Wunscher and Licha
[2016] FCCA 180
•11 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WUNSCHER & LICHA | [2016] FCCA 180 |
| Catchwords: FAMILY LAW – Parenting – change in circumstances – best interests of the child – sole parental responsibility – psychological, emotional and psychiatric impact on the child if the child was to live or spend time with the Mother – restraint against contacting and/or communicating with the child unless expressly invited – restraint from contacting child’s medical practitioners – restraint against obtaining child’s medical information. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60CC(2), 60CC(3) |
| Applicant: | MS WUNSCHER |
| Respondent: | MR LICHA |
| File Number: | MLC 6845 of 2007 |
| Judgment of: | Judge Stewart |
| Hearing dates: | 3, 4 & 17 June 2015 |
| Date of Last Submission: | 17 June 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 11 February 2016 |
REPRESENTATION
| The Applicant appeared in person. |
| The Respondent appeared in person. |
| Counsel for the Independent Children’s Lawyer: | Mr Lovering |
| Solicitors for the Independent Children’s Lawyer: | McKean Park Lawyers |
ORDERS
The Father have sole parental responsibility for the child X born (omitted) 1999 (“X”).
X live with the Father.
The Mother be and is hereby restrained from contacting and/or communicating with X unless the Mother has received an express invitation in writing from X to do so.
The Mother be and is hereby restrained from contacting X’s medical practitioners (including but not limited to the (omitted) Hospital).
The Mother be and is hereby restrained from obtaining or attempting to obtain medical information from X’s medical or health practitioners (including but not limited to the (omitted) Hospital).
Liberty is granted to the Father and the Independent Children’s Lawyer to provide a copy of these orders and reasons to X’s treating health practitioners, medical institutions and hospitals treating X (including their legal advisors) and X’s school.
The appointment of the Independent Children’s Lawyer is hereby discharged.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Wunscher & Licha is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6845 of 2007
| MS WUNSCHER |
Applicant
And
| MR LICHA |
Respondent
REASONS FOR JUDGMENT
These are proceedings in relation to X (“X”) born (omitted) 1999. Her parents have been litigating since X was around three years old. Prior to this litigation, there were proceedings before Justice Brown and a judgment was delivered on 11 March 2008.
In that judgment Her Honour ordered (in summary):-
a)that X should live with her Father;
b)that the Father have sole parental responsibility for decisions relating to X’s care;
c)the Mother be restrained from contacting or communicating with X save that she was allowed to send letters, cards and gifts which were able to be inspected by the Father who could make a determination as to whether or not such items should be given to X;
d)that X’s time with her Mother was to be at the absolute discretion of the Father, including whether such time should be supervised;
e)any telephone communication between X and her Mother was at the Father’s sole discretion;
f)the Mother was restrained from attending at X’s school or home, attending school events or from contacting X’s school;
g)various orders concerning specific issues, including orders that the Father notify the Mother of any serious injuries or injury suffered by X and that the Father keep the Mother advised of X’s prognosis and treatment;
h)various orders that X continue to attend upon a particular doctor (which was relevant at that time) and the Mother was permitted to attend upon that doctor, if the particular doctor advised the Mother in writing that it would be in X’s best interests for her to attend and/or attend a consultation that he might have with X;
i)various other orders that are less relevant to the purpose of these proceedings.
During the 2008 proceedings X was represented by an Independent Children’s Lawyer.
X’s medical history was significant during the 2008 proceedings and is significant now.
History
Until (omitted) 2007 X lived with her Mother and attended a private school near the Mother’s home. It seems that up until that stage X’s time with her Father had been fraught with difficulty.
From (omitted) 2007 (at around the time X turned 8) she commenced living with her Father and his wife, Ms B (“Ms B”). X has continued to live with them since that time.
X was born on (omitted) 1999. She is now 16 years old, an age when most young people are enjoying the company of their peers, finishing the last years of their secondary schooling and generally embarking on the first stages of a lifestyle independent of their parents but still supported within the family. It is unlikely that X will ever be able to enjoy the latter years of her childhood in that way as she is plagued by chronic ill health in terms of psychiatric and psychological difficulties.
X lives with her Father and Ms B and spends very little time with her Mother.
The Father was born on (omitted) 1954 and is now aged 60 years.
The Mother was born on (omitted) 1961 and is now aged 54 years.
The Father is engaged in full-time home duties, having retired from work. He receives WorkCover payments, due to a shoulder and lower back injury.
The Mother lives in (omitted) and conducts a part-time (occupation omitted).
The parties commenced living together in (omitted) 1998 and X was born just over a year later.
The Mother and Father separated under the one roof in April 2002.
The parties physically separated in November 2002.
From 2002 until 2007, X lived primarily with the Mother and spent time with her Father. X was sporadically spending day time with the Father. That four/five year period was characterised by alleged disclosures made by X of sexual abuse.
Issues of disclosures of sexual abuse (relating to the Father’s conduct with X), X’s exposure to parental conflict, the Mother’s capacity to promote a relationship between X and the Father, the Mother’s capacity to protect X from psychological harm, and X’s chronic ill health, even evident at age 8 years, were significant issues which ultimately resulted in an assessment that X should live primarily with her Father. The Reasons for Decision delivered by Justice Brown on 11 March 2008 are comprehensive and provide a detailed history of X's family history and living arrangements, including disclosures alleged by the Mother at the time the proceedings came before the Court on 14 February 2007.
At that time there had been a large number of professional reports associated with the family: –
a)numerous Family Reports were prepared by Ms W;
b)both parents had been psychiatrically assessed by Dr K; and
c)a child psychiatrist, Dr R, had assessed X.
During this period while the Father had been spending supervised time with X in various ways, the proceedings were characterised by allegations by the Father that the orders were not being complied with by the Mother.
On 14 February 2007 Justice Guest made final parenting orders with respect to X. Those orders were made on the sixth day after a hearing had commenced. Orders were made by consent which provided for:
a)the Mother and the Father have equal shared parental responsibility for X;
b)for X to live with her Mother;
c)for an increasing graduated time arrangement between the Father and X, which ultimately resulted in X spending each alternate weekend with her Father from Friday until Sunday;
d)for X and her Father to spend time together for essentially one half of all school holiday periods; and
e)various orders made for special days.
The orders that were made on that occasion are set out in detail in His Honour’s judgment.
Within weeks of consenting to those orders the Mother found herself unwilling or unable to comply with the orders. The Mother maintained her position that the Father was an abuser. During the judgment, Justice Guest indicates that the Mother maintained her conviction of abuse and was unshakeable in her belief that X had been the victim of abuse by the Father.
The Mother had stopped X’s attendance on Dr R and throughout 2007, the Mother was focused on her conviction that X was being abused. X was inextricably bound up with and exposed to the Mother’s efforts in establishing that her conviction was correct. The Mother claimed that X was tearing the skin from her fingertips until they were bloodied. The Mother produced evidence from a general practitioner and said that X was having nightmares and had been soiling herself prior to and after visits to her Father. A children’s counsellor had suggested that a way to alleviate X’s anxiety would be to reassure her that it was safe to be with her Father. The Mother was unable to provide that reassurance.
The Father filed an Application in a Case on 16 May 2007 seeking enforcement of Justice Guest’s orders. On 29 August 2007 the matter was listed before Justice Bennett on the Contravention Application filed by the Father on 18 June 2007. During the hearing of the Contravention Application the Father was granted leave to make an oral application to seek an order that X live with him. X’s primary care shifted to the Father from that point onwards.
At a later Interim Hearing on 4 September 2007, Justice Bennett made an order that the Mother have time with X on a fully supervised basis on an occasion at the (omitted) Contact Centre. Supervised time between X and her Mother was continued by orders made by Justice Carter on 13 September 2007.
Between 13 September 2007 and 30 November 2007 there were supervised visits and X seemed to cope well with the change of residence from her Mother to her Father.
Justice Brown recorded that even when time between the Mother and X was being strictly supervised, the Mother seemed to try and inappropriately enlist X in her view of the Father as an abusive parent.
Towards the end of 2007, when the Mother was permitted to see X at the Children’s Contact Centre, the Mother decided that if the only way she was able to see X was under supervision then she would not see X at all.
Ultimately, and as I have previously recorded, Justice Brown heard the proceedings in 2008 and determined that X should continue to live with her Father on the terms indicated previously.
Between 2006 and 2008 X presented as a child with significant anxiety.
In November 2006 Dr R had said that X’s anxiety was related to parental conflict. At paragraph 157 of Justice Brown’s judgment Her Honour found that the Mother was unable to:
… put X’s emotional needs ahead of her own and she may not have the capacity to differentiate between them.
At paragraph 158 her Honour states as follows: -
The mother showed a disconcerting tendency to attribute to X health problems experienced by her and undesirable traits (in the mother’s eyes) of the Father. She said X was stubborn, like the father; like the father, X had psychiatric problems
Unfortunately for X, paragraph 162 of the judgment records X’s health as at 2008. The expert evidence supported a finding that X’s play was not age-appropriate. Dr R spoke of:-
…concerning signs of early distortion of X’s psychological and personality functioning, as X attempted to make adjustments to survive the level of adversity.
Justice Brown refers to Dr R’s report dated 1 November 2006 in which he said:-
In particular, there is excessive use of denial and avoidance towards her emotions and internal psychological world. This along with evident accommodation to the needs of her parents suggests she is moving to a psychological position of being over aware of the emotions and needs of others at the cost of an awareness of her own emotional state. X over uses fantasy to escape or avoid distress. While this is likely to be adaptive in the short term avoiding psychological disorganisation, it will have longer term detrimental consequences on her psychological and personality organisation.
Her Honour, said at paragraph 164 of the judgment:
At the heart of the mother’s inability to understand the damage she is doing to X is an incapacity to accept anything done or said by X which is not consistent with her view. When cross-examined by the mother, Dr R said that he thought it was hard for her to let X say what X wanted to say and that the mother was imposing her psychological world onto X. The Mothers evidence, cross-examination and submissions illustrate the ongoing nature of this problem.
Justice Brown’s observations of the Mother, which were profoundly concerning, continue to resonate in these proceedings, particularly in terms of the Mother’s capacity to separate X’s interests from her own.
At paragraph 198 of her Honour’s decision, and in contemplating how it might be that the Mother could improve her position in the future, her Honour said as follows: -
A parent in the mother’s position is not cut out from making a subsequent application to spend time or communicate with a child if he or she moves to an acceptance of the need to put the child’s best interests before his or her own. Were orders to be made now providing for the mother to have no contact with X, she would need to adduce evidence of new facts or circumstances before bringing another application. Having regard to findings I have made, that evidence could go to a change of heart in the mother. For example, were the mother to obtain the psychotherapeutic counselling recommended, come to an understanding of her over valued notions of abuse and the importance to X of having a genuine relationship with both parents, and accept that her time with X would initially require some form of professional supervision, she could seek orders to spend time with her. While it would be a matter for the judicial officer before whom an application was listed, it is hard to see what other circumstances would justify the reopening of the case by the mother.
It is with that background that I turn to consider the Mother’s Initiating Application filed as it is some six years after those findings by Justice Brown.
The current proceedings
I propose to deal with X’s health as it is now described. It would seem that her health has not improved and has probably deteriorated since Her Honour considered the matter in 2008.
In some respects, although ultimately ill conceived, the Mother’s application is underpinned by the deterioration in and/or lack of improvement in X’s health.
The Mother filed an Initiating Application on 16 December 2014. At the time she sought “standard regular contact”, which she described as being:-
a)every second weekend from Friday night to Sunday night;
b)with half school holidays and special days;
c)telephone communication with X; and,
d)an ability for X to forward cards and gifts to the Mother;
The Mother sought various orders in relation to medical issues, including an order that she have permission to access all information regarding all past and current medical treatment and that she be permitted to have input, suggestions and decision-making involvement with X’s ongoing treatment, therapy and rehabilitation. She ultimately sought that she have full and final discretion for treatment approval. The Mother sought the removal of the existing watch list order, that X have a passport and that the Father and step-mother be ordered to attend psychological counselling and guidance to facilitate better behaviours of X and improving her treatment outcomes within the home. Further, the Mother sought to be provided with X’s distance learning reports, that X participate in other therapeutic and extra-curricular activities (including that she commence a learner driver course) and that she have the freedom to commute and reside between both households without restriction. During the hearing the Mother put a further, secondary position that if she was unsuccessful in her application for primary care, X should be placed in foster care.
The Mother
The Mother gave evidence and was cross examined.
In support of her application the Mother has filed a number of affidavits.
The first affidavit was sworn on 15 December 2014.
At paragraph 4 of this affidavit she recalls that X was admitted to the (omitted) Hospital Melbourne for mental health issues on 8 November 2013 and had been diagnosed with:
…severe anxiety, depression, severe defacing self-harm of burn and/or cut, deep scarring evident all along the underside of both arms, have been observed, and suicidal idealization. Lack of self-esteem, self-worth, apathy and futility.
The Mother went on to say at paragraph 5:-
a)at 8 years of age X suffered “severe and psychological distress as a consequence of being removed from her mother’s and grandmother’s care, her school, her close friends and family, as per the orders made in 2008”;
b)that due to X’s young age she had never recuperated from the shock of those events;
c)her “immune system suffered and she suffered numerous illnesses whilst in her father’s care”; and
d)these symptoms have been exacerbated since X was 10 years of age.
At paragraph 6 of her affidavit, the Mother said that for the previous six to nine months X had suffered significant adverse effects from antidepressant medications. The Mother said that since the commencement of X’s therapy in December 2013, that her condition had worsened.
The Mother sets out that in her view, X’s condition is as a consequence of Post-Traumatic Stress Disorder (“PTSD and parental alienation/separation anxiety disorder”).
In terms of the complaints the Mother makes, she has concerns surrounding X’s anxiety. Those concerns were largely echoed in the Mother’s evidence.
It would seem that the Mother has not been able to let go of her own subjective view that X’s history, namely of being removed from her care, is associated with her mental health issues. The Mother has not accepted that her treatment of X, as identified in the judgment of Justice Brown, has a direct bearing on X’s presentation. In that sense the Mother continues to lack insight into the health and personal issues that her daughter endures to date.
X’s continued illness has provided the Mother a further platform upon which she can continue her allegations of abuse and within which she can formulate the propositions and theories that place her at the centre of the dispute and are essentially an indulgence in self-aggrandising and self-centredness on the Mother’s part.
It is interesting to note that even at the early stage of these proceedings when the Mother first swore her affidavit material, the matters presented by her are essentially about her. The Mother lacks a true appreciation of the very real and significant health issues that X has suffered, save and except as they promote the Mother’s own sense of self-worth.
Although in her early affidavit the Mother recognises that X’s time with her was solely within the Father’s discretion, she cannot help but criticise the Father and view what has occurred through the prism of her own self-centredness. For instance, at paragraph 11 the Mother talks of trying to telephone the Father. She states her view that X feels under scrutiny and uneasy and that their conversations are artificial as there is interference from the Father. She said:-
They often cease the conversation or punish the child, by forbidding me to call for a month etc. It is as if the child is imprisoned and they discourage her from calling me and give negative responses, like aversion therapy.
Such a statement wholly fails to recognise that the Mother has been a limited visitor in X’s life for a period of some seven or eight years. Rather than the Mother being able to see X as an individual with her own feelings, she promotes herself in the scenario and fails to understand that X, as a young person, might have her own feelings with respect to the Mother.
The Mother’s criticism of the Father continues and extends to her views of his mental health. She asserts that he does not have the ability or the capacity to be rational and impartial about what is in the best interests of X.
The Mother’s tirade about the deficiencies of others relate not only to the Father and Ms B, but also to others. She extends her criticism to X’s professional health carers. Notwithstanding the Father has sole parental responsibility for X pursuant to the 2008 orders, the Mother saw fit to forward a letter of complaint on 22 October 2014 (see Annexure A of the Mother’s affidavit filed 15 December 2014) to the Customer Liaison Officer at the (omitted) Hospital, X’s treating hospital.
She heads the document “COMPLAINT OF LACK OF DUTY OF CARE, NEGLECT of the patient’s best interest and well-being” with respect to X. It is worth setting out the letter in full. She says as follows:-
I have been for sometime concerned about the lack of “Duty of Care and Neglect” with respect to my daughter’s therapy at the (omitted) Hospital, Mental Health Unit. My daughter was admitted to the hospital during November, 2013.
Initially I was relieved, as I thought that would have the best interests of my daughter’s wellbeing, recovery and rehabilitation at heart, as she appeared to be struggling in her father’s care for several years. I thought that perhaps other avenues might have been explored further prior to her being heavily medicated so early. ie. Various Therapies, Art Therapies etc. However, felt confident in the professionalism of the clinical staff. On my mother’s and relatives family history there are however reported previous adverse reactions to anti-depressant medication after brief administration. Nevertheless I was supportive for a time and was grateful for information regarding her care then, severe adverse effects began to emerge from about March/April, 2014.
The Mother then talks about what are in her view, severe bloating on the part of X and somewhat offensively speaks about X having an increased body size and stretchmarks. The Mother again uses these issues as a platform upon which to promote her own self-importance. It shows very little regard to how X might be feeling. For instance, in this letter the Mother is quite offensively and personally critical of X’s appearance (an issue of concern for any young woman such as X) but veils her comments as a concern about X’s welfare.
As previously stated she has referred to X as being: -
very dopey most of the time, sleeping most of the day till 2.30pm, sometimes incoherent and in a state of confusion and disorientation. Severely lacking in motivation and drive, despondent with suicidal thoughts and continuing self-harm occurring.
She said that X had become increasingly isolated and bored and that her self-care and hygiene had been deteriorating. She observed that X’s school friends had abandoned her and was critical that she had not been reintroduced to some sort of formal schooling. She refers to X as being fearful, shy and intimidated by her Father and then casts herself in the role of X’s confidante. The Mother has contacted the hospital to make a complaint and makes it clear that she regards X’s treating psychiatrist, Dr A (“Dr A”), and her psychologist (although she refers to her as a counsellor), Ms J (“Ms J”), as negligent and deficient in their care of X.
The Mother’s need to control is evidenced in this letter. The Mother has some professional (omitted) qualifications by virtue of her career in (omitted), however, in the face of having had no parental responsibility for X she suggests that she be able to demand a thorough review of X’s therapy, that X have a blood test and she receive a second opinion which should be organised by the hospital.
An example of the Mother’s capacity to dramatise and catastrophise X’s health issues she refers to X as having had a minor stroke in 2009. In fact X suffered from an episode of Bell’s Palsy from which she has completely recovered. She sought in her letter to blame the Father for X’s illness.
This letter refers to a sensitivity to medication on the part of X, which might be life-threatening to her. She says that X was continually distressed from May 2014 about her inability to find intimate apparel, which was age-appropriate and which would accommodate the “extreme abnormality” she now suffered.
The Mother has been assertively and regularly engaged in making complaints against the hospital.
The Mother said that she had visited her daughter on 19 October 2014 and was shocked to see her arms and upper body evidencing “recent severe and widespread, detrimental self-harm with scarring and sores along most of both arms”. She describes her daughter’s condition as worsening. She said “It is my fear as a devoted caring parent that my daughter is dying each day in silence and she may either commit suicide as an indirect consequence of the medication”. She goes on to say that her daughter might die due to the excess amount of medication.
The Mother describes her daughter’s future prospects as being plagued with chronic ongoing illness, lack of skills and formal education, unemployment, perpetual welfare recipient, destitution, homeless and maybe death. She says that it is erroneous for the hospital to suggest that they are devoid of any liability for X, especially if they are directly responsible for irreversible damage or death as a consequence of their actions.
She infers that the Father is not of sound mind and uses emotional and offensive language.
The letter is demonstrative of the Mother’s tendency and desire to catastrophise her daughter’s situation. The letter is highly offensive towards the medical professionals who are treating X, denigrating of the care that has been provided by the Father over the last eight years to X, pessimistic and non-supportive with respect to X’s own personality, prospects and response to medical treatment.
This letter must also be seen as having been written in a context in which, even on the Mother’s own evidence, she had only seen X once or twice during that year, and her own witness Ms N does not support the Mother’s testimony as to X’s presentation when they went shopping.
There are parts of the letter that are not only misleading but false. For instance, on the first page of the letter when talking about helping X to find a bra, she said that she and a female friend observed the scarring on X. The evidence of Ms N when that issue was put to her was that she in fact was not present when X was trying on intimate apparel, and was not present in the shop at the time.
It is also patently false to say that X exhibited no signs of mental illness when in the Mother’s care (as the letter does). It is concerning that the Mother still does not understand why it was that X was removed from her care and went into the Father’s care, notwithstanding the lengthy judgment by Justice Brown and an appeal to the Full Court of the Family Court of Australia, which was dismissed.
The Mother has no capacity at all to accept any responsibility for her role in X’s mental health issues and how X might be presenting today.
The Mother has had such limited involvement in X’s life at this point that she could hardly have any sort of intimate knowledge of the difficulties that X has been experiencing. That she bases her assertions of an “intimate knowledge” as to how X is coping from day to day on the basis of two or three visits and telephone calls, is incorrect. She could have no real sensitivity or insight into the challenges that are faced by X from day to day. She has no intimate knowledge of X herself. The Mother promotes and falsely elevates her own role in X’s life and regards it as her right to criticise the hospital for something which they are simply not doing. I cannot help but feel that the complaints that the Mother has made, the comments that she makes about X, the comments that she makes about X’s medical practitioners, the comments that she makes about X's Father and Ms B are designed to justify the Mother’s own position in the world, rather than any real sensitivity caring, loving or concerned apprehension that she has for X’s health and wellbeing. Any role the Mother has in X’s life needs to be monitored very carefully as it has the potential to be quite damaging to an already vulnerable young person.
From the Mother’s own material it is clear that she made complaints to the hospital prior to the letter of complaint dated 22 October 2014.
For instance, on 18 September 2014 there is a record of a telephone call made by the Mother to the hospital which was recorded as follows:-
Mother concerned about the effect of medication her 15-year-old daughter has been prescribed. It makes her swollen and puffy, and she went from size 12 to 14. Daughter is very dopey from medication….
Daughter lives with Father who is bipolar…
Mother expressed her concerns in an email to Ms K about three weeks ago. The receipt of the email was acknowledged not [sic] reply has been given.
Preceding the letter of complaint there was a letter from the hospital dated 21 October 2014 which was sent to the Mother and said as follows: -
I’m sorry to hear that your concerns regarding your daughter have not been resolved.
The latest information I received from my managers and the health professionals treating your daughter is that they are satisfied with her treatment and progress, and that she and her father do not give permission for you to be informed about her treatment. This is the reason why you have not been contacted.
I understand your frustration but at this point I don’t see any avenues for you to explore other than perhaps make a formal complaint.
On 4 November 2014 the Mother forwarded a letter by email to the Father, which is annexed to her affidavit filed on 16 December 2014 at Annexure C. The first paragraph of that letter says:-
Please think about the best interest of X, she is also your daughter, perhaps because you love her too much, to [sic] dearly that you refuse to believe that she is not improving, but that you and Ms B do not want to believe how her condition is deteriorating and worsening.
She might even die!
The Mother records and advises the Father that she is concerned about the medication that X is taking and sets out what she thinks the approach should be. The Mother acknowledges at the conclusion of that email that:-
She is of the age now where she should be able to have the freedom to go between both biological parents [sic] households whenever she wants and not be restricted either way. That is fair!
She should be her own person, confident, courageous, independant [sic] and make wise choices given a variety of decisions of her own thinking not dictated to by anybody.
The Mother had sent a letter to the Attorney General’s Department on 2 October 2014, and this was attached to the Mother’s first affidavit as Annexure D. In this letter, she lamented from her point of view the shortcomings of the family law system. Whilst the matters raised are largely irrelevant, she revisits her view as to why X went into the care of the Father. What is abundantly clear from this complaint, contrary to any hope of Justice Brown that the Mother’s situation may improve, the Mother still exhibits a considerable lack of insight and understanding. She says:-
I was a single working mum. After five long years in the Family court [sic] I managed to keep residents of my daughter, who was being sexually abused by her father on visits, from 3 to 7 years of age. Only then, after seven years, in 2009 her father challenged me again in the family Court to add insult to injury he obtained legal aid at the time and was unemployed. Despite this, he was awarded residence, my daughter then nine years old. I tried to appeal but it failed.
Sometimes I wish I kidnap my daughter to make a statement or better put rescued her before the psychologically traumatic life event occurred, when she was forced to leave her home, the (omitted) school, her family and her friends.
The letter goes on to say:-
Now, my daughter is 15 years of age, being with her Father for the past 6 years. She never coped well with the heart wrenching trauma of leaving her loving home of her mum and her grandma years ago.
After many years of struggling, she was admitted to hospital in November 2013 suffering severe anxiety/depression, self-harm and suicidal tendencies. There is a non-attendance record at her school for almost two years. This is concerning for a non viable future of an unemployed, mentally ill and homeless person. Worse than that the therapy she is on is causing adverse effects to her physical health and yet because of the severity and harshness of the orders to which to all concerned we were incredulous to, at the time, I have no input with her care.
The Mother goes on:-
“I have thought about it a lot over the years and felt I was made a “scapegoat” for an overwhelmed Family Court System at the time.
“I was in the wrong place, for too long at the wrong time.
She goes on to refer to X suggesting that X is:-
…not being able to speak out, especially if she is suffering fear and intimidation. She is a helpless, vulnerable young adult with no voice.
Thus it can be seen even from that first affidavit filed in support of the Mother’s case that throughout the latter half of 2014, the Mother develops her theory which suggests not only has she been unjustly dealt with by the Court process but that X is suffering substantially as a result. She recalls her view of X as a victim throughout the previous proceedings with little or no improvement in her insight from that time. In circumstances where she has had very limited contact with X and also limited involvement in X’s health care, she purports to have an intimate working and superior knowledge as to those issues. That is simply not the case. This health issue has superseded the sexual abuse issue to become a foundation upon which the Mother can base her anxiety and indulge in attention seeking behaviour.
Throughout this hearing the Mother exhibited melodramatic courtroom practices. Due to the Mother’s demeanour I asked her whether she thought that the procedure was funny, particularly at the point when she robustly and theatrically cross-examined the Father. She giggled. She did apologise to me and told me that her behaviour could not be helped. It causes me to wonder whether this has little to do with X’s welfare but is more about the Mother’s desire to promote or promulgate her own position and how she perceives herself as a “scapegoat” of the family law system.
The Mother’s sense of self-importance renders her miserably incapable of addressing the realities of X’s situation. The subtle and sensitive approach which would be required to have the kind of involvement with X which the Mother seeks is beyond the Mother’s capabilities.
The shopping event
In or around September or October 2014 the Mother visited X with a friend, Ms N, who gave evidence in the proceedings.
The Mother and Ms N were permitted by the Father to take X to a local shopping centre. The Mother refers to the incident in the letter dated 22 October 2014 annexed to her first affidavit as follows:-
I have visited with my daughter, since on the 19th October, 2014 and I was shocked to see her arms and upper body show evidence of recent severe and widespread, detrimental self-harm with scarring and sores along most of both arms.
The Mother again refers to that incident in her affidavit sworn 5 May 2015. At page 38 of Annexure C, the Mother says as follows:-
2014, September/October I hope there is enlightenment for him and I visit around her Birthday and again in late with my friend Ms N and my primary school friend Ms H. We are shocked to see X is dishevelled in appearance at 2:30 pm in the afternoon and is just got up from bed, her hair is mattered, is heavily sedated, she refuses to go outside and we convince her to come for a walk and some afternoon tea and a bite to eat.
She agrees after almost an hour and I help to tidy herself and notice all the scarring along her arms and breasts but do not mention it to her.
She is pleased to see and we have a pleasant afternoon and she starts to show a glimmer of her real self again.
The Mother was cross-examined on this issue. She said that she saw self-harming marks on X’s arms and saw stretchmarks on her body but did not say anything to X.
The Mother’s witness, Ms N, gave evidence and was cross- examined. She referred to the event at the shopping centre and contrary to what the Mother said in her affidavit and in the letter annexed dated 22 October 2014, (which suggested that “the shop assistant, a female friend and myself observed the scarring”), Ms N’s evidence was that she had no idea whether X tried on a bra as she did not go into the cubicle and had walked out of the front of the shop to wait until the Mother and X came out. She said that the Mother and X were in the shop for about 10 minutes. Ms N said that when she did observe X, she was wearing a tracksuit with long sleeves and did not see anything uncovered other than her face. Ms N indicated that her observation of X’s demeanour on that day was unremarkable. She said that X was not highly anxious, or distressed. Ms N said they had enjoyed some refreshments in a cafe and X was fine.
The Mother’s own witness contradicts statements she made in the letter dated 22 October 2014. The Mother seems to recollect events in a way that heightens the catastrophe. However, such recollections are not true.
Ms N seemed like a genuinely pleasant and polite woman. I can think of no reason why she would not tell the truth. Although she was supportive of the Mother and sat with her for most of the hearing, I have no reason to think that her evidence in this regard was untruthful.
Accordingly, I must conclude that the Mother’s evidence as to the events when she took X shopping is quite misleading and untruthful.
The Stroke
A further issue of concern is the Mother’s continued assertion that X suffered a stroke in 2009. The Mother attached a photo of X to her affidavit taken in or around 2008, which shows X with a slightly lopsided smile and a drooping left eye. The photo was put to the Father in order to demonstrate that X had a serious illness. However, the Father said that X had suffered an episode of Bell’s Palsy which I accept. The photo was put by the Mother in some way to try and foster the assertion that the Father had been medically abusive towards X. I do not accept that scenario and this issue but find that the presented photograph is demonstrative of the Mother’s capacity to testify and use evidence unrealistically in support of her case.
The Mother’s arguments
The Mother has summarised her arguments to be considered in a document annexed to her affidavit sworn 5 May 2015 at Annexure D, commencing at page 40 and titled Outline of Argument, she says that:-
3 Lack of Independence/ stifled- infantilized behaviour.
[X] began struggling from 2010 and her situation is deteriorating every year since… Her wish to exert her freedom and independence of choices without being a slave or submissive/passive to her Father’s dominance over her. The father & step-mother, both denigrate and verbally abuse the mother. Constantly brainwashing, coaching/ indoctrinating her against her mother, telling X bad things about her which are lies, so that she hates and blames her, because she was removed from her because she was supposedly such a “Bad Mother” in the eyes of the court.
The Mother sets out her concerns and/ or hypotheses under various headings:-
a)HEALING & REHABILITATION/TRUTHFUL CLOSURE: the Mother suggests that X needs to be told the truth of the whole story by an objective professional and thus, by inference, suggests that X has not been provided with realistic objective information to date. Having regard to all of the evidence in these proceedings I find this is incorrect;
b)SELF-MUTILATION AND SUICIDAL IDEALISATIONS: this suggests that X was “rebelling against this tyranny by drawing attention to herself” and that her self-harming behaviours were a cry for help. She also later suggests that X has made suicide attempts whilst a patient in April. I find this theory of the Mother’s a gross simplification of the complexities of X’s condition and is therefore inaccurate;
c)CHRONICALLY MEDICATED/SEDATED, SEVERE ANTI-DEPRESSANT STATE SINCE 2013, WITHOUT IMPROVEMENT: this category is designed to support the Mother’s opinion that X has been medicated in an inappropriate way. Having regard to all of the evidence in these proceedings I find this is incorrect;
d)GRIEF/ TRAUMA COUNSELLING FOR X, not ordered by the court Post Final Orders, LACK OF DUTY OF CARE, NEGLIGENCE 2008/2009. X’s CHANGE OF RESIDENCE WAS PERMANENT NOT TEMPORARY: the Mother’s complaint is that X has not received grief counselling. That complaint is on the false proposition of the Mother that X must be suffering terribly as a result of her removal from her care. Having regard to all of the evidence in these proceedings I find this is incorrect;
e)ONGOING LACK OF DUTY OF CARE/ NEGLIGENCE: this is designed to support the Mother’s concept that X has been medically abused by her Father and her health professionals. Having regard to all of the evidence in these proceedings I find this is incorrect;
f)NON-ATTENDANCE AT FORMAL SCHOOLING SINCE MAY, 2013: although this is an issue for X, I find that the Father has dealt with this issue appropriately;
g)MENTAL ILLNESS VULNERABILITY/ ISOLATION/ RESTRICTION: although this an issue for X, I find that the Father has dealt with this issue appropriately;
h)CONTACT NEGATIVITY/ AVERSION: the Mother suggests that the Father punishes X for enjoying the time that she spends with the Mother and refers to the Father’s conduct as engaging in “Parental- Alienation Syndrome”, and as the Father’s “negative connotation and context of contact, is not I [sic] the best interest of the child”. I do not accept that the Father has behaved as alleged. If anything the Father has promoted the Mother’s role in X’s life in a way which X has found intrusive;
i)PROPOSED PARENTING PLAN & REINTRODUCTION OF MOTHER/ DAUGHTER BONDING, RESUMPTION OF REGULAR CONTACT 2009;
j)MOTHER’S DIAGNOSED ILLNESS POST FINAL ORDERS: the Mother suggests that during the previous Court proceedings, Justice Brown’s observations of her were “out of character” and were as a consequence of her physical health difficulties for which she was properly diagnosed several months after the final orders were made. I have observed the Mother’s presentation and demeanour in these proceedings and I have observed similar personality traits and deficits in the Mother as were observed by Justice Brown. Accordingly, I do not accept the Mother’s proposition as correct. The Mother has not called any medical evidence to support this proposition;
k)MOTHER MISUNDERSTOOD & ABBERANT BEHAVIOURS;
l)PREVIOUS ALLEGATIONS OF SEXUAL ABUSE, SODDOMY [sic} & MOLESTATION: it is quite clear from this category that the Mother does not believe that the Father will continue to sexually abuse X. She says that following counselling with a Dr B, that she eventually reconciled with her fears and accepted that the abuse was never likely to occur again due to:-
…the full-time presence of the step- mother and due to X’s increasing maturity, growth and ability to defend herself/ disclose/ report or voice her objections in response to impending various types of physical, emotional and sexual abuse for the father.
It seems the Mother has still not abandoned her allegations and belief that X has been sexually abused by the Father. If that were correct it beggars belief that with all of X’s health difficulties and her consequent interaction with her psychologist and psychiatrist, that such information would not have come to light and been reported.
The fact that the Mother continues to promote this false allegation is demonstrative of the odd and unsupported nature of the Mother’s beliefs and her complete incapacity to accept objectively reasonable facts which militate against her belief system.
m)MOTHER STARTS TO REBUILD HER LIFE & HEALS FOR THE FUTURE: it seems that Dr B asked the Mother to “focus on rebuilding her-life”. This has not occurred as the Mother, in an unrelenting fashion, has continued to focus on her victimisation, the previous proceedings and catastrophizing X’s situation without any ability to accept that X is functioning as best she can and achieving improvement;
n)MONETARY GAIN OF THE RESIDENT PARENT: the Mother seems to suggest that the Father, by his desire for X to reside with him, is or was motivated by monetary gain and a supposed financial benefit in caring for a child with health issues. Further, she says:-
It is concerning to me that this could be a Munchausen’s Syndrome (or by proxy), in that the residential parent is deliberately preventing her from getting better/accessing other treatment and/or preventing/or not allowing her other treatment options and perpetuating and maintaining her current ongoing illness and devastating deterioration. This could be despicably for both monetary gain and to obtain sympathy from welfare agencies.
I find this assertion to be false and mischievous.
The Father.
The Father gave evidence and was cross-examined
The Father’s evidence was starkly in contrast to the Mother’s. Although he acknowledges that X suffers from significant health difficulties, his overall evidence was optimistic and encouraging. Rather than focusing on the difficulties that X experiences, his focus was primarily on the improvements that she has made. He spoke of the family’s access to health professionals and felt that X was well assisted and cared for by her treating health professionals at the (omitted) Hospital.
When X was experiencing difficulty attending school, the Father assisted by arranging distance learning for her. There have also been issues with respect to X and her exercise regime. The Father has made sure that she has an exercise bike upon which she can conduct some daily exercise. He acknowledged that X has social fears and anxiety and was therefore continuing her education by distance education.
At paragraph 10(c) of the Father’s affidavit filed 24 April 2015 he refers to the Mother’s “constant psychological abuse” when speaking to X over the phone or in person. He says as follows
Ms Wunscher would say things like “your medication is harming you and you should stop it”, “why are you going to spend your life in that dump”, “I can look after you better”, “I’ll take you overseas and buy you whatever you want”.
The Father also referred to an incident that took place at the (omitted) Hospital where the Mother called X, he and his wife, Ms B, retarded. He said that “X was quite distressed about this and would often cry”. He said that X would often ask the Mother to apologise to her and the Father for her calling them “retarded”, but the Mother would not comply.
I accept the Father’s evidence in this regard. I found him to be a truthful witness. More importantly, I found him to be empathetic and sensitive to X’s needs, a fact which was confirmed by X’s doctors. He has a much better appreciation of what X’s needs are now, and a much more positive and encouraging outlook about her future. In my view these issues are overwhelmingly important to X’s support.
The statements that he has made, which I accept, suggest that not only is the Mother negative about X’s condition, as I have said earlier, but also she conveys that negativity to X in an inappropriate and emotionally harmful way.
The Father explained that when the parties attended with Dr D to attempt to negotiate a regular arrangement for X spending time with the Mother, they were unable to reach any agreement. The Father says he facilitated the time that the Mother spent with X and told me both he and his wife supervised such time on special occasions. I accept that evidence.
When being cross-examined he spoke of promoting time between the Mother and X. The Father said that with the benefit of hindsight that he was fearful and concerned that he may have contributed to X’s distress and confusion surrounding her contact with her Mother and how pushing X to spend time with and communicate with her Mother has impacted on her.
I found that the Father’s concern in that regard is appropriate and child focused. It was well considered and demonstrated a capacity to reflect on his own behaviour, insofar as X’s needs and sensitivities require. This is an attribute which the Father possesses and which the Mother is devoid of.
Further, in relation to X’s wishes, the Father says that contrary to what the Mother says X has told her, X has told him that she did not want to be left alone with the Mother during her visits and told him that she does not feel safe or comfortable with the Mother. He also said that X had told the Mother that she did not want to see or talk to her anymore.
The Father said that he was encouraging X to communicate and spend time with the Mother; however, Ms J had recommended that he was not to force her if she did not wish to spend time with the Mother. He agreed that he sometimes monitors the telephone conversations between X and the Mother. He said he and Ms B believe the Mother speaks to X about inappropriate matters and I accept that evidence. I find that the Father was acting protectively when he monitored telephone communication between the Mother and X.
The Father said that he had authorised the (omitted) Hospital to give the Mother access to X’s medical treatment and medical information but that did not allow her to obtain private information disclosed between X and Ms J.
The Father gave evidence in respect of the Mother’s evidence regarding the involvement of Ms N. The Mother suggested that Ms N was not required to supervise time, however, the Father said that he had a long talk with Ms N and explained to her the parameters of her supervision for their outing in 2014. With some level of insight, which accords with my own observations of Ms N, he said that Ms N is a very nice person but she “could not handle the Mother… Nobody can”.
In contrast to the Mother’s assertions that X was distressed at the bra buying incident, the Father said he observed that X had become angry with her Mother regarding the event. I accept that evidence.
The Father says at paragraph 27 of his affidavit sworn on 1 June 2015 that “It is unfortunate that the mother using our daughter sickness for her self-righteous fight [sic]”. The Father is correct and I concur.
The Father indicates that X has said to him that she does not want to talk to her Mother and does not want to see her. I accept that evidence.
The Father told me that he has facilitated time between X’s uncle (with whom the Mother is estranged) and notwithstanding the difficulties that the two men might have had between each other in the past, he invited the uncle to see X and X was willing to see him.
The Father’s actions evidence his sensitive understanding and empathy regarding a whole range of issues. For instance, when he spoke of the poor treatment X felt she had experienced at school he said that X had told him that she had been called names at school and that she was not happy about it. He said that he and his wife had a meeting with the school principal about the incident and said that the school did take it seriously, but that the damage was done, and X was gradually avoiding school. He spoke about talking to X when he became aware that she was self-harming. He said she found it hard to speak to him, in circumstances where she was quite emotional. He then accessed professional and specialist medical care for her. He is astute and sensitive enough to recognise that X sometimes tries to protect him.
The Father said that X is so opposed to her Mother at the moment that when she received an email from her she destroyed the email without reading it.
Under difficult circumstances, the Father said he had had several conversations with the Mother advising her how to talk to X and how to avoid confrontations. The Mother does not follow his advice. He says he has warned the Mother that she is jeopardising X’s health and that he may have to stop communication altogether. He said that although the Mother made promises not to continue to engage in inappropriate behaviour she continued.
Fairly, he recognises that X can be challenging and confronting to her Mother. Thus, I am satisfied that the Father has an ability to balance, and realistically and objectively consider matters in relation to X’s welfare.
The Father also says that he would resume contact between the Mother and X if X wanted to and it was in her interest to do so. I accept his evidence.
The Mother’s verbal denigration of X
An incident took place on or around 17 March 2014 as the Father records in an email that he sent to Ms J. The first thing to observe about the email is the Father’s polite and thankful interactions with Ms J, which is in stark contrast to the way the Mother deals with X’s treating medical professionals. The email sets out as follows: -
X was much happier after she had her session with you.
On the way to pay parking fee, the mother contact us and despite X disapproval we took X to see her.
Ms Wunscher showed no affection at all toward X and after few nasty exchanges between X and the mother I decided to let go. Ms Wunscher became highly irated and started abusing us and then turned to X and called her many bad things but when she told X that she is RETARTED, X never stopped crying all the way home. X told us that her mother always say that her when she was with her.
[sic]
This is the incident to which X had a very bad reaction.
Somewhat extraordinarily it seems that within a day or so of that incident the Mother forwarded an email to X with the subject title “Your “MUM”!”. This email was sent directly to X from the Mother and is annexed at Annexure D to the Father’s affidavit filed 1 June 2015. Although this email is superficially loving, one only needs to consider the context in order to understand that it is quite inappropriate. For instance the Mother says to X: -
I am so worried about you at times and would like the best for you, but sometimes I have nightmares about what might happen to you and so I pray for you to be my happy loving daughter again, who I believe is deep in there beneath those traumas in your own life.
These comments would be most distressing to a child in X’s circumstances. I find that the Mother is subtly undermining the treatment that X is receiving.
The Mother seeks to involve X in the conflict between herself and the Father. She went on:-
However, I now see since the other day, why I get so so upset sometimes, I feel so upset and aggrieved that your Dad and Ms B, have kept us separated always these 6 years, because they are jealous of our connection, all these years when we could have normal visits like other families, every week, weekends, holidays, Xmas, New Year, Easter, Birthdays, etc. it is so cruel, such a waste, I don’t believe it sometimes, we are strangers because of this, I always hoped it would improve as I thought they would feel compassion and remorse for what they were doing to me but it never got better. [sic]
She goes on later in the email:-
I no longer want to have an artificial relationship with you but would like you to know the truth even if it hurts both me and you at first it is better out in the open so we all heal, not pretending, not fake like babies. [sic]
Even in those two paragraphs as reported I find that the Mother is subtly undermining X, her place in the world and her close family unit. In doing so she reminds X of the things that are not normal in her life, such as the fractured relationship between her family, and in an inappropriate way suggests that X is somehow abnormal as a result.
The Mother says “I understand if you don’t want me to call you or see you for a while perhaps you need some space about things.” The irony of that, is that even by virtue of these proceedings, the Mother not only has failed to understand and give due credence to X’s wishes, but has sought to impose her own view of the world on X to the extent that she seeks to remove her from the primary care of the Father and his wife. I agree with Dr A that such a suggestion is preposterous.
The Mother in the email refers X to her Father and Ms B interfering between her and X. The Mother goes on to say: -
I think it is better for you to make your own decisions and be independent even if that means you reject me maybe later you might rethink about it and reconsider.[sic]
The Father attached an email (dated 14 May 2014) which he forwarded to the Mother. It seems that at every turn the Mother takes the opportunity to admonish the Father quite unreasonably. The letters that she forwards are both insulting and degrading. For instance, in response to an email sent by the Father, suggesting ways that the Mother might improve her relationship with X, the Mother says as follows:-
I feel sorry for you both that you have created this situation for our daughter, you don’t love her in a good way but you are both selfish, trying to keep her isolated, ignorant, an invalid and under your commands. [sic]
Although my overall impression of the Father is positive this is not to suggest the Father is totally immune and unaffected by the challenging behaviour of the Mother from time to time. His emails are occasionally terse. However, overall I am of the view that the Father has exhibited quite restrained and polite behaviour in the face of almost overwhelming provocation to behave otherwise.
The Mother suggested that the Father sought primary care for X so that he could financially support himself as he could not do so on his own income. I find that he is well able to support himself and his family with the assistance of his wife’s income.
There seems to have been some focus in the case on monetary issues with the Mother developing a concept that the Father was interested in caring for X for financial gain. I do not accept that.
There was a further suggestion from the Mother that the Father may have had some current health and mental health issues. This is not significant. If true, these health issues have not impacted on his ability to care appropriately for X.
The Mother explored what X does during her day. The Father had an intimate and current knowledge of X’s daily routine. He confirmed that she undertakes distance education doing maths and English, however that she continued to struggle with her illness. She maintains a social life on the internet and will only occasionally leave the home to have her hair styled, visit her optometrist or see her medical practitioners. He describes X as having a social phobia which commenced about two years ago at around the same time she ceased attending school.
The Father said if X told him that she was going to see the Mother he would have no objection. He said he would love to see X spend time with the Mother and that he would not stop her. His evidence was believable. He said that when he asks X if she wants to see her Mother she refuses. This suggests to me, and I accept the Father’s evidence, that he is willing to promote the relationship between X and her Mother, but also respects X’s views that she cannot tolerate the relationship at present.
In terms of his promotion of X’s relationship with the Mother he said, and I accept, that he had received medical advice to stop pushing X to see the Mother if she was reluctant to do so. He confirmed that X had never called the Mother of her own volition.
The Father spoke with a degree of genuine distress about X’s self-harming behaviour and how it was discovered.
The Mother suggested to the Father that it would be optimal for X to undertake mainstream schooling, however, he appropriately said that he did not feel that X was ready to undertake that but that he would support her if she chose to do so. He said that X enjoys her days at school and when it was suggested that she is not coping well with school he said that he prepared a roster for her every week. The Father said at the time of the trial, that X was about one week behind in her rostered tasks. He confirmed that she studies about four hours per week and confirmed that distance learning was not supposed to be equivalent to full-time schooling but that in X’s circumstances it was assessed as being appropriate. The Father said that he monitored the distance learning and knew when X had not filed an assignment when due. The Father spoke of X’s exercise regime and that he was proud of her that she had lost 10 kilograms in weight. The Father says that X chats on the internet with friends and she enjoys doing so. Overall, the Father said he was guided by the medical professionals in relation to X’s care and confirmed that he was worried about her and her health.
When speaking of X’s treatment he said that her therapy and the treatment at the hospital were going just fine; he was very happy with the treatment that X had received for around two years. He said that from his observation X’s outlook on life has changed for the better. He said she is now able to laugh at home and make fun of him and Ms B, and was like the child they had before. In a genuine and touching passage of evidence he said that she was 16, has a brain and he genuinely believed that one day she was going to be smart.
This is in contrast to the questions that the Mother put to the Father. She suggested that the Father was far too restrictive and that he was holding X “a prisoner” in her own home. She suggested to the Father that X’s bedroom was like a prison cell because it was too tidy. The Father’s believable explanation was that they were expecting the Mother to visit and X tidied her room.
During his evidence the Father told the Mother that she was a major source of stress for X. He did not blame her for X’s condition but said that within the last six months her relationship with X was worse and indicated that what the Mother said to X was so distressing that it would also be distressing for an adult.
The Mother then cross-examined the Father about the “retarded” comment. The Mother agreed that she had said to the Father, Ms B, and X that their behaviour was retarded rather than calling them retarded. The Mother’s attempt to rationalise her behaviour in this regard is less than useful. Even if I accept her evidence as truthful her comments are provocative and hurtful. When one factors in X’s history and vulnerabilities, her comments were at the very least imprudent and ill considered.
The Mother suggested to the Father that he did not want X to get better and that he wanted to control her for monetary gain. Not only is such a suggestion abhorrent, I find it is demonstrative of the Mother’s delusional beliefs about the family, and what is motivating the Father.
The Mother suggested to the Father that he had been negligent and medically abusive towards X. In contrast, the Father said that X’s treatment is the best treatment she had ever received. I accept the Father’s evidence.
When cross-examined the Father said that X does not handle stress well and that the Mother added stress to X’s life. I accept this. The Mother’s questions of the Father lack any level of insight into X’s needs.
The Medical Professionals
Two significant members of X’s medical team gave evidence. Their evidence and attendance was arranged by the Independent Children’s Lawyer and was invaluable in the assessment of X’s needs.
Dr A
Dr A (“Dr A”) is the Head of Academic Child Psychiatry and Developmental Neuropsychiatry Program at the (omitted) Hospital.
He prepared a report dated 27 May 2015. He annexes the report to his affidavit filed by the Independent Children’s Lawyer on 1 June 2015. The report runs to some 45 pages and is a testament to his expertise in his chosen field. He attended Court personally to give evidence. He confirmed the contents of his report dated 27 May 2015. He first saw X in September 2013 and a full assessment of X’s health was completed in November 2013 which revealed:-
…a persistent depressive disorder (dysthymic disorder DSM-IV) associated with a range of anxiety difficulties and ADHD inattentive type symptoms driving school refusal behaviour and oppositional defiant disorder.
X was treated and continues to be treated with medication and is also treated with cognitive behaviour therapy.
The cross-examination by the Mother of Dr A was at times offensive and challenging. Dr A conducted himself with caring professionalism and seemed genuinely perplexed as to the Mother’s attitude towards the treatment X was receiving.
Dr A described X’s progress and her treatment. He said she has made significant gains and that her current treatment approach was effective. He said that the Father had been supportive and helpful. Appropriately, Dr A did not want to disclose personal information shared between X and her doctors. He confirmed that X does not wish to see her Mother and said that he had seen no evidence to suggest that the Father was influencing X’s views in that regard. During the Professor’s evidence he demonstrated not only a clinical knowledge of X’s condition but also a personal acquaintance with X. He was genuinely and appropriately concerned about X’s treatment and also her personality and improvements generally.
Dr A indicated that the medical team have had to obtain legal advice from the legal department of the (omitted) Hospital, and as such he confirmed that they would only deal with X’s legal guardian, being the Father. Due to the issues with respect to X’s family there had been a meeting between legal and medical practitioners to discuss legal guardianship and the parameters of how far they were prepared and wanted to go with respect to disclosing information to the parties (bearing in mind their obligations to be protective with respect to their patient).
Dr A spoke of having to deal with issues surrounding the Mother’s complaints to the hospital and he said that such issues create a degree of anxiety, uncertainty and a degree of fear and trepidation. In managing the Mother’s complaints he said they wondered about what was going to happen which generated a degree of self-doubt. He said that the complaints created anxiety and in his view that anxiety must affect the therapeutic engagement of medical professionals with X. He felt that the relentless nature and degree of questioning by the Mother, which was required to be dealt with by the hospital, was challenging.
Dr A indicated that X has made improvements and she has made significant social and emotional gains through learning skills to manage her vulnerabilities to depression and anxiety. He described X as having a good prognosis and said that the current treatment approach was objectively effective given the gains that X had made.
Dr A said in his report that there was no evidence that X’s condition had been exacerbated by having no contact with her Mother and his report reveals that X does not wish to see her Mother. For X’s privacy and therapeutic reasons the Professor was not prepared to divulge a number of matters disclosed by X in her treatment. He did say that he had been informed by Ms J, X’s psychologist, that X's Mother had used information obtained through medical means against X in the past.
Finally, and importantly, Dr A reported that X continues to make social and emotional gains.
Dr A described the Father as supportive and helpful. Furthermore, Dr A was able to describe the Father as a very concerned, caring and responsive parent who had sensitivity to his daughter’s needs. He said that the Father seemed to be empathetically connected to X and genuinely concerned for her. He said the Father shared a capacity to change his approach in order to help his daughter. Dr A indicated that the Father has consistently presented in this way during his contact with the family. Furthermore, he says that X has been consistent in her own view that the Father is a kind, loving and generous Father and she speaks highly of him in the most positive way.
That passage of evidence needs to be directly contrasted to Dr A’s description of his view of how X experiences anxiety surrounding her relationship with her Mother. He said that he observed a degree of tension, which was manifested in tensing of the upper limbs and withdrawal, often silence, and comments that are consistent with that physical observation.
Dr A was consistent in his view that X’s depressive symptomatology and self-harming behaviour has significantly improved. More significantly, perhaps, he was able to describe in intimate detail what that means to X, in that she has a deeper sense of identity and a deeper understanding of intimacy and her ability to generate positive outlooks, and narratives into the future. Dr A said that these narratives were important because they provide an outlook for her educationally, occupationally and interpersonally into adult life. He said that X had significantly improved and that they were in the process of rebuilding X. Those matters were tempered with an acknowledgment of the possibility of setbacks for X. Dr A said it would be extremely easy for X to experience setbacks because of her fragility. He described X as being vulnerable, but that she has been making very positive strides supported by good people in X’s family unit, and in particular the Father and Ms B. He said that X’s age increases her fragility and that X was expressing a view that she did not want to see her Mother.
Dr A told the Court that to oppose X’s expressed views would be very detrimental to her because of the underlying fragility. She would be at increased risk of emotional harm.
It is clear that the Professor was unaware that one of the Mother’s proposal was to remove X from the Father’s care and have her placed in foster care. I observed Dr A to be genuinely taken aback and shocked by the prospect of that. He found it, and I quote:-
I – I’m – I find that such a damaging suggestion. I feel affronted by it, and it is one that I would be – I would feel quite emotionally driven to challenge intellectually and professionally. It is – it is – it is preposterous.
The doctor reiterated that the Father has a very loving and empathetic primary caregiver relationship with X.
As a professor with a particular interest in children who are living in “out-of-home-care”, Dr A said that X’s living circumstances, primarily with her Father and her step-mother was a protective feature in X’s care and welfare.
What was also impressive is that the hospital does not withdraw support from X when she turns 18 years of age. Their support will be ongoing, even into X’s early to mid-20s. He said that he would expect X’s health issues to abate significantly within five years, however, there would be some issues which would arise in her life from time to time that might cause setbacks. He said that the hospital has no strong view as to when they would cease involvement with a young person “because of the importance of providing that intermittent care as needed until she reaches adult life”.
The Mother made no significant inroads into Dr A’s evidence. She based her cross-examination upon the platform where she attempted to establish her own (omitted) qualifications. In an embarrassing and offensive exercise she sought to quibble with Dr A’s qualifications on the basis that his first degree was not, in her view, a medical qualification. She sought to devalue Dr A’s qualifications by suggesting that he had an overarching focus on children with Attention Deficit Hyperactivity Disorder, the implication being that he had a bias towards that diagnosis.
The Mother offensively suggested to Dr A that his main interest area at the present time was in obtaining financial grants for the hospital, attending conferences and writing papers. She suggested that the main focus of his professional career was not on the patients who were under his care.
The Mother suggested to Dr A that separation anxiety disorder (from her) might have been one of the reasons why X was suffering ill health; Dr A indicated that X suffers from a depressive disorder and ADHD. The Mother challenged Dr A as to the assessments that he had undertaken and challenged him as to the medication and the dosage of medication that X had been prescribed. The Professor responded, and I accept, that the matters put by the Mother were not clinically required and that “the prescribing occurs absolutely within the approved guidelines, and the monitoring I believe has been quite rigorous and appropriate”.
In deflecting the offensive questions and in particular whether or not he thought that he should have obtained a second opinion with respect to X, he indicated that diagnostically a second opinion was important when the patient’s ongoing difficulties were not being resolved, or the patient was non-responsive to treatment. He said in X’s case there was evidence of genuine treatment responsiveness.
In a passage of evidence it was suggested by the Mother that the reason that X had stopped self-harming was because there was nowhere left on her body to do it. The Professor’s answer in this regard, when the question was clarified by me, was as follows:-
But I would like to inform the Court why I’m finding this quite a difficult question, is not because of any form of concern about my answer. It is because I get deeply worried about the objectification of a young person to be just a body when, in fact, from a psychiatrist’s perspective, it’s so deeply engrained in my training, she is a whole person, and it is her developing personhood that we are attempting to aid. The self-harm is not a – just an issue of a physical body in the same way we might see a piece of, you know, animal hanging up that we analyse. It’s a human being and a person and it’s the whole person we’re trying to treat, which is why I worry about an over-objectification of this.
He went on to say:-
… It’s their whole personhood, their psyche and the soma connected together that we are trying to address here, and I cannot in any way support a – a line of questioning or model of care that is about objectifying, particularly a young person, as just a body with cuts or any other form of self-harm. It is a much more integrated approach we have to take.
Dr A said that X had shown steady, incremental and overall improvement and it was a consistent, genuine, deep, developmental positive change.
The Professor was criticised by the Mother on the basis that his clinical experience of X was based on reports from other people and monthly meetings and reports from X’s family. The Mother attempted to suggest that there was no objective evidence in terms of improvement, given that X is still not attending school and from time to time has difficulty leaving the home. The Mother implied that Dr A was not able to provide “quantitative” evidence and said that she could not see “any of either a quantitative or empirical or subjective evidence to back up what you’re saying, that she has improved.”
In the first instance, I find that Dr A’s involvement with X has been entirely appropriate and is sufficient for him to base his assessment of her health from time to time. It is not surprising that he bases his opinion on the observations of others, nor is it inappropriate. In my view, Dr A is well equipped not only to give evidence about the improvements that X has made but also to give evidence about her emotional, psychological and psychiatric health overall. He is an eminently qualified psychiatrist.
The only person who suggests that X’s health has not improved is the Mother who has had so little involvement in X’s life that she is hardly the most appropriate person to be able to assess that evidence. The more troubling aspect of the Mothers presentation in this case is that she is simply unwilling or incapable of accepting that she is not in that position in X’s life, cannot be and therefore she is not in a position to dictate, query or quarrel with those more intimately acquainted with X’s needs or care.
The Mother sarcastically suggested to Dr A (when he failed to agree with matters put to him about the nature of the medications and whether or not the medications gave X a false sense of euphoria) “well, I suggest you read your MIMS. That’s all I’ve got to say about that”. Although the Mother did go on to apologise and conceded that she was out of line her comments were offensive.
Dr A told me that:-
… X needs to will, to drive, to be the primary agent in determining those changes building on the sound empathic, attuned, sensitive and responsive primary care base that she has, if I may, not supplanting that but adding to it as X wills, drives and voices. I believe this is crucial because when I first met X she had no voice.
The Professor went on to say:-
Now she has a voice. That is wonderful and needs to continue to be built upon, her voice, being heard, and her being an agent in building the next narrative stages of her life.
Dr A was clear. Firstly, that the gains that X has made have occurred from the home base that she is in currently and it is from that base that she will build into the future. He said he would be most concerned about her home base changing. Dr A also said that if the Mother causes X to question the efficacy of the medical care that she was receiving or the current base upon which that medical care has occurred that he would be gravely concerned.
The objective evidence points to more far ranging factors which have impacted on X’s health. Partly those factors consist of the Mother’s own interactions and sometimes damaging interactions with X, including but not limited to what happened in 2007 and also, her unrelenting attitude towards issues now.
Although Dr A agreed that X has been on a higher dose of antidepressant medication, and on a lower dose of medication for ADHD, he said that such doses were appropriate, non-addictive and in X’s case had been helpful in treating her illness.
The medical expert’s and the Father’s impression of X’s ongoing health difficulties and ongoing improvements are compelling.
It is beyond comprehension to accept that Dr A would give inappropriate or inaccurate evidence with respect to X’s health. There is simply no interest on his part to do that. The Mother, of course, will disagree with this because she believes, and has an unshakeable belief, that X is being subjected to medical negligence and/or abuse. However, I find that this is simply a construct on the part of the Mother which fits easily into her view of herself as a person who is important in X’s life, intimately involved in X’s life and that her absence has caused X to suffer.
In this case I find that the Mother would actively undermine the stability of X’s care in her Father’s household given an opportunity to do so and, secondly, would undermine the efficacy of the medical care that X has received and will continue to receive. There is ample evidence to suggest that she is dissatisfied on both counts. Therefore she presents as a risk to X.
Ms J
Ms J (“Ms J”) is X’s psychologist. Ms J affirmed an affidavit on 1 June 2015 and attended at the Court to give evidence. Ms J annexes to her affidavit (at Annexure J-1) her curriculum vitae and I accept her as an expert. She also annexes (at Annexure J-3) a report dated 1 June 2015 responding to a letter from the Independent Children’s Lawyer.
Ms J commenced therapy work with X in October 2013 and has seen X between fortnightly and monthly since then. She has conducted reviews with Dr A on a monthly basis in order to assess X’s care.
Ms J confirmed the diagnosis of Dr A and confirmed his recommendations for treatment.
Ms J concurred with Dr A and at point 4 of her report said: -
X has made significant gains in her social and emotional wellbeing. Her self-harming behaviour and depressive symptoms have significantly decreased. Her social contact has significantly increased. We are still working on her anxiety symptoms and return to school.
Ms J confirmed that X’s prognosis was good and that her present treatment seems appropriate to assist her, which is evidenced by her significant gains. Ms J acknowledged that the major concern at the moment was X not attending at school and that both she and X will work towards that together in therapy.
Ms J reported that X’s condition was not exacerbated by having no contact with her Mother due to her significant gains in her social and emotional wellbeing. During therapy sessions X had expressed distress after having had phone conversations with her Mother. This is suggestive at least that even with the limited contact that the Mother has had with X that such contact has a detrimental effect on X’s emotional welfare. It is quite apparent – Ms J says – that X needs to be able to freely disclose information about why she did not wish to see her Mother without being worried about consequences from her Mother. Therefore, and quite appropriately, Ms J declined to report on all information provided by X in therapy.
In terms of the rationale behind X’s position and how she may have reached her views, Ms J said: -
X is a mature young person, with above average Verbal Comprehension (as assessed by the WISC-IV). She is able to form and express her own opinions on topics, which have been made by weighing up the positive and negative consequences for these decisions.
She said there was no evidence to suggest that X's Father was influencing her against the Mother.
During cross-examination by the Independent Children’s Lawyer Ms Winther said that in March 2015 X had informed her that she did not want to see her Mother. Ms J was in attendance when X spoke with the Independent Children’s Lawyer and told the Independent Children’s Lawyer that she did not want to see her Mother.
Ms J was able to describe with particularity the improvements that X has made since 2013. When she first saw X in 2013 she described her and said:-
She presented as quite flat. She wouldn’t show her face. She had a hoodie over her head. Her body language was all down. And she spoke very quietly.
In contrast, her presentation now was described as:-
She presents quite well in session. She is sitting upright. Her hair is off her face. She doesn’t have a hoodie over her head. She smiles during our conversations appropriately, and she has quite intellectual conversation with me about things.
Ms J described X as being quite mature and said, warmly and affectionately, that she has to remind herself sometimes of X’s age when they are talking (meaning that she presents as mature and thoughtful).
Ms J reported that whilst X’s progression was positive there were still issues for X. Ms J was concerned that X has had a lot of distress after phone calls with her Mother when she had informed her Mother that she is happy with where she currently lives. Ms J said that X does not want to live with her Mother and at times she has felt uncomfortable with her Mother. Ms J worried that X’s mental state would deteriorate if she were placed in the primary care of her Mother.
Ms J said that she has worked with children in foster care and she thinks that foster care would be highly detrimental to X’s mental health.
The Mother was present in Court during the time this information was provided, but nevertheless persisted with her application.
During the Mother’s cross-examination of Ms J her opening gambit was to attack the qualifications of the witness suggesting that she was merely a social worker at the commencement of her career.
I do not accept that Ms J does not have the appropriate qualifications. Ms J’s evidence was knowledgeable and intimately acquainted with X’s personal situation.
Ms J was aware of the complaints made by the Mother through the hospital and said that a second opinion was offered to X and her Father but that neither followed through with the offer.
When cross examined by the Mother, Ms J was resolute in her professional opinion that X has made significant gains and that X’s depressive symptoms had just about disappeared. She said that she and X were continuing to work on X’s anxiety symptoms but that she had certainly made significant gains in overall mood and presentation.
Ms J described X as mature, cognitively bright in the high average range and X has told her that she is able to form her own opinions and is not influenced by what her Father says.
When asked what would be the impact of not giving significant weight to X’s expressed wishes, Ms J indicated that she thought that to do that would be detrimental to X. She thought X was old enough and mature enough to feel that she wants to express her opinion, and wants to be heard and she thought that not doing that would make her feel out of control. Ms J said that it was important that X be heard in the proceedings.
Conclusion following medical evidence.
Overall I observed X’s medical practitioners to be highly competent, caring and appropriate medical professionals. It is incomprehensible that they would do any harm to one of their patients. The suggestion that they are intentionally neglecting or unintentionally causing harm to X is, to borrow Dr A’s terminology, preposterous.
The Mother’s beliefs in this regard are delusional. I regard such beliefs as symptomatic of her wider, longstanding and entrenched personality issues.
Given the complaints made by the Mother about X’s medical team, the Independent Children’s Lawyer and the Father will be at liberty to provide a copy of these reasons to X’s doctors, health professionals, hospital administration and their legal advisors. It is important for X’s care that her medical team are alleviated of the burden of self-reflection and doubt regarding their care of X, which has been impeccable.
I will also restrain the Mother from attempting to obtain information about X’s treatment and care. Sadly, I am concerned that the Mother will improperly use information obtained by her in a way which is not conducive to X’s welfare.
Finally, I should acknowledge that the evidence supports a conclusion that it is X who has worked the hardest in improving her life and overcoming the issues that have troubled her. Everybody who truly knows X told me that was so. Because X is now a young adult, if her Father and doctors think it is appropriate, she should be able to read all or part of these reasons.
The law
It has not been possible in these reasons to include every aspect of the evidence. However, I have taken all of the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
In these reasons, unless it is obvious from the context in which it appears (for instance where I have attempted to set out my understanding of each party’s case) a statement of fact is a finding of fact.
The best interests of X are paramount in these proceedings.
In determining X’s best interests there are two primary matters for considerations and several additional matters to take into account.
The primary considerations are set out in section 60CC(2) of the Act and I must consider
a)the benefit to X of having a meaningful relationship with both of her parents; and
b)the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I give greater weight to protecting X from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
There are additional considerations listed in section 60CC(3) of the Act. I will have regard to these additional considerations.
X’s views.
X’s views at her age, her maturity and her situation are, by and large, determinative in these proceedings. I am mindful of the evidence of Dr A and Ms J set out previously. Not only do they advocate for X to be heard in the proceedings but they advocate as to how imperative that might be given her situation. Each of their evidence was replete with statements such as X needing to be heard, X constructing her own narrative and the importance of X being able to do so as part of her overall improvement and prognosis for the future. I have set those matters out in detail.
Further, X in interview with the Independent Children’s Lawyer and in the presence of Ms J indicated that she did not wish to see her Mother.
I am overwhelmingly persuaded that X does not want to see her Mother. X wants any communication or contact with her Mother to be on her own terms. I am persuaded that at the moment there are objective, reasonable and rational reasons as to why X does not to want to see or communicate with the Mother.
There is ample evidence that X has become distressed after speaking to her Mother. There is evidence that the Father has attempted to communicate with the Mother as to how she might approach X with a great deal more sensitivity than has been the case thus far.
I reject entirely the Mother’s contention that X has been somehow influenced or alienated from the Mother’s affections by the Father and Ms B and, in fact, I find the opposite has been the case. If anything, X has been encouraged by the Father and Ms B to liaise and interact with the Mother in a way that may have been detrimental to her wellbeing.
I find that X’s wishes are well founded, mature and should be given great weight in these proceedings.
It is arguably unnecessary to proceed beyond X’s wishes; however, I will do so.
The nature of the child’s relationship.
I find that the Father is intimately acquainted with X and has shown a great deal of empathy and sensitivity towards her needs.
The Mother has a disassociated relationship with X. She has very little comprehension in any real sense of X’s needs, but merely seeks to impose her will and her own self-centred and egocentric view of what is in X’s best interests upon her. In my view the Mother has very little appreciation of X as a person and as an individual, but rather sees her as an extension of herself and sees her troubles as an extension of the Mother’s own troubles. I find that this is not so. In my view it will be difficult for the Mother to maintain a close relationship with X. She has no capacity to understand her except as an extension of what the Mother perceives has occurred since X was removed from the Mother’s primary care. I find that the Mother has no capacity to understand or relate to X as a functioning individual.
The empathetic and supportive relationship that X enjoys with her Father extends to her step-mother and also extends to the supportive relationships that she enjoys with her medical practitioners, and in particular Ms J.
X has a fragility and vulnerability which makes it particularly important for her supportive relationships to be maintained and I find that the relationship with her Mother is such that it has the capacity to seriously undermine those supportive relationships that X enjoys and is detrimental to her welfare.
X experiences her Mother as creating anxiety and distress for her and given X’s emotional and psychological state, and the vast improvements that she has made, it is important that her personal wellbeing is not undermined by the Mother.
The extent to which each of X’s parents has taken, or failed to take, the opportunity to progress in making decisions about major long term issues in relation to the child, to spend time with the child and to communicate with the child.
The Father’s conduct in this regard has been impeccable. He has, with the assistance of Ms B, supported X in the way described by Dr A and Ms J.
The Mother has also sought to be involved in X’s life in this way. However, it was decided by Justice Brown and it is also apparent to me that her involvement in this regard is inappropriate and not conducive to X’s long-term and medium-term welfare. Although the Mother has a desire to be involved in X’s care and long-term decision-making aspects, sadly, such involvement is not warranted or appropriate in X’s circumstances.
The Mother’s relentless pursuit of such involvement has been one of the matters which has been significantly detrimental to her case.
The extent to which each of X’s parents have fulfilled or failed to fulfil their obligations to maintain X.
The Father has maintained X in his own household and appropriately so. I reject outright any suggestion by the Mother during her questioning of him that he does not have the capacity to do so. He has done so to the best of his ability. There is nothing in my view to suggest that the Father has not maintained X in an appropriate way, including accessing appropriate medical advice for her when necessary.
The Father was critical and suggested that the Mother had not adequately maintained the child but had the financial resources to do so. This aspect took little time in this case and was not pursued on a significant level. That is appropriate. This aspect of the case, when there are so many other aspects of such seriousness, does not impact on the outcome of the decision making process. I make no finding in this regard, and it is unnecessary to do so.
The likely effect of any changes in X’s circumstances.
The Mother in her application seeks significant changes to X’s care, namely a change of residence into her care and in the alternative for X to be placed in foster care. I find that I am in total agreement with Dr A and I find such a suggestion are both preposterous and having the capacity to be seriously detrimental to X’s welfare. I also note the evidence of Ms J in which she suggested that the Father and his wife are supportive.
It is extraordinary that the Mother makes such a suggestion and in my view it is demonstrative in and of itself of a complete lack of insight and sensitivity with respect to the needs of X.
The further issue sought by the Mother was to have what she described as “normal time” with X. Even that will be detrimental to her welfare. X finds it difficult to even deal with her Mother on the telephone and therefore to introduce her Mother in the way suggested in my view is not warranted and would create a situation for X which would be impossible for her to cope with.
However, there should be some changes to the orders. At the moment X's Father has a discretion as to whether or not X speaks with and sees her Mother, and also discretion with respect to the Mothers access to X’s medical records. In my view this causes difficulty and has created a conduit through which the Mother feels she can gain some leverage, by unrelentingly querying the Father about such issues. This continues to cause difficulties for X and continues to tantalise the Mother with the prospect of having some say in X’s care. I propose in these orders to remove that possibility. I will make an order that any medical records in relation to X should not be released to the Mother and the Mother shall be injuncted from attempting to have access to them.
It is appropriate that there be an understandable and unassailable blueprint as to how the Mother should be able to access information with respect to X. That should be only if X desires it herself and only if X approaches her medical practitioners and indicates her preparedness to liaise with and provide information to the Mother, which shall be conveyed to the Father.
The practical difficulty and expense associated with face to face time and/or communication with X and her Mother.
There will be no communication between X and her Mother or face to face time between X and her Mother, save in the most limited circumstances. Accordingly, this has little or no relevance.
The capacity of X’s parents to meet her needs.
As has been set out in detail in these reasons, the Father is the parent with the superior capacity to meet X’s needs. He has been doing so, and X has made improvements with her health whilst in his care.
Sadly for X, I am of the view that the Mother has practically no insight or capacity to meet X’s needs at this time.
The Mother does not have the capacity to provide for X’s emotional needs.
The Mother does not have the capacity to provide for or make any input into medical decisions in relation to X because she applies any knowledge that she does have in an arrogant and superior way that has little relationship to the reality of X’s situation.
X’s maturity, sex, background and other characteristics
X is described as a mature girl who is 16 years old.
I have dealt in detail with other aspects of her personality and importantly her needs must be considered, having regard to her particular health vulnerabilities and frailties. X needs to be protected.
I find and accept Dr A’s and Ms J’s evidence that X is capable of assessing her own needs and in particular, of assessing her own wants and desires with respect to seeing her Mother. I reject categorically that X has been adversely influenced by the Father in forming her view that she does not wish to see her Mother.
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents.
I have dealt with this in detail within these reasons and do not propose to repeat facts and matters referred to under this category.
Any family violence involving the child or any member of the child’s family and family violence orders.
I do not find that this is relevant to these proceedings.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to X
These will be the last first instance proceedings in relation to X.
Other matters.
At the commencement of this case I was asked to consider whether or not there had been sufficient change of circumstances that would warrant further consideration of parenting arrangements for X.
When that matter was put at first instance it was put on the basis that the Mother could not show change of circumstances.
I find that there has been a change of circumstances. Those changes are such that the Mother’s involvement in X’s life has become more detrimental for X’s welfare and that at this stage of X’s life it is appropriate to amend the orders in the way which I have done.
Parental responsibility
In these proceedings there has already been an order that the Father have sole parental responsibility. The order is appropriate, in X’s best interests and I will not revisit it.
I have considered whether or not the Mother’s behaviour towards X is tantamount to abuse. Section 4 of the Act suggests that abuse can mean, causing the child to suffer serious psychological harm. Although the Mother’s involvement in X’s life has the capacity to cause psychological harm I am not prepared to go so far as to define the Mother’s behaviour as abuse. To do so would elevate the Mother’s capacity or incapacity to put the X’s needs ahead of her own to a level which is unwarranted.
Rather, the evidence in this case causes me to be satisfied that it would not be in X’s best interests to permit her Mother to share parental responsibility with the Father.
Accordingly, there will be a continuation of the sole parental responsibility order in favour of the Father. There is no doubt in my mind that the Father will apply that responsibility in consultation with X and with the input of her medical practitioners.
For all of the forgoing reasons and having regard to all of the factors impacting on X, the orders I will make are proper and appropriate for X and are in her best interests.
I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of Judge Stewart
Date: 11 February 2016
Key Legal Topics
Areas of Law
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Family Law
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Injunction
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Remedies
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