Distress of conflict on child – Baldry & Baldry [2015] FCCA 3348 (18 December 2015)
Last Updated: 3 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
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Delivered on:
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18 December 2015
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The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2015/3348.html?stem=0&synonyms=0&query=family%20law%20act
ORDERS PENDING FURTHER ORDER
(6) The parents shall cause X to attend (omitted) High School on and from 27 January 2016.
Introduction
- This case is about X, born (omitted) 2004, 11 years old. X is a very lucky boy. Unlike most of the children whose cases are dealt with in this registry of the Court, his case does not involve allegations of physical or psychological abuse, family violence, mental health issues, drug, alcohol or other addictions. X’s parents simply cannot agree about a very important issue in X’s life – where he will go to high school next year.
- It is somewhat ironic, therefore, that X’s experience of his parents’ conflict over this issue has actually caused him more distress than many of the other children whose cases are heard in this Court. The evidence before the Court about the level of distress that X has experienced as a result of his parents’ inability to agree as to where he goes to high school next year is truly disconcerting. That they needed the Court to make a decision about this reflects poorly on both of them.
The Other Evidence
- The only other evidence before the Court was the student counselling file relating to X, produced on subpoena by his school. It is important to set out this evidence insofar as it is relevant to the present issue. The first record appears to be dated 15 July 2015. It is a document described as “Referral to the Learning Support Team.” Under the subheading “Concerns for this student” the following is recorded :-
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Child is incredibly unhappy at school. As a result, some behavioural issues are becoming more prevalent. He still doesn’t know which high school he will be attending next year. Parents are arguing about it and he is caught in the middle. One parent has threatened that they will not care for them at their house if they choose to attend the school they don’t wish.
- On 20 July there is a file note of an interview with the “LST Coordinator”. It records:-
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X’s parents have shared custody (50-50). Mo and new partner have built a new house out of the area. X is under pressure to change schools to be closer to new house. X wants to go to (omitted) HS in 2016. He has repeatedly stated this at school. X doesn’t know where he is going to high school. He wants to tell his mother about (omitted) HS.
- It is not contentious that the reference to (omitted) HS is the reference to the high school local to the current school that X attends, and it is the school that the Father contends for.
- The next relevant document is a handwritten document which purports to be a record of an interview with X on 27 July 2015 by Ms B who, it appears from other records on the file, is the school counsellor. This document records what X reported to the school counsellor:
- He is sad most of the time 6/7 days of the week.
- His parents divorced at three years old.
- He lives four/three days between mother and father, but this will be hard to do in high school.
- He feels he will have to choose to live with either mother/father next year for high school but worries how the other parent will feel about his choice.
- He doesn’t know which high school [X] versus (omitted) HS
- [X] has puppy but no friends.
- (omitted) HS has friends but mum will be sad.
- Feeling torn between both parents.
- He will think about choices and discuss with school counsellor next week.
- He doesn’t want his parents to go to court, as mother can’t afford it.
- There was a further interview on 3 August 2015 with the school counsellor:
- This week, he felt 5/10 happy and today mother is getting Wi-Fi.
- He wants to try one year at (omitted) HS and then year 8 at [X].
- The next interview was on 10 August 2015:
- He was happy.
- He had a good weekend.
- He told his father about his decision (year 7 – (omitted) HS, year 8 [X]).
- Hasn’t told mother about his decision yet but he will this week.
- There was a further appointment on 14 August 2015. The record records X’s report:-
- He talked to mum about going to (omitted) HS in year 7 and [X] high school in year 8.
- Mother cried and said she would only see X 12 times a year.
- X cried too.
- He is going to wait to see what mediation says about where he goes to HS.
- He was 7/10 happy.
- The next record is 7 October 2015:-
- A couple days ago asked to fill in form about what HS the students were going to and he started to cry.
- He is hurting inside 10/10 (10 = max) and has been since before the holidays.
- He wishes his parents will get back together but knows that won’t happen.
- He wants the HS question settled.
- He has thought about what if he wasn’t here. It wouldn’t hurt any more.
- His chest is tight/heavy, has had dizzy spells.
- Doesn’t want his parents to know.
- He has thought about going to live on the streets.
- The next record is Ms B’s record of a telephone call from the mother on 9 October 2015:-
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SC discuss X’s thoughts of death and his extreme emotional pain and referral to counsellor. MO began berating SC about how can mother do that when she works 12 hours a day. She became very irate and shouted incoherently at the SC. SC listened then tried to calm MO and organised a meeting to discuss the concerns with X.
- The record of the interview on 12 October 2015 between Ms B and X records:-
- “He is still very sad but feelings of death are low and living are 9/10.
- He wants it to be all over.
- He can’t choose between either parent so is leaving mediation to it.”
- The next record is dated 13 October 2015 and is of an interview with the Mother, the principal and Ms B, the school counsellor:-
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MO somewhat angry at SC re X’s plans for HS in 2016. (omitted) HS year 8. SC tried to redirect to concerns for X mental health. MO raised voice. Principal stepped in to redirect conversation and refocussed on X’s support. MO calmed.
- The next relevant document is a record of interview 20 November 2015:-
- In three weeks, parents go to court and he will know about high school.
- His MO has him for year 6 orientation day, so he has to go to [X] HS that day.
- He went to (omitted) HS last Sunday to see about uniform and other stuff.”
- The last record is dated 27 November 2015, an interview between X and the school counsellor:-
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Feeling sad, still as not know where going to HS yet.
39. What can be deduced from the school counsellor’s records, albeit in the context of an imperfect process that must, nonetheless, result in an adjudication about an important issue in X’s life is the following:-
- X has expressed a preference to attend, at the very least, year 7 at (omitted) HS which is the local high school in terms of his present school, and his father’s home.
- X feels an intense loyalty conflict between his parents.
- On 14 August 2015 when he told his mother about his preference to go to (omitted) HS in year 7, X reported that his mother cried and said she would only see X 12 times a year. He is recorded as having also cried. As Counsel for the Mother submitted it is impossible to discern how the Mother could possibly hypothesise that she would only see X 12 times a year.
- By 7 October, X’s distress is manifest. He is hurting inside 10/10. He was experiencing suicidal ideation. He was thinking about going to live on the streets. The Court observes that this record is deeply disconcerting, and should have alarmed the parents.
- On 9 October when the counsellor spoke to the Mother about X’s thoughts of death and his emotional pain and suggested referral to a counsellor, the response of the Mother recorded by the counsellor was her saying that she works 12 hours a day, that she became very irate, and shouted incoherently at the counsellor.
- When the Mother was interviewed with the school principal and school counsellor on 13 October she was “somewhat angry” at the school counsellor in relation to X’s plan for high school in 2016 at (omitted) HS until year 8. When the counsellor tried to redirect the conversation to concerns about X’s mental health, the note records that the Mother “raised voice”. The note suggests that the Mother only calmed when the Principal stepped in to redirect the conversation to support X.
- On 2 November the note records that X, who was clearly aware of Court proceedings, “wants Court to decide.” The Court observes that, to delay the decision, as the Mother submitted, was plainly not what X wants.
Call for Reflection
- The Court urges the parents to reflect on X’s experience with how they have attempted to resolve an important issue about him. They must have become aware at some point over the last year that X was in emotional distress over this issue. Their inability to mitigate this distress is of real concern. In this registry, there are many children whose parents have been violent, neglectful, have experienced serious mental health issues, or suffer addictions of pernicious types, who have not experienced the same level of emotional distress as X has. The parents in this case must consider what they can do differently in the future.