VALDEMAR & MICALI
[2020] FCCA 2965
•30 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VALDEMAR & MICALI | [2020] FCCA 2965 |
| Catchwords: FAMILY LAW – Interim parenting – Father seeking order that Mother relocate child’s residence back to former living region - proposed order not made – best interests of child – interim parenting orders made. |
| Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Cimorelli & Wenlack [2020] FamCAFC 58 Eaby & Speelman [2015] FamCAFC 104 Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCAFC Rice & Asplund (1979) FLC 90-725 Saif & Saif [2020] FamCA 119 Salah & Salah [2016] FamCAFC 100 |
| Applicant: | MR VALDEMAR |
| Respondent: | MS MICALI |
| File Number: | PAC 3020 of 2016 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 10 July 2020 |
| Date of Last Submission: | 10 July 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 30 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cantrell of Counsel |
| Solicitors for the Applicant: | Madison Marcus Law Firm |
| Solicitors for the Respondent: | The Respondent appeared in person |
| Solicitors for the Independent Children’s Lawyer | Ms Dodson - Legal Aid NSW Penrith |
ORDERS PENDING FURTHER ORDER
That all previous orders relating to the child spending specific time with the Father are suspended.
That the child reside with the Mother.
That the child be permitted to reside with the Mother in Town B.
That the child spend time with the Father as follows:
(a)On Saturday, 7 November 2020, from 10 AM to 4 PM,
(b)On Saturday, 21 November 2020, from 10 AM to 4 PM,
(c)On Saturday, 28 November 2020, and each Saturday thereafter for 4 weeks, from 10 AM to 4 PM,
(d)Thereafter, on a fortnightly basis, for 3 months, from 10 AM Saturday to 5 PM Sunday,
(e)Thereafter, on a fortnightly basis, from Friday 6 PM to Sunday 5 PM.
(f)Such further time as agreed between the parties.
Changeover, in relation to the above time in Order 4, shall be facilitated with the child being delivered to the father’s residential address by the mother at the commencement of time, and collected from the father’s residential address by the mother at the conclusion of such time.
That for the purposes of Order 4 above, each of the parents shall be and are hereby restrained from questioning the child in respect of time arrangements, and particularly her wishes to spend overnight time in the Father's household.
That the child shall have liberal and flexible FaceTime and Telephone time with the Father, and for the purposes of this Order, the Mother shall ensure that the Father’s telephone number is unblocked on the child’s Telephone.
That the parents and/or their agents are hereby restrained from removing or attempting to remove the child X born in 2009 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of X born in 2009 on the Family Law Watchlist in force at all points of arrival and departure by air or by sea in the Commonwealth of Australia and maintain X born in 2009 on the watchlist until the child turns 18 years of age, or the Court orders the child's removal from the watchlist, or by written agreement of the Mother and Father.
And it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the watchlist for the said period or until the court orders its removal.
That neither parent shall themselves denigrate, nor allow any third party to denigrate, the other parent, members of the other parent’s family in the presence or hearing of the child.
Each of the parents shall be and hereby restrained from discussing these proceedings, the contents of these proceedings and/or outcome of proceedings with the child.
That within seven days of the date of these Orders, each of the parents shall make contact with the C Therapy for the purposes of scheduling an appointment with a qualified Family Therapist who is able to assist the parents in repairing their co-parenting relationship, and the parents shall attend at such family therapy as directed by the Family Therapist and bear the costs of such therapy equally.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by March 2021.
The Family Report shall deal with the following matters:
(a)Any views expressed by the child and any factors relevant to the weight to be attached to those views, provided that the child shall not be required to express a view in relation to any matter.
(b)The nature of the child’s relationships with each of the child’s parents and other persons (including any grandparent or other relative of the child);
(c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of the parents: or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom the child has been living.
(d)The capacity of each parent, or another person (including any grandparent or other relative of the child), to provide for the child’s needs, including emotional and intellectual needs.
(e)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 report writer thinks are relevant to opinions expressed in the report.
(f)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
(g)The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attend all appointments with the Family Consultant, as requested by the Family Consultant.
(h)The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
The proceedings are adjourned to 16 July 2021 at 9:30am following release of the Family Report.
Liberty to the ICL to seek to relist the proceedings on 7 days’ notice in respect to any issue relating to the implementation of the above Orders.
IT IS NOTED that publication of this judgment under the pseudonym Valdemar & Micali is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3020 of 2016
| MR VALDEMAR |
Applicant
And
| MS MICALI |
Respondent
REASONS FOR JUDGMENT
This interim hearing relates to the child X born in 2009 (“the child”).
The Mother is aged 46 years. The Father is aged 48 years.
The Mother alleges that the parties separated in 2015.
On 8 March 2017, final consent parenting Orders were made in this Court providing, inter alia, that the parties have equal shared parental responsibility for the child; that the child live the Mother; that the Father spend time with the child, in the aggregate, for five nights each fortnight, during school holidays and on special occasions.
On about 6 March 2020, the Mother relocated the child’s residence to Town B. Previously, the child had been living and attending school in the Suburb D area with the Mother. The Father lives in Suburb E. The Mother alleges that the travelling time by car from Suburb D to Town B is about 1.5 hours.
The Father last spent time with the child in early March 2020. In the Father’s Affidavit filed 21 May 2020, he alleges that he has spoken to the child on the phone no more than five times and the child has sent him various text messages.
The Father commenced proceedings on 10 March 2020 seeking, inter alia, interim parenting Orders that the child live with him; and that a warrant issue authorising and directing the police to take possession of the child and to deliver the child to the Father.
In his Amended Initiating Application filed 21 May 2020, the Father seeks interim orders, inter alia, that the Mother return the child to the Sydney Metropolitan area; that the child live with the Mother; the child spend time with the Father five nights each fortnight, together with time during the school holidays and on other special occasions. In the event that the Mother is unwilling to return to live in the Suburb E/Suburb D area with the child, the Father seeks orders for the child to live with him and spend time with the Mother.
The Mother, on an interim basis, seeks orders, inter alia:
a)that until the child has developed a clinical relationship with the psychologist that the child spends time with the Father according to her wishes;
b)for sole parental responsibility for the child in relation to matters pertaining to the child’s education and health.
The ICL sought interim orders, inter alia, that:
a)the Orders of 8 March 2017 be suspended;
b)the child live with the Mother;
c)the Mother be permitted to live with the child in Town B;
d)the child spend time with the Father as agreed between the parents, and failing agreement:
i)upon the child expressing a wish to spend time with the Father to her treating psychologist, such time shall recommence with the child spending time with the Father from 10 AM to 4 PM Saturday; and
ii)changeover shall be facilitated with the child being delivered to the Father’s residential address by the Mother at the commencement of time, and collected from the Father’s residential address by the Mother at the conclusion of such time;
e)That for the purposes of the above order, each of the parents shall be restrained from questioning the child in respect of time arrangements, and particularly her wishes to spend overnight time in the Father’s household; (this proposed Order is agreed to by the Father.)
f)the child have liberal and flexible FaceTime and Telephone time with the Father, and for the purposes of this Order, the Mother shall ensure that the Father’s telephone number is unblocked on the child’s telephone; (this proposed Order is agreed to by the Father.)
Following the Court reserving its decision in relation to the interim hearing, the Court made consent interim orders, inter alia, relating to the parents doing all acts and things necessary to facilitate the child’s attendance as soon as possible upon Ms F, clinical psychologist, for the purpose of psychotherapy for the child. In this context, a consent order was made that the parties are each to receive copies of reports from the clinician as to the child’s progress and communication from the clinician in respect of the child.
Between about May 2019 and early April 2020 the child was being treated by psychologist, Ms G (the treating psychologist), usually on a weekly basis.
The Father relies on the documents set out in his Case Outline dated 18 June 2020; his Amended Initiating Application filed 21 May 2020, and his Affidavits filed 21 May 2020 and 9 July 2020.
The Mother relied upon her Case Outline filed 9 July 2020, her Amended Response filed 9 July 2020, her Affidavit filed 7 July 2020, her Notices of Risk filed 17 March 2020 and 7 June 2020.
The ICL relied upon her Case Outline dated 9 July 2020; her proposed orders are set out in her Minute of Order Sought forming part of her Case Outline.
The following documents became exhibits:
a)Exhibit A, being documents from the H Clinic in relation to the child’s treatment at the clinic from psychologist Ms G, during the period from about 19 June 2019 to April 2020;
b)Exhibit B, being Child Inclusive Conference Memorandum dated 12 June 2020;
c)Exhibit C, being subpoenaed documents produced by Dr J, child psychiatrist, in relation to her treatment of the child, from about 16 August 2019 to about 3 April 2020;
d)Exhibit D, being a summary review report dated 22 June 2020 from the child’s treating psychologist, Ms G.
Up until the Mother relocated the child’s residence to Town B in early March 2020, the child was living and attending a school in Suburb D. Since the child’s relocation, she has been attending a school in Town B.
The child has autism spectrum disorder. The child’s diagnosis of autism spectrum disorder was made on 4 December 2015 by clinical psychologist Dr K, and her psychological assessment report for the child in this context is Annexure C to the Father’s Affidavit filed 21 May 2020. This report, inter alia, refers to the child requiring Level 1 support in terms of her social interaction and social communication difficulties, and that she will also require support, Level 1, in terms of her restricted and repetitive interests, activities and behaviours.
The Mother alleges that the child is a National Disability Insurance scheme participant.
The Mother alleges the child has been diagnosed with ADHD. The Father refers to a paediatrician, in about early 2019, prescribing the child with Ritalin. The child’s treating psychiatrist, in her report of 3 April 2020, refers to the Mother querying again the diagnosis of ADD made a few years earlier. The psychiatrist refers to her observations that the child’s hyperactivity, inattention and impulsivity had seemed more in context to her agitation and anxiety. The psychiatrist referred to waiting for a period of time to allow the child to settle into her current new routine (online learning) before looking at adding further medications.
Again, since about May 2019 until about April 2020, the child underwent therapy with psychologist Ms G of H Clinic at Suburb L, usually weekly to assist the child’s anxiety and behaviours associated with her autism.
The Father alleges that in about July or August 2019, the child reported to the treating psychologist that she was experiencing some heightened anxiety, panic attacks and suicidal thoughts. The Father alleges that as a result, the overnight time that the child was spending with the Father was unilaterally suspended by the Mother.
The Father refers to the Mother’s text message to him on 31 July 2019 stating, “(The child) has had a rough couple of days and been home from school. She has seen Ms G today, her psychologist, who advises that for the time being (the child) live at my place overnights. For tonight please take (the child) to her art class, dinner and spend time with her but bring her home at 8 PM to sleep. I’ll send you Ms G’s number now and you can chat to her if you like. Please let’s keep (the child’s) well-being as the focus so we can get her well and happy again. You can collect her from my place this..”
The Father alleges that he had not experienced the child to be distressed or anxious during her time with the Father and he was initially resistant to the Mother’s suspension of his overnight time, however he states that, “I eventually relented”.
The Father alleges that, in relation to the child schooling, in August 2019, around the time that the child was displaying suicidal thoughts, the child’s teacher sent an email to the parties and several of the child’s treating therapists, stating, inter alia, that the child was not exhibiting any of the behaviours “that you are concerned about she is demonstrating at home.” The Father also alleges that in late August 2019, a meeting was held at the school in relation to the child. He alleges that it was communicated that that meeting that the child was doing extraordinarily well at school, had lots of friends and was settled.
The report of the treating psychologist dated 13 August 2019, inter alia, refers to the handful of sessions thus far, focusing on self awareness, emotional regulation and coping strategies, and to the child recently becoming aware of her autism spectrum diagnosis with the child having been working through some difficult feelings and questions surrounding this.
The report refers to the child recently having begun to experience severe anxiety, thoughts of hopelessness and frustration with her life and has been struggling to cope with the demands of her daily and weekly schedules. It refers to the child mentioning difficulties at school (social, emotional and academic), having continued challenges with understanding and coping with her parents’ divorce, and has most recently mentioned thoughts of suicide and of “ending her life”. The treating psychologist states that these (thoughts) are very serious and should not be taken lightly. The report refers to the child stating that she has no friends, that she is different to everyone else and that there is too much noise and chaos in her world. It states that in the child’s ideal world, she would live on a farm in the country, where she could ride horses and be away from the many people in the noise of the city.
In the above report, the treating psychologist states that her clinical impressions are that the child is struggling both emotionally and mentally. She refers to an immediate suicide risk assessment being performed with a moderate risk result indicated. She refers to the child showing signs of severe anxiety. The report refers to the child’s diagnosis of autism spectrum disorder and ADHD making it difficult for the child to regulate her emotions and apply appropriate coping strategies. It states that this puts the child at an increased risk of heightened anxiety and feelings of hopelessness. It is also suggested that biological changes in fluctuations in mood during puberty may increase this risk and that as the child will soon be entering this stage of her life, it is worthwhile to be mindful of this and the impact it may have explored further.
The above report refers to the child having expressed in many of her sessions that she would prefer to sleep exclusively at the Mother’s house. It refers to the child stating that she does not sleep well at the Father’s house and has expressed that her calm place is at home with the Mother. It refers to the child stating she has been suffering nightmares and anxiety when at the Father’s house and has stated that she would like the Father to understand how she feels and not get angry with her. It refers to the child initially stating that she would still like to see the Father regularly, and her current want and need was to put sleepovers on hold. It refers to the child’s most recent session in which the child stated that she wanted to stop visits with the Father completely for the time being. The treating psychologist stated in this context that cognizance needs to be taken of the fact that the child is verbally stating her wants and needs and it is in her best interests to take this into account in her current state and support her.
The treating psychologist states that due to the child’s risk of self-harm, it is imperative that the urgency of complying with what the child needs and wishes is understood. She states that forcing the child to agree to anything that she is not comfortable with will put her at a high risk of anxiety, an increased risk of being unable to cope with overwhelming thoughts and may exacerbate suicidal thoughts and possible self-harming acts. She states the child needs to feel heard and supported in order to build her confidence and coping mechanisms in therapy.
The child’s treating psychiatrist, Dr J (the psychiatrist), saw the child alone and with her Mother on 16 August 2019. The psychiatrist states that the child had been referred to her by the treating psychologist for concerns around recent worsening of the child’s mood with some suicidal thoughts.
The psychiatrist discussed the child not voicing suicidal thoughts in her report of 16 August 2019, with her impression being anxiety and adjustment disorder on a background of autism spectrum disorder. The Mother had told the psychiatrist, regarding suicidal thoughts, that the child had raised thoughts around herself “not being here” but there had not been any overt suicidal ideas or plan stated by the child. The Mother had described to the psychiatrist that emotionally the child’s adjustments to her social difficulties and her diagnosis of autism was becoming more apparent this year. The child reported to the psychiatrist that she was struggling with anxiety and difficulties with friendships, particularly that she had no friends at school. She mentioned difficulties around her relationship with the Father and feeling scared when he shouts.
The Father alleges the child’s teacher, in August 2019 sent an email to the parties stating, inter alia, that the child was not exhibiting any of the behaviours that they were concerned about that she is demonstrating at home. She referred to the child appearing to be happy, playing with friends and settled (at school), until she started talking continually about moving away to the Region M to live with the Mother and a horse.
The Father refers to the child’s growth chart for the Semester 1 to Semester 2, 2019, which is positive.
The Mother alleges that the Father pressured the child to continue sleepovers at his place. She alleges that this impacted poorly on the child’s well-being and their relationship.
In the treating psychologist’s letter to the parties dated 24 September 2019 she states, inter alia, that the child is feeling so overwhelmed by the constant pressure to sleep (at the Father’s house) that she feels the child is becoming less and less willing to voice her wants and needs. The treating psychologist states that the focus should really be on, inter alia, the child getting to the stage of being happy, willing and wanting to sleepover again, and that her feeling pressured will only ensure that this process is lengthened.
On 16 October 2019, the parties attended mediation in relation to the child. The email from the FDR practitioner dated 18 November 2019 suggests that the Mother’s relocation to the country was discussed however no agreement was reached.
The Mother alleges that thereafter she made several attempts to mediate with the Father in relation to a relocation to the Region M which did not occur, with the Father opposing same.
In about early November 2019 the Mother alleges that the child made an independent decision to sleepover at the Father’s place, and such overnight stays recommenced.
In the treating psychologist’s report of 4 December 2019, summarising the previous two months of therapy for the child, it refers to most recently the child having recommenced sleepovers at the Father’s home and enjoying the time back with the Father. It refers to the child stating that she likes her school now.
The report refers to the child having shown a substantial change in her mental health over the last few months. It refers to the child’s confidence having improved, her self-awareness and emotional regulation is more advanced, and she is showing less anxiety overall. It refers to the child being better able to calm herself in situations that previously caused immense anxiety. It refers to the child’s risk of self-harm and level of suicidal ideation having decreased drastically, with the child mentioning feeling happier, calmer and safer within the last two months.
The report refers to the goal of therapy and intervention having always been to ensure that the child feels heard when very clearly stating what she needs to make herself feel better. The report refers to the child being an extremely self-aware little girl and building confidence by allowing her to be a part of the decisions made in her therapeutic journey have resulted in a much more confident calm and happy child.
The report refers to the child currently spending every second weekend with the Father, and having not resumed Wednesday night sleepovers.
The report refers to the child struggling without a clear routine and enjoying a firm, stable schedule (as with many children on the autism spectrum). Again the report refers to the child’s wants and needs needing to be very seriously considered. It refers to past experiences having shown this to ensure the most success and least resistance for the child. It refers to the importance of noting that during several mental status examinations, it was determined that the child is coherent and capable of making her wishes and needs known. It refers to the child having the capacity to make informed decisions, as it is age and developmentally appropriate. It refers to research suggesting that forcing a child to comply with high stress and high anxiety activities can have long lasting and adverse effects on development and future well-being.
The report refers to the child having stated on numerous occasions that she feels at ease, calm and happiest when out in the country, with animals, and away from the business of the city life.
The report refers to time with the Father not being impacted if a move to the country was to happen. In this context, it was stated that a possible rearrangement of the child’s schedule may need to be considered and that this would need to be discussed with the child and her wishes and needs incorporated.
The report stated that cognizance needs to be taken of the fact that the child is without therapeutic input and support over the upcoming holiday season. The report states that the child has struggled in the past with small breaks and support from her therapists and has stated that she sometimes feels pressured to comply in order to keep the peace. Therefore, the report recommended that no schedule changes be introduced before the commencement of sessions in January 2020.
The psychiatrist prepared a report dated 1 November 2019 relating to a review of the child with her Mother at about this time. The Mother had reported to the psychiatrist a vast improvement in the child’s mood with no more stated thoughts of suicide, with the psychiatrist observing the child presenting as much improved in her anxiety and reporting same herself. She gave the same impression as the earlier report.
The Mother alleges that on about 8 January 2020, the child refused to have planned overnight time with the Father. The Mother alleges the child told her, “daddy will ask me to sleepover more and more and I won’t be able to say no. But I want to say no. And then he won’t take me home.” The Mother alleges that the Father had been pressuring the child for more overnight time during the holiday period, when recommended not to do so by the treating psychologist.
Upon commencement of the treating psychologist’s sessions in January 2020, the treating psychologist (in her report dated 22 June 2020), stated that the child presented as sadder and more anxious. It was also reported that the child’s sleep had deteriorated immensely, and that she was angry, frustrated and irritable. The report states that a risk assessment was completed on 14 January 2020, following the child reporting thoughts of suicide. The report states that these findings indicated a low risk of suicide.
In the clinical notes of the child’s treating psychologist, for 14 January 2020, the Mother is reported to have informed the treating psychologist that the child had mentioned thoughts of suicide and being very sad. However, the informal risk assessment was completed with the following results: no active suicidal ideation during the session. The child said she did not have any thoughts of self-harm recently or over the holidays (although the Mother reported otherwise). The notes, however, refer to the child seeming to be somewhat withdrawn and hesitant to open up to the treating psychologist, “which has always been a very easy thing for her to do in the past.”
In the treating psychologist’s report of 22 June 2020, she states that upon the commencement of sessions in January 2020, one of the most noticeable changes were the child’s levels of anger and frustration.
In the psychiatrist’s report of 17 January 2020, the psychiatrist’s impression was moderate depressive and anxiety symptoms in the context of parental disharmony on a background of autism spectrum disorder with recent concerning suicidal thoughts. The psychiatrist referred to the child presenting as a great deal more anxious and distressed than the psychiatrist had ever seen her. The child disclosed to the psychiatrist that she was no longer visiting the Father and that was because according to the child she did not want to anymore and that she didn’t like the Father. When attempts to explore this were made by the psychiatrist, it was clear to the psychiatrist that the child was very conflicted in parts by the entire custody situation her parents have been involved in.
The psychiatrist stated that the child was clearly scared by the acrimonious relationship between the parents. The child expressed a feeling of fear of the Father but denied that he had shouted at her and there was no evidence of physical abuse.
The child made a few statements which the psychiatrist felt was the child parroting statements made by the Mother and the psychiatrist discussed this as well to the Mother as cautionary with regards to contributing to the child’s anxiety.
The Mother herself reported that the child had been increasingly anxious and she acknowledged that this was due to the Father and her custody arguments.
The psychiatrist referred to the Mother reporting that at one point in the holidays the child had expressed thoughts of jumping off a cliff saying, “it would just be better.” The psychiatrist referred to the child stating that she had had thoughts of ending her life “but would not elaborate further saying I should ask her mum.” She referred to the child being noticeably upset that the Father had made a statement to her treating psychologist stating that that had scared her.
The Mother alleges that on about 14 February 2020, the child resumed some overnight time with the Father. The Mother alleges that from this date until about 29 February 2020, the child had about four overnight occasions with the Father.
The Mother refers to an alleged letter written to the Mother on about 16 February 2020 by the child in which the child states, inter alia, that she hates the Father trying to force her to do things (in this context the child refers to the Father allegedly forcing her to go to a swimming carnival), and that she is mad at the Father for making her do things.
Again, the Mother relocated with the child to Town B on about 6 March 2020. The Mother alleges that from 6 March 2020, the child ceased to spend overnight time with the Father, refusing to do so. The Father alleges that he last spent time with the child in early March 2020.
The Mother alleges that in total between August 2019 and 5 June 2020, a period of about 9 Months, the child has spent about 18 overnight occasions with the Father.
The Mother refers to alleged FaceTime session notes (relating to a consultation between the child and the treating psychologist on 9 March 2020) in which the child allegedly stated, inter alia, that she did not want to see the Father unless he calms down, and that “he needs to stop fighting and shouting”. The notes refer to the child allegedly stating, “Still be seeing dad every two weeks. Not sleeping over for now. I want him to calm down and stop being angry first.”
In the treating psychologist’s service report of 23 March 2020, in relation to the child, she reports the child as stating, inter alia, that she misses the Father, and is enjoying her new school immensely. In the service report of 30 March 2020 the child is reported to have stated that she missed the Father but was nervous/afraid to reach out. In the service report of 6 April 2020, the child is reported to have stated that she had made contact with the Father but was not allowed to see him due to the lockdown and “Wants to once she is able”. She stated that she loves her new school and finally fits in.
In the psychiatrist’s report of 3 April 2020 the Mother reported to the psychiatrist (via videoconference) that the child had been doing well and had been much better in herself since the move to Town B. The Mother felt overall that the child’s anxiety had lessened and there had been no further suicidal ideations expressed. The child was interviewed by the psychiatrist who came across as cheerful, eager to talk about her new life in the country and showed her her room. She admitted to missing the Father. She had no side effects from her medication, fluoxetine (there is a significant suggestion from the material before the Court that this is a medication for anxiety; the Mother, in her Affidavit filed 17 March 2020 refers to the child currently being on medication for anxiety). The psychiatrist advised the child to continue on the medication and advised the Mother of some practical strategies to reduce the child’s anxiety which appeared to peak at the end of the day.
In the Mother’s email to the Father and others dated 6 April 2020, the Mother alleges, inter alia, that the child has been having anxiety attacks after phone conversations with the Father before bedtime.
The Mother alleges that the child has a dog, cat and lives in the country on 1 acre. She alleges that the child has regular horse riding lessons and goes on trail rides in the countryside near their home.
The Mother alleges that in the week since the COVID19 lockdown has eased, the child’s cousins and grandparents have been spending weekends with the child and Mother in Town B. The Mother alleges that the child has had three sets of cousins (from both her paternal and maternal side) stay with them.
The Mother alleges that the child is responding well to being in a smaller class in Town B and is much less anxious when she returns from school than she used to be. The Mother alleges that the school in Town B has permitted an independent learning plan for the child. The Mother alleges that the child has been sleeping better since moving to Town B.
The Mother alleges that following a week long country break to the Region M in about late August 2019 the child’s autistic symptoms improved in the country environment, specifically the child was less anxious, slept better, ate better, and had fewer meltdowns.
The Mother alleges that the child misses the Father and states to the Mother, “I would like to see him, but I’m scared he won’t let me come back.”
The Mother used to live with the child in Suburb D in an apartment, rented from the maternal grandparents, prior to the relocation.
The Father alleges that prior to the Mother’s relocation with the child, the Mother and child had been living in Suburb D for 7 years. The Father alleges that he has lived in the Region N of Sydney all his life and continues to do so.
The Father alleges that the Mother had been insistent on her and the child relocating to the Region M since October 2019 to which the Father opposed and so told the Mother.
The Mother alleges that the driving distance from Suburb D to Town B is about 1.5 hours.
Relevant legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Courtto appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
In Salah & Salah [2016] FamCAFC 100, the Full Court said:
[37] It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
[68]… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Courtcannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Courtalso looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
The Full Court in Cimorelli & Wenlack [2020] FamCAFC 58 said:
[80] In interim hearings, where the evidence remains untested, disputed facts cannot be the subject of definitive findings, but simply because material facts have been put in issue does not mean the contested evidence must or should be ignored, since such evidence may have a significant bearing upon the determination of orders which promote the children’s best interests ([Salah] at [35]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]). Despite the limitations which constrain findings at interim hearings, aside from those “couched with great circumspection”, certain provisions within Part VII of the Act direct judges to consider risks which are pertinent to the welfare of children and their carers (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG). It would constitute an error of law to ignore the statutory mandate and, correctly, the primary judge did not ignore it.
[81] Naturally, the concept of risk encompasses the possibility of harm, not just the probability of harm (M v M (1988) 166 CLR 69). The primary judge was conscious of the need to evaluate the available evidence to determine whether or not it capably vindicated the submissions made by both the Father and the ICL that the Mother poses a tangible risk of psychological harm to the children. Her Honour’s finding that the evidence did do so was appropriately circumspect and does not foreclose the issue being revisited at final trial, when the evidence will be properly tested. Her Honour was obliged to resolve the issue at an interlocutory stage, albeit provisionally rather than definitively, because it underpinned the parties’ contest over the children’s residence.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraph 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60 CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60 CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
As to relevant legal principles relating to interim relocation applications, the Court respectfully refers to Foster J’s discussion of relevant legal principle in Saif & Saif [2020] FamCA 119 at paragraphs 78-79 as follows:
[78] Relocation is but one aspect of parenting. It falls to be determined in the best interests of the children.
[79] Recently in Franklyn & Franklyn [2019] FamCAFC 256 the Full Court took the opportunity to review the applicable principles in the context of the subject interim relocation appeal. The Full Court said at [27] – [28]:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132] - [136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).”
The best interests of the children
Section 60CC considerations
(2)(a) (the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration)
In Saif & Saif [2020] FamCA 119, above, Foster J stated:
[95] The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
[96] In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[97] In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The child has a meaningful relationship with both parents and would benefit from a continuance of those relationships.
There is a significant suggestion on the material before the Court that the Mother has been the child’s primary carer from birth to date.
The child was spending, in the aggregate, five nights each fortnight, together with other time, with the Father pursuant to the Court’s 2017 Orders, until about late July 2019 when such time began to diminish.
The child has not spent time with the Father since prior to the child relocating with the Mother to Town B in early March 2020. The child has been stating to both the Mother and her treating mental health practitioners that she misses the Father. Furthermore, since about mid-2019, when the child’s time with the Father began to reduce, the child has not consistently declined to spend time with the Father; to the contrary, her time with the Father has waxed and waned.
There is a significant suggestion, on the material before the Court, that the child was finding the previous parenting arrangements, the subject of the previous court Orders, requiring her to move frequently between the care of the parties, as disruptive. In this context, the Father alleged to the family consultant that such disruption was difficult for the child, due to her autism, and that there were no problems when the child spent a block of time with the Father, such as during school holidays.
The Court recognises that the child is a vulnerable child who has been diagnosed with autism, experiences anxiety for which she has been prescribed medication, and there has been reported suicidal ideation of the child on differing occasions.
Should the child continue to live with the Mother in Town B and spend time and communicate with the Father on the following graduating basis, there is a significant prospect that the child’s meaningful relationship with the Father can be maintained, and such time will be able to be practically facilitated:
a)On Saturday, 7 November 2020, from 10 AM to 4 PM,
b)On Saturday, 21 November 2020, from 10 AM to 4 PM,
c)On Saturday, 28 November 2020, and each Saturday thereafter for 4 weeks, from 10 AM to 4 PM,
d)Thereafter, on a fortnightly basis, for 3 months, from 10 AM Saturday to 5 PM Sunday,
e)Thereafter, on a fortnightly basis, from Friday 6 PM to Sunday 5PM.
f)Such further time as agreed between the parties.
On the material before the Court, including:
a)the content of the family consultant’s Memorandum,
b)the history of the child’s time with the Father spent with him post separation up to her move to Town B,
c)the child’s statements relating to her missing the Father,
d)the recent orders relating to the child commencing psychotherapy with a new mental health practitioner, and
e)the Court proposing to make the ICL’s proposed restraining Orders 5, 9, 10 in her Minute of Orders, and the ICL’s proposed Order 15 relating to the parties attending family therapy to assist the parents in repairing their coparenting relationship,
there is a real prospect that should the child spend time with the Father on a cautious and graduating basis, as referred to above, the child will cope emotionally and not suffer significant emotional harm by spending such time with the Father.
At this interim stage, the Court has a concern that the child may not cope emotionally with spending time with the Father beyond the above stated graduating time. The Court observes that the parties recently agreed for the child to commence psychological treatment with a new psychologist. Again, bearing in mind the child’s autism, mental health issues, including previously reported suicidal ideation, it is important for the Court to proceed cautiously and conservatively.
Subject to the progress of the child’s psychotherapy, the parties may well be in a position to agree to additional time, beyond the above stated time proposed by the Court, if they assess, guided by the psychotherapist, that the child could cope with additional time. Such additional time might potentially embrace time between the child and the Father during school holidays and on special occasions. And further, following the issuing of a family report or other expert report in relation to the child, it may become apparent that the child’s best interests would be served by spending increased time with the Father.
As to the Father’s proposals that the child live with him if the Mother is unwilling to return to live in the Suburb E/Suburb D area with the child, the Court observes that there is a significant suggestion, on the material before the Court, that the Mother has been the child’s primary carer from birth to date, and that the child has a particularly close relationship with the Mother. Should the Court order that the child now live with the Father, in the view of the Court, based upon the material before it, there is a significant risk that the child would experience significant emotional upheaval, including an exacerbation of her anxiety state, and a possible resurfacing of her reported suicidal ideation.
As to the Mother’s proposal that until the child has developed a clinical relationship with a psychologist that she spend time with the Father according to her wishes, the Court has a concern, particularly in circumstances where the child, inter alia, is autistic, is being treated for anxiety, and where there is a significant suggestion that the child has quite possibly become conflicted and embroiled in the parties’ parenting related disputes, that such proposal carries the real risk that the child’s wishes to spend time with the Father will become unpredictable and inconsistent resulting in her meaningful relationship with the Father being detrimentally affected. The evidence of the family consultant, which the Court takes into account, acknowledging that that evidence remains untested, is consistent with this concern of the Court. As to the ICL’s proposed orders, relating to the child spending time with the Father upon the child expressing a wish to spend time with the Father to her treating psychologist, the Court repeats its above concern.
The Court gives significant weight to this meaningful relationship primary consideration.
(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court refers to the Mother’s allegations of family violence perpetrated against her by the Father during the relationship as recounted, inter alia, by the Mother to the family consultant. The Father denies such allegations. He makes his own allegations against the Mother of alleged emotional abuse towards him by her.
The Mother alleges threatening behaviour by the Father, in particular post separation, such as the Father allegedly threatening the Mother with financial ruin if she pursues court proceedings. The Father, for his part, denies having abused or made any threats to the Mother. To the contrary, he alleges that the Mother is abusive of him and uses, for example, child support as an alleged weapon against him.
The material before the Court suggests that the parties, in particular post separation, have experienced a significantly conflictual relationship, including in relation to financial matters. The material before the Court suggest that there is significant acrimony and distrust between them.
On a positive note recently, the parties reached agreement in relation to the child commencing psychotherapy with a new practitioner, and the Court made Orders accordingly.
This primary consideration tends to support relocation.
Section 60CC(3) additional considerations
(3)(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Mother told the family consultant that the child’s autism makes her more sensitive to things such as anger, and that being yelled at may be experienced as traumatic for her.
The child, who presented as open and responsive, told the family consultant on 12 June 2020 that she likes her new school, and that she feels comfortable there. She stated she has made friends there. She stated that if she moved to an apartment she would not be able to take her dog with her.
The child told the family consultant that she misses the Father. She stated that she loves both parents.
The child told the family consultant that she has not decided when she will see the Father again, and that she will do so when she feels brave enough. She said her desire to see him depends on how he is acting and that she is worried that he may be grumpy when she sees him again. Not without relevance, she stated that she has not seen him when he is grumpy, but that the Mother has.
The child told the family consultant that she had been the one to decide that she wanted to move, for her mental health, to make her feel happier. She stated that in their previous house there were too many noises. She said that she finds traffic noise distressing, especially when they are right next to her. She stated that she wants to live in the country, in Town B.
The child is now aged 11 years.
The Court takes into account the views of the family consultant as set out in the Child Inclusive Conference Memorandum.
The family consultant had stated, inter alia, that whilst it being important to consider a child’s views in relation to the living arrangements, parenting arrangements and educational arrangements, it is important for a child of the child’s age to be reassured that they are not responsible for making such complex decisions.
The family consultant had recommended that the child’s stated views be considered with caution, in circumstances where the child appeared conscious of fairness between the parties in the matter, which might suggest some anxiety of the child in relation to the parties’ responses to her comments.
The Court has not overlooked the (untested) opinions of the treating psychologist in relation to giving serious consideration to and respecting the child’s views in relation to time to be spent with the Father, and not to place unnecessary pressure upon the child to do something against her wishes, so as to minimise the risk of the child’s anxiety and ideation occurring.
Nevertheless, the Court has a concern, taking into account in particular the views of the family consultant, referred to briefly above, that placing responsibility on the child, in her particular circumstances (see the discussion above under the meaningful relationship primary consideration), for deciding whether to spend time with the Father carries the real risk that such responsibility will be a cause of confusion and anxiety for the child, and that her wishes to spend time with the Father may become unpredictable and inconsistent.
In relation to the child’s views as to wanting to live in the country, in Town B, there is a significant suggestion, on the material before the Court, that the child is particularly happy living in Town B, and that she has experienced some reduction in her anxiety levels accordingly.
The last report of the treating psychologist dated 22 June 2020, for example, refers to the child responding positively emotionally to the move to the Region M, with observations being made of a reduction in the child’s anxiety in particular, and where, the Court observes, the Mother and child have continued to reside since early March 2020.
The Court would not give significant weight to the child’s views in relation to spending time with the Father, and the child’s views in this regard are approached with caution by the Court, as recommended by the family consultant.
The Court would give some weight to the child’s views in relation to wanting to live in Town B.
(3) (b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The child would appear to have positive relationships with the maternal and paternal grandparents.
Should the Mother remain living in Town B with the child, the child may have less practical ability to spend time with the maternal grandparents compared to her ability to spend time with them if living in Sydney.
The child has previously spent weekly time with the paternal grandparents; there is likely to be some practical difficulty in facilitating such time should the child remain in Town B. On the other hand, should the child spend time with the Father as referred to above under the meaningful relationship primary consideration, there may be some scope for the child to spend time, albeit limited, with the paternal grandparents during such time.
The Court also refers to its discussion above under the meaningful relationship primary consideration.
This consideration tends not to support relocation.
(3)(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The mother alleges that the father has had some disputation with previous treating health practitioners of the child. The Court is unable to meaningfully consider that issue in the absence of the relevant material being tested. Subject to that issue, both parents would appear to have taken such opportunities.
(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The parents would appear to have maintained the child when the child was in their respective care.
(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
As to the child spending time with the Father, the Court refers to the meaningful relationship primary consideration discussed above; again, should the child spend time and communicate with the Father as set out by the Court under the meaningful relationship primary consideration discussed above, there is a significant prospect that the child’s meaningful relationship with the Father can be maintained. Such time could be practically spent by the child with the Father were the child to remain living with the Mother in Town B.
In the view of the Court, such time spent by the child with the Father should not detrimentally affect the child’s meaningful relationship with the Mother. The Court observes that the Mother works a 4 day week and significantly works from home.
The Court also refers to its discussion below under s60CC(3)(m).
(3)(e) The practical difficulty and expense of a child spending time with and communicating with the 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
Again, should the child remain living in Town B with the Mother, there should be no practical difficulty in the child spending time with the Father in accordance with the Court’s proposed discussed time in its discussion under the meaningful relationship primary consideration.
The Court also refers to its discussion below under section 60CC(3)(m).
(3)(f) The capacity of each of the child’s parents; and 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
The parties are in dispute as to whether the Mother has failed to facilitate the child’s relationship with the Father. The Mother alleges that she has consistently sought to facilitate the child’s relationship with the Father whilst seeking to ensure that the child’s emotional well-being was addressed and where appropriate treated by health professionals. The Father contends and alleges to the contrary.
The Court cannot resolve this dispute at this interim hearing, however there is a significant suggestion, on the material before the Court, including the reports of the treating psychologist, that the Mother sought to facilitate the child spending time with the Father when she considered that it was emotionally safe for the child to do so, and where the child’s treating health professionals were supportive of this occurring. Having said that, the Mother, albeit after communications between the parties and mediation in relation to the Mother proposing to move to Town B with the child, unilaterally moved to Town B with the child despite the Father’s lack of consent.
The Mother alleges, disputed by the Father, that the Father undermined the child’s treatment in regards to her autism. The Mother refers to alleged complaints made by the Father to certain health practitioners treating the child. Again, it is not possible to resolve this dispute at this interim hearing.
The Court would observe that the Father, in his own words, relented to a reduction in the child’s time with him when requested by the Mother in about mid-2019. The Father acknowledges, inter alia, the child’s autism, and experience of anxiety, and has recently agreed with the Mother to the child commencing psychotherapy with a new mental health practitioner.
Otherwise, the parties would appear to have such capacities.
(3)(g) 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
The child is aged 11 years. Again, the child has been receiving psychological and psychiatric treatment since about July 2019.
There is a significant suggestion, on the material before the Court, that the child is a vulnerable child who suffers from fluctuating mental health, in particular in relation to anxiety, and has been reported as voicing suicidal ideation on differing occasions.
(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above under the need to protect primary consideration.
The Mother makes allegations, and the child has allegedly reported to treating health practitioners (but not to the family consultant), that the Father raises his voice to the child on occasion, and has unreasonably requested, directly to the child, to spend increased time with her. These matters would appear to be significantly disputed by the Father.
There is a significant suggestion on the material before the Court, however, that the child has been significantly exposed to the parties’ conflict in relation to her.
Otherwise, the parents appear to have demonstrated appropriate attitudes.
(3)(j) Any family violence involving the child or a member of the child's family.
The Court refers to its discussions above under the need to protect primary consideration.
(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
Not applicable.
(3)(l) 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.
Whilst these are interim proceedings, should the Court accede to the Father’s interim parenting proposal that the child return to live in Sydney, or his proposal, in the alternate, that the child live with him, the Court has a significant concern that the child may experience an exacerbation in her anxiety levels and the possible resurfacing of previously reported suicidal ideation.
(3)(m) Any other fact or circumstance that the Court thinks is relevant.
The Court refers to the child’s alleged adverse presentations to her treating mental health professionals in 2019 and 2020, suggesting significant emotional and behavioural difficulties in the child, including reported suicidal ideation; the expression of certain views of the child in relation to spending time with the Father; and the lack of regularity of the child’s time with the Father since about late 2019. These matters indicate that there has likely been a significant change in circumstances since the consent parenting orders of 8 March 2017. In the view of the Court, it will be in the child’s best interests to permit the parties to seek fresh parenting orders in relation to the child with the likelihood of new parenting orders being made; the threshold requirements set out in the decision of Rice & Asplund (1979) FLC 90-725, are probably met.
The Mother seeks the Court’s permission, on an interim basis, to remain living in Town B with the child, which is opposed by the Father.
The Court now addresses, to the extent that it has not been previously addressed in the Court’s consideration of s60CC factors, the advantages and disadvantages in respect to the relevant proposals of the parties.
Turning first to the Mother’s proposals.
Although the Mother did not seek a specific interim parenting order that she be permitted to remain living with the child in Town B, she resisted the Father’s proposed interim parenting order that she return the child to the Sydney Metropolitan area.
The Mother alleges and contends that the child, who suffers from autism, anxiety and has reported suicidal ideation, is better placed emotionally to be living in Town B compared to Sydney, and will likely suffer emotional harm should she be required to return to live in Sydney. She contends that for a child with autism, to be removed from a well settled routine and living arrangement, will likely exacerbate the child’s anxiety.
In the above context, the Mother alleges that the child is particularly sensitive, has complex mental health issues, including suffering anxiety and for which she is presently medicated. She alleges that since relocating to Town B, the child’s anxiety has reduced, and she is particularly happy in her new living and school environment. The Mother alleges that the child is benefiting from a smaller class size at her new school, and that she is receiving particular supports for her autism in the context of her school learning.
The Mother relies upon the recent reports of the treating psychologist and psychiatrist (which the Court acknowledges are untested) suggesting at least the existence of some of these alleged benefits to the child. The Mother contends that if she is required to relocate the child’s residence back to Sydney the child is likely to experience significant disappointment, an exacerbation of her diagnosed anxiety, and a possible resurfacing of the child’s previously reported suicidal ideation. In relation to the child’s previously reported suicidal ideation, the Mother refers to not only her own allegations in this context, but also the contents of the reports of the treating psychologist and psychiatrist.
The Father disputes these contentions, contending and alleging that the child was progressing well and was happy at her old school and in her old environment. He contends that the child will comfortably transition back to living in her former living and school environments. In final submissions, he disputed the nature and extent of reported suicidal ideation.
The Father submitted that there has been a significant improvement in the child’s mental health with no suggestion of suicidal ideation. This submission should be considered in the context that there is a significant suggestion, based upon the health professional material before the Court in particular, that this may well have occurred by reason of the child’s new living circumstances in Town B.
The Court takes into account the contents of the reports of the child’s treating psychologist and psychiatrist relating to the child’s reported suicidal ideation, whilst noting that those reports are untested. Suicidal ideation of the child was prominently referred to in the treating psychologist’s report of 13 August 2019, then a reference in her report of 4 December 2019 to a drastic decrease in the risk and level of suicidal ideation, whilst in her report of 22 June 2020 reference is made to the child presenting as sadder and more anxious in January 2020, with a risk assessment being completed on 14 January 2020, following the child reporting (albeit it would appear through the Mother) thoughts of self-harm. That risk assessment indicated a low risk of suicide.
The Court takes into account the observations of the child made by the child’s treating psychologist, in her report dated 22 June 2020, that since the child’s move to Town B, including that her anxiety has decreased, her overall mood and affect have improved, the child was happy with her new school and had made some friends, and she presented as calmer, happier and more excited about her life overall. The Court takes into account the comments of the treating psychologist that being outdoors, surrounded by nature and the country, seem to have a positive impact on the child.
In relation to the Mother’s contention that it would be harmful to remove this autistic child from a well settled living arrangement in Town B, the Mother and child have now been residing in Town B since early March 2020, over 7 months. By reason of the above matters, including the child’s new schooling, on the material before the Court, there is a not insignificant risk that the child’s routine and stability (including emotional stability) may be adversely affected should the child be required to return to live in Sydney. The Court has not overlooked in this context that there would have been an initial period of school home learning due to Covid19 in Town B. The Court takes into account, in this context, the comments of the family consultant that a child with a diagnosis of autism is likely to be very sensitive to changes in routine, and that it is likely that unnecessary changes to the child’s routine and surroundings will cause her anxiety. Similar remarks were made by the child’s treating psychologist, which the Court takes into account.
In summary, the Court does have a significant concern that there is a real possibility that the child may experience a significant exacerbation of her anxiety, and a resurfacing of her previously reported suicidal ideation, if she has to relocate back to Sydney from Town B. The Court would place significant weight on these matters.
The Mother alleges that it will be impractical, including for financial reasons, to relocate back to Sydney. The Father significantly disputes these allegations, alleging that it will be practical for the Mother and child to return to live in Sydney.
The Mother alleges that it is impractical to return to her parent’s two-bedroom apartment in Suburb D because she and the child need a three-bedroom residence. In this context the Mother alleges that she requires a separate room for a home office; the Mother alleges that she is in employment with the Employer O as a professional and works 4 days a week to accommodate for the child’s needs. She further alleges that her parents wish to rent out this property commercially and charge a higher rent than the Mother was paying.
The Mother alleges that her current home in Town B is a three bedroom cottage; the Mother alleges that she uses the 3rd bedroom for guests and as an office space, the child has her own room, there is a level ½ acre garden, and the Mother and child have a dog and cat, chickens and rooster. The Mother alleges that there was no outdoor space or a garage at the Suburb D apartment. The Mother also alleges, disputed by the Father, that the child’s dog and cat could not comfortably stay in the residence at Suburb D. The Mother alleges that the child loves the dog who sleeps on her bed, and that the child has told the Mother that the dog helps her sleep well and not feel scared.
The Father alleges, inter alia, that there is approval for an extension to the Suburb D apartment which would provide the child with an adequate bedroom with her own entry door; the material before the Court does not clearly suggest that it is presently practical for such an extension to be proceeded with.
The Mother alleges that her Suburb P two-bedroom apartment investment property is similarly insufficient for her needs and that of the child.
As to the Mother and child renting a property in the vicinity of Suburb D, the parties are in dispute as to whether the Mother could afford to rent a suitable residence taking into account her alleged income and expenses. The Father alleges that he has researched 2 to 3 bedroom properties available for rent in neighbouring suburbs to Suburb D with asking rents per week for these properties ranging from $380 to upwards of $450. He alleges that the asking rent price for these properties is within the same price range as the rent the Mother was paying for the Suburb D apartment before she moved to Town B. In this context, the Court would observe that the Mother alleges she was paying a below-market rent for the Suburb D property of her parents.
The Father annexes to his Affidavit filed 9 July 2020 property searches for the 2 bedroom properties, which appear to be mainly home unit apartments. He does not indicate whether or not his researches for these properties indicate whether pets would be acceptable at these properties.
On the other hand, the Mother alleges that the cheapest three bedroom property that would accept pets that she could locate for rent on real estate.com.au between Suburb Q and Suburb R was $3,446 per month which is $1,320 (sic $1,282) more than she can pay at a conservative estimate.
Further, the Court would observe that the mathematical figures used by the Father in paragraphs 18.1 and 20.1 of his Affidavit filed 9 July 2020 refer to a monthly expenses figure for the Mother of $4,454, compared to the Mother’s alleged monthly figure of $4,754 ($2,081 plus $2,673).
The Mother alleges that her parents have told her that they do not want to live with anyone else. She alleges in this context that her Father is ailing and very unwell with a heart condition and kidney failure. She alleges that he has in-hospital dialysis every second day. She alleges that he is immune compromised and cannot live with children who bring viruses home from school.
On the material before the Court, the Court would assess that there is a real if not significant possibility that it would be impractical for the Mother to relocate back to Sydney and would place significant weight on this issue.
Turning to the Father’s proposals not previously addressed under s60CC.
The Father, should the child remain living in Town B on an interim basis, will likely experience some practical difficulty in spending substantial and significant time with the child if it was to occur other in close proximity to his residence in Suburb E. The Father was previously spending, prior to about mid-2019, pursuant to the Court’s Orders of 2017, in the aggregate, five nights per fortnight with the child. With the Mother and child now living in Town B, it is impractical for the Father to spend such time with the child; for example, it would be impractical for the Father, if not the Mother, to return the child to her new school in Town B mid-week having spent overnight time with the Father. Again, should the child spend time and communicate with the Father in accordance with the Court’s proposals set out in its discussion under the meaningful relationship primary consideration, the child’s meaningful relationship with the Father should be maintained.
The child had been attending her school in Suburb D for some time prior to the move to Town B. The parties had arranged learning supports for the child at the school in Suburb D. The Father alleges that the child has school friends from her old school in Suburb D. On the other hand, the Mother alleges that she has arranged learning supports for the child at the new school in Town B. And the Mother alleges and the child has reported that she has made new friends at the school in Town B.
The Father alleges that the child’s treating clinicians are all within the Sydney Metropolitan area. The Court observes that the treating psychiatrist’s rooms are in Suburb E, whilst noting that that psychiatrist conducted a video conference with the child at one consultation, and again, the Mother alleges that the drive time between Town B and Suburb D is about 1.5 hours.
The Court acknowledges that the Mother’s relocation with the child to Town B was unilateral and without the consent of the Father, albeit that the Mother alleges that she had previously communicated with the Father and sought to mediate the relocation issue with him.
On balance, the Court is of the view, evaluating the above considerations under section 60CC of the Act, and other matters discussed above, and having regard to relevant legal principle, that it will be in the best interests of the child to remain living with the Mother in Town B at this interim stage.
The Court is of the view that the ICL’s proposed Orders 5-10, and 15, will be in the best interests of the child, and in this respect refers to its discussions above under s 60CC of the Act.
Changeover should occur by the Mother delivering the child to the Father’s home at the commencement of time, and collecting the child from his home at the conclusion of time. This changeover arrangement will facilitate the mother providing any necessary support for the child in spending time with the Father.
Parental responsibility
The Mother seeks an interim Order for sole parental responsibility in relation to the child’s education and health. The Father opposes such order, and would seek to confirm the consent parenting order of March 2017 in relation to the parties having equal shared parental responsibility for the child.
The Mother alleges that the parties have been in significant disputation relating to the child’s health professional practitioners. There is a suggestion from the material before the Court that the Father has had some disputation directly with certain medical practitioners.
However recently, the parties and ICL agreed upon the child attending psychotherapy with a new treating psychologist. There does not appear to be any dispute as to the child continuing to see the treating psychiatrist Dr J.
It is important that the child see both parents playing a role in reaching agreement on major decisions affecting her life.
At this interim stage, it will not be in the best interests of the child to make an order for sole parental responsibility relating to health and education as sought by the Mother.
Section 65DAA
There is an existing Order for equal shared parental responsibility for the child. Accordingly, s 65DAA is engaged.
As to equal time, neither party sought such an order. In any event, by reason of the significant suggestion that the Mother has been the child’s primary carer from birth to date, the parties’ continued conflict, significant distrust of each other, and inability to reliably communicate with each other in a timely fashion in relation to the child, an equal time arrangement would not be in the best interests of the child. With the child remaining living with the Mother in Town B, an equal time arrangement would not be practicable. Were the child living with the Mother in Suburb D, such an arrangement would probably be practicable.
As to substantial and significant time, with the child remaining living with the Mother in Town B, as discussed above, such time would not be reasonably practicable. Were the child living with the Mother in Suburb D, such an arrangement would probably be practicable.
As to whether substantial and significant time would be in the best interests of the child, the Court refers to its discussions above including under the meaningful relationship primary consideration. Again, the Court has a concern that the child may not cope emotionally with additional time beyond the Court’s proposals referred to above under the meaningful relationship primary consideration discussion. Those proposals of the Court would not constitute substantial and significant time.
On the material before the Court, it will not be in the best interests of the child at this interim stage to spend substantial and significant time with the Father. Again, subject to the progress of the child’s psychotherapy, the parties, guided by the psychotherapist, may be in a position to subsequently agree to additional time beyond the Court’s proposals referred to above under the meaningful relationship primary consideration. And again, the contents of any family report or other expert report may well indicate that the child’s best interests would be served by spending additional time with the father.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view at this interim stage that it will be in the best interests of the child to make the following interim parenting Orders:
That all previous orders relating to the child spending specific time with the Father are suspended.
That the child reside with the Mother.
That the child be permitted to reside with the Mother in Town B.
That the child spend time with the Father as follows:
(a) On Saturday, 7 November 2020, from 10 AM to 4 PM,
(b) On Saturday, 21 November 2020, from 10 AM to 4 PM,
(c)On Saturday, 28 November 2020, and each Saturday thereafter for 4 weeks, from 10 AM to 4 PM,
(d)Thereafter, on a fortnightly basis, for 3 months, from 10 AM Saturday to 5 PM Sunday,
(e)Thereafter, on a fortnightly basis, from Friday 6 PM to Sunday 5 PM.
(f)Such further time as agreed between the parties.
Changeover, in relation to the above time in Order 4, shall be facilitated with the child being delivered to the father’s residential address by the mother at the commencement of time, and collected from the Father’s residential address by the Mother at the conclusion of such time.
That for the purposes of Order 4 above, each of the parents shall be and are hereby restrained from questioning the child in respect of time arrangements, and particularly her wishes to spend overnight time in the Father's household.
That the child shall have liberal and flexible FaceTime and Telephone time with the Father, and for the purposes of this Order, the Mother shall ensure that the Father’s telephone number is unblocked on the child’s Telephone.
That the parents and/or their agents are hereby restrained from removing or attempting to remove the child X born in 2009 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of X born in 2009 on the Family Law Watchlist in force at all points of arrival and departure by air or by sea in the Commonwealth of Australia and maintain X born in 2009 on the watchlist until the child turns 18 years of age, or the Court orders the child's removal from the watchlist, or by written agreement of the Mother and Father.
And it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the watchlist for the said period or until the court orders its removal.
That neither parent shall themselves denigrate, nor allow any third party to denigrate, the other parent, members of the other parent’s family in the presence or hearing of the child.
Each of the parents shall be and hereby restrained from discussing these proceedings, the contents of these proceedings and/or outcome of proceedings with the child.
That within seven days of the date of these Orders, each of the parents shall make contact with the C Therapy for the purposes of scheduling an appointment with a qualified Family Therapist who is able to assist the parents in repairing their co-parenting relationship, and the parents shall attend at such family therapy as directed by the Family Therapist and bear the costs of such therapy equally.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by March 2021.
The Family Report shall deal with the following matters:
(a)Any views expressed by the child and any factors relevant to the weight to be attached to those views, provided that the child shall not be required to express a view in relation to any matter.
(b)The nature of the child’s relationships with each of the child’s parents and other persons (including any grandparent or other relative of the child);
(c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of the parents: or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom the child has been living.
(d)The capacity of each parent, or another person (including any grandparent or other relative of the child), to provide for the child’s needs, including emotional and intellectual needs.
(e)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 report writer thinks are relevant to opinions expressed in the report.
(f)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
(g)The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attend all appointments with the Family Consultant, as requested by the Family Consultant.
(h)The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
The proceedings are adjourned to 16 July 2021 at 9:30am following release of the Family Report.
Liberty to the ICL to seek to relist the proceedings on 7 days’ notice in respect to any issue relating to the implementation of the above Orders.
I certify that the preceding one hundred and ninety three (193) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 2 November 2020
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