Wells and Anor and Delmonte (No.2)
[2020] FCCA 2676
•7 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WELLS & ANOR & DELMONTE (No.2) | [2020] FCCA 2676 |
| Catchwords: FAMILY LAW – Parenting – reconsideration of recent interim application with additional evidence – 3 children by 2 fathers – mother deceased – mother and children lived near maternal grandparents – independent evidence that maternal grandparents heavily involved in children’s lives –father of the 2 children subject to this application had limited involvement with children prior to mother’s death despite Court orders for time with – father removed younger child (11 years old) to another town and school post funeral – older child (16.5 years old) has left school and self-placed with grandparents – each party seeks both children live with them – third child of mother lives with grandparents and spends time with her father pursuant to orders in related matter – father alleges mother told him and his family members between 15-17 years ago that maternal grandfather sexually assaulted her as a child – no other evidence in support of that allegation – father’s evidence was that mother was not honest – father’s evidence was that mother may have been lying about that allegation – father enrols 11 year old in a new school – father puts in issue 11 year olds’ autism diagnosis made by multiple paediatricians over a number years – puts in issue need for placement in a special stream at school – father has 11 year old repeatedly interviewed about wishes – 11 year old says he wants to live with father – Held: Rice & Asplund test met by death of mother – 16.5 year old may live where he chooses – alleged allegations against maternal grandfather of limited weight – benefits of stability of return to prior school – and children remaining together – 11 year old child to return to grandparents and prior school pending further orders – 11 year old to spend alternate weekends and half school holidays with father – consequential orders. |
| Legislation: Family Law Act 1975 (Cth), ss.69ZL, 65DA(2), 62B, 65C Evidence Act 1995 (Cth), s.140 |
| Cases cited: Sheldon & Weir (No.4) [2010] FamCA 1214 Evelyn (1998) FLC 92-807 In the marriage of Rice & Asplund (1978) 6 FamLR 570 O'Brien & O'Brien [2017] FamCAFC 219 Marsden & Winch (2009) 42 Fam LR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Parks & Farmer [2012] FamCAFC 12 B & B (1993) FLC 92-357 |
| First Applicant: | MR WELLS |
| Second Respondent: | MS WELLS |
| Respondent: | MR DELMONTE |
| File Number: | SYC 4835 of 2020 |
| Judgment of: | Judge B Smith |
| Hearing date: | 13 August 2020 |
| Date of Last Submission: | 2 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2020 |
REPRESENTATION
| Solicitors for the Applicants: | Hinde Ginges Boyd Lawyers |
| Solicitors for the Respondent: | Clearys Commercial Lawyers |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Parramatta Family Law |
ORDERS
The child X born in 2009 (“the child”) live with the applicants (“the maternal grandparents”).
The respondent (“the father”) is required by injunction to deliver the child to the residence of maternal grandparents on Wednesday 9 September 2020, at or about 4pm.
The child is to return to and attend B School from Thursday 10 September 2020.
The child may not continue attending C School after Wednesday 9 September 2020.
A copy of these Orders is to be given to B School and C School forthwith.
The child shall spend time with the father each alternate weekend from Friday at 4.30PM to Sunday at 4:30PM, commencing Friday 18 September 2020.
In the event the weekend the child is to spend time with the father is a long weekend, the time the child is to spend with the father is extended to include the additional public holiday.
The father is to collect the child from the residence of the maternal grandparents at the start of this time, and the father is to return the child to the residence of the maternal grandparents at the conclusion of this time, and also at the start and conclusion of the school holiday and special occasion times except where specifically stated otherwise in these orders.
The maternal grandparents are to do all things reasonably required to ensure that the child is ready to go with, and does go with, the father at the commencement of the times specified in these orders.
The child is to communicate with the father by telephone or Facetime, or similar electronic means, each Tuesday and Thursday at 6PM and the maternal grandparents are to do all things reasonably necessary to ensure that the child is available to and does take part in these telephone calls.
The child is to spend time with the father during school holidays as agreed between the parties, and failing agreement as follows:
(a)During the Term 3 school holidays from 4.30PM on Friday 2 October 2020 to 4PM on Saturday 10 October 2020.
(b)Commencing from the 2020/2021 end of year holidays and continuing in each holiday period after that, for half of each school holidays as agreed, and failing agreement for the first half of school holidays in odd numbered years and for the second half of the holidays in even numbered years
The child spend time with the father on special occasions as agreed between the parties and failing agreement as follows:
(a)In the event that the child will otherwise spend the weekend with the maternal grandparents on Father's Day, the prior alternate weekend shall switch to that weekend, so the child will spend the weekend with the father on Father's Day, and then the weekends shall revert to the normal pattern.
(b)In relation to the child’s birthday:
(i)In the event that it falls on a school day then from after school until 7PM.
(ii)In the event the child’s birthday falls on a weekend day when the child is with the maternal grandparents then the child shall spent time with the father from 4pm to 7pm on that day.
(iii)In the event the child’s birthday falls on a weekend day when the child is with the father then the child shall spent time with the maternal grandparents from 4pm to 7pm on that day, in which case the maternal grandparents shall collect the child from the fathers residence at the commencement of and return the child to the father’s residence at the conclusion of the time.
(c)In relation to Christmas periods, the following shall apply, notwithstanding the above:
(i)the child will spend Christmas day until 5pm with the party with whom he is then spending holiday time pursuant to these orders, and he shall then shall spend from 5pm Christmas day to 11am on 27 December with the other party.
Each party shall keep the other advised of their residential address and contact telephone number and shall advise the other party within forty-eight (48) hours of any change to either residential address or telephone number.
The child is to return to consulting, and is to consult as required, with his usual medical practitioners or allied health practitioners or counsellors, under the supervision of the maternal grandparents, and the maternal grandparents shall inform the father of the names and practice addresses of all current practitioners, and within 7 days of attendance of any practitioners or practices the child attends in future.
Each party be permitted to liaise directly with the child’s school, sporting bodies, and medical practitioners or other treating health professionals to obtain any necessary information and/or documents about the child’s progress and each party shall provide and continue to provide the necessary authorities to facilitate this Order and a copy of this Order may be provided to any such body.
Each party be entitled to attend any school or sporting function to which parents are invited to attend.
Except in case of emergency, the father shall not take the child to any medical practitioners or other treating health professionals without the prior written consent of the maternal grandparents, and is to notify the maternal grandparents of any person on whom the child attends in future within 7 days of that attendance, and a copy of these orders may be provided to any medical or allied health practitioner or counsellor on whom the child attends at any time.
Each party shall keep the other advised of the health of the child including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other party to visit the child if hospitalised.
Each party is hereby restrained from denigrating the other party and/or any member of the other parties family or household to or in the presence or hearing of the child, or to or in the presence of D born in 2004 or of E born in 2011, and the parties shall use their best endeavours to ensure that no third party denigrates the other party and/or any member of the other parties family or household to, or in the presence or hearing of, the child or these other children named in this paragraph.
The proceedings are transferred to the Family Court of Australia at Sydney to be listed for directions before a Registrar on 27 October 2020 at 12:30PM.
NOTES
It is the intention of these Orders that, subject to certain practicalities that arise due to E is spending time with her father in the related matter and the Court’s view that the child and his siblings should spend some weekends and holiday time together and the need for E to be transported impacts on the maternal grandparents capacity to transport the child, that the time between the child and the father be so far as possible similar to that which was originally agreed to and reflected in the consent orders between the deceased mother and the father.
The Court declines to make Orders in relation to the child D, other than the non-denigration order, due to his age. However, the Court encourages the maternal grandparents to encourage D to re-engage with the father and the paternal family, for D’s benefit and to facilitate X’s relationship with the father.
The Court considers that given the number of parties and the complex issues and allegations this is a matter which should be transferred to the Family Court of Australia, together with the related matter SYC4298/2020 Vincent & Wells, pursuant to the Protocol.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Wells & Anor & Delmonte (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4835 of 2020
| MR WELLS |
First Applicant
| MS WELLS |
Second Applicant
And
| MR DELMONTE |
Respondent
REASONS FOR JUDGMENT
These are short form oral reasons decision pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”) in respect of applications for parenting orders within Part VII of the Act.
Given the circumstances that surround the matter, I am satisfied that it is more appropriate to provide a short oral decision now than it is to reserve for the period of the time that would be required before I would be able to deliver a written decision.
The background to this tragic matter is set out in my judgment of 20 July 2020 under the name of Wells & Anor & Delmonte and Vincent & Wells & Anor [2020] FCCA 2084. That judgment speaks for itself and I will not reiterate what I said there. That judgment should be read together with this judgment. I have set out the background facts there, and also the legal principles that apply and I will only refer to them here as necessary. I note that the transcript of the hearing which gave rise to that judgment is also before me.
I will say that although the parties are not in agreement as to what should happen with X and D or what is in their best interests, nor indeed in respect of E in the related matter SYC4298/2020 and where I understand an appeal has also been filed, the one thread of sunshine that runs through this case is that there are four adults who are, I have no doubt, absolutely committed to caring for, protecting and promoting the best interests of these children.
Pursuant to my decision of 20 July 2020, X could not move for two weeks due to COVID-19 in any event. Mr Delmonte filed an application for stay and response on 30 July 2020, and also filed evidence from: himself, his mother Ms F, his sister Ms G, and, his brother Mr H. He also filed additional evidence. He in effect sought to reargue the interim case de novo. The grandparents, Mr Wells and Ms Wells, responded and also filed additional material and material from a friend of the deceased mother. In effect all parties proceeded on the basis that they would effectively argue the matter de novo taking into account all of the new evidence.
Given all of that and the gravity of the allegations subsequently made against the maternal grandfather, Mr Wells, I am going to allow all of that material. Accordingly, in effect, although the matter was also run in front of me as a stay application, and in that regard I note Sheldon & Weir (No. 4) [2010] FamCA 1214 which summarises those principles, having taken substantial new evidence from all parties, and also now from the ICL, I have determined to re-exercise my discretion to take into account all of the evidence rather than to consider the matter on the basis of a stay application of the original decision.
It seems to me that, although that is not a course I would otherwise take, given the fact that X could not move, and then what has occurred with additional evidence, that rather than taking the artificial approach of merely considering the stay question, I should consider all of the material before me. As I understand it no one objected to that course, and in those circumstances, I will not consider the stay questions but will rather consider all of the evidence and what I consider is in the best interests of the children again.
I note that Mr Vincent who was represented and did lead evidence has reserved his rights and intends to appeal the related decision for E. One way or another, the Full Court will shortly be considering the issue in respect of all three children. I also note that I am told by Mr Vincent’s solicitor, pleasingly, that the grandparents are facilitating the orders that I made and that E is spending time with Mr Vincent pursuant to those orders.
Although the application before me considers the best interests of the children, X and D, I do not understand that it was suggested by anyone that E’s interests and those of her brothers are not inextricably entwined, or that the importance of the sibling relationship did not need to be considered when making orders in respect of X and D, as well as E.
I also do not understand, as the case was argued before me, that anyone challenges the maternal grandparents’ standing as people concerned with the care, welfare or development of the children, pursuant to section 65C, nor was there any suggestion or submission made that there is a presumption in favour of the father as a parent in the context of the consideration of the children’s best interests. I note Re Evelyn (1998) FLC 92-807 and the cases that follow. The case regarding the children’s best interests is to be decided on its facts.
A number of issues have been raised, and many of them involve factual issues. I note what I have previously said about my capacity to make fact findings, so all that I can do is weigh the competing probabilities and do the best I can to make a decision that promotes the best interests of the children within the statutory regime that applies.
The first question that I must consider is the Rice & Asplund question. In the related case, Mr Vincent through counsel conceded that the facts give rise to circumstances where it is appropriate for this Court to reconsider what the appropriate orders are for the children.
Mr Delmonte, through his solicitor, did not accept that the principles to be applied in reconsideration of existing prior orders in In the marriage ofRice & Asplund (1978) 6 FamLR 570, and as subsequently explained and refined by the appellate Courts, commonly called the Rice & Asplund test or threshold has been met in this case.
His argument, as I understand it, is that the relevant orders of 12 December 2012, which are before me, which state that at:
2. That the parents have equal shared parental responsibility for the children of the relationship, namely D born in 2004 and X born in 2009.
3. That the children live with the mother.
4. That the children spend time with the Father as follows:
a. Every second weekend from 4:30pm Friday to 4:30pm Sunday, with the first such weekend the children are spend time with father to commence Friday 25 November 2011.
b. For one half of the Autumn, Winter and Spring school holidays periods as agreed between the parties and failing such agreement for the first half in odd numbered years and the second half in even numbered years.
c. From 10am till 6pm on either of the children's birthdays in odd numbered years but in the event the children's birthdays fall on a school day then from after school till 7pm.
d. From 12 midday Boxing Day for two weeks in odd numbered years concluding at·12 midday 9 January in even numbered years.
The argument as I understand it is that in effect the death of the mother means that the situation defaults so that only order 2 is relevant and that as the person who now has effectively sole parental responsibility for the children, he is entitled to determine where they live and whether or not they spend time with the grandparents.
I note the decision of the Full Court in O'Brien & O'Brien [2017] FamCAFC 219, particularly at 21, which sets out the principles from Marsden & Winch (2009) 42 Fam LR 1, especially at 50. I do not think I need to go into a detailed analysis of the facts, noting what I have previously said in my earlier judgment.
I am comfortably satisfied that where the children have been living primarily with one primary carer and where the second parent, Mr Delmonte, says that even the alternate weekends he was meant to be having, were not in fact occurring, and I note that he says that was a consequence of the mother Ms K not facilitating the relationship, but nevertheless, that is the fact, I am more than comfortably satisfied that this is one of those “significant changes that occur and which do require a Court to reconsider decisions previously made.”
In these circumstances I believe it is appropriate for the Court to exercise its jurisdiction to review the material as argued before me, and to reconsider what is in the best interests of the children, noting the orders that I referred to that they are in effect starting again.
I refer to the principles set out in my earlier judgment, in particular from paragraphs 25 to 34.
I first need to consider the evidence that there was an allegation of sexual abuse by Mr Wells on Ms K, and then proceed from there. I note that if there is a risk that leaving the children with Mr Wells poses a risk of sexual abuse, then that will outweigh the other factors. If there is not, then the question is whether the benefits to X, and D, of the stability associated with continuing to live together, and with E, rather than just perhaps having weekend visits as has been suggested as the alternative both in respect of E and X, and of X in attending his old school with his old teachers and friends in the same town and living with grandparents, and where the grandfather according to D’s statement to the ICL “Had been a father figure to him because his real Dad (Mr Delmonte) was not around a lot” outweigh the benefits of X living with the father.
Now the contrary argument as I understand it has been run, is that over the last six to eight weeks, X living with Mr Delmonte has now attained the same level of stability that he had previously living with his mother, and indeed a greater level of stability, and that X therefore would be better off staying with Mr Delmonte.
I should also note that, while there was no criticism of Mr Delmonte by the maternal grandparents for this, there was an issue about the extent of his involvement, and Mr Delmonte’s own evidence and his submission at page 1 of his written submissions was that:
…he was supposed to spend every second weekend with the children, however was largely prevented from doing this by the mother during her life.
He also said that in the last 12 months in particular he had had difficulties spending time with the children because of the bushfires.
Now as I have said, there may be a factual question for someone to decide potentially later as to whether that was because of a question of a lack of interest on Mr Delmonte’s part or whether it was Ms K subverting and undermining the orders. But I think it is clear on both cases that Mr Delmonte, for whatever reason, had not had a great deal of contact with X in the preceding year. On one view it was only one or two occasions, on another view it was eight occasions. But on either view, in my opinion, that is not an enormous amount of contact.
Now I start with the allegations. The material placed before the Court by Mr Delmonte is set out in particular at paragraphs 14 and 15 of his first affidavit and he says that in effect during the first two weeks after he met Ms K, in about 2003, they had a conversation and she said words to the effect of, “My father sexually abused me as a child.” And when he said that was disgusting, and asked why she did not say anything about it at the time, that she said, “I was too scared.” Then Mr Delmonte replied, “He seems OK, but is he not really OK?”, and she said, “No, he’s not.”
In respect of why he did not raise this with me at the first return, which I found rather surprising, he said:
I was too afraid to say anything about this at the time of the telephone conference on Monday with Mr Vincent and the Judge because I believed my son D was present, and if I said anything he would hear things said by his mother about his grandfather that he should not hear.
Now I am not quite sure why he thought the child would be in the hearing, but nevertheless, that is what he said.
I think it is significant also, however, that his own evidence in his first affidavit about the mother, was at paragraph 3, the last sentence:
Ms K was often dishonest and lied to me.
He later said in respect of Mr Wells’s denial of these very, very serious allegations, in his second affidavit at paragraph 11(a), “While Ms K may or may not have been telling the truth, it is true that Ms K made those allegations.”
Now I note that he also led evidence from his mother, Ms F, which is set out in her affidavit at paragraph 1 that in about 2005 she had a conversation with Ms K where Ms K said words to the effect of, “I was sexually abused by my father when I was a child.” Ms F says that:
I thought about reporting it, but I didn’t because she still had a relationship with her father and mother and I didn’t understand that, so I didn’t feel it was my right to interfere in that relationship.
His sister, Ms G, gave evidence at paragraph 2 of her short affidavit where she said she met Ms K in about February or March of 2003, straight after her brother had started dating her. And about the second or third time she met Ms K they had a conversation where Ms K said to her, “I’m not staying with my parents much because I have a history of my father raping me.” Interestingly, Ms G says:
I was very shocked because I didn’t really know her that well and while I had met her once before, I didn’t know her well enough to be told something like that.
There is then evidence from Mr H who said that, one night at the pub Ms K said to him:
I live at Suburb L with my parents. When I was a child my father raped me.
He went on to say:
This immediately made me confused because in one breath she was saying she was living with her parents and in the next breath making serious allegations against her father. I did not comment.
These are very, very serious allegations which of course are denied. Now it was in his subsequent affidavit that Mr Delmonte, noting the denial by Mr Wells, as I have said, said that Ms K was a liar and also said that Ms K may or may not have been telling the truth.
The maternal grandparents called evidence from a person, Ms M, who said that at paragraph 1:
I have known the applicants in these proceedings, Mr Wells and Ms Wells, since I was a teenager having been a very close friend of their daughter, Ms K.
She said at paragraph 15:
I note from a perusal of the Affidavits referred to in the paragraph above that allegations have been made that Ms K told the deponents of each of those Affidavits that she had been sexually abused by her father, Mr Wells, when she was young. During the approximate period of 22 years that I knew Ms K, in what was a very close relationship where we shared intimate personal information between us, at no time did Ms K ever say to me that she had been abused, sexually or otherwise, by her father.
Mr Vincent, E’s father in the related matter, says in his affidavit of Ms M’s comments that when he was in a relationship with Ms K, Ms M had never visited with them. I note that their relationship, Mr Vincent’s relationship with Ms K, did not appear to be that long. Also, interestingly, it also appears at paragraph 9 of his affidavit that Ms M was a Facebook friend of Ms K and he told her about what had occurred.
So, I have these very serious allegations made between 2003 and 2005, sometimes to people who themselves say they had no understanding of why she would make these allegations to them. I have Mr Delmonte saying well, she was a liar, and there is no doubt that there appear to have been an issue with drugs in her life. I have got someone who has known her, I have no reason to doubt, for a lot of her life, who says she has never heard such a thing. Then I have a number of other matters. I have the fact that if Mr Delmonte genuinely believed that Mr Wells was a sexual predator, and given that there is no doubt from his own evidence that Mr Delmonte knew that Mr Wells was heavily involved in caring for his children, it is not clear why Mr Wells never made any report to the police or Department of Communities and Justice, and appears to have taken no action whatsoever to try and protect the children from Mr Wells prior to Ms K’s death.
I also note, just shortly, that I have considered the DCJ and police material and they do not persuade me that Ms K was complaining that Mr Wells was a risk to the children of sexual abuse. I note that there was some complaints there. I also note there was some issues with Mr Delmonte, but none of this material persuades me that the children are at risk either in Mr Wells, Ms Wells or Mr Delmonte’s care at the moment.
I note the difficulty that there is no record of these complaints except them having been made apparently between 15 and 17 years ago in the context where one partner admits that they may well have been lies given his view of Ms K’s character. It seems to me there is no possibility of those issues being proved at hearing, grave as they are, pursuant to the relevant provisions of section 140 of the Evidence Act 1995 (Cth), which is the statutory application of the Briginshaw v Briginshaw standard.
But more than that, the best evidence of whether Mr Wells is a risk to the children, on the basis that he sexually abused Ms K, is Ms K’s conduct. She clearly trusteed Mr Wells and Ms Wells and the evidence is, from D, that Mr Wells was a father figure to the children, which is not to say that he was exercising parental responsibility, but D says that Mr Wells was a father figure to them.
X’s teacher at B School identified Mr Wells as the person they had most to do with, and Mr Wells would usually be the one to bring the children to school and pick them up.
I note what I said previously in the other judgment about the findings in the Family Court of Australia about Mr Wells’s involvement in making sure that E maintained her relationship with her father.
Now I cannot make any finding about this matter, but it seems to me that the highest the evidence goes is not such one that would support it establishing a relevant risk.
Now having said that, the allegation is so serious that I did consider that perhaps I should just take the most cautious approach, but the difficulty is that there is no approach that does not involve risk and loss. And if this was a case where the children usually lived with their fathers, and it was a question of the grandparent spending time with them, then even an allegation with such little objective evidence to support it as a current risk, might give me pause. But in this context having carefully considered it, I am not satisfied that this is risk that needs to be given weight.
That then leads the Court to consider the question of what we might call the comparative stability of the competing proposals for X and D. And I note what was said in Parks & Farmer [2012] FamCAFC 12 regarding comparative stability and unilateral relocations. Noting that of course, X wasn’t living with the grandparents as such but he has been moved away from his prior home town and school.
Now before I go on to those issues specifically, in his first affidavit at paragraph 7, Mr Delmonte put in issue, as I understand it, X’s diagnosis of autism. Now he said:
X is currently taking Ritalin (Methylphenidate), Circadin MR 2mg and Catapres Tablets. I would like to have these reviewed as I fear there is a possibility that this issues may have come from his environment with his mother (see further, below in item 19).
At item 19, he makes comments about the mother’s parenting. At paragraph 25 of the same affidavit, this is his first affidavit, he says, in the context of looking at schooling:
X who has apparently got autism although I have never known this to be formally diagnosed.
So, as I understand it, part of Mr Delmonte’s case in response to the case that X having autism particularly requires the stability of his pre-existing structures, is that he doesn’t know that X in fact has autism and as far as he, as X’s father, knows, X has never been formally diagnosed.
Now his absence of knowledge may have to do with his poor relationship with Ms K, so again, it is not something I would think should be held against him so to speak.
I note the report of Dr N, consultant paediatrician of 30 September 2014. I also note, at that stage it looks like a preliminary investigation, as he indicated he had not made a formal diagnosis, but then I note the report of Dr N of 19 November 2014, where he considered that X had been found to fulfil the DSM-5 criteria for autism spectrum disorder in a number of domains, including difficulties in social communication and interaction, restricted repetitive behaviours, interests and activities. He made a number of recommendations. His formal diagnosis as an expert consultant paediatrician was autism spectrum disorder (DSM-5) requiring support in class, speech-expression and receptive language delays. He set out a plan for X.
I also note we then have a report from Dr O of the P Specialist Centre. I understand, and I am not sure if there is a dispute about this, that Dr O is also a consultant paediatrician. I think that can be taken from the report itself. She noted that the problems were:
“ASD diagnosed in 2014, global development delay, ongoing behavioural problems, sleep disorder, iron deficiency anaemia.”
She noted the medications and indicated that, in her report to, it looks like the GP, that:
I have known X since almost a year ago, taking over from the previous Paediatrician, Dr N.
She commented that:
Little X has been really good ever since he was commenced on the above medications one-by-one, slowly – and eventually ended up on stimulants. After being on the short acting Ritalin for the last few months and showing good response, I thought I should change him to a long acting one which is Concerta 18 mg, almost equivalent in dosage to what he has been on, 15 mg of Ritalin per day. He has been really doing fine and his sleep pattern has improved as well.
I will not read the rest of the report onto the record.
It appears, and I think it is reasonable to infer, that Dr N continued from 2014 as X’s treating consultant paediatrician until the handover to Dr O, consultant paediatrician, probably sometime in 2017 and that she was still seeing him in 2018.
So, I have the opinions of two medical specialists in child health who have seen the child, it appears, over a period of at least four years, and who have been prescribing medication as well as assessing him, who have diagnosed autism spectrum disorder.
Now Mr Delmonte’s response to that, set out in his second affidavit, at paragraph 11(s) is:
The doctor’s certificates attached to his affidavit are old – two when X was five and one when he was nine. I am getting up-to-date paediatrician’s reviews.
I am not a medical specialist, but I have never understood autism spectrum disorder to be one of those diseases which cures itself over time. I may be wrong. But nevertheless, at the moment I have two paediatricians who over a four year period of time have made that diagnosis and have indicated that this is an issue. I note that I have read the reports in total, but I will not seek to read all of the material onto the record.
His view is that this may well have been to do with the environment. I note that environment for an autistic child can indeed be very important, to the extent to which the autism expresses itself in behavioural problems, which is indeed one of the reasons why stability is so important.
However, a medical certificate was obtained from a Dr Q, who is a fellow of the Royal Australian College of General Practitioners, and who makes no suggestion that she is paediatrician. That report is dated 11 August 2020.
She said that she spoke with Mr Delmonte, today via telehealth. Mr Delmonte gave her a history. He told her about the allegations of sexual abuse against the grandfather. And then it appears she saw them in person on 11 August 2020. She said she was satisfied that X was happy and in a healthy physical condition.
And she came to this conclusion:
I spoke to X at length. I am of the view that X is of full mental capacity in so far as can be expected of someone his age. He does not seem to be affected by autism or ADHD to the extent that this interferes with his ability to engage in rational thoughts or conversation. He appeared perfectly normal in his thinking and communication abilities.
Now that is a very interesting conclusion in the context of the opinions by two specialists who have been treating the child over at least a four year period. It is also not clear to me whether Mr Delmonte was indeed, as I understood his evidence was, continuing X’s medication. It may be that with that medication his condition was well medicated. I cannot make a finding. All I can do is consider the weight of the evidence.
But where I weigh the opinions of two treating expert consultant paediatricians who have seen the child over a period of four years, against the opinion of an expert general practitioner who has assessed the child once, I think by far the greater weight must be given to the opinions of the long-term treating consultant paediatricians.
The general practitioner also inquired of X about his views:
I asked X if he was happy living with his father and he said that he likes it a lot and he has a lot of fun at his father’s. He confirmed that he has good meals and is comfortable and warm and that he enjoys going to the local school. He also confirmed that he spent about three hours with his half-sister, E, on the weekend which he enjoyed.
He said that he had gone fishing, bike-riding and on a boat with his father which he thought was great. He definitely appeared to be enjoying life with Dad.
I asked him whether he wished to go live with his grandparents and he said no, he wants to live with his Dad and does not want to live with his grandparents.
I will consider that further when I consider X’s views below.
I also note a rather interesting comment, which presumably was given in response to a particular question asked of the expert, although I do not have the letter of instruction. It says:
If X were forced to leave his father’s home and required to suddenly and unexpectedly leave his father’s home, (eg. being removed and taken by police) then my concern would be that this may cause X to suffer psychological injury and harm.
First issue is the doctor does not appear to have considered what the problems might have been with removing X from his prior existing stable situation in the first place. Secondly, the father has not suggested to me at any stage, either when I spoke to him directly in the first return, or through his lawyers later, that if this Court makes an order that he does not agree with that he intends to act in contempt of that order and contravene it and require an order to be made sending the police to remove X. Therefore, I put that to one side and will not hold that against the father. But there is no doubt that moving a child such as X creates difficulties.
I also note that X is 11, and since I think it is likely that he does have autism, I am concerned about his views in this regard. X’s views are obviously relevant but I do have some concerns about the way in which his views have been ascertained. I note that he is 11, and at all the times when his views have been obtained, he has been in the custody of his father who took him to be interviewed.
Mr Delmonte said at paragraph 7 of his 11 August 2020 affidavit:
X has not asked to go back to his grandparents. Between 20 July 2020 and 24 July 2020 X saw that I was crying as I was upset at having to return him under the orders of 20 July 2020 and we had a conversation in words to the following effect:
I said, “I have to return you to Nan and Pop.”
He said, “I don’t want to go back there. It’s boring.”
I said, “You don’t have to worry about it, it’s not your concern really. I will do everything I can.”
Now the first thing is a child with a parent who is crying because he is upset that the child has to be returned, is likely, one would have thought, to elicit from an 11 year old child that the answer that they do not want to leave. I am also very interested, and I accept this at face value, that he said he does not want to go back to his grandparents because it is “boring”. And that is consistent with the evidence from Dr Q about why X said he would prefer to stay with his father.
His maternal grandparents may well be “boring”. It is all school and boring things. Whereas in the short time he has been with his father, he said, going back to Dr Q’s report that “He has a lot of fun.” He has gone fishing, he has gone bike riding, and he has been on a boat. He is having a great time. Now that is probably also an influencing factor but it does not necessarily mean that a life of having a great time is necessarily in his best interests. It may also, for an 11 year old, who I consider probably has autism, have influenced him.
I understand that Dr Q saw X when the father was outside, but that is in the context where he knows that his father was talking about him going back to his grandparents. His father says he had broken down in tears in front of X. He has been taken to this doctor by his father and his father is sitting outside when this doctor says to him: “who do you want to live with?”
In the same way, I am told he was taken to a psychologist, a Mr R, and he says that he is a credentialed mental health clinician, he is a neuro linguistic practitioner, he is a psychotherapist, counsellor and coach. He is a conjoint lecturer at the University of Newcastle. I am not entirely sure what his qualifications are. He does not seem to be a registered psychologist. It is unclear to me exactly what his qualifications are in terms of interviewing children or counselling children since his Masters appears to be in drug and alcohol use.
But he says:
I spoke to X who participated in the assessment. He did state that he is happy living with his father. His father also stated that he is under an enormous amount of stress due to a current custody battle. His father was teary at times and broke down when I had him alone to discuss X’s needs.
So, again, even if the father was not in tears and in the room with X when he was speaking to Mr R, there can be no doubt that X was taken to see Mr R by his father, that his father was clearly emotionally labile at or around the time and was teary and breaking down. In that context, again, having previously seen his father in tears when he talks about him going, the child is asked, “well who do you want to live with?”, and somewhat unsurprisingly he says, “I want to live with you, Dad”. I want to live with my father who is outside, potentially, crying. It is hard to imagine a child, or many children, saying something else.
So, in that context, I have real concerns about the weight to be given to X’s views.
The views have been, I should say, also confirmed, broadly by the ICL as set out in the letter of 31 August 2020 which is before me. And again, it is quite consistent:
I asked X what he would like the Judge to know about what he would like to happen, and he said “probably stay here” and said that it was more fun because he went fishing, and went out to more places (like bowling).
So there is no doubt Mr Delmonte has been, and I do not say this in any negative way, but he has now got a chance to spend time with X and they have possibly been doing, in a very short period of time, all the activities that they have not had a chance to do in the last year. But fishing and bowling and playing lots of fun things appears to have swayed X as to what is in his best interest. And again, although the ICL spoke to X alone, X was at his father’s house when this happened.
I am not suggesting that Mr Delmonte has intentionally set out to try and sway X. I have got no doubt that he loves X very much, and that he thinks that it is in X’s best interests to live with him, and that he wants X to be happy and well, and that he is taking this chance to spend time with X, and that he was of the view that having a doctor and a psychologist speak to him was a good thing.
But my concern is, as discussed in B & B, a whole lot of people in this particular context, none of whom I am concerned may necessarily have the appropriate training, except the ICL, have asked X the same question. That’s in the context where he knows what his father’s views are and when he is living with his father.
That satisfies me that I have to moderate X’s views, noting that they have to be given weight, but given his age and the fact that I think he probably does suffer from autism spectrum disorder, it is not for him to determine what is in his best interests.
I will note also that there was an issue raised about D. Now Mr Delmonte raised the issue that he thinks the grandparents have turned D against him. Now I am concerned that they may have told D about the allegations and that would be very unfortunate if it has happened. But when I look at the text messages between D and his paternal grandmother, Ms F, as set out in her affidavit, it is quite clear that the relationship between D and his father was not strong.
Again, it is not a question of criticising the father about that. He says that Ms K undermined it, but the reality was that he is now 16 and a half. D’s view was:
I don’t get to see Dad now, let alone if he now has a partner it will be even worse.
And his view in terms of possibly having a holiday with Mr Delmonte and this new partner, about which there is some uncertainty was:
I would not want any holiday with him and his new partner. I am too old to try and make me play family with someone else Nan. Dad wanted us and Mum to move up there only so many months ago.
So it is quite clear that D at 16 and a half has not had much to do with Mr Delmonte and the relationship is potentially therefore fraught. And again, that may well be because of Ms K’s conduct, but the reality is even on Mr Delmonte’s case, he had not had a great deal of time to spend with his sons.
I also note the text messages contained in Ms M’s affidavit, which again, despite what Mr Vincent said, do suggest that they were friends since they were texting back and forth about their familial matters. And it is clear that Ms K seemed to think that Mr Delmonte was not really taking an interest in the children.
Although again, I take that on board, that may have been her view, and it may have been in her interests to say that if there was a dispute between her and Mr Delmonte about him spending time with the children. But nevertheless, there is no doubt that D’s text to his paternal grandmother, Ms F, indicated a very strained relationship.
And I note what D said to the ICL:
D said…he had felt happy and settled in Town S since moving there… and was in the process of getting an apprenticeship.
And it was indicated during argument, there was a suggestion that orders to be made in respect of a 16 and a half year old who has left school and who is getting an apprenticeship, and treating him in effect as a minor child who will do as he is told. I think that is unrealistic.
As I previously said:
He said that his Pop (Mr Wells) had been a father figure to him because his real dad (Mr Delmonte) was not around a lot. He said that he (D) had also tried to help and be a father figure to his brother X for the same reason.
D said that Mr Wells was helping him get an apprenticeship and D also said:
D said he felt worried that it would be hard for X away from the Town S family. He said that it was very sudden that his father and X “took off”, and he was worried about X being with his father when their father had not been around, or a father figure to them before.
D spoke very fondly about X and said he had been happy in Town S and has friends at school. He was worried about X settling in a new school environment and said, “It broke me when he left”. I also note that D said that before his mother had died, “He thought his father had been to see them once or twice since the family had moved to Town S .” And I note that is reasonably consistent with his text messages to his grandmother.
D said that he had not been to Mr Delmonte’s house on Town T and had not stayed with his father, “since he was really little”. Now I note that it was confirmed that X was settling into the new school and indeed it looked like they were putting him into a mainstream class which I have taken into account, however, I still prefer the evidence of the expert paediatricians.
And as I have noted previously, the ICL spoke to X’s teacher at the time at the B School and they identified Mr Wells as the person who they had most to do with in respect of both X and E. And also, the teacher’s view was:
He said that both X and E had come to school soon after the death of their mother, and the normality of school seemed important to them.
And I have got no doubt that that is probably right.
I note that D’s views denote his age. To the extent to which I am asked to infer that the reason D has not responded to his father’s text messages or phone calls is because the grandparents have turned him against them, it seems to me equally consistent that he had a very poor relationship with Mr Delmonte beforehand on the prior evidence and that he is not happy that Mr Delmonte has unilaterally made the decision to take X away.
I note that it was suggested previously to me that this is all X’s decision, but I do not accept that Mr Delmonte can abdicate responsibility for what occurred and say in effect: Well it was X’s decision. He is 11; he is old enough to make the decision, I merely accepted it.
Now there are a number of other issues that were raised. Mr Delmonte said that he was concerned therefore that if X lives with the maternal grandparents, they may not facilitate a relationship because they have stopped D. As I have indicated, I am not satisfied there is any evidence that the reason D is acting the way he is is because of the grandparents interfering with him in terms of his relationship with his father.
Mr Delmonte says that he is:
Very afraid that the grandparents are interfering with D’s contact with me and if X is returned, that they may stop X from contacting me too.
I have no reason to believe that if X lives with them, the grandparents would not comply with the Court orders. Firstly, they are complying with the orders regarding E to date. Secondly, I am sure they understand how deleterious to their case it would be if they were to ignore this Court’s orders in terms of maintaining a relationship.
But frankly, and most importantly the decision of Benjamin J on the evidence before him, which I have referred to in my prior judgment, was to the effect that it was Mr Wells who made sure that E maintained her relationship with her father. They were not bound by those orders and yet Mr Wells considered that it was in E’s best interests to comply with the orders and to see her father and he made sure it happened. And that again, strikes me as very strong evidence that that is not a real issue.
There are a number of subsidiary issues raised: Mr Delmonte said that he had concerns about the grandparents’ ability to care for the children because they did not care for their adult daughter. Now I note the evidence about, well I do not have anything about the care needs of Mr Wells and Ms Wells’s own child, the unfortunate fact is adult children with severe needs may sometimes need to be placed into care. It is not always possible, as much as they may want to, for people to care for an adult with very high needs.
And I am not satisfied that in anyway speaks against the integrity of the maternal grandparents, particularly when I have a justice of the Family Court describing Mr Wells as a breath of fresh air, where it appears the reason E has a relationship with her father is because of Mr Wells and where the teachers at the children’s school say that Mr Wells was the person the school had most to do with.
Now it was also raised as an issue that in effect, if Mr Wells and Ms Wells say they are such good parents, why didn’t they do more in terms of the children’s healthcare and other matters. And I think that as Mr Wells said in his affidavit, he did not have parental responsibility. I think it is important to recognise that in a situation such as this, where Ms K clearly had issues, grandparents can support but they cannot control an adult child such as Ms K.
It is clear the Mr Wells and Ms Wells provided enormous support and that Ms K was willing to accept it, but that does not mean they were entitled to insist on things happening. It appears in many cases, Ms K accepted their assistance and let them make things happen, such as E’s time with, but grandparents in that position face the real risk that if they try and subvert the parental responsibility they may find themselves excluded and the children who they are trying to help, and their grandchildren who they are also trying to help may lose what benefit they can give them.
So, I give little weight to the suggestion that because they were not able to do more for the children while Ms K was still alive, that that somehow means that they are not well intentioned and competent people.
There is an issue about the grandparent’s financial position, but the text referred to was from Ms K saying she was financially struggling, but it is clear that the grandparents were supporting her. It is also clear that she had problems, so she may have needed money for who knows what reason.
I note that at paragraph 26 of his affidavit, in his subsequent affidavit, Mr Delmonte has given evidence that case that X is now good friends with his flatmate’s son and he is happy at his new school, and so settled.
In effect his case, as I understand it, is that whilst X’s world has been turned upside down by the death of his mother who was his primary carer, which for any child’s development must be an incredibly traumatic event, and for a child with autism spectrum disorder that negative impact must be greater, that despite the fact that he has been taken away from siblings, although he can see E alternate weekends but he is not seeing D, that although he has also been taken away from the grandparents who, as a matter fact, clearly appear to have been significantly involved in his day-to-day life where Mr Wells was the person who the school dealt with, and although not Mr Delmonte’s fault given Ms K may have stopped it, X had relatively little to do with Mr Delmonte, but he says now X is settled with Mr Delmonte and should not be moved.
X may be doing well at his new school, but it is difficult to accept a case, that in eight weeks, an 11 year old child with autism spectrum disorder has achieved a greater level of stability in the relevant sense, and familiarity, in a brand new circumstance with a father he has only seen, at most eight times in the last year, at a new school, in a new town, without his siblings, then he would have if returned to his former town, to the grandparents including one who had been like a father figure to him in fact, and living with E and D, who although only 16 and a half said that he has also tried to provide support to X, to the extent to which a 16 and a half year old can do that, and to the teachers at a school he knows and the friends he already had.
Picking up the comment from X’s former teacher that:
The normality of school seemed important to them.
There is no doubt about that.
When we talk about this idea of stability, it is about providing children who are going through traumatic circumstances with as much structure as possible. So, while the world may have fallen away from underneath their feet, if they have teachers they have known for a long time, friends they have known for a long time, the chance to live, on X’s part, with his brother and his sister and get support from them so they do not feel, and this worries me greatly, that they have suffered another loss there, as clearly D seems to have suffered a loss of X, not unexpectedly, to also from D’s point of view and I think from E’s point of view and X’s point of view, to have lost their mother and then to have lost each other, I think that just adds to the loss.
Now I was not asked to and I will not criticise Mr Delmonte. I accept that he has a view that his son should live with him and that is what is best for him, but I do not know that he has necessarily thought through all of these other factors. And as I have said, despite his valiant efforts assisted to present the case that in fact X now has stability, and as the GP says to move him again now could be traumatic, it seems to me that to move him the first time was traumatic, but I do not accept that in a period of seven or eight weeks, this child X could have re-established a greater level of stability.
It is not a question of status quo, but a level of stability which gives him the structure and benefits that he would get if he was returned to live with the grandparents, his brother, his sister, to return to his former school and his friends and the life he knew. And I think it is that stability which is important. Again, it is not a question of status quo, but stability in terms of Parks & Farmer [2012] FamCAFC 12 and other cases that follow it.
And doing the best I can, having considered the matter de novo and taking into account all of the material I have been provided, given that I do not find there is a relevant risk of sexual abuse by Mr Wells, I am satisfied that it is in X’s best interests that he should return and live with the grandparents.
Having said that, as I indicated previously, it is also important that having lost his mother and having another chance to reconnect with his father, that he not lose touch with his father again.
As with E, the grandparents have indicated that they are very content to facilitate the relationship between X and his father in the same way. I think that that is appropriate. I am satisfied that they will do that.
I think that the orders that were in place in the same way that I made orders that the grandparents in effect take the place of Ms K and facilitate the time with E and her father, I think the same thing should occur in terms of the orders of 12 December 2012 as a starting point. Noting of course that as I said in the last judgment, these are temporary orders put in place to provide stability and certainty for the children until such time as all of the material can be obtained and the final position determined at a hearing.
It seems that since X has now been at school for a few weeks and he may have made some friends, it is hard to know with a child of his age and dealing with his condition, but he should have an opportunity to go to school to say goodbye.
I think in order to give X a chance to say goodbye tomorrow, I would have thought he be returned either Wednesday or Thursday of this week and the parties may need to address me upon how they are going to arrange that.
Then the question also may arise as to the weekends. It strikes me that since one of the main goals is that X and E should live together, that I think it would be best, subject to the practicalities, if the alternate weekend that X spends with his father is the same weekend that E spends with her father. Otherwise they will not see each other on any weekend and I think that would be deleterious. So, I think it would be better is X and E spend the same weekend away. I am concerned about who is going to be travelling where and how it is going to be organised and I have not heard addresses on that.
Otherwise I will make consequential orders to give effect to this judgment. There should be holiday time, and again, I think the holiday for E and X should line up so they can spend time together and then each go and see their respective fathers. And if the fathers also want to spend holiday time to bring them together, that is a sensible.
In respect of D, given that he is 16 and a half, I really do not think it is appropriate, given that there is no suggestion that he is not Gillik competent, I do not think that it is appropriate for this Court to make orders in respect of D. He is so close to being an adult that I think for the Court to make orders would be pointless. I was asked to make orders requiring the grandparents try and facilitate a relationship, but if D does not want to talk to his father, he will not. Hopefully, perhaps, if things settle down a little bit, and if X is returned, that might quell some of D’s concerns. So, except on consequential issues I will not make any orders in respect of D.
Those are my reasons and I enter my orders in accordance with those reasons.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge B Smith
Associate:
Date: 23 September 2020
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