Parent unable to provide emotional “safe haven” or secure base – child to live with other parent
Sparkes & Dalton  FCCA 130 (28 January 2016)
Parenting – change in child’s residence at earlier interim proceedings – very strong recommendations made by family consultant concerning risk of harm to child if he remained with his Mother as well as that the Mother should undergo a psychiatric assessment – Mother refused to undertake such assessment – Mother unable adequately to parent and care for child resulting in a role reversal – Mother’s relationship with child distorted with Mother refusing all assessments that the child does not have any relevant disorder – the Mother believes vehemently that the child suffers from a disorder such as autism – formal assessments reject the Mother’s view – the Father considered to be the better parent and the Father’s family with many siblings the best environment for the child.
The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/130.html?stem=0&synonyms=0&query=family%20law
The ICL’s Submissions
- The ICL’s submissions were in the following terms:
- A two day final hearing was conducted on 21 and 22 May 2015 concerning the parenting arrangements to operate for X born (omitted) 2003.
- The Applicant Father is [sic] represented by Ms James. The Respondent Mother appears [sic] on her own behalf.
- The Father has filed written submissions confirming the Father’s position as being in line with the Minute of Orders Sought filed at the commencement of the hearing with the exception that the Father adopts the Independent Children’s Lawyer’s proposed orders in relation to the frequency of time X spends with his Mother.
- The Mother’s position at hearing was in line with her Case Outline filed in November 2014. In her written submissions the Mother maintains a position that X live with her and seeks that his time with his Father be supervised (Mother’s submissions paragraph 30).
- The proceedings were initially listed for final hearing in November 2014, however these dates were vacated and an interim hearing conducted on 3 November 2014 following the release of the Family Report on 30 October 2014. Interim Orders were made on 3 November 2014 providing that X’s reside with his Father and spend limited fortnightly time with his Mother. Orders were also made directed to the Mother obtaining a full psychiatric assessment.
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Evidence presented at the Final Hearing
Ms M – Family Consultant
- With the agreement of the parties Ms M presented her evidence at the beginning of the hearing. Ms M gave evidence in line with the Family Report prepared by her and released to the parties on 30 October 2014. Ms M’s oral evidence supported the findings and conclusions contained in the Family Report.
- During the course of cross examination by Ms James in relation to the various medical interventions sought by the Mother, Ms M gave evidence to the effect that the Mother never felt completely satisfied with the interventions and diagnoses made by the medical professionals who had assessed X and this would not assist in X’s development. This was particularly the case in relation to the assessments undertaken by Therapy ACT and which formed part of the evidence. Ms M was of the opinion that such interventions have the potential to amount to “systems abuse”.
- Ms M raised concerns about X’s social development and the risk of him being socially isolated if he were to be in the care of the Mother, that the Mother is unreasonably anxious and this anxiety had the potential to transfer to X. Ms M noted that X would not seek out his Mother if he felt threatened notwithstanding that at the time of the report interview X was in the Mother’s full time care. Ms M raised serious concerns about the Mother’s mental health and recommended the Mother undertake a full psychiatric assessment.
- Ms M supported orders whereby X lived with his Father and spent some time with Mother. Ms M was asked about the frequency of such time and gave evidence that she was “not sure” that time should be severed and concluded that if the time was not positive for X than once per fortnight may be too frequent. Ms M gave evidence that once per month may be satisfactory “unless it interferes with X’s activities”. This last comment relates to the failure of the Mother to reschedule X’s time with her so that he could participate in a school function on Anzac Day. In response to questions from the Independent Children’s Lawyer, Ms M gave evidence to the effect that in the absence of a psychiatric report for the Mother, the Court should take a “conservative view” of the risk to X in spending time with his Mother.
- The Mother sought to challenge Ms M in cross examination, however was not able to establish any incorrect conclusion in Ms M’s report or in the Personality Assessment Inventory conducted by Ms M. In response to suggestions by the Mother that the Father would not be able to cope with the addition of X in view of the large number of children already in his household, Ms M responded to the effect that she was struck by the way seven children could behave so well when they all attended with the Father for the purposes of the Family Report interview.
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Mr Sparkes – Father
- The Father gave evidence consistent with his affidavit material. The Father was cross examined by the Mother in relation to the allegations of domestic violence and his history of Post Traumatic Stress Disorder and, it is submitted, gave credible responses to those issues and, in particular, demonstrated an insight into his own mental health and the identification of any re-emergence of symptoms.
- The Father gave evidence of the involvement of X in schooling and extra-curricular activities since X had come into the Father’s care. Further the Father gave evidence of the steps he had taken to involve X with both the extended paternal and maternal families since X had come into his care. The Father demonstrated an insight into X’s best interests through his concession that he would be willing to consider X spending increased time with the Mother if the Mother was receiving appropriate treatment for any mental health issues.
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Other witnesses for Father
- The Father’s partner, Ms R also gave evidence. Ms Sparkes gave evidence of the arrangements that operated in the Father’s household. Ms Sparkes expressed the view that if X were to spend time with his Mother on Sundays, instead of Saturday, there would be a greater opportunity for the children, including X, to participate in weekend sporting activities, etc.
- The Affidavit of the Father’s mother, Ms S was admitted into evidence without objection. Ms S was not required for cross examination.
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Ms Dalton – Mother
- The Mother gave evidence broadly consistent with her affidavit material and case outline. The Mother remains of the view that X does not wish to live or spend time with his Father and this view should be respected and be determinative of the present proceedings. The Mother acknowledged she is anxious when X is with his Father although conceded she was now re-assessing those concerns. The Mother however holds concerns regarding the Father’s ability to care for X and attend to his needs. This is notwithstanding the evidence of X’s improved engagement with school.
- The Mother maintains X suffers from anxiety, social persuasive disorder and a sleeping disorder notwithstanding the evidence from medical professionals. The Mother does not accept the Father’s evidence, supported by X’s general practitioner, that X is no longer taking medication to assist him to sleep. The Mother gave evidence that it was “unfortunate” that Therapy ACT had not diagnosed X as being on the autism spectrum. Throughout her evidence the Mother maintained X has special needs.
- The Mother demonstrated a lack of insight in the parent/child relationship. For instance, if X said he did not want to see his Father or attend school then the Mother would not facilitate these activities notwithstanding orders to the contrary. The Mother gave evidence that if X is upset or angry she removes herself to her own bedroom until X calmed down and he would “have the run of the house” and that it is part of her parenting strategy that X “takes control” of the parenting relationship.
- The Mother maintained that X should live with her and spend time with the Father in accordance with his “whole consent”. The Mother appeared not to have contemplated a circumstance where X may not wish to spend time with his Mother.
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60CC(2)(a) – benefit of having a meaningful relationship with both parents
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60CC(2)(b) – need to protect child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.
- It is submitted the evidence clearly establishes that X is at risk of psychological harm in the care of his Mother. Reports from Therapy ACT, X’s general practitioner, schools and the Family Report together with the Mother’s own evidence and submissions establish the extent of the risk while ever the Mother’s presenting mental health symptoms remain untreated. It is most unfortunate that the Mother has declined to be psychiatrically assessed and treated as, had she done so, she may have been able to demonstrate a greater insight into X’s needs and best interests.
- The failure of the Mother to obtain appropriate treatment exposes X to risk of psychological harm and therefore the time he spends with his Mother should be limited such that a relationship may be maintained whilst mitigating that risk.
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- 60CC(3)(a) – views of the child: X expressed to Ms M – at a time when he was in the full time care of the Mother – that he wished to remain in the care of the Mother. By the time of the trial, and following a period of approximately six months with the Father, X wished to leave the matter to the Court and expressed no particular view (see ICL Case Outline, paragraph 6). In any event, it is submitted, the risk X would be exposed to in the care of his Mother militates against undue weight being given to X’s view as recorded in Ms M’s report.
- 60CC(3)(b) – nature of the relationship between the child and each of the parents: X has been in the primary care of his mother for most of his life. The Family Report identifies numerous issues in the relationship between the mother and X including the failure of the relationship to properly reflect a parent/child model. The evidence establishes that X has settled well in his new family environment with his Father.
- 60CC(3)(c) – the extent to which each parent has taken, or failed to take the opportunity to participate in decision making: The evidence establishes that where X has been in the care of the Mother, the Mother has made decisions exclusive of the Father.
- 60CC(3)(ca) – the extent to which each of the parents has fulfilled their obligations to maintain the child: The Mother, through her failure to address her own mental health issues, has failed to make decisions and provide for X in his best interests. There is no evidence the Father has not met his obligations.
- 60CC(3)(d) – the likely effect of any changes: X’s residence was changed on an interim basis following the release of the Family Report. The further changes contemplated are a change of day for X to spend with his Mother (to Sunday) to facilitate his participation in sporting activities, and to reduce the frequency of time to once each calendar month.
- 60CC(3)(e) – practical difficulty and expense of child spending time with and communicating with a parent: It is anticipated the Father shall continue to bear the cost of travel associated with X spending time with his Mother.
- 60CC(3)(f) – capacity of each of the child’s parents to provide for the child’s needs, including emotional and intellectual: The Mother, through her failure to address her own mental health needs, is not able to provide for X’s emotional and intellectual needs. There are no such concerns in relation to the Father’s capacity.
- 60CC(3)(g) – maturity, sex, lifestyle and background of child and parents: There are no specific matters under this heading that will assist the court.
- 60CC(3)(h) – Aboriginal/TSI: Not applicable.
- 60CC(3)(i) – attitude to the child, and to the responsibility of parenthood, demonstrated by each of the parents: The evidence of Ms M and the Mother herself demonstrates that the Mother is not able to maintain an appropriate parent/child relationship.
- 60CC(3)(j) – family violence and 60CC(3)(k) – family violence orders: There are no extant family violence orders. The Mother makes much of an alleged history of family violence but was not able to establish any recent or present instances of family violence perpetrated by the Father.
- 60CC(3)(l) – whether it would be preferable to make an order that would be least likely to lead in further proceedings: It is not known whether the Orders proposed will be least likely to result in further proceedings.
- 60CC(3)(m) – any other fact or circumstance: There is no other fact or circumstance that has not already been considered.
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- It is submitted that in circumstances where the Mother’s mental health symptoms remain untreated, parental conflict remains entrenched, and the positions of the parties remain opposed that, in the absence of a specific order for parental responsibility, difficulties will continue in relation to addressing X’s schooling and medical treatment. An order for sole parental responsibility in favour of the Father is supported. The Father should be required to inform the Mother of any major decisions concerning X.
Consideration & Disposition
- I have commented already that I accept without qualification the submissions of the ICL. This includes that there should be an order for sole parental responsibility in the Father’s favour, but also that he be required to keep the Mother informed of major decisions concerning X. In making an order for sole parental responsibility, there is no requirement to consider s.65DAA.
- I also accept without qualification the evidence of Ms M. This includes the assessment of the risk of psychological harm if X was to live with his Mother.
- Because they were also essentially unchallenged, I also accept the submissions made on behalf of the Father.
- In addition to the ICL’s submissions, and obviously in the light of all the evidence, it seems to me that the following matters are crucially part of the Court’s consideration under either s.60CC(3)(ca), (f) and (i), and or under s.60CC(3)(m). In relation to these particular parts of the legislative scaffold, I am mindful of the following, guiding comments. For example, inGoldrick v Goldrick, the Full Court said, at  (emphasis added):
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In our view, it is clear that, while the impact of any parent’s relevant actions should, if the evidence permits, be identified, the references … [relevantly in the Act] demonstrate that the actions of each parent in the relevant respects are to be evaluated for something beyond consequence alone; namely what those actions say of the person’s capacity to parent.
- Rather earlier in time, in Kress Goldstein J said (at ALR 319):
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Given the overriding consideration of the welfare of the child, the Court must consider the conduct of the parents, not with a view to rewarding one or punishing the other, but to ascertain from such conduct whether the welfare of the child will be better served in the custody of one or the other.
- The decisions in Goldrick and in Kress ought properly be considered in relation to s.60CC(3)(ca), (f) and (i). And finally, if it needs to be noted, the Full Court in Mulvany v Laneobserved that there were in effect no limits, under s.60CC(3)(m), of the matters which may be considered by a court. In their joint judgment, May and Thackray JJ said, at :
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It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
- In the light of these comments, I note the following.
- First, the Mother’s refusal to undertake a psychiatric assessment, as recommended by the family consultant, means (among other things) that Ms M’s assessment formally remains unchallenged. In the light of all the other evidence available to the Court to which reference has been made, that assessment was soundly based.
- And in the light of it and the other evidence, there exists, in my view, more than a significant risk that were the child to remain in the Mother’s care, or even to spend significant and substantial time with her, X’s unstructured and undirected life would continue to his detriment. And this would be in circumstances where the Mother continues to believe strongly that X suffers from an undiagnosed disorder, such as autism, notwithstanding expert opinion/reports before the Court that no such diagnosis is warranted. The Court cannot allow X to continue to live in such circumstances.
- Secondly, the evidence clearly demonstrates, in my view, that the proper, structured parental relationship between X and his Father, including in particular the routine and stability which the Father’s household has provided in recent times, has led to an appreciable improvement in X’s psychological (and general) well-being. X no longer requires sleeping medication, and is now regularly attending school (which he was not doing while in his Mother’s care). Given X’s previous mental health challenges (e.g. selective mutism, anxiety) throughout his short life, the Court must have regard to the impact the relationship with his Mother has had, and will have in the future.
- Since commencing to live with his Father, Ms Sparkes and his siblings, the evidence of both Mr and Ms Sparkes is that both adults in the Sparkes household have and will continue to foster X’s relationship with his Mother, and the Mother’s family. I accept their evidence. The Mother’s clear evidence is that she does not want X to have any relationship with the Father. The Court may reasonably assume that, in the light of the Mother’s evidence, she would not facilitate and promote the child’s relationship with his Father. This would, in my view, clearly not be in X’s best interests.
- It would also follow from the Mother’s evidence to which I have just referred that her conduct would impair X’s relationship with his many siblings. This too would not be in X’s best interests.
- On the Mother’s evidence, it seems reasonably clear that she finds parenting and disciplining X to be challenging and generally difficult. Without making a formal finding, it may be that the Mother’s obsession to find a formal diagnosis of some description regarding X’s mental and psychological well-being is something akin to her seeking to find an excuse to justify her lack of proper parenting of X, such as allowing him to stay up all hours of the night on the internet researching and “chatting” about cats, or her retreating to her room and permitting X to have the run of the house until he settles down.
- I have earlier remarked that there is essential congruence between the positions of the Father and the ICL regarding X continuing to live with his Father (and his lively household of siblings) and to spend regular but limited time with his Mother. In my view, the orders proposed by the ICL are plainly in X’s best interests.
- The Court so orders.