In the family law case of Cheadle & Pointer [2020] FamCAFC 277, the Full Court of the Family Court of Australia (Aldridge, Watts & Austin JJ) heard an appeal from parenting proceedings which was brought by the mother.
The mother brought the appeal after orders were made that the child go and live with the father, the father was to have sole parental responsibility for the child and that the child spend time with the mother on the condition that she attended therapy to address her irrational safety concerns about the child when in the father's care.
The child was 7 years old at the time of the appeal. The child was living with the mother, however, the primary judge reversed the child's residence to the father after finding that the child was at risk of suffering emotional harm by living with the mother due to parental conflict and that the child had a better chance of maintaining a meaningful relationship with both parents by living with the father.
The mother and father separated in 2013. The father moved out in 2014 and commenced Part VII proceedings in the Federal Circuit Court of Australia. The parties came to consent by the father having more time with the child and the mother not insisting on the father's time with the child being supervised. The proceedings were dismissed at the insistence of the parties and no parenting orders were made.
Further family law proceedings were brought in the Federal Circuit Court in November 2017 and transferred to the Family Court in July 2018. A trial commenced in June 2019 and finished in November 2019 with orders being made in March 2020. Orders were made that the child go to live with the father due to adverse findings of the mother's parenting capacity. The mother could spend time with the child under two separate pathways depending on whether she complied with the parenting orders.
If the mother complied with parenting orders to accept treatment with a therapist who was informed about the background of the family dispute and the mother's irrational safety concerns, the mother could spend substantial time with the child being 5 days per fortnight, half of the school holidays and other special occasions. If the mother refused to engage in therapy, the spend time arrangement would be 24 hours per fortnight.
The mother appeal on 12 grounds, however, the grounds of appeal lacked a proper evidentiary basis. The mother provided medical documentation stating the child had a nut allergy, a report from a medical practitioner and psychologist stating the mother does not have a psychiatric condition and the mother's notes on the father's psychiatric condition.
The medical evidence about the child's allergy was rejected as it could not demonstrate a material mistake of fact made in the primary proceedings. The psychiatric report which stated the mother did not have a psychiatric condition was rejected as the primary judge did not find the mother had a psychiatric condition, but rather the mother was unjustifiably anxious about the safety of the child while in the father's care. Further, the psychiatric report did not comment upon the mother's personality functioning. Neither the medical practitioner nor psychiatrist had the full evidence that the primary judge had to consider in the matter. On that basis, the psychiatric report was inadmissible.
The medical records with respect to the father dated back to 2014, 2015 and 2017 and were produced under subpoena in the primary proceedings. The mother tendered some of those records at trial while not tendering others. As the reports were readily available and not used during the primary proceeding, they were refused consideration in the appeal as per CDJ v VAJ (1998) 197 CLR 172.
Primary Judgement
The primary judge found that the mother was unable to recognise how her behaviour and fears about the child coming to harm in the father's care were causing her to have unacceptable interaction with the child, burdening the child with the mother's emotions and not supporting the child to have a meaningful relationship with the father.
The primary judge stated at 174 "...the mother’s concerns, in that respect, go far beyond those of an overprotective parent. I accept and agree with the submission of the Independent Children’s Lawyer that the mother’s anxiety of the child becoming ill, suffering injury or being lost in the father’s care is disproportionate and irrational."
Further, the primary judge stated at paragraphs:
179 "I am satisfied that [the child] has already developed a sense of responsibility for her mother’s emotions."
252 "I am satisfied that the child is so burdened and the mother’s failure to recognise that fact shows lack of insight on her part."
356 "[The mother] presents with an extremely high level of anxiety that is palpable. She attributes all of the blame for [the child’s] alleged illnesses onto [the father] and his lack of responsibility and she seems to be unable to consider that there might be other explanations for any illness [the child] suffers. Her quest to discredit [the father] seems unrelenting."
460 "I am satisfied that the child would suffer such emotional and psychological harm should it be the case that the mother fails to address the extreme level of anxiety from which she suffers concerning the child being in the care of the father and her propensity to engage in dysregulated conduct, including in respect to her inappropriate interactions with the child."
Family Report Evidence
The appeal court reviewed the family report evidence and stated at paragraphs:
25: "In the first Family Report compiled in October 2015, the Family Consultant reported the mother presented as having an “extremely high and palpable level of anxiety” in respect of the child’s safety while in the father’s care and her capacity to foster the child’s relationship with the father was “sorely lacking”. The mother’s need to “control and micromanage” the child’s care was considered to be extreme and, furthermore, it was “extremely important” for her to seek professional help in dealing with her anxieties. Indeed, the mother’s worry about the child’s health was overtaking and inhibiting her capacity to meet the child’s emotional needs by facilitating her relationship with the father."
26 "Nearly three years later, nothing had materially changed. In the second Family Report compiled in July 2018, the Family Consultant reported there was “little change”, as was evidenced by the mother persistently withholding the child from the father in breach of orders because she considered his care of the child’s medical conditions was negligently deficient. The Family Consultant considered the mother still had a “significant level of anxiety” about the child’s well-being, being so pronounced that no court order would ever be sufficient to re-assure her of the child’s safety in the father’s care. The Family Consultant considered the father was more attuned than the mother to the child’s needs and that the mother’s hypervigilance had the potential to be “abusive” to the child."
27 "The Family Consultant’s oral opinion evidence, elicited in cross-examination at the trial, was to exactly the same effect. She agreed with the proposition that the mother’s anxiety fuelled the parties’ conflict and she was deprived of insight into that cause and effect."
Proceedings
The primary judge found that the mother remained worried the child would die in the father's care, that the mother breached the parenting orders to preserve the child's health, the mother told the child the father would kill her and the child would not return from the father's care and the mother told the child the father did take adequate care, the mother would telephone or go to the father's house uninvited including in the middle of the night if the father failed to send messages confirming he checked on the child and that the mother maintained allegations of possible sexual abuse by the father on flimsy evidence.
The mother sought final orders where she would have sole parental responsibility for the child, the father would spend time with the child according to a slow graduating regime which outlined how the father was to properly care for the child, including checking on the child at three-hourly intervals during the night, sending the mother texts and photographs to verify the wellbeing of the child, and quarterly reports confirming the father's mental and physical health was satisfactory.
As a result, the primary judge determined that it was appropriate to reverse the child's residence from the mother to the father. The appellate court determined that the primary judge gave proper consideration to reverse the child's residence and the decision was made after cautious consideration.
The mother argued that there was no finding that she had a mental health condition. During the primary proceedings, the judge espoused that it was impossible to determine if there was a diagnosable health condition for either party. As a result, there was no ground to the mother's argument as no finding of a mental health condition was made.
The mother raised a further ground of appeal that the primary judge failed to recognise that the child was only hospitalised following the father's time with the child. The primary judge and appellate court both found that this was because of the mother's anxiety about the wellbeing of the child in the father's care, where the mother would seek hospitalisation of the child after being in the father's care, rather than there being an issue with the quality of the father's care.
The primary judge found that "...there remains an unacceptable risk to [the child] if the mother does not take steps to address her extreme level of anxiety, pattern of dysregulated behaviour and instance of unacceptable interaction with the child." At paragraph 234 the primary judge went on to say the mother continued to behave with poor emotional control and that it appeared without professional intervention the mother would not develop the emotional skills to support the child. The primary judge determined that the mother's emotional self-regulation was such as to adversely impact upon the child which was a significant factor in the primary judge's determination that the child live with the father.
The mother brought evidence that the father had sought assistance from a psychiatrist in 2014 and 2017. In 2014 the psychiatrist reported the father had non-pervasive symptoms of low mood following marriage dissolution and a dispute over the care of a child, however, the father did not suffer major depression. In 2017, the father's concerns were about "blended family techniques". The father visited a psychologist in 2018. The father admitted that he had low mood from time-to-time and that he could benefit from further psychological support. The primary judge noted that the father's "...past psychological fragility is not of itself an obstacle to competent parenting."
The mother raised two incidences where the child was sunburned while in the father's care. The mother's counsel during the primary proceedings conceded that this did not amount to an unacceptable risk of harm to the child. The primary judge acknowledged the sunburn incidents however this did not influence the decision as to who the child should live with.
The mother raised grounds that the primary judge erred by considering irrelevant evidence, failing to consider relevant evidence, failing to give appropriate weight to evidence and failing to properly assess evidence. The appellate court stated the mother's grounds conformed to appeals of discretionary arguments citing House v The King (1936) 55 CLR 499, however, that the mother failed to demonstrate proper grounds against the discretion citing Lovell v Lovell (1950) 81 CLR 513.
The mother raised a ground with respect to the primary judge's reliance on the Independent Children's Lawyer. This was rejected stating there was no lack of impartiality Lloyd and Lloyd and Child Representative (2000) FLC 93-045.
The mother raised further grounds in relation to the primary judge's injunctive orders, in particular to an order that the mother not attend within 50 metres of the child's school save for drop-off and collection of the child during her time with the child. The mother argued she had the "right" to attend the school for scholastic and associated activities. This was rejected as parental responsibility under the Family Law Act 1975 (Cth) "is constructed to emphasise the rights of children, but the duties, obligations and responsibilities borne by parents (Vallans v Vallans (2019) 60 Fam LR 193 at [39])".
Orders and Costs
The mother's family law appeal was dismissed for lack of merit. An order was made in the father's favour for costs of $6,544. The Independent Children's Lawyer's application for costs was dismissed for missing a deadline with respect to submissions as to the schedules of costs.
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