Wallender and Lerderderg

FAMILY COURT OF AUSTRALIA

WALLENDER & LERDERDERG

[2013] FamCA 1061

FAMILY LAW – CHILDREN – Interim parenting – Where the mother has unilaterally ceased the father’s time with the child and raises various allegations of risk of harm to the child in the father’s care – Whether the child should spend time with the father – Meaningful relationship – Best interests of the child

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA

Marvel & Marvel (No. 2) [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13
Goode & Goode (2006) FLC 93-286
MRR & GR [2010] HCA 4
Collu & Rinaldo [2010[ FamCAFC 53
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405

APPLICANT:

Mr Wallender

RESPONDENT:

Ms Lerderderg

FILE NUMBER:

PAC

4258

2013

DATE DELIVERED:

20 December 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

20 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Coleman & Greig Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Lee

SOLICITOR FOR THE RESPONDENT:

Murdock Cheng Legal Practice

Orders

BY CONSENT, IT IS ORDERED THAT:

The Mother and Father have equal shared parental responsibility for the child B born on … 2008.
Until further order the Applicant and the Respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the child B born … 2008, female from the Commonwealth of Australia.
The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s names on the Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia for a period of two years.
The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to these orders.
Upon expiration of the period referred to in Order 3 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List.

THE COURT NOTES THAT:

(A)If, after the expiration of the period set out in Order 3 above, any parent seeks that the child’s name remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence that supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.

PENDING FURTHER ORDER, IT IS ORDERED THAT:

The child live with the Mother.
The child spend time with the Father:
(a)As agreed between the Mother and Father in writing with such writing to include SMS or email communication;
(b)From 12 noon until 5.00 pm on Christmas Eve 24 December 2013;
(c)From 2.00 pm to 6.00 pm on Christmas Day 25 December 2013;
(d)From 9.00 am to 5.00 pm on Boxing Day 26 December 2013;
(e)Thereafter until 28 January 2014 as follows:
(i)Each week on Sundays commencing 29 December 2013 from 9.00 am to 5.00 pm and Wednesdays commencing 1 January 2014 from 9.00 am to 5.00 pm;
(ii)From 9.00 am Saturday 25 January 2014 to 6.00 pm Sunday 26 January 2014;
(f)Upon commencement of school term 1 in 2014 each alternate week from 9.00 am Saturday to 6.00 pm Sunday commencing on the first weekend after resumption of school term for three such weekends and thereafter each alternate weekend from after school Friday to 6.00 pm Sunday.

IT IS FURTHER ORDERED THAT:

The Father’s time with the child be substantially in the company of his partner Ms C and for the purposes of overnight time with the child Ms C shall be present at all times between 8.00 pm and 8.00 am.
The Father be restrained from allowing the child to sleep in his bed and that at all times the child shall have her own bed for the purposes of overnight time.
The Mother be restrained from causing the attendance of the child on any medical practitioner or other health professional save for the child’s current General Practitioner and the child’s therapist Dr D except in the case of emergency or upon referral from the child’s General Practitioner.
The Mother keep the Father informed in good time of all appointments made for the child to attend upon her General Practitioner and upon Dr D such as to facilitate the Father’s attendance on those appointments should he wish.
For the purposes of changeover the mother shall deliver the child promptly to the Father or his nominee known to the child inside the McDonalds Family Restaurant at Suburb E and the Father shall cause the child to be returned to the Mother at the conclusion of such time inside the McDonalds Family Restaurant at Suburb E.
Each of the parties be at liberty to attend on such occasions relating to the welfare education extra-curricular activities, religious education or health of the child being occasions where the attendance of either or both parties would be reasonably expected.
Proceedings be adjourned to a date before a docket Registrar.
Proceedings be listed before this Court for a first day LAT by no later than 11 April 2014.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child born on … 2008 and the Legal Aid Commission of New South Wales is requested to provide such representation.
The parties are to provide to the Parramatta Office of the Legal Aid Commission of NSW at Level 5, 91 Phillip Street Parramatta NSW 2150 or DX 8293 Parramatta forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
Leave is granted to the Independent Children’s Lawyer to issue such Subpoena as they consider relevant to the issues before the Court.
Leave is granted to the Independent Children’s Lawyer to have photocopy access to documents produced on subpoena and exhibits in these proceedings.
Leave be granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4258 of 2013

Mr Wallender

Applicant

And

Ms Lerderderg

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings in relation to the child B, born in 2008 (“the child”).
The child is now almost five and a half years of age.
The proceedings were commenced by the Applicant father filing an application on 3 October 2013 seeking final and interim parenting orders.
That application was subsequently amended by an Amended Initiating Application filed on 19 December 2013. In that amended application the applicant father seeks, in summary, the following final orders:
(1)That he have sole parental responsibility for the child;
(2)That the child live with him;
(3)That for a period of six months from the date of orders the child spend no time with the mother;
(4)That thereafter the child's time with the mother be in accordance with recommendations of the Family Consultant or Chapter 15 expert appointed by the Court.
He also seeks other final orders that do not concern the Court at this time.
In relation to interim orders in that amended application the father also sought orders that provided for the child's name to be placed on the Airport Watch List and the Court notes that this order is consented to by both parties.
The other orders sought by the father by way of interim orders, in summary, are as follows:
a)That until further order the father and mother have equal shared parental responsibility for the child. The Court notes that this is an order to be made by consent;
b)That until further order the child live with the mother;
c)That until further order the child's time with the father be as follows:
(i)During school term, each alternate weekend from after the conclusion of school on Thursday until 5.00 pm Sunday. In the event that the Monday immediately following a weekend is a public holiday, the child remain with the father until 5.00 pm Monday;
(ii)During school term, the alternating week from the conclusion of school on Thursday until the commencement of school on Friday;
(iii)During school holiday periods for half of the shorter school holidays and a week about basis during the Christmas summer school holidays; and
(iv)Otherwise time on Father's Day and at such times as the parents may otherwise agree in writing.
The father sought further interim orders in that each of the parties notify the other in the event the child suffers any illness or injury requiring medical treatment or hospital admission and that the mother be restrained and prohibited from giving the child any homeopathic or naturopathic supplements or remedies without the written consent of the father. Although the Court notes that the latter order was not pressed at the interim hearing, indeed there is little evidence in relation to the issue.

Background

The father is presently aged 43 and is a consultant by occupation. He lives at Suburb E, a short distance from the mother's home. He has, to a degree, re-partnered. His new partner, Ms C, has a young son, F, aged five, who resides with her and appears to be now an integral part of the father's life. They propose to commence cohabitation together sometime in January 2014 upon obtaining appropriate accommodation.
The mother is aged 44. She also resides at Suburb E and she is a self-employed.
The child, B, presently attends preschool two days a week, although it appears that the current preschool arrangements have now ceased for the Christmas vacation.
The parties commenced cohabitation in about October 2006 and separated in June 2011. As will be seen, there is a significant history post-separation between the parties. It is important to note at this juncture that at the time of separation in June 2011 the child was nearly three years of age, and so of tender years and in a very sensitive developmental stage in terms of attachments and relationships.

The father's evidence

The father gives evidence that subsequent to separation and in April 2012 the parties entered into a parenting plan.
That parenting plan is exhibited as annexure A to the father's affidavit filed on 3 October 2013 and records the agreement between the parties that, in summary, is as follows:
a)That the child live with the mother;
b)That the parties have equal shared responsibility for the child;
c)That the child spend time with the father:
(i)During school term, each alternate weekend from after preschool on Thursday until 5.00 pm Sunday, extending to Monday if a long weekend;
(ii)Each other week during school term, from after school on Thursday to the commencement of preschool the following morning; and
(iii)Half of the New South Wales school holiday periods midterm and during the Christmas school holiday periods 2012/2013, time on a week about basis.
Otherwise, the document recorded various other agreements between the parties in relation to overseas travel, medical information and so on that does not concern the Court in the context of this interim application.
The father says that during the course of his relationship with the mother he assisted the mother with the daily care of the child. When the child was young he fed the child, changed nappies, put her to sleep and played with her. He says that the child commenced attending preschool when she was three and a half years of age and during this time he and the mother would take turns collecting the child from preschool.
He says that following separation in June 2011 he introduced the child to his partner Ms C and her young son F. He says the child has a good relationship with both Ms C and F, F being the same age as the subject child.
The father says that during February 2012 the mother stopped the child spending time with him subsequent to her discovery of the father's new relationship. He says the mother said to him words to the effect of:
I’m not happy about this. I'm not going to allow the child to spend any time with you if your girlfriend is around. There have been enough changes in her world recently and she isn't ready for another one. Don't pretend like the child doesn't spend time with your girlfriend and her kid. I've seen you all playing together at [Suburb E] Park and I have pictures to prove it.
The father says that following this conversation he was not allowed to spend time with the child for about two and a half months. On 13 April 2012 he and the mother participated in a mediation session with Mr Greg Kenny, barrister at Parramatta, and it was a consequence of that mediation session that the parenting plan dated 13 April 2012 was agreed to by the parties.
It is clear that the parties intended, notwithstanding the age of the child and the age appropriateness of such a proposed arrangement, to move to an arrangement towards fifty-fifty shared care at some time in the foreseeable future.
The father says that since the child has been spending time with him in accordance with the parenting plan, the mother has complained to him regularly of any minor or other injury that she perceives to be evident on the child on her return. The father has explained to the mother that various scratches and bruises were from childhood mishaps and from play. The child is an active child, he says, and enjoys bike riding and playing on the grass near his home. He says that should she ever hurt herself he would immediately attend to her and clean a graze or scratch and put a Band-Aid on her.
He says that in February 2013 the mother changed the child's preschool without his consent. The child commenced attending the G Preschool at Suburb E twice a week on a Wednesday and Friday.
He says that the mother has been interventionist, and on one occasion in early 2012 she procured the attendance of New South Wales police officers at the father's home at 8.00 pm at night when the child was in his care. The officers indicated that they had been requested to attend by the mother who expressed concerns as to the welfare of the child in circumstances where she alleged the child would be in immediate danger because the father was drunk while the child was with him.
The father says the police conducted their welfare check and had no concerns. Indeed, the child was already asleep in bed. The police reported their findings to the mother. The father denies any excessive use of alcohol and says that both he and the mother would drink occasionally during the course of their relationship.
The father is conscious that the child has, or alleged by the mother to have, a gluten allergy. He attended upon the child's GP, Dr H, shortly after early May 2013 and was informed that the child shows signs of gluten intolerance. She presents with spots around her mouth and on her bottom when eating food containing gluten.
The doctor said he could not confirm with certainty she has gluten intolerance or allergy without conducting a blood test. However, it would not be recommended until the child is older.
The father says that subsequent to this attendance he was scheduled to spend time with the child on about 6 June 2013. The child was not made available to him, the mother informing him that the child was allegedly ill. But subsequently he received a message on 7 June 2013 where the mother acknowledged that she was untruthful in telling the father the child had been sick, and expressed concerns for the child's welfare and safety and she had made a choice as the responsible parent to cease the father's time with the child.
The father says he tried to discuss the issues with her, particularly the issue in relation to the child's purported gluten intolerance, however, the mother replied that she would not allow the father to spend time with the child, alleging he was a danger to her in giving her gluten products.
Otherwise, unusually on 12 June 2013 the mother sent the father an email where she questioned the child's paternity and requested that the parties undertake DNA testing; a somewhat unusual circumstance having regard to the fact that both parties in their affidavit evidence concede they are the parents of the child. Various correspondence flowed between the parties' solicitors to no avail and the father's application commencing these proceedings was filed on 3 October 2013.
The father says that by mid-July 2013 the mother was still refusing to allow the child to spend any time with him and by this time it had been almost six weeks. He said that on 10 July 2013 he went to the child's preschool to visit the child and on doing so the child said to him, "Daddy, I missed you. Am I going home with you today?" He said that the mother arrived shortly after and became hysterical. The versions of the incident given by both of the parties are dramatically different. Although the mother asserts that the father struck her, he says that "she began hitting and pulling my hair."
The mother, in her own affidavit, acknowledges kneeing the father in the groin. It appears that the police were called, but they failed to attend the preschool premises. The mother later attended at the local police station to report the incident but it appears that nothing further has come of it.
The father says that subsequent to this incident and in August 2013 the mother has allowed him to have some Skype communication on a limited basis with the child. In these sessions, the child has said words to him to the effect of, "Daddy, I miss you. Daddy, I love you to the moon and back and I want to talk to you again".
On Father's Day 2013 the father had a Skype communication with the child. It is the father's assertion that, notwithstanding his lack of consent, the child was taken out of Australia to New Zealand sometime in September 2013. That contention remains to be tested in due course.
The father says that as at October 2013 he had seen the child only twice at preschool since 2 June 2013 and had been allowed to speak to the child on about five occasions.
As at October 2013, when he swore his first affidavit in support, he was then living alone at I Street, Suburb E, a comfortable two bedroom townhouse where the child has her own bedroom, filled with clothes, books and toys and also a pet cat. He says the property is secure and has a fenced backyard for the child to play in. He says that he works full time with IBM as an operations manager with work hours being flexible and unrestrictive. He currently pays $500 a month in child support.
He further says that during the course of the relationship the mother disclosed to him her family's mental health history; the mother informing him that she had been raised by her grandparents because her own mother had tried to commit suicide when she was a baby and that her own mother still continues to have mental health issues. She also disclosed that her sister had postnatal depression after having her child. He says that during the relationship the mother attended on several therapists and psychologists and counsellors but he is unaware as to the details of those medical or health practitioners.

He has concerns in relation to the mother's association with homeopathic remedies but, at this stage, the relevance of that remains to be tested.
He expresses great concern about the interventions the mother has procured in relation to the child since separation, which will be referred to in more detail by the Court later in these reasons. He says that when the child is in his care he attends to all her needs. He says he ensures she is properly cleaned and wiped after going to the toilet. He says that during the hot summer weather the child would sometimes have an irritated bum or vaginal area. When this occurred he would ensure it was treated properly and would apply nappy rash cream or pawpaw cream.
The father refers, somewhat concerningly, to the mother's attendance or observations of he and his partner and their children in a park at Suburb E in respect of which the mother sent a text message to him saying:
I'm happy that you found someone, but you are putting the child in danger. I've taken photos of you and your new partner.
The mother alleges that the children were playing unsupervised near the lake in the park, but, somewhat unusually, no photographs supporting this contention are attached to her affidavit.
The father's application is supported by his partner, Ms C, who provides a short affidavit in support of the orders sought by him. She says that she has been in a relationship with the father since September 2011, some five or six months after the parties’ separation. She says that they do not live together at present but intend to do so in January 2014. She has a young child, F, born in 2008, and the subject child and F are very close in age.
She says that she has holidayed with the father, his child and her child in July 2012 in J Town, that they have been on camping trips, and in April 2013, they spent a week at her sister's holiday house at K Town.
She says that during the time that she spent with the subject child she has not seen her to have any bruising or allergic reactions to any food given by her. She has observed the father to be attentive to the child's needs, ensuring she is clean, washed and presentable. She says that the father ensures the child eats healthy while she is with him. He will always check to see that food for the child is gluten-free.

The mother's evidence

In her Response filed on 4 November 2013 the mother seeks final orders that, in summary, provide for the parties to have joint long-term parental responsibility for the child, that the child live with the mother, that the father have visiting access to the child, as agreed between the parents, with such visiting access to be during the day under the supervision of a third party or an agreed neutral location.
The interim orders sought by the mother mirror those final orders sought. During the course of submissions it became clear that the mother's position is that she seeks an order by consent there be equal shared parental responsibility, that the child live with her and that the father's time with the child at all times be supervised by an agency, community organisation or commercial provider.
She was of the view that the father could have such time with the child on Tuesdays and Thursdays only and that otherwise the father could have time with the child under supervision from 9.00 am to 5.00 pm on Christmas Eve and from 12.00 noon to 4.00 pm on Boxing Day. The mother has provided to the Court a lengthy affidavit, much of which is a litany of history prior to separation and thereafter.
Although, having regard to the agreement between the parties, evidenced in the parenting agreement dated April 2012, much of the earlier history is of only historical relevance because once the parenting agreement was reached, it was clear the mother had no concerns as to the child spending significant and substantial time with the father by reason of her execution of that agreement.
However, the mother says relevantly in her affidavit that she believes the father has a history of depression, both personally and in his family. She says that when she met him in 2006 he was on antidepressant medication and in 2007 she says she found prescription drugs in their bathroom. She says the father explained they were anti-anxiety tablets he was required to take from time to time. The mother gives evidence historically of what would appear to be a deteriorating relationship between her and the father, particularly following the birth of the child.
She says that during the course of the relationship she commenced to see a Ms Ms L, psychologist, to help her with her anxiety and insomnia. She says that Ms L helped her to get a realistic perspective on the relationship and to address personal issues that the mother was burdened with at home and in her relationship with the father.
Regrettably, the mother adduces no evidence from Ms L in relation to her complaints or otherwise in relation to the relationship with the father at that time. The mother says that Ms L recommended to the mother that she and the father see a Dr M for couples counselling to address their issues.
Subsequently, the parties did attend upon Dr M for therapy sessions. But also, once again, no notes from Dr M's sessions are produced by the mother in support of her complaints in relation to the father.
On 9 June 2011, being the date of separation, she moved out with the child whilst the father was at work. She engaged the assistance of a friend to help her pack her belongings and the parties have remained separated thereafter. She says that during the course of the move the child was at day care and she telephoned the father at work to inform him that she had moved out.
The mother says that since separation there has been a consistent lack of communication on the father's part, but in October 2011, they finally agreed on some parenting arrangements where the child would remain predominantly with the mother and stay with the father on the following basis:- in Week 1 from Wednesday after school until before school on Thursday, and in Week 2 from Wednesday after school until Monday at 9.00 am.
It is of note that, notwithstanding that the child was only just over three years of age at this time, the parties implemented an arrangement whereby the child would be absent from her primary carer for six nights out of 14. The lack of understanding of children's developmental needs, in circumstances where the parties have separated when the children are young, is absolutely astounding in relation to the parties implementing that arrangement.
The mother complains that the father made no financial contribution to the support of the child while in the mother's care until such time as a child support assessment issued and he commenced payments in February 2012.
The mother then gives an ongoing history in relation to matters post-separation, including attendance at her general practitioner with the child, all of which predate the parenting plan signed on 13 April 2012.
Those issues, including the mother's initial attendance at N Hospital Child Protection Unit in early 2012, are only of historical interest.
In April 2012 the parenting plan referred to above was signed by the parties and thereafter implemented, with the father spending time with the child, including holiday time.
However, thereafter, the mother continues to make a number of complaints in relation to circumstances she perceives during the father's care of the child or injuries or other marks on the child on her return from the father. She makes complaints about the father taking the child back a day or two late after holiday time so that the child did not recommence her part-time attendance at preschool until a day or two after term started. The significance of that complaint is not apparent to the Court, having regard to the child's age. The mother says that in July 2012 when the child was on an extended holiday with the father she returned with a small rash under her eye. The mother asserts that this was the beginning of a gluten rash and as a consequence of the father not complying with the child's eating regime.
She says that in late 2012 the midweek stays, in accordance with the parenting plan, were becoming highly disruptive to the child's routine. What that routine was is not clear. But, in any event, she said in order to attempt to resolve this Wednesday night stay over changed to Thursdays, which, she says, assisted the child and was less disruptive to her. In addition to the midweek change of Wednesday to Thursday, Monday morning drop-offs were then changed to Sunday afternoons so that the child could settle in Sunday night in preparation for the week ahead. By this time the child was four years of age.
The mother noticed the child was struggling in most of her transitions between the father and herself by reason of the overnight midweek stay and the various movements of the child between herself and the father. She said the child was returning with bloodshot eyes, was having emotional breakdowns and tantrums and the mother would frequently communicate her concerns to the father. She further says the child returned to her care starving hungry. She says the child often has nappy rash or vaginal redness or faecal remains present upon returning from the father. She has often returned to her care with knotted hair, which required to be cut due to knots on one occasion.
She said that the child, until May 2013, would come home with injuries, including bruising to her chest, back, pelvic area, thighs and on one occasion her groin. She also complained of having to sleep in her father's bed, which she did not like. She says that in February 2013 the child returned to the mother's care and was having difficulty urinating. The father thought it might possibly be a urinary tract infection. It was agreed the child be taken to the general practitioner. The mother took the child to the general practitioner and that practitioner noted blisters on her vagina and an area of broken skin. It is noted the practitioner had previously diagnosed the child with blistering or pustules as a consequence of her alleged gluten intolerance.
However, somewhat disturbingly, the mother in this attendance on the doctor in February 2013 required the child to be tested for sexually transmitted diseases and to determine whether the broken skin was a result of trauma or direct force. She says these results were negative and inconclusive as to the reason for the broken skin. The mother says that she tried to ask the child what she did that weekend but the child would not say anything.
The mother says on her own evidence there is a possibility that the redness and itching is gluten-related, causing the child to scratch herself, because the pustule looked similar to the pustules she gets on her bottom when she eats gluten products. But she had not seen them appear on her vagina before, and this has not happened since.
Otherwise, in May 2013 the mother says that she and the child were playing a game. They grabbed a toy and for some reason shook the toy. Her own words are that the child identified with the action and responded in a sad and depressed manner, words to the effect of, "Daddy is rough with me." The mother asked her if that was how she had suffered her bruising; the child did not answer but nodded. The mother then telephoned the father, making a complaint and he responded that he had no idea how she would have injured herself, as asserted.
Notwithstanding, the mother then saw fit to take the child to the N Hospital where the child was examined. The notes from the hospital are in evidence and form part of the attachments to the mother's affidavit. The triage nurse notes that the history from the mother was that:
There was vaginal rash and bruising. The mother saw it today during bath time. Has been with the father for the last three weeks. Duration of this illness has been one day. The patient has not had any infectious contact. The child had not attended a hospital or similar in the last 48 hours. The patient hadn't attended a GP or similar in the last 48 hours.
The assessment by the hospital noted:
Redness to the vaginal area on the outside and some redness to the anus area. The patient -
that is, the child -
was quiet, not answering any questions asked and avoids eye contact.
There was noted a tiny bruise on the back of the child. The mother then remained at the hospital for a period and seemed to have spoken to the nursing team leader and was waiting for the attendance of the Child Protection Unit paediatrician. However, due to some delay in relation to that practitioner's attendance, the mother elected to simply leave the hospital. The mother said to the nurse, being an entry in the notes, that “she was very concerned about the patient and wanted this to be documented”. The nurse advised the mother of the child protection plan in terms of later contact with the paediatrician, and notes indicate the mother informed the nurse that she had decided to take the child home as:
She doesn't want to wait hours to see an ED doctor, but just wants to have this documented. And feels like she has been neglected by the system.
The mother in her affidavit gives a startlingly different version of the incident at the kindergarten on 10 July 2013. What actually transpired on that day will await a determination by the Court based upon the objective notes to be produced on subpoena, no doubt by the kindergarten, and the testing of both parties' evidence in cross-examination at final trial. The mother goes on to record that she has been terrified and fearful of her safety since the confrontation at the kindergarten and afraid the father will come to her house and harm herself and the child.
The mother says that since the incident she has herself sought counselling with a Dr O and she says that her anxiety has been decreasing slightly, as well as that anxiety decreasing by the child becoming more stable.
The mother says that on 21 October 2013 the child was visited by the father at preschool. When the child returned home she was aggressive, bit the mother's arm and kicked the mother in the face whilst the mother was laughing. She says this is highly out of character for the child and the mother believes she was acting out because she had seen her father.
The strong inference is that the child was exhibiting her own sense of frustration in her relationship with her father being disrupted. The mother says, somewhat surprisingly, that she has only ever said encouraging things about the father to the child, notwithstanding her own evidence is that she has sought information regularly and persistently from the child in relation to what occurs when she has been in the father's care, particularly asking leading and coercive questions in relation to aspects of injury on the child's body.
The mother says that she does not want to deprive the child from her father but she needs to do so to protect her. She says she will agree to the father having supervised visits until he gets counselling on caring for the child, dietary needs of the child, alcohol and being a responsible and trustworthy father.
Peculiarly, there is no reference to the more serious inferences arising from the mother's allegations.
She currently resides at P Street, Suburb E and she has lived there for about nearly two years and she pays rent in relation to that property. She says she owns her own chiropractic practice, which specialises in infant and child chiropractic services, and the majority of her patients are between the ages of two and ten. She says that her care arrangements for the child centre around the child attending at her practice during the week, which at first glance would appear to be a somewhat inappropriate circumstance. The child also attends preschool two days per week.
On or about 30 January 2014 the child will commence formal schooling at Q Primary School by agreement between the parties.

Subpoenaed documents

Dr D

Documents were produced on subpoena from Dr D, a psychologist who has been seeing the child by reason of a mental health referral from the child's general practitioner. The circumstances of the mental health referral are set out in a letter from the doctor to the practitioner and in the mental health plan itself. Produced on subpoena by Dr D is a report dated 1 November 2013 as to her engagement with the child.
The first engagement was on 11 April 2013 where the mother, the father and the child attended. From the notes of Dr D it appears that since separation, when the parties had attended on Dr D, it was the first occasion they had been in the same room since separation; that giving the Court significant insight into the nature of the relationship between these parties.
The child was observed by Dr D to be bubbly, creative, reserved, confident, having initiative, accepting challenges with boundaries. She was described by the parties as an outdoor chick, loves horse riding since she was 18 months of age, rides a bike with training wheels and enjoys swings. The notes from Dr D indicate as follows:
Transitions - tends to be more boundary pushing, biting, hitting when the child comes home from the father.
The psychologist informed the parties that children like and respond best to routines in parenting that are consistent and where communication between the parents is open and transparent with each other. Neither of those factors are present in the history between these respective parties. Having regard to that, it is not surprising the child exhibits the behavioural problems that she does. But the strong inference is that it is simply as a consequence of the parents' complete lack of appreciation of age-appropriate arrangements.
The psychologist on the first attendance noted the goal was to provide the child with some perspective and provide her with a safe environment to explore her changing relationships. It is noted that the mother raised concerns with the psychologist in relation to the father and his new relationship and the impact of that relationship on the child. This was in the context of a consultation on 11 April 2013, nearly some 18 months after the father had commenced this other relationship, but a circumstance that clearly remained uppermost in the mother's mind representing a risk to the child of some description.
Subsequent to the first attendance on Dr D the father did not attend thereafter and the child and the mother attended. Mostly, the subsequent reports reflect the mother providing to the psychologist various information. On 27 June 2013 there was some discussion with the psychologist in relation to various bruises on the child from time to time. Also, the mother made reference to her attendance at N Hospital several months earlier and it was noted in relation to that attendance that the N Hospital staff asked general questions, not taking on board and not listening at all, saying to the mother, "Did something happen to her? Didn't fall off a bike? Didn't grab her?".
The mother's frustration at the hospital attendance not producing some objective result as desired by her is clearly apparent.
The mother reports to the psychologist on 27 June that she had annulled the parenting agreement with the father and the child had been with the mother constantly since 2 June 2013. Peculiarly, the mother says to the psychologist, "(t)he child hasn't asked for the father also". One would have thought that in those circumstances the mother would have been endeavouring to make sure that the child remained constantly aware of her relationship with her father, but, nevertheless, the mother seemed to make that comment to the psychologist as something positive in relation to the child.
The mother and child saw the psychologist again on 11 July 2013, shortly after the confrontation at the preschool. She gives a version to the psychologist, alleging the father went on to physically assault her and that she kneed the father in the groin area and he then backed off. The mother said the centre manager then took the child into the centre to distract her from what had been happening between the parents. The mother reported on 11 July 2013 that the father has not seen the child since 2 June 2013. She reported to the psychologist that the child had been more settled in the last six weeks. A circumstance, she says, that the child centre reports support.

However, the mother reports that the childcare centre has informed her that there is some separation anxiety when the mother leaves the childcare centre after leaving the child - somewhat to be expected where the child has a relationship only with one parent. In fact, the mother makes a complaint to the psychologist that the child complains that the mother should be with her and not on the phone all the time at work.
Regrettably, on 11 July the psychologist notes in relation to the child that there were a lot more baby actions, sticking her tongue out, sucking, self-soothing sounds, with her speech being limited and talking in babble, or pointing and not talking.
On 1 August 2013, shortly after the child's fifth birthday, the mother and the child saw the psychologist again, the mother reporting that the child had been active in horse riding, that the child's routines were good at that time and she was responding well to limits and expectations placed on her and there had been a lessening in the child's meltdown and/or tantrum behaviour. On that occasion the psychologist notes the following:
[Ms Lerderderg] would like some tips re talking to the child re safe behaviours.
The Court is not sure what that is directed to.
On 15 August 2013 the mother and the child once again attended at the psychologist and the child had commenced at her new preschool by this time. The mother and the psychologist had a discussion which is noted as follows:
Discussed language around safety, talking about safe relationships. Reiterated no probing - leading questions. Discuss and model language around emotions. Give the child an emotional vocabulary, "I can see you're angry. Can you tell mummy why you are sad?" etcetera.
Clearly not a guideline complied with by the mother in the terms of her persistent questioning of the child.
On 19 September 2013 the psychologist notes that the child had some contact with the father over the past few weeks with him visiting the childcare centre. The psychologist notes, somewhat tellingly, that when she asked the child, "Have you seen daddy?" the child smiled. The mother informed the psychologist that this is new and she feels there's a good balance in allowing contact with the child. There seems to be less conflict between the two of them.
The last attendance recorded is 19 November 2013, where the mother openly spoke to the psychologist about the pending Court proceedings, the child's transition to big school at Q Public School and that the child remained in her primary care, much as she had since early June 2013. The mother sought some guidance in relation to emotional peaks or high levels of upset that the child had been exhibiting; the psychologist explained calming techniques to help and to use words to express feelings and emotions.

Discussion

The nature of interim proceedings has been considered by the Full Court in Marvel & Marvel (No. 2) [2010] FamCAFC 101 and at [120] the Full Court observed:
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).
The Court further at [122] refers to SS & AH [2010] FamCAFC 13:
122.In SS & AH [citation omitted] 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 paragraph 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.
The relevant principles in relation to parenting interim proceedings are well settled: Goode & Goode (2006) FLC 93-286.
Section 60B of the Family Law Act 1975 (“the Act”) outlines the objects and principles underlying Part VII of the legislation:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order 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. That presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse or family violence, or in interim proceedings where the Court considers it would not be appropriate for the presumption to apply, or if the Court is satisfied that an order for equal shared parental responsibility would not be in the child's best interests.
If the presumption is to apply then s 65DAA is enlivened and the Court is required to consider whether equal time or substantial and significant time with each parent is in the child's best interests and reasonably practicable.
In Goode (supra) the Full Court discussed the application of the presumption in s 61DA in interim proceedings at [56]:
In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).
The Full Court in Goode (supra) provided a framework as to how applications for parenting orders are to be determined. The High Court in MRR & GR [2010] HCA 4 affirmed the legislative pathway.

The statutory presumption

The Court is satisfied that, in all the circumstances, this is a matter where the statutory presumption as to equal shared parental responsibility should apply. That is reinforced by the circumstance that both of the parties seek such an order on an interim basis.
The Court is required to have regard to the best interests of the child in determining the application of the provisions of s 65DAA. As the Full Court preferred in Collu & Rinaldo [2010] FamCAFC 53, the Court will look at the additional considerations before turning to have regard to the primary considerations.
The relevant additional considerations in the context of this matter are as follows:
a)The nature of the relationship of the child with each of the child's parents and other persons, including grandparents or other relative of the child
There is no doubt in the context of this matter that the Respondent mother has been the primary carer for the child during cohabitation and after separation. However, focusing upon the post-separation period, which is more relevant, there is no doubt that for substantial periods post-separation, particularly by reason of the original parenting arrangement in October 2011 and the subsequent parenting agreement in April 2012, the father has had substantial and significant time in the terms of the statutory understanding of that arrangement with the child.
Regrettably, since early June 2013 the father's relationship with the child has been significantly diminished by the unilateral actions of the mother in depriving the child of time with the father in circumstances where the mother expresses a myriad of concerns, varying in nature from inferences as to sexual abuse, physical abuse, improper diet, lack of supervision and lack of care whilst the child is in the father's care. It is interesting to note that of course over the extended period since the separation the mother's complaints in total relate to in fact a small number of individual instances only.
The nature of the relationship with the parents at this stage is indicative of an order providing for the mother to have continuing residence of the child, and the Court will make such an order. But what is to be considered is the nature of the father's present relationship with the child in the context of the other considerations to be discussed below.
b)The extent to which each of the parents have taken, or failed to take, opportunity to participate in making decisions about the major long term decisions in relation to the child, spend time with the child and communicate with the child
Having regard to the child's age not much can be said in relation to major long-term decisions. The parents have agreed on schooling when the child starts school in 2014.
Issues in relation to spend time with have been difficult in that there has been a unilateral withdrawal of time by the mother in circumstances that cause the Court some significant ongoing concern as to the appropriateness of her behaviour in the context of the present evidence before the Court.
The father has, it appears, been able to maintain some contact with the child since June 2013 by reason of his attendances at the preschool on a limited number of occasions and being afforded quite limited communication with the child while the child is in the mother's care.
c)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of the parents or any other child or person, including a grandparent or other relative of the child with whom she or he has been living
At the moment the circumstances between the parties are intransigent. The mother has the primary residence of the child and, as it were, is pulling the strings in relation to the father's time with the child.
It is important that such a circumstance be ameliorated in that the child be restored to some form of relationship with the father. The likely effect of the child in this circumstance is to facilitate the child developing a secondary attachment to the father and, subject to appropriate orders being made, being able to resume and develop the secure attachment necessary for her to develop with her primary carer, the mother.
The child also has been deprived of an ongoing relationship with the father's companion and her son, which, on the evidence before the Court, appears to be something that is valuable and significant to the child and would assist her socialisation. In that circumstance, a change in the current arrangements is indicated.
d)The practical difficulty and expense of the child spending time and communicating with each of the parents.
The parents in this matter live but five minutes apart, both in the same Sydney suburb of Suburb E. This is not a relevant consideration.
e)The capacity of each of the child's parents and any other person to provide for the needs of the child, including emotional and intellectual needs.
Perhaps this is one of the most important factors in the context of this interim hearing.
Both parties have shown little insight in relation to appropriate parenting orders for a child who was not yet three years of age when they separated. The arrangements they put in place in the first parenting arrangement and again in the second parenting plan in April 2012 were extraordinarily inappropriate, not only in terms of the child's age, but in terms of their own conflictual and confrontational relationship. That is clearly evidenced from the first notes of the psychologist that has been attended on by the child, the mother and the father on that first occasion.
In that regard, the parents have demonstrated less than a satisfactory capacity to address the needs of this child, including the child's emotional needs. Subsequent thereto, notwithstanding the emotional and psychological difficulties occasioned by the parenting arrangements put in place, there has been a unilateral withdrawal of the father's time by the mother in circumstances whereby the mother has evidenced extraordinary vigilance in relation to the child, the child's health, the child's relationship with the father, the child's relationship with the father's partner, aspects of safety including diet, the child's activities with the father, to the extent that she has photographed the father on an occasion when he was with his companion and the child was with him for time.
It is not open to the Court to determine whether the mother's behaviour reaches the level of hyper vigilance, but it is certainly clear that her own vigilance has led her to have some misgivings in relation to the nature of the child's relationship with the father.
She appears to have sought assistance from others to justify her vigilance, including her general practitioner, the N Hospital, the child psychologist and perhaps her own trauma counsellor, but all to no avail.
It seems that, notwithstanding the evidence of both parties, this is an extraordinarily active child who engages in all sorts of physical activities, that on the presentation of any bruise or mark or sign or pustule the mother forms an adverse opinion in relation to the father.
None of the matters raised by the mother give the Court any concern in relation to the father's capacity to properly provide for this child, particularly in the context of his new relationship.
One would hope that in terms of the mother's capacity to deal with the child's emotional needs that the input of the family counselling section of this Court, which will happen in February next, and perhaps the interposition of a family report or single expert report will assist the parties in understanding what they themselves have done to this young girl at this early stage in her life.
f)The maturity, sex, lifestyle and background of the child
The only reason this factor is relevant is because the child is young. It is relevant in that the child was not yet three years of age when the parties separated and, as a consequence of that factor alone, they now see them facing the difficulties they now have in relation to this child's presentation within the mother's home in terms of her defiance of the mother and her behaviour that is referred to, to some extent, in the notes of the psychologist in the context of appropriate development of attachments.
If this child had a secure primary attachment to her mother where she could separate easily to her father without reflecting the mother's concern then the expectation may be that these oppositional behaviour symptoms from the child will eventually dissipate and disappear. But the parents will need to demonstrate appropriate capacity, and each of them, to be able to deal with these issues.
g)The attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child's parents
This has been commented on above, and neither party comes out of this matter with a clean bill of health in this regard. The mother has demonstrated remarkable and close vigilance. Whether it crosses the boundary is yet to be determined on objective evidence and on cross-examination. However, for whatever reason - it may be that she is a mature aged mother. She is presently 44 years of age with a five year old girl. This may well be her only child. She adopts a very protectionist, and quite properly, protective attitude in relation to the child. But that should not be to the expense of the child's relationship with the father.
The father himself, the mother makes complaints about the father's lack of engagement. Perhaps he might take those complaints on board and appropriately become engaged in a significant way next year when the child commences formal schooling. The Court proposes to make an order today that will facilitate that happening.
h)Any family violence involving the child or a member of the child’s family
There are allegations, one against the other. They cannot be tested in the context of this hearing today and, ultimately, will probably appear to be of little relevance in an ultimate outcome on a defended trial. It is noted there is no family violence order in place, nor has either party sought application for such an order.
i)Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child
These are interim proceedings and it is patently obvious that the matter needs to proceed further to assist these parties in dealing with their parenting skills in relation to this young child.
There is no other fact or circumstance that is relevant for the Court's consideration under s 60CC(3).

The primary considerations

The primary considerations are the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Section 60CC(2)(a) deals with meaningful relationship.

Meaningful relationship

In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [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 [sic] one. Quantitive [sic] 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.

In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
What the Court is looking at in relation to a meaningful relationship is prospective. It is whether a relationship with each parent is to be important, significant and valuable to the child. In the current circumstance, the mother's relationship with this child is extraordinarily important. At the moment it appears strongly, by way of inference, that the primary attachment of this child to the mother is significantly disrupted as a consequence of what the parents have done post-separation in terms of the father's time with the child and their own conflictual relationship that complicates the developments of the child's attachment to the mother.
That needs to be remedied, in that the child needs to have consistency in circumstances whereby when she separates from the mother to move to the father the child has no reservations that she will return to her primary carer, who is the mother. The circumstances of more recent time have been that as a consequence of the ongoing conflict between the mother and father the inference is strong that the child has some perception that in going to or communicating with the father she is betraying her own mother's trust and is caught up in the conflict and in an endeavour to resolve that conflict she acts out in relation to the mother.
That acting out, of course, is never observed by the non-resident parent who perceived changeovers to be without difficulty. But it is important for the child's relationship with the father, in the context of meaningful relationship, to be restored in a careful and staged way so as to ensure that behavioural manifestations noted by the child psychologist and the mother gradually dissipate.

The need to protect

The next factor is the need to protect. This is a double-edged sword in relation to this case. The mother makes a myriad of complaints in relation to the father, many of which can be addressed by him being more alert to her concerns, and hopefully he will be. The mother has sought independent third party objective verification of complaints.
The evidence does not substantiate any of them in terms of circumstances that would deprive the child of time with the father. However, on the other side of the coin, the mother's behaviour is of grave concern to the Court.
Having said that the mother is vigilant, there are circumstances where the resident parent can cross that line and exceed the normal sort of vigilance that is required in terms of appropriate care, supervision and protection of a child in their care. The mother needs to be cautious of this aspect of her character and, whilst it is for the child's benefit that she acts in the way she does, she should seek some assistance and guidance in relation to this. The psychologist, Dr D, has in fact sought to refer the mother to her own psychologist.
That has happened in the context of the mother's purported requirement for trauma counselling as a consequence of what transpired at the kindergarten, but not in relation to other aspects whereby the mother may seek some assistance to deal with her vigilance at this stage. At the moment the inference is that the mother's vigilance, as it is exhibited to and observed by the child, continues to cause issues in the child's relationship with both the mother and the father. The mother's fears are not supported by the evidence. Indeed it is the mother's own behaviour that causes the Court to focus on her role as primary carer.
Section 65DAA requires the Court where there is an order for equal shared parental responsibility to consider whether equal time or substantial and significant time is in the best interests of the child or otherwise reasonably practicable. Having regard to the best interests consideration set out above and the matters referred to in s 60CC(2)(a) and (b) the Court is satisfied that both equal time and substantial and significant time are not appropriate in the present circumstances.
Having said that, it is to the Court to fashion orders that the Court perceives to be in the best interests of this young child. A gradual restoration of the child’s relationship with the father is to be implemented.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 20 December 2013.

Associate:

Date: 30 January 2014

[2013] FamCA 1061

20 December 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Injunction

Procedural Fairness

Remedies