Separation Anxiety & Child Custody

30th April 2015

By Lisa Wagner

Do you have a child who is suffering from separation anxiety? Is your family experiencing a separation?

Children suffering separation anxiety and children at the centre of child custody disputes are both topics that have individually received a great deal of attention.

If you are separating and have a child or children who have in the past or continue to experience separation anxiety you may want to know what the Family Court might do.

Separation and divorce are widely understood to be hugely stressful life experiences and as much as we, as adults, try to shield our children in the process it is almost inevitable that separation and divorce fundamentally affects children’s lives.

When children of separating parents are resilient and conflict between their parents is low there is a strong likelihood that they will continue to thrive and meet all the developmental milestones at a similar rate to their peers. This conclusion is consistently reflected in research. However, when children are more vulnerable, the Court is sometimes asked to intervene and make decisions about how to protect a child’s best interests.

This is just what the Federal Circuit Court was asked to consider in the case of Harricks & Harricks [2014] FCCA 2724.

In that case a nine year old boy had in early 2012 been identified by his then treating psychologist as meeting the diagnostic criteria for separation anxiety disorder. This young boy was the focus of the Court’ attention in the Federal Circuit Court case of Harricks & Harricks [2014] FCCA 2724.

By way of background the young boy’s parents met whilst the mother was living and working abroad. The mother fell pregnant when she was dating the father and returned to Australia to live. After a short time the father followed her to Australia where they married. The parties separated in November 2005 when the little boy was only two months of age. The extent of time that the father had spent with the boy and his involvement in his life in the early years was the subject of dispute at the trial. However for periods of time the little boy had spent time most weekends, including overnight time, with his father as well as living with his father for a period in about mid-2010 when the mother was involved in a serious motor vehicle accident as a result of which she experienced severe spinal injuries and was required to undergo a period of hospitalisation. The mother reported at hearing that since birth the little boy had experienced difficulties with sleep and had, since starting school, exhibited behaviours related to a generalised anxiety disorder including crippling panic attacks, losing bladder control, poor concentration at school and overwhelming shyness. In 2011 the mother sought help and was referred to a clinical psychologist who from November 2011 to early February 2012 consulted with the little boy on six separate occasions. Some progress was identified however by late 2012 the little boy’s anxiety was reported by the mother to have significantly heightened to the point where the mother was having difficulty ensuring that the little boy either attend school or spend time with his father.

In early 2013 the father commenced family law proceedings and notwithstanding several family law Consent Orders being subsequently made, by early 2012 his relationship with his young son had broken down completely. No one suggested that the father was the cause of the young boy’s anxiety but rather that the child’s separation anxiety was severely impacting on his ability to have a relationship with his father among other things.

The child’s treating psychologist was asked to provide both information, reports and answers to questions in relation to the child and, shortly following a telephone conversation with the Court’s Family Report writer declined to further assist the child citing an unfamiliarity with court process as one of her significant reasons. The Court made no criticisms of the treating psychologist and in fact went to significant lengths to recognise the professional manner in which she had both assisted the child and attempted to assist more broadly the family and their respective family law representatives.

The pressing issue before the Court when it was first listed for trial was the need to obtain an alternate medical service to treat the child’s diagnosed medical condition, particularly his separation anxiety. It was suggested to the Court that an alternate service was difficult to source given the broader medical community’s reluctance to become drawn into family court litigation.

After considerable effort, over a period of two days, the Court made an interim order with the consent of all parties restraining each party and the Independent Children’s Lawyer from subpoenaing any treating medical practitioner or member of staff of any public health agency providing treatment to the child to either attend Court and give evidence or to request any such service provider to provide a report. The ability of the parties to issue subpoena for the production of any medical records provided by such further service provider however remained intact.

This case touches upon and highlights the continuing tension that exists between the law and the medical profession in respect of the disclosure of information and the like that doctors and treating clinicians regard as confidential in nature. This is a tension that continues to exist and is difficult to navigate particularly in family law matters. The interim orders made by consent in this case outlined a practical way forward to ensure that the boy’s best interests were properly served.

Having assisted family law clients on Sydney’s North Shore for more than twenty years we have found that a number of families with children experiencing anxiety reported to us of having been helped by the “Cool Kids” program run by Macquarie University. Whilst this is not the only service provider it is a highly regarded provider and assists people from the Sydney Metropolitan area and is conveniently located for those people living on Sydney’s North Shore, in the Inner West and Ryde. It is also easily accessible by public transport (train) from Chatswood given the new train station located at Macquarie University.

If your child is receiving treatment for anxiety or another sensitive issue and your family is also experiencing a separation you can be confident that Doolan Wagner Family Lawyers are well placed to assist you navigate the best way forward for your child.

If you are separating or involved in family law litigation involving your children and want to talk about how best to approach this particular situation then call me, Lisa Wagner of Doolan Wagner Family Lawyers on 9437 0010 or email me on enquiries@familylawyersdw.com.au. We have Accredited Family Law Specialists and registered Family Dispute Resolution Practitioners here to help at this really difficult time.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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