that engagement after some visits. He submitted that the court should be concerned that the mother would comply with treatment for a time and then cease to attend upon her psychiatrist whilst compliant with medication and seemingly in good health. He argued the orders sought by the ICL for no less than three appointments with a psychiatrist, would not be sufficient. The orders sought by the ICL however require the mother to attend as directed by her psychiatrist thereby envisaging an ongoing engagement. This approach would be appropriate in my view as the level of engagement will vary over time depending on the mother’s health. I propose therefore to also make the orders sought by the ICL in that regard.
The father also submitted that the proposed orders only “permitted” the release of information to him rather than mandating the psychiatrist to keep him informed. He argued that it was conceivable that a psychiatrist may be persuaded by the mother to not release any information. Whilst I understand the father’s argument I have no power, in the circumstances of this case, to make a binding order on a person who is not a party to these proceedings. For this reason I would only be able to provide a liberty to the psychiatrist to provide the father with that information. The liberty to publish, to the psychiatrist, these reasons and the reports that came before the court would be of assistance to the psychiatrist retained by the mother to assess the appropriateness of the release of any information.
The ICL sought orders restraining the mother from attending the child’s school save for events parents normally attend. The submissions in relation to this order were not canvassed in any detail. I am however satisfied that such an order is necessary given the evidence the mother had approached the school and other parents in relation to the child whilst she was in the father’s care. I am also concerned the mother may attend at the school to see the child outside of what the orders will provide. This may be destabilising or confusing for the child.
The ICL sought her appointment be retained for a period of six months after the making of the orders. No submission was made as to why the six months was to be preferred over any other period of time. In my view this case warrants the retention of the ICL for a period of nine months. In that time I am hopeful the mother will engage the services of a psychiatrist and if so the child’s time with her can move to an unsupervised basis. The ICL may be in a better position than the father in engaging with the psychiatrist for the purposes of providing him or her with a copy of the reasons for judgment and the reports and the extra three months might enable that to occur. Any longer period however may be counter-productive.
For these reasons I make the orders set out at the beginning of this judgment.
I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 20 November 2014
Exhibit ICL2: Reasons for Judgment of Judge Coker.
Exhibit C1: Note shown to witness (Respondent mother) during cross examination by her McKenzie friend.
Exhibit M1: Minute of order proposed by the mother.
Exhibit ICL3: Application for protection under the Domestic and Family Violence Protection Act 2012 filed in the Toowoomba Magistrates Court, 23 June 2014.
Exhibit ICL4: Email dated 30 June 2014 from the mother to the (omitted) Contact Centre.
Exhibit ICL5: Bundle of subpoena documents.
Exhibit F1: Undated letter from LEAD Child Care Head Office.
Exhibit ICL6: Document entitled Report Writing/Note Taking Policy.
Exhibit ICL7: (omitted) Children's Contact Centre supervised periods of time with the staff member allocated.
Exhibit M2: Updated Minutes of orders sought by the mother.
Exhibit M3: Document entitled Psychiatric Illness Management.
Exhibit M4: Document entitled Problems During Court Case.
Exhibit M4: Resume of the mother.
Exhibit M6: Documents from Dr A dated 29 March 2014.
Exhibit M7: Decision from Queensland Civil and Administrative Tribunal dated 2 May 2014, including a Notice to Leave.
Exhibit M8: Document entitled Psychiatric Condition Evidence.
Exhibit M9: Document entitled Support from her GP Dr W in (omitted) and GP Dr A in (omitted).
Exhibit M10: Document entitled Appendix 1: United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (1991).
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Jurisdiction
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Remedies
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