Separation anxiety and behavioural difficulties

Separation anxiety and behavioural difficulties

Behn & Ziomek

REASONS FOR JUDGMENT

INTRODUCTION

1. Since separating on 8 July 2013, the parties in this matter have had a highly conflictual relationship. This has been reflected in the number of applications that have been made to the Court. On 15 September 2016 the matter was listed for the first day less adversarial trial and, at that time, set down for final hearing for five days commencing on 30 April 2016. Despite the end of the litigation being in sight, the parties have found it necessary to yet again approach the Court for interim orders. Accordingly, the matter was listed for interim hearing at 10.00 am on 19 October 2016 in respect to the following issues:
   1. The child spending time with the father during school holidays;
   2. Whether the child commences school in 2017; and
   100. The father’s objections to the subpoenas issued by the mother to two Commonwealth Government Departments.
2. On 10 October 2016 the Court released to the parties a copy of the report of Mr G, clinical and forensic psychologist, dated 9 October 2016. By way of summary, Mr G’s report recommended against the parties’ son, L, attending school in 2017. Accordingly, at the hearing, counsel for the father, appropriately, indicated that the father did not wish to pursue the issue of whether the child commenced school in 2017.
3. Also, at the hearing, the solicitor for the mother indicated that he, on behalf of the mother, intended to have discussions with the Independent Children’s Lawyer (“the ICL”) and the legal representatives for the father with a view to attempting to resolve the issues concerning access to documents produced by two Commonwealth Government Departments in respect to the father.
4. Therefore, the only issue to be considered by the Court on 19 October 2016 was the time the child is to spend with his father during school holidays.
5. In that respect the ICL submitted that the time that the child spends with his father in school holiday periods should be considered in the context of the orders that are made for the child to spend time with his father generally. This was particularly so in circumstances where the child will not commence school in 2017.
6. After discussions between the parties, it was agreed that it was appropriate for the Court to consider reviewing the existing orders for the child to spend time with his father generally, including during school holidays.

APPROACH OF THE COURT

7. All parties acknowledged the limited focus of these proceedings which were framed by the respective interim orders proposed by the parties. Accordingly it is unnecessary to consider the issue of parental responsibility. In any event, on the facts before me, I would have determined that, in these interim proceedings, it is inappropriate to apply the presumption of equal shared parental responsibility (s 61DA(3)). Consequently, it is unnecessary to apply s 65DAA which would have required the Court to consider the child spending equal time or substantial and significant time with each parent.
8. In those circumstances, consistent with the decision of the Full-Court in Goode & Goode (2006) FLC 93-286 at 80,903, I will take the approach of:

(a) identifying the competing proposals of the parties;

(b) identifying the issues in dispute in the interim hearing;

(c) identifying any agreed or uncontested relevant facts;

(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them…

9. As the Full Court noted in Goode & Goode (supra), in interim proceedings “there may be little uncontested evidence to enable more than a limited consideration of [the matters set out in s 60CC] to take place”.

AGREED OR UNCONTESTED FACTS

13. Relying on a chronology prepared by the ICL, as best can be determined in these interim proceedings, the following appears to be uncontested facts:

LIMITED ABILITY TO RESOLVE CONTROVERSIAL FACTUAL ISSUES IN INTERIM PROCEEDINGS

14. It is the responsibility of the Court to regard the best interests of the child as a paramount consideration even in interim parenting matters (s 60CA). It must do this in circumstances where the evidence of witnesses has not been tested through the process of cross examination and where there is limited expert evidence before the Court.
15. In that context, in Cowling & Cowling [1998] FamCA 19; (1998) FLC 92-801, the Full Court said at 85,006:

Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.

16. In the abridged process of these interim proceedings I am not able to determine all the relevant issues of fact. The most controversial issue of which is the mother’s submission that the Court should have regard to the fact that on 19 September 2016 an Apprehended Domestic Violence Orders (“ADVO”) was made against the father. The father, on the other hand, submitted that the Court should not have regard to the fact that such an order was made as it was made by consent and without admissions. It is not necessary to resolve that matter in these interim proceedings.
17. A further matter of controversy was the extent to which the Court should attribute behavioural difficulties experienced by the child to the conduct of one or the other, or both, of his parents. Those behavioural difficulties are set out in the report of Mr G.
18. A further issue of controversy was the extent to which the child may experience separation anxiety from his mother and whether, insofar as Mr G refers to such anxiety, it was attributable to the fact that the mother was present in the waiting room while the child was interviewed by Mr G whereas the father had left the premises and that the child would have been aware of this. Again, it is not necessary to resolve that issue in these proceedings.
19. The approach I will take is to “weigh the probabilities of [the] competing claims and the likely impact” on the child in the event that either of the competing assertions by the parties is correct (Keats & Keats [2016] FamCAFC 156 at[9]). Most relevant, in these proceedings, are the competing claims by the parties in respect to the impact on the child of being separated from the mother.

EXISTING ARRANGEMENTS

20. The child currently lives with the mother and spends time with the father as provided for by Order 2 of the orders made by Rees J on 9 March 2015. Those orders are for the child to spend time with his father each Tuesday from 9.30 am until 4.30 pm and one overnight per week; being in week one on Thursday night and in week two on Saturday night.

CONTENTIONS OF THE PARTIES

Contentions of the father

21. By way of summary, the father’s contentions were as follows.
22. The father generally supported the submission by the ICL that it was appropriate to reduce the number of changeovers that occur between the parties.
23. It was noted that the child currently spends four separate periods per fortnight with his father which total six days and two nights. The proposal by the ICL would increase the father’s time with the child by one night per fortnight but decrease the day time from six days to five days per fortnight.
24. Further, it was submitted that the orders proposed by the ICL would result in there being a gap of six consecutive days where the child would not see the father.
25. To address that six day gap, where the child would not spend time with his father, it was proposed that the child would spend each alternate Tuesday with his father to break up that week of absence. It was submitted that the father would travel from his place of residence on the Central Coast to Sydney to avoid the child having to spend time travelling. It was noted that the father tended to invite one or both of the paternal grandparents to spend time with the child on that day.
26. In respect to school holidays, it was submitted that the child is now of an age where he is able to spend additional time away from the mother and it is appropriate that he spend the first half of the school holidays with the father and the second half with the mother.
27. In respect to the orders proposed by the ICL concerning the child spending time with his father on Christmas Day, it was submitted that the Court should have regard to the fact that the child has not spent Christmas Day with his father since the parties separated.
28. It was also submitted that the Court should have regard to the fact that the mother is of Germanic origin and that it is part of the mother’s culture to celebrate Christmas on Christmas Eve. Accordingly, it was submitted that the child should spend time with his father from 6.00 pm on Christmas Eve until 6.00 pm on Boxing Day. This, it was submitted, would also have the benefit of avoiding a changeover on Christmas Day and one or other of the parties having to travel between Sydney and the Central Coast on Christmas Day.
29. In addressing s 60CC(2)(a), it was submitted that it could be inferred from the mother’s conduct that the mother has not been sufficiently supportive of the child’s relationship with the father. In that respect it was submitted that:
    1. On 18 June 2013 the mother travelled to Germany for the purposes of a holiday but retained the child in Germany only returning him to Australia as a result of a court order made by the German District Court which was subsequently upheld on appeal. The mother’s actions therefore prevented the child from seeing his father from 18 June 2013 until 9 January 2014.
    2. Despite providing an undertaking to the father that the mother would permit the child to spend time with the father from Monday morning until Thursday afternoon upon the mother’s return to Australia, that did not take place. In that respect reference was made to Annexure “A” to the mother’s affidavit filed 27 July 2016 wherein the mother indicated that she would only agree to the child spending supervised time with the father.
    100. As a result of the mother’s precondition of supervised time, the child did not spend time with his father for a further period six weeks that ended when orders were made by Cleary J on 25 February 2014.
    4. The father did not see the child for a third period of time between 19 April 2016 and 13 July 2016 when the mother did not permit the child to spend time with the father as a result of the mother’s allegations of the father engaging in family violence. It was submitted that the mother refused to permit the child to spend time with the father despite the existence of interim orders that were in place at the time.
30. Accordingly, it was submitted that, in circumstances where the child is now four years old, the Court should make orders for the child to spend substantial and significant time with the father in order to facilitate the child forming an attachment with his father.
31. In terms of s 60CC(2)(b), it was submitted that while the mother has alleged that the father has engaged in family violence, there has been no evidence of the father engaging in any act of violence against the child. In that respect, it was submitted that the father disputes the mother’s allegations that he has denigrated the mother in front of the child. It was submitted that the Court cannot resolve those conflicting factual contentions in these interim proceedings and accordingly, the mother’s allegations in that respect are not a relevant consideration.
32. In terms of s 60CC(3)(b), reference was made to the Child Responsive Program Memorandum of Ms I dated 18 July 2014 wherein she stated that “both parents clearly adore the child”. It was submitted that the Court should readily accept that there is a close and loving relationship between the child and the father.
33. In terms of s 60CC(3)(f), it was submitted that the father has taken every opportunity, available to him, to spend time with the child. This included the father pursuing legal means to have the mother return the child to Australia through the process of the Hague Convention on the Civil Aspects of International Child Abduction.
34. In terms of s 60CC(3)(ca), it was submitted that the father is willing to pay child support as demonstrated by the fact that he applied for a child support assessment in 2014 which resulted in a determination that the father pay child support in the sum of $754.83 per month. However, that determination was cancelled on the mother’s application.
35. In terms of s 60CC(3)(d), it was acknowledged that, if the Court made the orders sought by the father, it would result in some change in circumstances for the child insofar as it would have the effect of increasing the time that the child would be separated from his mother. That increase would, however, be slight and would be consistent with the gradual increase in time that the child has spent with the father since his return to Australia with the mother in 2014.
36. In terms of s 60CC(e), which relates to the practical difficulty and expense of a child spending time with a parent, it was noted that the father’s proposed orders would have the effect of reducing the number of changeovers from eight to six changeovers per fortnight. The father’s commitment to travel to Sydney on Tuesday during the alternate week to avoid the child having to travel between Sydney and the Central Coast was also noted.
37. In terms of s 60CC(3)(f), it was submitted that there is no issue regarding the father’s capacity to care for the child. In that respect, reference was made to the fact that the father was closely involved in the care of the child before the parties separated. Further, it was noted that the father has been medically retired from the military and is available to care for the child on a full time basis.
38. In terms of s 60CC(3)(g), it was submitted that the child is now at an age where he is able to cope more readily with additional time with his father.

Contentions of the ICL and the mother

39. It was submitted that the Court is not in a position to make findings in respect to the mother’s allegations that the father has denigrated her in front of the child as these are interims proceedings and the Court has not had the benefit of the parties giving evidence or being cross examined.
40. It was submitted that while there have been some difficulties in the parties’ relationship generally, the child’s time with the father has progressed well but one of the difficulties is changeover. It was submitted the main difficulty in respect to changeover was that the child, being four years of age, experiences the tension between his parents. Reference was also made to the frequency that the child is required to travel between Sydney and the Central Coast.
41. It was submitted that, as the child is now four years and three months old, he is now at an age where it is appropriate for him to move to more overnight time with the father. However, the father’s proposals, it was submitted, would result in the child spending an excessive amount of time away from the mother.
42. In terms of s 60CC(2)(a), it was submitted that, while the child lives with the mother, he has spent a considerable amount of time with the father. Consistent with the observations of Ms I that the parents “clearly adore the child” and that the child already has a meaningful relationship with the father, it was submitted that the orders proposed by the ICL would not negatively impact upon the child’s attachment to either parent.
43. It was submitted by the ICL that it is inappropriate, in these interim proceedings, to attribute blame for the periods the child has not spent time with the father. Nevertheless, it was noted that the child has spent times away from the father including for a period of three months from April to July 2016. It was submitted that, to avoid the child being affected by a sense of upheaval, it is appropriate for there to be small increases over a period of time rather than major changes in a short period of time in respect to the amount of time that he spends with the father.
44. It was submitted that the report of Mr G details that the child suffers from some significant behavioural problems, the cause of which are unknown. It was submitted that it would be unsafe for the Court to make a significant change in the amount of time that the child spends away from the mother until the Court has the benefit of a Family Report that can investigate what issues are leading to that behaviour and offer the family some guidance in dealing with the child’s behaviour.
45. As noted, the solicitor for the mother adopted the submissions of the ICL.
46. Further, the solicitor for the mother disputed the father’s characterisation of the mother’s culture and rejected the submission that the child spending time with his mother on Christmas Eve instead of Christmas Day was appropriate.
47. The solicitor for the mother referred to the report of Mr G in submitting that it would be unsafe for the Court to make orders significantly increasing the amount of time that the child spends with the father. As an associated issue, it was submitted that there was a risk in the Court making orders for the child to spend a significant time away from the mother. This would occur if the Court makes orders as sought by the father for the child to spend extended time with the father including during school holiday periods.

CONSIDERATION

The Law: Concepts and Principles

48. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. This obligation is also reinforced in s 65AA.
49. Section 60CC sets out what has been described as a “legislative pathway” to determine what is in a child’s best interests. In Banks & Banks (2015) FLC 93-637,^[1] the Full Court outlined a practical approach to applying the s 60CCconsiderations, in interim proceedings, in the following terms:

49. … there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

50. Consistent with Banks (supra), I have given consideration to the matters set out in s 60CC generally but will concentrate on those considerations which are of greatest relevance to this matter.
51. Those considerations which are most relevant are the primary considerations set out in s 60CC(2) and the additional considerations set out ss 60CC(3)(b),(c), (ca), (d),(e) and (f).

Primary considerations – s 60CC(2)

Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents.

52. In her Child Responsive Program Memorandum dated 18 July 2014, Ms I notes that both parents “clearly adore” the child. I accept that it is appropriate for the Court to make orders that enhance the prospects of the child having a meaningful relationship with both of his parents. That consideration however needs to be balanced against the other considerations set out in s 60CC, including, most relevantly, s 60CC(2)(b).

Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that the Court is to give greater weight to this consideration than that set out in s 60CC(2)(a).

53. While the mother has made assertions that the father has denigrated her in the presence of the child, I am unable to resolve that matter in these proceedings.
54. I accept the submissions of counsel for the father that there is no evidence before the Court that the child faces any physical risk of harm by spending time with the father.
55. However, there is evidence that the child is suffering from behavioural issues and that he also suffers from some separation anxiety. In that respect, I note that the following paragraphs of Mr G as referred to by the solicitor for the mother:

4.2.3 Initially when [the mother] left [the child] had a “temper tantrum”; he was crying and saying “I want mummy”. After about 15 minutes of crying [the child’s] behaviour became notably defiant and oppositional. When asked to return to the testing area [the child] repeatedly said “No! No! No puzzles, I want mummy”. He refused to do what he was asked on several occasions and at times became aggressive; stomping his foot, throwing a coin on the floor, kicking the examiner and the chair which he was asked to sit on. This behaviour continued for a further 35 minutes…

4.3.4 [The child] attends preschool and reportedly experiences some difficulties. Initially [the child] had difficulties separating from his mother. [The mother] reported that on two occasions he cried until he threw up. She also reported that he had difficulties connecting and engaging with other children. Since moving to a new preschool this year, he has improved…

5.3.1 [The child] presented with observable symptoms of emotional and behavioural difficulties. He showed notable oppositional tendencies during the assessment. Although some of his behavioural difficulties could be explained by age, the majority of his behavioural problems were typical of children with oppositional traits…

5.3.3 [The child] also showed subtle signs of separation anxiety after [the mother] left the office. However, most of his behaviour was oppositional and reflecting poor emotional maturity and self-regulation skills.

56. In respect to the observations of Mr G, expressed at paragraph 4.2.3 of his report that the child made reference to wanting his “mummy” during the course of his interview, I agree with the submission of counsel for the father that it would be unsafe in these interim proceedings to draw a conclusion that the child expressed a desire to see only his mother. In that respect it was noted that, at the time the child made that request, the father had left Mr G’s consultation rooms and the child would have known that only his mother was present.
57. Nevertheless, I am required to consider whether substantially increasing the amount of time the child spends with the father would present an “unacceptable risk” of psychological harm.^[2]
58. In these interim proceedings, and prior to such time as the Court has the benefit of a Family Report, it would be unsafe for the Court to ignore the fact that Mr G referred to the child presenting as having “observable symptoms of emotional and behavioural difficulties” and that the child also “showed subtle signs of separation anxiety after [the mother] left the office”.
59. Accordingly, having regard to the fact that I am required to give greater weight to the consideration set out in s 60CC(2)(b), I agree with the submissions of the ICL that while it is appropriate to increase the amount of time that the child spends with the father, it would unsafe, at this stage of the proceedings, to significantly increase that time or the time that the child spends away from the mother.

Additional considerations – s 60CC(3)

Section 60CC(3)(b)requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.

60. I accept the submissions made on behalf of the father that the child has a close relationship with the father. Further, while there was limited evidence available at this stage of the proceedings, it appears that the child also has a close relationship with both his maternal and paternal grandparents.
61. Increasing the amount of time that the child spends with the father, including overnight time, is consistent with enhancing the child’s relationship with his father. As noted by the ICL, it will also be possible for the father to involve his parents in the additional time that the child spends with him.

Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child.

62. I accept the submissions of counsel for the father that, even at this stage of the proceedings, the evidence is clear that the father has taken every reasonable opportunity to spend time with the child, to participate in making decisions in relation to the child and to communicate with the child.

Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

63. The father is not currently paying child support in respect to the child. However, I accept that fact is due to an application by the mother to cancel the child support assessment the father had sought.

Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.

64. It was not disputed that the child has spent the majority of his life living with the mother.
65. It is also the case the child has spent several periods of extended time away from the father. While there is a live issue in the proceedings regarding how that came about, it is a reality.
66. Having regard to the relevant parts of Mr G’s report to which I have referred in my consideration of s 60CC(2)(b), I respectfully agree with the submissions of the ICL that it would be inappropriate, at this stage of the proceedings, to make orders that bring about a significant change in the amount of time that the child spends with the father and consequently the time that he spends away from the mother. This is particularly the case in circumstances were Mr G has observed symptoms of the child experiencing separation anxiety from his mother.

Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent.

67. While the Central Coast is relatively close to Sydney, I accept the submissions of the ICL that it would be desirable to reduce the number of changeovers that are occurring. The orders proposed by the ICL would reduce the number of changeovers from eight to four per fortnight. This would have the effect of significantly reducing the amount of time that the child is required to travel between Sydney and the Central Coast.
68. While the orders proposed by the father would also reduce the number of changeovers from eight to six per fortnight, his proposal still involves additional changeovers beyond that proposed by the ICL.

Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.

69. Counsel for the father submitted that the Court should have some concern with Mr G’s observations of the child experiencing behavioural and emotional difficulties. In that respect, it was submitted that the Court should have regard to the fact that the child has spent most of his time with the mother. I am not, however, in these proceedings, in a position to determine the reasons for the child’s behavioural and emotional difficulties.
70. Accordingly, in considering s 60CC(3)(f), I am only in a position to consider the amount of time that each parent can contribute to providing for the physical needs of the child. In that respect I note that the parties are both currently unemployed and, in that context, both have time to devote to the physical needs of the child.
71. As noted by the ICL, it can be expected that the Family Report will cast some light on the causes of the child’s current behavioural and emotional difficulties and provide some guidance as to strategies for the parties to deal with these issues.

EVALUATION OF S 60CC FACTORS

72. Having regard to the s 60CC considerations to which I have referred, I am of the view that it is appropriate to increase the amount of time that the child spends with the father. However, particularly at this stage of the proceedings where the Court does not have the benefit of a Family Report, the Court should take a cautious approach.
73. The orders proposed by the ICL are consistent with that approach, insofar as they will result in the amount of time that the child spends with his father being gradually increased.
74. The orders proposed by the ICL will also have the benefit of reducing the number of changeovers from eight to four changeovers per fortnight. This will reduce the extent to which the child is exposed to tension between his parents at changeover. It will also reduce the amount of time that the child spends travelling between Sydney and the Central Coast.
75. Consistent with my consideration of the s 60CC factors to which I have referred, I am of the opinion that it would be inappropriate to increase the amount of time that the child spends with his father beyond that proposed by the ICL including in respect to those periods of time designated as school holidays.
76. One remaining issue is the question as to who the child spends time with on Christmas Day. In that respect, I accept the submission of the solicitor for the mother that it would be inappropriate in these proceedings for the Court to conclude that Christmas Day is of lesser significance in terms of the mother’s cultural background than the father’s. In those circumstances it is appropriate that the child has the opportunity to spend at least some time with each parent on Christmas Day.