Effect of parental conflict

Effect of parental conflict

Dowling & McLeod

Effect of parents’ conflict on child’s behaviour – whether child’s time with father should be reduced to day time only

REASONS FOR JUDGMENT

1. The dispute between the parties is whether their child X born (omitted) 2010 continue to spend overnight time with his father or whether the time should be restricted to daytime only.
2. The proposal by the Independent Children’s Lawyer, supported by the father except for parental responsibility is that the mother have sole parental responsibility for the child and that she inform the husband of any significant decisions about the child’s long-term welfare and that the child live with the mother.
3. The proposal for the child to spend time with the husband is as follows:
   1. During kindergarten/school term, from 5.00pm Friday until the following Monday before kindergarten/school and continuing fortnightly thereafter;
   2. During kindergarten/school term, from 2.15pm Wednesday (whilst the child is at kindergarten) or after school (once the child commences school) until the following Thursday morning before kindergarten/school and continuing fortnightly thereafter;
   100. Commencing 2017, for five consecutive nights in gazetted Victorian school term holidays commencing after school on the first day and ending 3.00pm on the sixth day of holidays in odd years and in the second week of holidays commencing on the middle Friday of the holidays to 3.00pm on the following Wednesday in even years;
   4. Commencing 2016/2017, for five consecutive nights in the first two weeks of the long summer holidays (excluding Christmas Day) from 3.00pm on Boxing Day until 3.00pm on 31 December 2016 and in even years thereafter and from 3.00pm on 2 January to 3.00pm on 7 January 2017 and in even years thereafter and for four consecutive nights in the last two weeks of holidays on dates to be agreed and in default of agreement from 3.00pm on 21 January to 3.00pm on 25 January each year (so that the child is back with the mother for at least two nights before the school term commences).
4. The proposal makes provision for Christmas Day and birthdays Father’s Day and Mother’s Day, changeover and a number of other matters.
5. The mother’s proposes that she have sole parental responsibility for the child and the child live with her. The proposal for the child’s time with the father is from 10.00am to 5.00pm on Saturday and Sunday on alternate weekends and time on birthdays and at Christmas.
6. The mother was born on (omitted) 1973 and is aged 43. The father was born on (omitted) 1970 and is 46. The parties commenced cohabitation in (omitted) 2009, married on (omitted) 2009 and separated on 26 October 2012. The mother has two children by a previous relationship, A born (omitted) 1999 and B born (omitted) 2006. Both children lived with the mother and father throughout the relationship.
7. The father has a daughter by a previous relationship. He does not see her.
8. The dispute has generated a large volume of material. The father has filed six affidavits, the mother eight. Mr P prepared four family reports plus an additional letter after meeting with the child. Affidavits are filed from Dr G, a paediatric consultant employed by the (omitted) Hospital and Ms E, a psychologist who has seen the child on 14 occasions and Mr G, a psychologist the father has attended. Dr R assessed the child in September 2015 and referred him to Ms E for psychological and behavioural therapy.
9. Dr R report describes the issues with the child. He says this:
   The main concerns for X are his short attention span, emotional dysregulation, social interaction difficulties and language difficulties at kindergarten. He is reported to be very angry and is very arduous at home and this is especially noted by Ms McLeod after return from a visit with his dad. The court psychologist, Mr P has noticed concerns about X’s use of language including unusual programmatic language and he is reported to be a very literal young man.

With respect to medical issues, his constipation is ongoing and he has a daily dose of Ozmalax. He still requests a nappy to open his bowels during the day and wears pull ups overnight. He is fully continent for urine He is otherwise in good health

10. Since the commencement of these proceedings in April 2013 there have been five sets of interim parenting orders and some procedural orders. The first on 22 May 2013 provided for the child to spend time with the father on two occasions each week for up to 3 hours between 9.00am and 7.30pm and preferably on Wednesdays between 4.30pm and 7.30pm and on Saturdays from 9.00am to 12.00pm. The time was supervised.
11. The fifth set of orders made on 12 November 2014 provided for a gradual increase in time so that from 20 November 2014 the time was 5.00pm Friday until before school Monday on alternate weekends and from 4.00pm at the conclusion of school until 6.30pm on Thursday. The order provided for Mr P to have three month reviews to assist with implementation of orders.
12. These orders were made by consent clearly in the hope that the gradual increase and the assistance of Mr P would lead to a permanent resolution. Unfortunately that has not occurred. Mr P said early in his oral evidence that he would have hoped that things would have settled significantly and it is concerning that they have not.
13. The child’s time with the father has continued. The father says that the child is happy and well behaved with him and has no problem with his bowels. The mother says that when the child returns time home with the father he is, as reported to Dr R, very arduous and angry at home. The mother says that the child tells her that he has not done a poo while he was with his father.
14. Both parents, but particularly the mother, go into great detail about the child’s time with each of them. Each disputes the correctness of what the other says. Mr P says that the child’s emotional development is not congruent with his maturational age. He says that what is being seen is the anxiety associated with the sort of disruption coming and going instils for a person who has got his sorts of vulnerabilities. He says it is usual for children who have expressive language difficulties to enact those feelings and their behaviour becomes a communication of their internal state. He says it is common for children to display this kind of behaviour and it can be difficult for the non-live with parent to grasp it because it may not appear consistent with their experience.
15. Both parents retell many instances of what the child says about the other parent. In his letter of 17 June 2015 after meeting with the child Mr P says:
    I draw your attention to my concerns regarding X’s language. He clearly communicates in a way that is disorganised and disconnected. I think it is extremely important to emphasise that you need to exercise extreme caution when you interpret what he says to you as I think that there is a real danger that you might over interpret what he says. Given that what X has said has been the source of so much conflict, I would encourage you to be judicious around these matters. He is very easily led, his response to even simple questions is at times confused, over inclusive and in my opinion he at least has a significant developmental language disorder. It is common for children who have such difficulties to be more prone to angry outbursts because they are unable to articulate their feelings. He also becomes overwhelmed in social situations where he perceives conflict and criticism by others.
16. Elsewhere in the letter Mr P described the child as speaking about events that clearly had not occurred. Two events causing friction between the parents illustrate the difficulties Mr P refers to. One occurred when the child told the father that the mother had stabbed him with a screwdriver and tried to strangle him. This had not happened. The child had some marks on his body and this is where the father said the child told him the mother had stabbed him. The father reported this to the child protection authorities. They took no action.
17. The other is when the child returned from time with the father with a cut on his foot. The mother says the child told her he had been using an axe. The father’s explanation is that the child was running around the yard in bare feet and cut his foot. He, the father, had been cutting firewood with an axe. The child had not been using an axe and yet the incident has extensive coverage in the affidavits.
18. The child’s difficulties with constipation received much attention in the affidavits. Clearly there is a problem. The dispute between the parties arises from the child telling the mother he has not done a poo at his father’s house. His father says he does. Given what Mr P says about the child’s language the probability is that both are correct. The child does have bowel movements at his father’s house. He tells his mother he has not.
19. I am satisfied that the description that each parent gives of the child’s behaviour when with that parent is accurate. He shows difficult behaviour with the mother but not with the father. Mr P has had extensive involvement with the family and his assessment is that the child’s behaviour with each parent is consistent with the difficulties the child is facing. Ms E’s assessment of the child is similar to Mr P’s. The evidence from both experts supports the conclusion that each parent’s description of the child’s behaviour with that parent is accurate. There is no need to review the many instances that each parent, particularly the mother, refers to. I accept that largely they are accurate.
20. The child’s time with the father has continued. The father says that the child is happy and well behaved with him and has no problem with his bowels. The mother says that when the child returns from time with the father he is, as reported to Dr R, very arduous and angry at home. The mother says that the child tells her that he has not done a poo while he was with his father.
21. Both parents, but particularly the mother, go into great detail about the child’s time with each of them. Each disputes the correctness of what the other says. Mr P says that the child’s emotional development is not congruent with his maturational age. He says that what is being seen is the anxiety associated with the sort of disruption coming and going instils for a person who has got these sorts of vulnerabilities. He says it is usual that the children who have expressive language difficulties enact those feelings and their behaviour becomes a communication of their internal state. He says it is common for children to display this kind of behaviour and it can be difficult for the non-live with parent to grasp it because it may not appear consistent with their experience.
22. There is no need to review the affidavits to make a determination about the child’s relationship with each parent. Mr P says that his observations of the mother with the child are unequivocally positive. He says she manages him extremely well. He says he suspects that if she was less able to manage then his behaviour would be substantially more disruptive. Mr P says the father loves the child and the child loves the father.
23. Ms E has seen the child fourteen times. She says that in the child’s descriptions of his time with the father he seems to enjoy his time with his father. She describes the child as appearing to have an idealised view of the father.
24. Ms E said that the child portrayed his mother as someone not always doing what he wants and “growling” at him and his father as mostly cool but this does not seem to convey the reality of the child’s experience. She describes the child as relying on his mother and perceives her as a safe base. Her observations indicate that the mother manages and cares for the child very well and that there is a close and loving relationship between the mother and the child. She says that despite the negative language used at times by the child to describe his mother and his anger at her when she limits his behaviour a more sophisticated psychological understanding of the child’s world conveys a sense of reliance and dependence, trust and security with his mother, that he perceives her as a secure haven and that she was clearly identified as the source of having his primary dependency needs met.
25. For the purpose of his fourth family report Mr P saw both parents and the child and observed the child with each parent. He conferred with Dr R, Ms E and Ms D, a speech therapist treating the child. The mother’s concern, expressed to Mr P, was that since the making of the Orders in November 2015 with the child now spending more time with his father until Monday morning, the child’s behaviour has regressed.
26. As in earlier reports Mr P makes an extensive and detailed analysis. In the end he says this:

    It is difficult to know whether reducing the time as proposed by Ms McLeod will help the situation especially so if X continues to see his father as proposed by her. Whilst at one level her suggestion appears to have some merit at another it does not really address the problem. It would in my view be much more helpful for Mr Dowling to seek some assistance around his relationship with X from someone such as Ms E; at some level there needs to be a cohesive, cooperative, safe parental space in the midst of which X can function.; He struggles moving within that psychological space and he is unable to make physical transition from one parent to the other without substantial emotional disruption.

27. After some further analysis Mr P says:
    It may be that in the circumstances, there is no alternative than to maintain the status quo.
28. When he gave evidence at the hearing Mr P had seen Ms E’s reports. He describes the new information in the assessment of Ms E as significant. He said it was difficult to say what the effect on the child would be if his time with his father was reduced. Mr P referred to the importance of overnight time in a relationship and describes the reasons in some detail. He was asked about the mother’s evidence that X’s behaviour improved when the time decreased and then deteriorated again. He considered the conclusion may be correct or the child’s behaviour was improving since he has moved on or that psychological treatment is helping.
29. Mr P saw an advantage in the time being from Friday night to Monday morning as “a way of keeping his parents out of each other’s lives and hair.” It would reduce the travelling time. He said he was not adverse to the prospect of reducing time and he was not discrediting the possibility of increasing time.
30. After the observations Ms E made about the child’s relationship with each parent referred to above she said this:
    Furthermore projective testing suggested that X perceives adult males as potentially aggressive towards the child and mother figures. X often creates stories where he is a superhero and talks about the fact that he wants to have superpowers “I want to be tough and strong.” This would allow him to stand up to others’ aggression. In reality X feels quite weak and not in control of his life (and the stays at dad’s, at Mum’s) and the stories express his desires for power and strength.
31. Ms E expresses concern that having the child with two homes, especially where there is ongoing conflict between the parents, is stressful and difficult for a child with the experience of mental challenges. She expresses concern about the difficulty placed on him of integrating the complexity of moving across two homes. She says this:
    However it may well be in his best interests to have a single home base at this stage, where he sleeps at his mother’s house, and regularly visits his father and then returns to sleep at his mother’s home. It should be noted that X is close with his two brothers and when he moves to stay at his father’s he is not only leaving his mother but his two brothers.
32. Ms E elaborated on this in her evidence at the hearing. She referred to the stress and conflict between the two homes. She was not convinced that the parents were able to shield the child from them. She thought that the night-time routines across the two houses were different. She said there is a sense of more vulnerability at night. She considered it would be easier if the child did not have to do that. She was concerned that spending four nights a fortnight or more sleeping over at his father’s house was creating stress and tensions. It did not allow the sameness of routine and she said that was important to the child.
33. A psychiatric report for each parent was prepared in August 2013 by Dr A. Mr P refers to them in his report of 20 August 2013.
34. Dr A described the mother as a person who appeared somewhat anxious, having experienced minor symptoms of depression and anxiety in relation to the breakdown of the relationship and with difficulties surrounding reaching a parenting agreement. She otherwise described as coming from a stable childhood with little premorbid vulnerability.
35. Dr A noted that the father experienced a period of acute distress with symptoms of depression and anxiety following separation from the mother. Dr A noted that many of the father’s difficulties could best be understood in terms of his early life experiences, including a harsh childhood with a father who was a strict disciplinarian who was probably abusive. The father became estranged from his parents and experienced a particularly difficult separation from his mother. He experienced a history of behaviour adjustment problems, culminating in being unable to live with his parents and having lived with his grandmother until he joined (employer omitted). Dr A says that the (employer omitted) taught the father self-discipline and probably shaped his views in relation to parenting and in particular discipline.
36. Dr A noted that the father, whilst enthusiastic about his role as stepfather to the mother’s older sons, had difficulty negotiating this role in the family.
37. The father’s problems with regulating his own behaviour and its effect on his relationship with the mother and its effect on the child is illustrated by events that took place when Mr P conducted interviews and observations for his report of 8 May 2014. The father told Mr P that he would be taking the child home with him at the end of the session. Mr P told him he would not be because that was not what the Court orders provided for. The father told the child during the session that the child will be going home with the father. Mr P told him that was not so.
38. The father involved the child in conversation suggesting to the child that they go home together and the child said he would like to go home with him. The father left with the child walking past the mother and out into the street. Mr P had to go to considerable effort to have the father return the child to the office.
39. Mr P says it was the lack of insight and understanding by the father as to the extent to which he caused distress to his son that was so problematic. Mr P says he suspected that the father felt quite justified. Mr P says the father had no understanding of the extent to which he was the origin of his son’s distress.
40. Another example of the father’s attitude is what occurred when the child was to have an anal biopsy in April 2013. The father wished to attend the hospital. His solicitors sent a letter which said it was their instructions that if the mother did not allow the father to attend the father would contact the hospital and delay the operation until the court grants him permission to attend. The father felt justified in what he did and yet the important thing for the child was the medical procedure not the father’s presence at the hospital.
41. An incident of 11 March 2013 resulted in the mother obtaining a Family Violence Intervention Order on behalf or herself and her two sons. The mother went to the supermarket with the three boys. The father was there and approached her. According to the mother he gave the child a cuddle and then became very abusive, left with the child and returned him about 5.00pm that night.
42. The mother obtained an interim intervention order on 18 March 2013 and a final order by consent without admissions on 16 September 2013. The order was for two years. The mother filed an application to extend that order and on 28 August 2015, after a contested hearing, the order was extended for five years. Breaches of this intervention order by the father have been found proved. There is much more material about the father’s behaviour. The father says he now regrets some of the things he did.
43. The father has much material critical of the mother. I have already said there is no need to go through all of the many incidents each parent describes. The child’s relationship with each parent is not in dispute. One thing is clear and that is that the parents have no ability to communicate.
44. The issues have to be decided applying the children’s provisions in Part VII of the Family Law Act 1975 (Cth). The objects and principles are contained in s.60B. Section 60CA provides that the best interests of the child is the paramount consideration in considering parenting orders. The best interest considerations that the court must consider are in s.60CC.
45. Section 61DA provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence or if the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
46. The normal pathway through the legislation is to consider the best interest considerations before considering if the presumption of equal shared parental responsibility has been rebutted. That does not need to be done in this case. If an order for shared parental responsibility is made s.65DAC requires major long-term decisions to be made jointly by the parties and requires the parties to consult the other person in relation to the decision and make a genuine effort to make a decision. Major long-term decisions are defined in s.4 and include major decisions about education and health.
47. Counsel for the Independent Children’s Lawyer submitted that the presumption was rebutted on family violence grounds because of the extension of the intervention order on 28 August 2015 after a contested hearing. I do not need to consider whether the presumption is rebutted on this ground.
48. The parties cannot communicate. They cannot do what s.65DAC requires. They cannot consult and make decisions jointly. An order which required them to attempt to do something they cannot do may lead to further proceedings, the avoidance of which is a best interest consideration under s.60CC. The ability of each parent to provide for the needs of the child is a best interest consideration. The mother is the child’s primary carer. Given his psychological problems that primary care is particularly important. Deadlock over a major long-term issue would be a major impediment to the mother’s ability to care for the child. The child’s best interest is met by the mother having sole parental responsibility with a requirement to notify the father.
49. The significant evidence in considering the child’s best interests is the expert evidence of Mr P and Ms E. I do not consider that they have competing conclusions. Their reports complement each other. Mr P regards the information contained in Ms E’s report, read by him after preparing his last family report, as significant. He had conferred with her before preparing his report. Ms E refers to Mr P and she acknowledges that she has not met the father or seen the father with the child.
50. The child’s relationship with each parent is not in doubt. Mr P’s opinion is that the answer to the problem is for the parents to be able to develop a cooperative relationship. They do not have a cooperative relationship and the prospect of them developing one is poor.
51. The first of the primary best interest considerations is the benefit to the child of having a meaningful relationship with both of the child’s parents. Overnight time as proposed by the Independent Children’s Lawyer and father will continue and cement the child’s meaningful relationship with the father. On the other hand if the overnight time is a cause of the child’s problematic behaviour with the mother the child’s relationship with the mother will improve if the overnight time stops. The same applies to the second of the additional best interest considerations, the child’s relationship with each parent.
52. The same best interest consideration applies to the child’s relationship with other persons. Ms E referred to the child’s relationship with his brothers and saw spending nights at his mother’s house with his brothers as positive.
53. I have already referred to another of the best interest considerations, the ability of each parent to provide for the child’s needs including intellectual and psychological needs. The mother’s importance in this role does not need to be repeated. Cessation of overnight time may moderate the child’s behaviour when with the mother. This will improve the mother’s ability to care for the child, particularly his psychological needs. The child’s best interests are met if his problematic behaviour improves.
54. The maturity, sex, lifestyle and background of the child and either of the child’s parents are a best interest consideration. To the extent necessary the evidence is described above.
55. Family violence and family violence orders are best interest considerations. I have referred to the family violence orders.
56. The final best interest consideration which is relevant is whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. This is significant in this case. The existence of litigation amplifies the conflict between the parents. Mr P’s evidence shows this conflict is a primary cause of the problems. The absence of litigation removes one impediment to the parties adopting the cooperative relationship that Mr P sees as necessary.
57. If time is reduced the father will eventually continue to pursue his claim to spend more time with the child. He considers the mother’s reasons for wanting to restrict this time are ill founded.
58. If I make final orders for daytime time only the likelihood of the parties agreeing on an extension to overnight time is poor, and certainly uncertain. If the parties cannot agree the father will commence further proceedings.
59. If I make final orders for daytime only for a restricted period with a reversion to overnight time afterwards the risk of further proceedings is less but it is still there. A problem with making an order such as this is that neither party nor the Independent Children’s Lawyer proposes that it be done.
60. Mr P has had long-term involvement with the parents and the child. His consideration of the issues in his reports and in his evidence is extensive. He concluded that he could not give a definite opinion either way, but my impression from his evidence is that he leaned towards the overnight time continuing.
61. Ms E acknowledges that she had not met the father. She has not seen him with the child. She was concentrating on the child’s psychological well-being in coming to her recommendation that there be daytime time only with the father. Her professional engagement with the child was to provide psychological counselling. She was not engaged as a report writer to consider all the issues that arise under the Family Law Act 1975 (Cth). Mr P performs that task and he regarded Ms E’s reports and her opinion as significant. Mr P did consider all aspects of the child’s relationship with each parent.
62. The professional evidence about what is the best for the child is finely balanced. Mr P says “there needs to be a cohesive, cooperative, safe parental space”. If that existed all the problems that have led to this case being litigated would not be there.
63. The current relationship between the parents does not suggest that they are likely to be able to create this space. Despite this, whatever can be done in a court order to support this happening is in the child’s best interests. Further proceedings will be an impediment, if not an impenetrable barrier, to the parents being able to develop a cohesive and cooperative relationship which creates a safe parental space for the child. This is the deciding consideration. The influence of other best interest considerations may be finely balanced but an order that would be least likely to lead to the institution of further proceedings in relation to the child is in the child’s best interests.
64. The child’s best interests are met if he continues to spend overnight time with his father as he does at present.
65. The mother applies for an order that the father reimburse the mother the sum of $5,500 being the fee for Mr P’s report dated 11 February 2016. She applies for the father to pay the sum of $1,100 requested by (omitted). (omitted) is the father’s employer.
66. The order providing for Mr P’s February 2016 report was made on 6 November 2015. The relevant paragraph says:
    That the parties and X attend upon Mr P for the preparation of a Family Report, with the mother to bear the costs of same at first instance and the issue of responsibility for payment to be determined at the final hearing.
67. The order was made by consent. The report was necessary. The argument comes down to each party’s relative ability to pay. The father’s base salary is $60,000 a year. He does not take holidays and works instead and so receives an extra payment so that is a total gross salary is $64,904. The mother appears to have a similar income. Given that the report was necessary the only conclusion I can come to is that the parties should each pay half the cost of the report, so that the father must reimburse the mother $2,250.
68. (employer omitted) is claiming $1,100 as the cost of answering the subpoena by the mother to produce various records in relation to the father.
69. There can only be an order for the father to pay if the subpoena was relevant to the question of payment for Mr P’s report. If the subpoena was for substantive issues in the case that must remain the cost to the mother.
70. (employer omitted) can only recover if orders are made in accordance with o.15A.10 or o.15A.11 of the Federal Circuit Court of Australia Rules (2001) (Cth). The amount of $1,100 I consider is a substantial loss or expense as referred to in o.15A.11. A subpoena to discover the father’s income would have required a relatively small number of documents to be produced. The subpoena itself was far wider. The subpoena refers to a property possibly jointly owned by the father. I do not consider that was necessary. I consider that if substantial loss or expense entitling (employer omitted) to reimbursement were incurred it is because the subpoena was too wide. The mother should bear any cost.