Williamson and Abraham
[2010] FMCAfam 971
•10 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILLIAMSON & ABRAHAM | [2010 ] FMCAfam 971 |
| FAMILY LAW – Parenting – child with intellectual disability aged 8 years – competing residence applications – always lived with mother – recommendation by child psychiatrist expert for change of residence – limited capacity by mother to address issues of concern. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61, 61DA, 65DAC |
| H v W (1995) FLC 92-598 R and R; Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MS WILLIAMSON |
| Respondent: | MR ABRAHAM |
| File Number: | SYC 6469 of 2009 |
| Judgment of: | Sexton FM |
| Hearing dates: | 30 June, 1, 2 and 19 July 2010 |
| Date of Last Submission: | 19 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms J McIntosh |
| Solicitors for the Applicant: | Phillip A Wilkins & Associates |
| Counsel for the Respondent: | Mr J Cohen |
| Solicitors for the Respondent: | Biddulph & Salenger Lawyers |
| Counsel for the Independent Children’s Lawyer | Mr M Gilbert |
| Solicitor for the Independent Children’s Lawyer | Hamish Cumming Family Lawyers |
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
The parties consult each other and endeavour to reach agreement about major long term decisions in relation to the education, health and religion of their son [X] born in 2001.
Should the parties fail to reach agreement in relation to any major issue, with the exception of religion, the Father have sole parental responsibility for making such decisions and in the exercise of such responsibility keep the Mother informed of the decision made and ensure she is provided with all relevant information pertaining to that decision.
Each party be at liberty to involve [X] in a religion of that party’s choice, when [X] is in that party’s care, on condition that neither party permits [X] to be formally confirmed in either the Christian or the Muslim faith before the age of 13 years.
Each party have sole parental responsibility for day to day decisions relating to [X] when he is in that party’s care.
[X] live with the Father.
The Father attend the child care area of the Court after these Orders have been made to collect [X].
Until 30 September 2010, [X] have telephone communication with the Mother each Friday and Tuesday evening at 6.00pm when the Father will facilitate [X]’s telephone calls to the Mother and if [X] asks the Mother to give him any items special to him, the Mother give those items to her solicitor the following day, and the Mother’s solicitor make them available for the Father’s collection.
[X] spend time with the Mother as follows:
a)Subject to Order (10), on each alternate weekend in school terms from after school Friday until before school Monday, or before school Tuesday if Monday is a public holiday, commencing on the first weekend in Term 4, being Friday 15 October 2010.
b)From midday on Wednesday 29 September 2010 until midday on Sunday 3 October 2010.
c)From midday on Friday 24 December 2010 until midday on Saturday 1 January and from midday on Saturday 15 January 2011 until midday on Sunday 23 January 2011.
d)From the first term holidays in 2011, for the first half of all short school holiday periods from midday on the first Saturday of the holiday period, until midday on the second Sunday of that school holiday period.
e)From the first Saturday of each Christmas school holiday period until the second Sunday of that school holiday period, and from midday on the second Saturday in January until midday on the third Sunday in January in each Christmas school holiday period.
f)If Christmas Day does not fall in the first period specified in (e), from midday on Christmas Eve until 5 p.m. on Boxing Day.
g)From midday on Good Friday until 5.00pm on Easter Sunday.
h)From 9.00am until 5.00pm on Mother’s Day.
i)From 9.00 am until 2.00pm on [X]’s birthday if it falls on a weekend [X] is in the Father’s care.
j)From 9.00am until 2.00pm on [Y]’s birthday if it falls on a weekend [X] is in the Father’s care.
k)From 9.00am until 2.00pm on the Mother’s birthday if it falls on a weekend [X] is in the Father’s care.
l)From 9.00am until 2.00pm on the maternal grandmother’s birthday if it falls on a weekend [X] is in the Father’s care.
m)At any other time agreed between the parties.
In the event [X] misses school or arrives late for school on any more than one Monday in any school term when [X] is in the Mother’s care in accordance with Order (9), [X]’s time with the Mother will conclude at 6.00pm on Sunday evenings on alternate weekends thereafter, rather than on Monday morning, for the remainder of that school term.
[X]’s weekend time with the Mother recommence on the first weekend after the beginning of each school term.
The time [X] spends with the Mother pursuant to Order (9) is suspended:
(a)From 9.00am until 6.00pm on Father’s Day.
(b)From 9.00am until 2.00pm on [X]’s birthday if it falls on a weekend he is in the Mother’s care.
(c)From 9.00am until 2.00pm on [Z]’s birthday if it falls on a weekend he is in the Mother’s care.
(d)From 9.00am until 2.00pm on Ms A’s birthday if it falls on a weekend he is in the Mother’s care.
(e)From 9.00am until 2.00pm on the Father’s birthday if it falls on a weekend he is in the Mother’s care.
(f)On 2 days during one of the Eid festivals each year, when the Father will give the Mother as much notice as possible of the dates and times, and in the event this Order means [X] will miss any part of his weekend with the Mother, [X] have a substituted full weekend with the Mother on the following weekend, such that he spends two consecutive weekends with the Mother.
(g)At any other time agreed between the parties.
Unless otherwise provided in these Orders or otherwise agreed between the parties, changeover occur at school and if a non-school day, at Bankstown Police Station until the end of Term 4 in 2011, and from after that date, outside Woolworths at Bankstown.
In relation to telephone communication:
(a)After 1 October 2010, [X] communicate with the Mother by phone on Tuesdays, Thursdays and non-contact Sundays at 6.00pm by the Father placing a telephone call to the number provided to him by the Mother.
(b)[X] communicate with the Mother by phone on the Mother’s birthday, his birthday and [Y]’s birthday if those birthdays fall on weekday when he is in the Father’s care, by the Father placing a telephone call to the number provided to him by the Mother.
(c)[X] communicate with the maternal grandmother by phone on the maternal grandmother’s and his own birthday if those birthday fall on a weekday when he is in the Father’s care, by the Father placing a telephone call to the number provided to him by the Mother for the maternal grandmother.
The Mother help [X] telephone the Father at any reasonable time [X] is in the Mother’s care at his request.
Both parties be at liberty to attend all events arising from [X]’s schooling or involvement with sport or other activities, including extra curricular activities and events that normally allow for parents to attend for example, concerts, assemblies, parent teacher interviews, speech days, sporting games, carnivals, etc.
The Father be restrained from changing [X]’s school enrolment from [School G] until the end of 3rd term in 2010 and thereafter, unless a requirement of the school or otherwise agreed, the Father be restrained from changing [X]’s school again before he completes his primary education.
The Father forthwith change [X]’s school records to ensure he, his wife and the Mother are listed as emergency contacts and that Mr K’s name is removed as an emergency contact.
The Father provide a sealed copy of these Orders to the Principal of [X]’s school.
The Mother provide her residential details to the Father within 48 hours of the date of these orders, and each party keep the other advised of their current residential address and contact telephone numbers and advise the other party of any changes to these details within 48 hours of such change occurring.
Each party notify the other immediately of any emergency involving the child.
Each party notify the other of any medical treatment [X] has received and the treating doctor as soon as practical after he has received such treatment whilst in their care.
Each party be entitled to obtain directly from any health or welfare professional or any other professional attended by [X], copies of any reports, notices or other relevant verbal or written advice affecting his health or welfare and for this purpose each party notify the other the names of contact details of any relevant health or welfare professional and keep the other informed.
The Father forthwith obtain a referral from Dr K for [X] to attend upon a clinical child psychologist or psychiatrist for the purpose of commencing therapy for a 2 year period as recommended by Dr K at Recommendation 12 of his report dated 9 June 2010 and otherwise from time to time.
The Father provide a copy of Dr K’s report dated 9 June 2010 to the child’s treating psychologist or psychiatrist prior to the sessions commencing.
The Court notes that Dr K has recommended the Mother engage with local community support services and seek therapeutic assistance as may be thereafter recommended from time to time in order to support her in her parenting of [X].
Each party be restrained from using any form of physical discipline on [X].
The Father be restrained from removing [X]’s residence from the Sydney metropolitan area without an order of the Court.
Neither party be permitted to remove [X] from the Commonwealth of Australia without the prior written consent of the other party before January 2012.
Neither party be permitted to remove [X] from Australia for longer than 21 days before he is 12 years of age, and any such travel after he is 12 years of age, be restricted to a 4 week period, unless agreed in writing by the non-travelling party.
Neither party be permitted to obtain a passport for [X] before December 2011, and if a passport exists, such passport to be handed to the Registrar of this Court to be retained by the Court until 1 December 2011 and thereafter the Father be responsible for holding [X]’s passport.
Either party be at liberty to apply for a passport for [X] after 1 December 2011 and the other party sign all documents necessary, in a timely way, to ensure a passport issues.
In the event either party proposes travel outside Australia in accordance with these orders, the travelling party give the other party at least 6 weeks notice of the intended travel, including details of destinations, a copy of the itinerary, a copy of [X]’s return ticket and contact details at every travel destination.
The travelling party facilitate [X]’s telephone or Skype contact with the other party at least every 7 days while outside Australia.
The parties be permitted to travel interstate during school holiday periods with the child provided that the travelling parent provides 21 days notice of such travel arrangements including dates and times of travel and itinerary and contact telephone number for [X].
Each party be prohibited from making any negative comment about the other party in [X]’s hearing or from allowing any other person to do so.
The Mother’s solicitor explain to the Mother each of these Orders in person.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
Pursuant to section 65DA(2) 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 these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Williamson & Abraham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6469 of 2009
| MS WILLIAMSON |
Applicant
And
| MR ABRAHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are the parents of [X], aged 8 years. [X] has lived primarily with the Mother since he was born. The parties separated in November 2003, when [X] was 2 years of age. [X] spent regular time with the Father until July 2009, when the Mother alleged that [X] was being physically abused by the Father and his second wife, and stopped visits.
As a result of Court orders made in November 2009, [X] saw the Father on a couple of occasions at the Blacktown contact centre between November and December 2009, but to date, apart from a meeting with the expert for the report interviews in June 2010, [X] has not seen his father since December 2009.
The Father migrated from India and is now an Australian citizen. He acknowledges that one of his reasons for marrying the Mother was to secure his residence status in Australia.
The parties do not respect or trust each other and have extremely poor communication.
The Mother believes [X] is at risk of abuse in the Father’s household and until the commencement of the hearing, was seeking an order for sole parental responsibility and for [X] to have no contact at all with the Father. The Mother’s case outline provided to the Court at the commencement of the hearing stated
The mother fears for her son’s safety and welfare if the child resumes spending time with the father.
However, the Mother then amended her application, seeking orders for [X] to spend 5 nights a fortnight with the Father as well as half school holidays. In cross examination, the Mother said she supported [X] spending time with the Father “as long as he is safe.”
The Father seeks orders providing for sole parental responsibility, for [X] to live with him and to spend time with the Mother gradually increasing over a 6 month period to alternate weekends and half school holidays. The Father also seeks an order to permit him to take [X] to India for up to 4 weeks once a year to visit family.
It is not in dispute that [X] has an intellectual disability. Since early this year, he has been in a class for children with special needs at [School G].
Dr K, consultant psychiatrist, prepared an exhaustive and detailed report for the Court. He interviewed the parties, the maternal grandmother, the Father’s wife and [X]. He examined the considerable material produced on subpoena and spoke to various professionals who had previously had dealings with the parties. He was cross examined at length. Dr K raised significant concerns about the quality of the Mother’s parenting, and her capacity for change, noting in passing that the Mother, unlike the Father, was even unable to respond to two requests he made for information from her during the assessment process despite him attempting to follow up his requests. Dr K recommends that [X] live with the Father and spend alternate weekends with the Mother as well as half school holidays. He formed the view that the Father is likely to provide [X] with the consistency and stability he needs to achieve his potential, something the Mother is unable to do.
The Independent Children’s Lawyer supports Dr K’s recommendation.
Background
The Father is a [university] graduate who migrated to Australia from India in 1997 on a student visa. The parties met in 1999, married in November 2000 and separated in November 2003. [X] was born in 2001.
In January 2004, the parties consented to orders in the Local Court, Family Matters which provided for [X] to live with the Mother and spend time with the Father on 1 night each week, increasing to 2 nights each week until [X] started school, when the regime changed to alternate weekends, half school holidays and other special days. The parties divorced in February 2005. Although there were some difficulties, [X] spent time with the Father substantially in accordance with the 2004 orders until July 2009 when the Mother stopped contact abruptly and altogether.
In 2004 the Mother commenced a relationship with Mr K which continued on and off until they separated in 2008. In 2006, the Mother and Mr K had a daughter, [Y], who is now 4 years of age. [Y] and [X] continue to see Mr K about once a week and he takes the family on outings from time to time.
In November 2007, the Father married his second wife in India. Ms A migrated to Australia 11 months later. In 2009 their daughter [Z] was born.
On 27 October 2009, the Father filed an Application for Contravention as a result of the Mother not making [X] available to spend time with him since July. That Application was returnable on 23 November 2009. On 4 November 2009 the Mother filed an Application to vary the 2004 orders. Both applications were made returnable on 23 November 2009 when the matter first came before this court.
By that date, [X] had not seen the Father since July 2009. On 23 November 2009, the Court ordered that [X] spend supervised time with the Father at a contact centre and by consent dismissed the application for contravention, which the Father withdrew. In December 2009, the Father asked the Court to suspend the order for supervised time pending final hearing, as he observed [X] to be distressed at the supervised visits. [X] did not see his Father at all between December 2009 and June 2010, when he met him with Dr K for the expert report. [X] has not seen his Father again since then.
Current circumstances
The Mother, aged 28 years, is not currently partnered though remains friendly with [Y]’s father, Mr K. She lives with [X] and [Y] in a rented house in [a suburb in north-west Sydney]. She relies for her financial support on Centrelink benefits which includes a carer’s allowance for [X] because he suffers from asthma and has learning difficulties.
The Father, aged 37 years and Ms A, aged 32 years, live in a rented unit in [a suburb in south-west Sydney]. Ms A has applied for and expects to obtain permanent residence. She plans to apply for Australian citizenship as soon as she is eligible. The Father and his wife presently rely on Centrelink benefits because the Father is unemployed. Since arriving in Australia, the Father has worked as a security officer, a taxi driver, a customer relations consultant and a sales executive. The Father tells the court that he is actively seeking employment. Ms A is at home full time, caring for [Z]. She says she regards [X] as part of their family and will care for [X] in the future when the Father is working.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The primary considerations
The benefit to the child of having a meaningful relationship with both the child’s parents
It is evident that each party loves [X] and has a strong commitment to him. Although there has been a disruption to [X] spending any time with the Father over the past 14 months, on each party’s present proposal, [X] will spend regular time with each parent into the future. In Dr K’s opinion, [X] may well be “high maintenance” when a teenager and he is likely to benefit from having both households. The Father believes it is in [X]’s best interests for his strong relationship with the Mother to be maintained. Until the commencement of this hearing, the Mother did not accept that [X] would benefit from an ongoing relationship with the Father, and the maternal grandmother was adamant that the “Father was motivated by hatred of the Mother to seek residence of the child, and that he doesn’t love the child.”[1].
[1] Page 9 of Dr K’s expert report dated 5 June 2010
Until the first morning of hearing, the Mother wanted the Father out of [X]’s life altogether. Despite her change of position in relation to time arrangements, the Mother maintained her view throughout the hearing that [X] is unsafe with the Father and that he has been much happier since he stopped seeing him. I am not persuaded the Mother fully understands the importance to [X] of her supporting his relationship with the Father into the future.
I have regard to these findings when reaching my decision.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
It is common ground that the Father slapped the Mother on the face at least once during their marriage and that there were heated exchanges between the parties in front of [X] from time to time. The Mother alleges the Father assaulted her more than once. Dr K believes that [X]’s exposure to these exchanges will have contributed to his “inhibited stance in relationships and to his behavioural difficulties.”[2].
[2] Page 28 of Dr K’s expert report dated 5 June 2010
Neither party complains about further physical altercations between them since separation, with the exception of a changeover in March 2006, when each party alleges an assault by the other outside Campsie Police station in front of [X].
The Mother claims she remains frightened of the Father. She says he “stalks me” and would not provide her residential address in front of him. The maternal grandmother claims the Father was “hostile” at changeover. The Mother, supported by the maternal grandmother, says the Father undermines her by using derogatory terms such as “stupid” and “Aussie slut”. The Father says [X] has reported abusive remarks about him from the Mother’s household such as “Papa, Da says that you are a pig.” In 2005 the Father heard Mr K say to [X] “say fuck you to Papa.”
On the basis of each party’s evidence and the contents of the communication book[3]. I find it likely that both parties have used derogatory language about the other at times with adverse consequences for [X]. The Father says he now understands the need to take a different approach to his communication with the Mother given the hurt and confusion he can see has been caused to [X].
[3] Exhibit 9
I am not persuaded the Father is a habitually abusive person, nor that [X] will be exposed to abusive language or behaviour in the Father’s household. Ms A, the Father’s current wife, says that the Father is always respectful of her, that she has never experienced any form of abuse or violence and she would leave the marriage if the Father were ever abusive. In conversation with Dr K, the Father’s psychologist and General Practitioner were both complimentary of the Father’s manner.
The Mother acknowledged that she and Mr K yelled and screamed at each other during their relationship, though the Mother made light of events in the police records, alleging the police “make things up”. The police documents[4] confirm the need for police intervention at the Mother’s home on 18 May 2004, 11 January 2007, and 21 April 2007 as a result of heated exchanges between the Mother and Mr K. When police arrived in January 2007 at 5.10 a.m. the Mother was on her balcony “yelling across at adjacent units.” [X] was woken by the Mother’s screaming. The Mother was verbally abusive to police. The report states that the Mother and Mr K were intoxicated after drinking all night. On 21 April 2007, police were called by a neighbour in the early hours of the morning reporting a heated argument between the Mother and Mr K which resulted in him assaulting the Mother and stabbing himself in the leg. The Mother says “there was blood everywhere” which she claims [X] thought was “sauce”. According to police records, the Mother was abusive to police, and claimed they were “useless.” She denied the stabbing occurred in her home, claiming Mr K had been stabbed at Auburn McDonalds and arrived at her place with his leg bleeding. The Mother’s version of what happened was inconsistent with police observations of blood inside, but not outside the house, and I do not accept it. [X] told the Father about the police coming when Mr K’s leg was bleeding. He also made it clear to Dr K that he was aware of the incident.
[4] Exhibit 7
I am not satisfied the Mother has protected [X] from the heated exchanges between her and Mr K, nor that the Mother has any appreciation of the damage to [X] likely to flow from such outbursts.
Since separation, each party alleges that [X] has reported the other physically maltreating him, and also Mr K and the Father’s wife hitting him. The Mother believes [X] was “experiencing violence and mental abuse from the father” including being hit and pinched and having his foot run over while [X] was still getting into the car. On three occasions in July 2009, prior to stopping all forms of contact in the same month, the Mother called the police to check on [X]’s welfare while he was in the care of the Father. The Father saw bruises on [X]’s legs in November 2006 and on his arms in January 2009 which [X] said were caused by the Mother or by Mr K. The Father says [X] used to ask not to be returned to the Mother.
In Dr K’s opinion, which I accept, [X]’s complaints about being hit in each party’s household is a method of adapting for [X]. Dr K says [X] has difficulty expressing negative emotions such as anxiety and sadness, so he disconnects from and disavows intimacy in the other’s household. He says[5]:
It is my impression that both the mother and the father are being truthful about these reports, and that these apparently self-contradictory behaviours in [X] point to a number of elements in his relationship with both parents. … he feels drawn into a loyalty conflict.
[5] Page 19 of Dr K’s expert report dated 5 June 2010
Dr K believes that negative experiences occur in each household, and each party has probably used physical discipline on [X], but neither has physically abused him. Dr K accepts the Mother’s claim that she does not use physical discipline routinely. The Father admits to using physical discipline as a planned response to a situation. Dr K says the Father is in control. He sees the “provision of moral guidance and academic discipline as important aspects of parenting and sees it as important that a parent can control a child.”[6]. He therefore believes in a degree of corporal punishment. He will smack on the back or bottom. He will pinch the skin of his son’s cheek softly to direct his face towards his own so as to instruct him. In Dr K’s view, the Father’s manner of discipline would be less frightening than the intermittent impulsive smacking administered by the Mother, which would exacerbate and perpetuate his [[X]’s] own aggressive behaviour. In Dr K’s view, [X] has been sensitised to any physical discipline by his parents’ reactions to reports of each other’s smacking and that it is in [X]’s best interests for all physical discipline to stop.
[6] Page 28 of Dr K’s expert report dated 5 June 2010
It is noteworthy that the Father agreed at interview with Dr K to cease all physical discipline and to seek parenting advice about other effective discipline strategies he could use.
I give weight to my findings under this factor.
The additional considerations
The child’s expressed views and the weight those views should be given
[X] told Dr K he did not want to see the Father, that the Father hits him and pinches his face. He told Dr K that the Father and his wife come from India and that people from India are “nasty” and “they hit him.” He alleged that the Father’s wife had hit him when he jumped in a puddle.
Dr K said [X] did not describe positive aspects of the Father’s household but could identify toys there that he enjoyed playing with. [X] denied any negative aspects of the Mother’s household in a way which Dr K says “suggested that he was aware of them but was choosing to deny them.”
In Dr K’s view, [X]’s capacity to form views about the parenting issues, and to express them, was limited by his intellectual disability and by his language. Dr K believes that the current circumstances of the parties “significantly impact on [X]’s expressed views.”[7].
[7] Page 19 of Dr K’s expert report dated 5 June 2010
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
In this case, given his intellectual disability, and his difficult circumstances, I am not satisfied [X]’s expressed views should influence the Court’s decision about his future parenting arrangements.
The nature of the relationships between the child and each parent and the child and other persons
Dr K assessed [X] as having a trusting bond with the Mother and the maternal grandmother. However, he observed a “disconnection from intimacy to buffer negative emotions… within the mother’s household”. He said[8]:
…there have been gaps in maternal availability, responsivity, boundarysetting and care and some intermittent episodes where the mother has become hostile or frightening, such that [X] has learnt to be self-reliant and self-contained, and has been allowed to be rather self-directed.
[8] Page 20 of Dr K’s expert report dated 5 June 2010
In Dr K’s opinion, which I accept, [X] has an avoidant attachment to his Mother which has consequences for his long term personality development.
I find that the maternal grandmother, Ms M, plays an important role in [X]’s life, as he sees his grandmother regularly and has lived in her household with the Mother for extended periods, including 6 months in the first half of this year. I accept the maternal grandmother’s evidence that she enjoys caring for the children, playing with them, reading to them and showing them DVD’s.
Dr K observed [X] to be “awkward and embarrassed” with the Father, but not afraid of him. He observed a foundation for a “warm and connected relationship between them” built on “a foundation of him having sought and maintained significant regular contact with his child continuously since parental separation when [X] was aged two.” He commented positively on photographs the Father brought to interview “[X] appears happy and relaxed in his father’s company.” Dr K described in detail how [X] reacted to the Father at interview. Dr K observed (while [X] was building a robot)[9]:
[X]’s body was relaxed, and a warm smile came onto his face and he met his father’s smiling/encouraging eyes as he took the piece… he showed his father how the arm moved. He then appeared to become self-conscious and to go back to an inhibited stance, with eyes down.
[9] Page 16 of Dr K’s expert report dated 5 June 2010
Dr K expects discomfort on reconnection with the Father and in his view, this discomfort would have been reinforced by the meetings with the Father at the contact centre in November/December 2009 when the contact centre records the intensity with which the Father attempted to reconnect with [X]. Dr K says about those meetings[10]:
It is my impression that the coercive quality of the father’s behaviour at the contact centre sprung from his pent-up frustration… and did not reflect the overall nature of their relationship.
[10] Page 21 of Dr K’s expert report dated 5 June 2010
Dr K formed the view that [X] had begun to form a positive relationship with Ms A when he was seeing her regularly, but this relationship has been disconnected given the long period since he has seen her. He believes the positive connection will resume when they start spending time together again.
I accept and take into account Dr K’s assessment of these relationships.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
The Mother believes [X]’s life has improved since the Father has been removed from his life. I find that her fundamental position is that the relationship between [X] and the Father should be severed. This is despite the orders she sought once the hearing had started. Dr K says that the Mother believes the Father was originally motivated to spend time with [X] by his need for a visa and is now acting out of spite for her. She says he “hates [X]”. Dr K believes the Mother has been “deliberately untruthful” in order to disrupt [X]’s relationship with the Father. The Mother blamed the Father for her recent car accident, and for many of [X]’s behavioural problems. Dr K believes it is no coincidence that the Mother’s increase in complaints about the Father’s abuse of [X] occurred very shortly after she was charged with high range PCA having crashed the car with [Y], then aged 3 years, unrestrained in the front seat. The Mother takes no responsibility for exposing [X] to aggression between her and Mr K. She takes no responsibility for her own problems in maintaining a daily routine and managing [X]’s care. The Mother largely ignores the matters raised by the Father in the communication book, valid concerns about hygiene, medication and his learning problems. As already noted, I find the Mother, the maternal grandmother and Mr K have undermined [X]’s relationship with the Father by referring to him in derogatory terms.
The Father deposes to the Mother failing to make [X] available for telephone communication on a number of occasions prior to July 2009 and to raising these concerns in the communication book. When he has sent a text message to confirm he will call [X] at 7.30 p.m. the Mother has responded “[X] is fine. He doesn’t feel like speaking to you.” “You can only ring on Fridays and Sundays. If you call any other day I will disconnect the phone and get you into trouble” “Do not call me to speak to [X].” The Father complains that the Mother was often late to drop [X] at the beginning of contact periods.
It is not in dispute that the Mother did not consult the Father about [X]’s change of school from [School A] to [School PW], or from [School PW] to [School G].
On 24 July 2009, it is common ground that the Mother stopped [X] spending any time with the Father because of reports from [X] that the Father and Ms A were hitting him. The Mother did not discuss her concerns with the Father or propose any other option. She simply stopped [X] seeing the Father. The Mother did not keep the Father informed of matters of welfare concerning [X], nor even let the Father know when she moved house.
I share Dr K’s view that the Mother does not understand the importance to [X] of having a strong relationship with the Father, and is unlikely in the future to support that relationship. It is noteworthy that when cross examined about this issue, the Mother always qualified [X] seeing the Father with the words “if he is safe” and remained steadfast in her view that [X] would be unsafe if allowed to spend time in the Father’s household. This was after the Mother had read and heard Dr K’s explanation as to why [X] was telling her the Father had hit him, and why Dr K was confident [X] was quite safe with the Father.
On the other hand, the Father has recognised the importance of the Mother to [X]’s happiness and long term welfare. In 2004, he consented to orders providing for [X] to live with the Mother. Despite long term concerns about [X]’s welfare in the care of the Mother, the Father did not seek a change in residence until after the Mother stopped [X]’s time with him, after July 2009.
The Father has consistently sought orders for regular contact between [X] and the Mother. While critical of the Mother’s care of [X], the Father has never sought to deny the importance of her role in his life. I share Dr K’s view that the Father genuinely believes that [X] needs the Mother, and is attached to her.
However, the Father’s tone of communication with the Mother, unless changed, will not foster [X]’s respect for the Mother. In the communication book, the Father undermines the Mother with remarks such as “I know you cannot teach him anything because you yourself are an illiterate.”[11]. Dr K raised concerns about the Father’s ability to foster respect for the Mother in [X], given his disdain for her capacity to provide for his education and day to day care.
[11] Exhibit 9 at page 7
In cross-examination, the Father said he accepts the need to change his approach to communication with the Mother and I accept his evidence.
I am satisfied the Father will positively support [X]’s relationship with the Mother, especially if, as Dr K suggests, he has control of [X]’s health, educational and moral upbringing, which are the aspects of the Mother’s care which have always worried him.
I give significant weight to my findings under this factor.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs
The quality of each party’s parenting is a significant issue in this case.
In his Kindergarten year in 2007, [School A] reports [X] arriving at school unwashed, in dirty clothing, and to large periods of absence from school[12]. He was spitting, kicking and pushing other children and many students were frightened of him. The school records show he had 45 days absent or partially absent in the first 4 months of his school life[13]. When the staff raised the issue of [X]’s level of hygiene, the Mother is reported to have laughed. She used an aggressive tone of voice when spoken to by staff. She failed to attend pre-arranged meetings.
[12] Exhibit 6
[13] Exhibit 3
The Mother denied the problems raised by the school and accepted no responsibility for their concerns. In relation to his school absences, the Mother said that [X] “could be stubborn and non-compliant in the mornings” but also, that he suffered severe bouts of asthma. In relation to his behaviour at school, the Mother trivialised the school’s concerns on the basis that he was Muslim and staff discriminated against non-Muslims like herself.
On 21 April 2007, a police report describes the Mother’s home as “squalid” with cobwebs on the ceiling/corners, cockroaches and dirty utensils throughout the unit. The Father and his wife claim [X] was often dirty and smelly when they collected him from the Mother, often carrying wounds from skin rashes.
In 2008, [X] missed 80 days of school and had 41 partial days absent, in the care of the Mother[14]. [X]’s report for first Semester 2008[15] says he was “experiencing difficulty” in almost every area of his learning.” He was not reading or speaking. The report said “[X] has had many partial and full absences this semester and would benefit from a more consistent attendance record.” In March 2008, [X] was assessed as having a mild intellectual impairment putting him in the lowest 2% of students his age. Staff at [School P] reported the Mother having difficulties getting [X] to school, to his clothes being dirty and to him having unhealthy foods for lunch. Staff at the school strongly recommended he attend speech therapy. The school counsellor spoke to the Mother a number of times but “it did not happen or did not persist.” The Mother would have excuses for not getting there or not following up. The counsellor felt that she made no progress with the Mother during [X]’s time at that school.
[14] Exhibit 13
[15] Exhibit 8
[X]’s teacher at [School G] confirmed that [X] is delayed in most areas of his academic work and that he has difficulty with peer social interactions. He is quick to complain about other children without accepting responsibility for his own behaviour. The teacher said [X] sometimes has a dirty uniform, and was coming to school for some time in shoes in disrepair. The Mother has been aggressive to staff on a couple of occasions and has complained about the teacher’s aide. I find it noteworthy that the Mother was unable to complete the application for enrolment form for the [School G][16]. [X] was absent for 12 days in Semester 1 of this year which is of concern given that since he started at [School G], he has been transported by a taxi for children with special needs.
[16] Exhibit 2
The Mother recognised [X]’s learning difficulties and took him to speech therapy in 2009. However, she has not engaged [X] in speech therapy since. She said the therapist left the service and the service had not contacted her to arrange an appointment with the new therapist.
The evidence discloses the Mother’s difficulties in managing [X]’s health needs. In 2005, the Father took [X] to hospital because he was breathless and feverish. The Father remained with him in hospital for 3 days. On the first night, the Mother was aggressive with staff at the hospital and sought to have [X] discharged.
In relation to [X]’s asthma, the Mother said she had an asthma plan, but was confused about how the plan worked when asked about it by Dr K. [X]’s treating doctor, Dr P, had concerns about [X]’s ongoing symptoms of asthma, and therefore referred the Mother to the asthma clinic at Westmead children’s hospital. The Mother did not follow up the referral. Dr P advised Dr K that she had not seen [X] since October 2009.
The Father alleges [X] often arrived for his fortnightly visits with skin rashes, runny noses and coughs. He has sought and followed medical advice for [X] and says after a few days with him, [X]’s health improves.
The maternal grandmother told Dr K that the Mother “could be lazy, through depression”[17] and that she had been concerned about the Mother’s functioning and her level of drinking at one stage.
[17] Page 9 of Dr K’s expert report dated 5 June 2010
At interview with Dr K, as activities he enjoys at the Mother’s home, [X] describes riding his bike, jumping on the trampoline, going on the swing and scooter, and playing cars.
In Dr K’s opinion, the Mother has underlying vulnerabilities. Her capacity to parent is variable. She struggles to deal with her own life day to day, and is incapable of meeting many of [X]’s critical needs. Dr K says the Mother needs a lot of support. In his view, her inconsistency is dependent on the phase she is in in her relationships, the phase she is in in her relationship with her Mother, and her drinking. When things go wrong, she moves to her Mother. In 2007/8, the Mother had relationship problems and alcohol problems but improved when she moved in with her mother. Dr K says the Mother does not appreciate the risk to which she exposed [Y] when she hit a power pole in her car whilst intoxicated. She does not appreciate the risk to [X] of her disorganised and inconsistent treatment for his asthma. In Dr K’s view, the Mother’s lack of strength and confidence has led to [X]’s behavioural difficulties, including problems with conflict resolution. He says the Mother is “insecure about raising him” and lacks the capacity for the consistency [X] needs. In addition Dr K has concerns that the Mother has problems with emotional regulation and if [X]’s behaviour became challenging, he may be at risk of physical harm. Dr K assesses the Mother to have some intellectual and/or learning difficulties. He formed the view that her capacities have been intermittently further impaired by alcohol misuse and probably at times by depression. He does not believe there is any treatment which will improve her capacity in any significant way.
The Father has always believed the Mother has neglected [X]’s education. As early as 2004, having recognised [X]’s need for assistance, the Father was disappointed the Mother did not act on a referral to “Learning Links” preschool programme[18]. Throughout the communication book in 2008/9[19], the Father raises concerns about [X] missing school and the Mother’s failure to help him with his reading and writing. The Father was allocating 1-2 hours a day to help [X] with learning tasks when he spent two days a fortnight with him. The Father showed Dr K some workbooks of maths and writing which [X] had completed with him, which satisfied Dr K that [X] is capable of doing the work if assisted. Interestingly, [X] told Dr K he liked writing and maths.
[18] Exhibit 11
[19] Exhibit 9
When in his care, the Father describes [X] making houses with blocks, doing jigsaw puzzles with his wife, playing with his toy helicopter, using clay and watching cartoons. They actively socialise with other families with children. The Father has taken [X] on a trip to the aquarium, to the zoo and to Luna Park. [X] told Dr K he liked a fire engine truck and a police car at the Father’s home. Ms A described teaching [X] to make words on the fridge, to [X] riding his bike, playing chasings with the Father and to them fishing and dancing together.
Dr K raises some concerns about the Father’s attitude to [X]’s education. Staff at [School PW] said the Father had several meetings with the Principal and school counsellor in 2009 when they found him to be “quite stubborn and belligerent.” The Father would not accept the results of psychometric testing, insisting [X]’s problems were due to the Mother’s neglect. However, other professionals with whom the Father had contact, were complimentary about the Father’s capacity as a parent. Dr L, General Practitioner, to whom the Father had taken [X] for many years, described him as a very caring father, who treated his son’s conditions with diligence. He observed a good father/son relationship. Ms C, psychologist, provided counselling to the Father in 2009. She found the Father polite and respectful, and described the Father to Dr K as warm, positive, thoughtful with good reflective capacity. He was open to treatment and the Father effectively implemented her recommendations.
Dr K assessed the Father as a little obsessional, earnest, controlled and ordered but having been consistently concerned about [X]’s welfare. He found the Father receptive to facing the reality of [X]’s intellectual deficits.
Dr K says that [X], because of his intellectual and language difficulties will be harder to raise than the average child. The next four years will be critical. In Dr K’s view, [X]’s behaviour will become worse and will become overwhelming for the Mother. [X][20]
“will push parental boundaries … and is at high risk of developing a disruptive behaviour disorder and being alienated from society if he does not receive firm and consistent boundary-setting, and clear, consistent, prosocial expectations…..
The mother has a history of instability and vulnerability which make me concerned about her capacity to be stable and strong enough to meet [X]’s needs now and in the future. A vicious cycle is already developing where the gap between her capacity and [X]’s needs has contributed to immaturity and negative behavioural patterns in [X], which make him even harder to raise and further widen the gap.
[20] Page 24 of Dr K’s expert report dated 5 June 2010
I accept Dr K’s assessment as to each party’s capacity to parent. I accept his assessment that the Father has significantly superior parenting skills than the Mother. This is a factor to which I give substantial weight.
The attitude to the child and to the responsibilities of parenthood demonstrated by each parent.
Each party has at times demonstrated poor judgment.
In particular, the police records reveal the Mother drinking excessive amounts of alcohol, while caring for one of her children[21]. In particular:
i)At approximately 11.30p.m on 16 May 2009, the Mother collided with a power pole outside her home with [Y], then 3 years of age, in the front seat of the car without a seat restraint. The car’s airbags were deployed. Local residents called police. The Mother smelt of alcohol, had slurred speech and bloodshot eyes. She refused a roadside breath test and resisted arrest[22]. She complained of chest pain and was taken by ambulance to hospital where a blood test returned a reading of 0.165 g/dl, though the Mother told police she had consumed only two vodka and orange drinks, and the accident occurred because the car steering was “loose”. In cross-examination, the Mother says the vodkas must have been stronger than she realised. Dr K analysed the blood test result on a woman of the Mother’s size and concluded that the Mother had consumed well in excess of 11 standard drinks prior to driving that evening. The Mother said that she had been worried about [X] spending time with the Father so was on her way to her mother’s home for comfort and support. The Mother is presently disqualified from driving a motor vehicle.
ii)On 1 July 2007, (the school holidays had commenced that morning), police were called to a hotel at 3 a.m. because staff were concerned the Mother was at risk to herself because of her level of intoxication. The Mother was aggressive to security staff and to police.
iii)On 6 April 2007, the Mother reported to Auburn Police that she had been assaulted and robbed at about 1.30 a.m. while walking home after a night out. The police note that they were unable to take a statement “due to the victim’s high level of intoxication.”
iv)As already noted, the Mother’s high level of intoxication was noted on 11 January 2007 when the police were called to intervene in a heated exchange between the Mother and Mr K.
v)[X] has told the Father about the Mother and Mr K drinking together. He reports the Mother drinking heavily during their relationship and to gambling on lotto, the TAB and poker machines.
vi)The Mother’s mother spends considerable time playing bingo at various clubs and smoking cigarettes.
[21] Page 6 of Dr K’s expert report dated 5 June 2010
[22] Exhibit 7
The Father acknowledges a number of traffic offences. He has driven a car whilst unlicensed, has driven a car whilst disqualified from driving, and is now disqualified from driving until 2012.
The Father acknowledges breaching the terms of his student visa by working in excess of the permitted hours.
Dr K says the Father has strong opinions, and is prepared to break the law if he feels strongly enough about an issue.
Dr K assesses the Father to have the capacity to change his attitude. He doubts the Mother’s capacity to do so.
These are matters I have taken into account.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other relevant characteristics of the child
[X] has an intellectual disability. At page 16 of his report, Dr K says:
It is important to note that “mild” intellectual disability is not mild in layman’s terms. [X]’s results were equal to or better than only 2% of students his age.
Dr K also notes the content of his speech pathology assessment in August 2008 which found that [X] had “severe receptive and expressive language delay”.
Dr K says [X] will need to remain in a class for children with special needs. [X] needs more help than most children his age, has less flexibility than other children and needs strong parameters, routine and stability in his household.
[X] has an Indian/Anglo-Saxon background. The Father has married an Indian woman and on their evidence and the evidence of Dr K, they enjoy a mutually respectful marriage. Ms A tells the Court she and the Father celebrate with their Indian friends when “India is celebrating”. It seems to me [X] will benefit from an understanding of his Indian heritage.
The Father seeks the opportunity to travel to India with [X] for up to 4 weeks each year so [X] can enjoy relationships with their extended families. The Mother opposes such travel.
Dr K says the only impediment to [X]’s travel would be the risk of him not returning to live in Australia. Neither the Independent Children’s Lawyer nor the Mother’s legal representatives point me to evidence of flight risk.
I have regard to these matters.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision –making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child
I have nothing to add under this factor.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living
If [X] were to live with the Father, there can be no doubt he will miss the Mother, his maternal grandmother and his sister, [Y]. I accept Dr K’s view that he may regress for a period and is likely to be distressed and homesick for a period. However, if [X] lives with the Father, Dr K says [X] will adapt in the same way as he has adapted to the loss of the Father in the last 14 months. In Dr K’s view, as long as he has regular contact with the Mother, [Y] and the maternal grandmother and regular telephone communication, and as long as the Father accepts professional advice on managing the change, [X] will adapt well.
If [X] remains with the Mother, I agree with Dr K that it is likely the Mother will continue to resist [X] spending time with the Father, because she strongly believes [X] is unsafe in his care.
These are matters to which I have regard.
The practical difficulty and expense of a child spending time with and communicating with a parent
This factor does not apply.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested
I have earlier addressed these issues, and have nothing further to add under this factor.
The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable
If [X] remains living with the Mother, the Father’s concerns about his welfare are likely to continue and the Mother may stop contact again because of her perceived fears about [X]’s safety in his care. These issues may trigger further litigation.
The other issue which, in my view, has the potential to trigger further litigation is the Father’s desire to travel with [X] to India. Although the Independent Children’s Lawyer proposes an order that would bring the matter back to Court if the parties could not agree on travel outside Australia, I am not persuaded further litigation is in [X]’s best interests. Dr K says the Father should be permitted to travel to India but would need to provide security as the Father believes in his own “rightness”. On the other hand, Dr K finds no hint from the Father that he intends to keep [X] in India.
I have decided the Father should be permitted to travel to India, though not immediately, to minimise the likelihood of further litigation on this issue.
Any other relevant fact or circumstance
I have regard to the strengths shown by Ms A and to her place in [X]’s life. I accepted her evidence that she has not physically disciplined [X] and has no intention of doing so. “I have never slapped a child in my life.” “My role is to support with affection”. Dr K was impressed by her, as was I when she gave evidence in these proceedings. Ms A completed a PhD [omitted] in India and had taught at high school. She enjoys reading books, keeping up with current affairs and meeting people. She appeared to Dr K as “confident and forthright in expressing her views.” Dr K formed the view that she will be “capable” “strong” “intelligent” and “thoughtful” in her dealings with [X]. She said in evidence and I accept, that she will do her best. I find that Ms A has the capacity to offer a great deal to [X].
Parental responsibility
Section 61C(1) provides that each parent has parental responsibility for the child but by section 61C(3) the joint parental responsibility is subject to any order the court may make. Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
I have decided the presumption is rebutted in this case in the best interests of [X]. There is no dispute that the Mother has not involved the Father in any decision making about [X] despite orders made in January 2004 providing for the parties to keep each other informed about medical treatment, health, education and welfare issues. The Mother has made unilateral decisions about [X]’s change of schools and has not involved the Father in decisions about his health. It is evident from the only communication book in evidence, that the Mother does not constructively engage in information sharing about [X] with the Father.
I agree with Dr K that an order for equal shared parental responsibility would be impractical. Firstly, the parties do not communicate; secondly, the parties have very different priorities in relation to [X]’s needs and would be unlikely to reach a constructive and shared decision on any subject of significance to his welfare; finally, the Mother has shown poor capacity in addressing medical and educational issues relating to [X], and there is little prospect of her capacity improving.
Dr K recommends in his report, that the Father have sole parental responsibility for [X] because it is unlikely the parties will be capable of “stable, constructive, shared decisions about [X]’s welfare.” In oral evidence, Dr K said the parties had some potential for communication, and the Mother should be consulted in relation to decision-making to the extent consultation can be achieved. I agree with this approach.
Conclusion
[X] is an 8 year old with special educational and development needs. Dr K says that engagement in schooling and consequent attainment of language, numeracy and literacy skills, is critical to [X]’s integration into adult life. He needs speech therapy and will require ongoing assistance at home with learning.
According to Dr K, the Mother has limited insight into [X]’s needs. In his Mother’s household [X] is experiencing inconsistency and instability. In addition to the burden of her own intellectual limitations and intermittent problems with alcohol she is disorganised and distracted by her own needs. She blames others and fails to take responsibility. She does not engage appropriately and consistently with support which has been available to her. She has a conflictual approach to helping agencies including DOCS and [X]’s schools. If [X] were to live with her, Dr K says she would not be assisted by therapy and the strong level of foundation of support she needs is unlikely to be available. [X] needs rhythm, routine and expectations about discipline.
Dr K states the most significant determinant of a good outcome for a child long term is the quality of parenting and the Father’s parenting quality is significantly superior to the Mother’s. Dr K believes that the Mother’s longstanding deficits in her capacity to provide for [X] will persist and the gap between her capacity and [X]’s needs is likely to widen as his needs become more complex and challenging over time. According to Dr K, [X] needs to live in the household that can best provide him with stability, consistency, strength and order because “the engine room of child development is in the home.” That home must be the Father’s is Dr K’s clear and unequivocal recommendation which I accept and which is supported by the Independent Children’s Lawyer.
Dr K believes the Father has come to accept that [X] is intellectually impaired and is committed to ensuring the supports he needs are available to him. The Father has a clear commitment to [X]’s education. He can adjust his expectations. He has the stability and strength to meet [X]’s emotional needs. Dr K predicts a far better outcome for [X] if he lives with the Father.
The Father presents as stronger, more organised, more consistent and more responsible than the mother.…
It is my impression that the father will be stable and strong enough to set clear expectations and strong behavioural boundaries for [X], and to minimise the changes which he will be called upon to experience during his upbringing[23].
[23] Page 26 of Dr K’s expert report dated 5 June 2010
In Dr K’s view, supported by the Independent Children’s Lawyer, the move from the Mother’s to the Father’s home should be “clean” and should occur quickly. This will mean only one change for [X] “rather than many stepwise changes”[24] which gives “less opportunity for the change to be disrupted by parental fears or accusations and for [X] to be caught up in a tussle or a loyalty conflict during a longer transition period.” Dr K says [X] will need help in managing the change and the Father has the sensitivity to support [X] through the change. Given the Mother and the maternal grandmother tell the Court they will not support the change, Dr K recommends up to 4 weeks pass before [X] sees the Mother, but with some telephone communication. In his opinion, [X] will be distressed initially but he will work through it. In Dr K’s view, the Father and his wife have a “strong consistent commitment to make it work” [X] will have a loving stable home with his Father and Ms A. He will be assisted through the adjustment period by care, love and stability with the Father as long as regular time with his Mother, grandmother and younger sister is maintained. Dr K has no concerns about [X] moving from a house to a 2 bedroom unit.
[24] Recommendation 5 on page 30 of Dr K’s expert report dated 5 June 2010
I have given some thought as to whether [X] should remain with the Father through the whole of the coming school holiday period, given the proximity of the September/October school holidays to the date of this decision, to enable [X] to settle in his Father’s household. However, on a weighing of the various factors, I have decided to give [X] some holiday time with the Mother and his sister in the October school holiday period.
The Father is untested as a full time parent for [X]. [X] has not recently spent time with the Father, though [X] had spent regular overnight time with the Father from the age of 2 years. Dr K did express some concern about the father’s attitude to control and I accept his opinion that this has the potential to impact adversely on [X]. Dr K feels there is a risk the Father will push academia such that [X] feels badly about himself but on balance the Father is more persistent, consistent and focussed on [X]’s needs and has pushed for help for [X] from early in the child’s life. When the Father has control, Dr K says he will be less coercive, more calm and controlled and will probably not use physical discipline. He has shown some “motherliness”. There is some evidence that the Father is already reaching out for assistance. He has made inquiries in the Canterbury Council area to get advice and has completed the Triple P parenting skills programme.
Dr K made recommendations on time allocation between the parties and I have largely followed these. Dr K cautioned that a single night during the school week with the associated changeovers involved, “would be disruptive to stability and consistency for [X]” particularly given his learning difficulties. I accept his recommendation, keeping in mind each party’s very different attitude to his education[25].
[25] Recommendation 2 on page 29 of Dr K’s expert report dated 5 June 2010
Dr K advised that it would be acceptable to move [X] from [School G], as long as he was moving to another IM class that would be long term and he spends another few weeks at his present school while he is adjusting to the change in his living arrangements.
Dr K accepts that Ms A may be [X]’s primary caregiver when the Father starts working again. He formed the view that the Father and Ms A have a “robust relationship” and found Ms A committed to looking after [X] as part of her relationship with the Father. I was impressed by Ms A as a witness. Whilst she displayed an appropriate level of caution about how she would manage the new demands imposed on the family when [X] lives with them, she expressed an intelligent understanding of how hard the change might be for [X] and a commitment to making him feel loved and supported and to making it work.
As for the Mother’s ability and willingness to adapt to the new situation Dr K said she would certainly understand the move at some level. She would not support it but would adapt. Importantly for the future Dr K says [X] will have the best relationship with the Mother if he lives with the Father. Dr K said “I think [X] will really love those weekends with his mother” and those arrangements are much better suited to the Mother’s parenting style.
In summary Dr K expressed confidence that if the court adopted his clear recommendations then [X] would “get the best out of each parent”. I agree with Dr K’s assessment. I am satisfied the Father recognises the importance of the Mother in [X]’s life and will support that relationship. I am hopeful that in time, the Mother will come to accept the new living arrangements will give [X] the best possible chance of participating in society in a happy and meaningful way.
As already noted, I have decided the Father should be permitted to travel to India with [X] because [X] will benefit from meeting his family in India and better understanding his Father’s cultural background. However, I have determined [X] will need considerable time to settle into his new routine, and into his new school and this process should not be disrupted. I have therefore prohibited [X]’s travel overseas until January 2012 and I have restricted the length of any trip to 3 weeks until he is 12 years of age.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in [X]’s best interests.
I certify that the preceding 122 paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate:
Date: 10 September 2010
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