Attwood and Rigby (No.3)
[2019] FCCA 1738
•27 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATTWOOD & RIGBY (No.3) | [2019] FCCA 1738 |
| Catchwords: FAMILY LAW – Parenting – Issue in dispute the father’s time with his daughter aged 9 – where the father has spent only supervised time with the child for the last five years – where this arose from the father making unfounded allegations of sexual abuse against the child’s step-father – where the father wants to move to unsupervised time – where the mother is afraid that this will result in further allegations – where an order for unsupervised time is likely to have a severe negative impact on the mother and her household – where the child will not benefit from unsupervised time in those circumstances – where supervised time has outlived its usefulness – 2013 orders discharged – no order made about the father spending time with the child. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65DAC |
| Cases cited: Attwood & Rigby [2016] FCCA 2219 Mazorski & Albright (2007) FamLR 518 Russell & Close (unreported, Appeal No. SA 45 of 2002, 25/6/1993) |
| Applicant: | MR ATTWOOD |
| Respondent: | MS RIGBY |
| File Number: | NCC 131 of 2012 |
| Judgment of: | Judge Terry |
| Hearing dates: | 22 & 23 August 2018 & 13 November 2018 |
| Date of Last Submission: | 13 November 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 27 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kissick |
| Solicitor for the Applicant: | CQ Legal |
| Counsel for the Respondent: | Mr Kelly |
| Solicitors for the Respondent: | Derham Houston Lawyers |
ORDERS
The child [X] born … 2009 shall have one further visit with the father pursuant to the Orders made on 2 October 2013.
Thereafter the orders made on 2 October 2013 are discharged and Orders (3) & (4) herein shall apply.
The child shall live with the mother.
The mother shall have sole parental responsibility for the child.
NOTATION
These orders intentionally make no provision for the child to spend time or communicate with the father. Any decision about if, when and how the child has future interaction with the father will be made by the mother as an incident of her sole parental responsibility for the child.
IT IS NOTED that publication of this judgment under the pseudonym Attwood & Rigby (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 131 of 2012
| MR ATTWOOD |
Applicant
And
| MS RIGBY |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting arrangements for [X] aged 9 and more particularly whether an order should be made for her to spend unsupervised time with her father.
[X] is currently spending two hours with her father each three weeks professionally supervised pursuant to final orders made on 2 October 2013.
The issue which led to these restrictive orders being made was that the father made allegations in 2011 and 2012 that [X] had been sexually abused by her step-father Mr A. He withdrew those allegations shortly before trial and the parties settled the matter on the basis that the child would live with the mother, the mother would have sole parental responsibility for the child and the father would spend supervised time with the child for up to three hours each third week.
However the orders were followed by these Notations:
E. That the father now accepts that on reflection the allegations of abuse against the mother's partner Mr A were incorrect and that statements made by the child were misinterpreted by him in the context of his hypersensitivity to the incidence of child abuse by stepfathers in the context of his highly conflictual relationship with the mother and he acknowledges that the evidence would not satisfy the Court that the child was or is being exposed to an unacceptable risk of abuse.
F. That the father is to undertake counselling and therapy with Mr B, or some other suitably qualified professional to address his psychological issues such as his hypersensitivity to allegations of abuse by stepfathers and other issues as set out in the report of Dr C dated 20 April 2013 and in particular any prevalence to behave in a manipulating or controlling manner.
G. That upon the father being advised by his therapist that he has in part or whole addressed the issues as set out above, and upon his providing to the mother a report from his therapist setting out his presenting symptoms, his treatment and his prognosis the father intends to make application to the Court to extend the time that he spends with [X] and to remove the supervision of such time.
The father had commenced seeing Mr B before these orders were made. He continued to do so after the orders were made and he also had eight sessions with Dr D, a clinical psychologist.
The father obtained reports from them which he felt confirmed that he had addressed the issues referred to in the Notations and he approached the mother and asked her to agree to change the orders. However she would not agree to do so and on 3 September 2015 the father filed an application seeking orders that [X] spend regular unsupervised time with him.
The mother not only opposed an order for unsupervised time, she proposed that time cease altogether, and in due course further reports were obtained and the matter was listed for trial.
The orders sought by the father at trial were that the parties have equal shared parental responsibility and that [X] live with the mother and spend unsupervised time with him. He proposed that this begin with two hour blocks and eventually be each alternate weekend from Friday to Monday. He also sought an order for time during the school holidays.
The mother proposed that [X] live with her, that she have sole parental responsibility and that the order made on 2 October 2013 for [X] to spend supervised time with the father be discharged. She proposed that no order be made about [X] spending time with the father and that decisions about if, when and how [X] spent time with him would be determined by her in the exercise of her parental responsibility.
It is abundantly clear that the mother is opposed to any time occurring and this order would have the same effect as a “no time” order.
This is a difficult and troubling case and it was made particularly difficult for me by the mother and Mr A throwing down the gauntlet at trial and announcing that if I made an order for [X] to spend unsupervised time with her father they would immediately separate.
[X] is happily embedded in a family consisting of the mother, Mr A and their two young children and there was no sign that the mother or Mr A had reflected for a moment on the effect that decision would have on [X].
In an attempt to justify this the mother’s counsel spoke at length during final submissions about the need to protect Mr A from further allegations; [X] as an individual hardly rated a mention. It was as if the injury which would be caused to her by the destruction of her family unit was simply to be treated as collateral damage.
However I have to be careful that [X] does not become collateral damage as a result me reacting adversely to being threatened by the mother and Mr A, and after very careful reflection I have come to the conclusion that the cost to [X] of trying to revive the relationship she lost with her father because of his actions seven or eight years ago will be too great.
I do not intend to order unsupervised time and I have also come to the conclusion that the order for supervised time has outlived its usefulness and that orders should be made as proposed by the mother.
These reasons explain why I have come to those conclusions.
I apologise for the delay in the delivery of this decision. It has its genesis in the very difficult year in this registry in 2017 when a judge was removed and not replaced until toward the end of the year. With the delivery of this decision I have completely caught up but I accept that knowledge of this will be of no consolation to the parties.
The evidence
The father relied on his affidavit filed on 20 July 2018 and the affidavit of Mr E filed on the same day. Mr E’s affidavit went to the discrete issue of whether the father had mistreated a dog in the course of training it in his role in his employment.
The mother relied on her affidavit filed on 15 August 2018 and the affidavits of her husband Mr A and the father’s former partner Ms F also filed on 15 August 2018.
Ms F was living with the father when the allegations were made in 2011 and 2012, indeed it was Ms F who went to the police to report a disclosure made by [X]. She was interviewed by Dr C by telephone when he prepared a report in April 2013 and gave evidence for the father at the trial in October 2013.
Ms F has since had an acrimonious separation from the father and she gave evidence in the current proceedings in support of the mother.
There are numerous difficulties with Ms F’s evidence. Her affidavit contained a large number of sentences beginning “I believe” and sentences beginning in this way are in the nature of opinion, speculation or submissions and even in a children’s case carry little or no weight.
Ms F professed to remember accurately conversations she had with the father up to six years previously and there is a very high risk that her recollections are inaccurate or incomplete or are coloured by her current feelings about the father.
Ms F also changed her evidence. She specifically told Dr C in 2013 that the father had never expressed any concerns to her about the potential for step-fathers to be harmful for daughters, yet in her 2018 affidavit she alleged that he had. She made no mention to Dr C of any violence in her relationship with the father yet gave graphic evidence about this in her 2018 affidavit.
Ms F might have changed her evidence because in 2013 she was under the father’s thumb and now she isn’t but it is also possible that she changed it because of hostility to the father. I cannot be sure which it is and it would be unsafe for me to place weight on Ms F’s evidence insofar as it is critical of the father.
Also in evidence were a number of reports prepared by psychologists or clinical psychologists.
The father attached to his affidavit reports prepared by Mr B and Dr D. They critiqued Dr C 2013 report and both expressed the view that they could see no reason why the father should not be spending unsupervised time with [X].
They were not cross-examined.
Dr C, a clinical psychologist, prepared a report in April 2013 for the Family Court proceedings which involved interviewing relevant adults and conducting observations of [X] with her mother, Mr A and the father. He did not accept the father’s explanation that he had simply misinterpreted things [X] had said; he was of the opinion that the father was very angry with the mother and had an issue with step-fathers and had manipulated [X] into making statements about Mr A which he had been able to use to suggest sexual abuse.
Dr C recommended that the father spend supervised time with [X] on six to eight occasions each year, with the possibility that unsupervised time during the day might be feasible when [X] was a teenager and less susceptible to manipulation from her father. Those recommendations underpinned the 2013 orders.
Dr C was requested to prepare a further report on 28 January 2017 when the proceedings recommenced, directed to the specific issue of whether there had been a change in the father. On this occasion he interviewed only the father. In that report he said:
It is my view that Mr Attwood remains essentially an unempathic person, domineering in his approach, with inflated self-regard and unreliable in his self-report. Having said that I think that he has strongly taken on board that he must not engage in self-defeating behaviour with Ms Rigby, and that he so values his relationship with [X] that he will refrain from the worst excesses of such controlling and manipulative behaviour, as occurred in the past.[1]
[1] Dr C 2017 report paragraph 91
Dr C referred to reports about the supervised visits which suggested that [X] was enjoying her time with her father and said that he felt that there was benefit to [X] in having knowledge of and a relationship with her biological father. He felt that now that she was older she was less likely to be influenced by her father and recommended that there [X] have monthly daytime contact with her father and that consideration be given to the time being unsupervised. However he also said that if [X] became resistant to going then time should cease.
Dr C was not shaken in his opinions during cross-examination. He also referred during cross-examination to the limitations of supervised time.
Finally a Family Report was prepared by Dr G, a family consultant and clinical psychologist, on 17 February 2017. She interviewed the mother, father, Mr A and [X] and conducted observations of [X] with those adults and her young siblings.
Dr G shared Dr C’s view that there had not been much change in the father. Her major concern was the likely impact on the mother and Mr A of an order for unsupervised time and after discussing the advantages and disadvantages of the options open to the court (supervised time, unsupervised time and no time) she recommended that there be an order for no time.
Dr G was cross-examined and did not change her view.
Background
The father is 43 and is a security officer employed by Employer.
The mother is 37 and is a customer service officer.
The parties commenced a relationship in 2002, married in … 2008 and separated on 17 January 2011. [X], born on … 2009. Is their only child and she was 18 months old at the time of separation.
After separation [X] lived with the mother and spent time with the father. The father said, and I have no reason to disbelieve it, that it was for three days out of each ten and that he also looked after [X] if the mother needed help because she was working shifts.
In early 2011 the father commenced seeing Ms F and in … 2011 the mother commenced seeing Mr A.
Shortly after the mother’s relationship with Mr A began the father began alleging that [X] had complained about Mr A touching her.
He alleged that when [X] was with him and Ms F she said words to the effect of “my bottom is sore daddy, Mr A touched it.” He said that there was also an occasion when [X] kissed him on the lips and poked her tongue in his mouth. He said that he disengaged with her and said “That is not how Daddies kiss their daughters.”
On 19 July 2011 the father met the mother at a café and said that he was concerned about [X] kissing him “using her tongue.”
On 20 July 2011 the mother spoke to [X]’s kindergarten teacher about the issue the father had raised. The father said that he separately advised the kindergarten teacher about it.
The father said that on 22 July 2011 just prior to getting into the bath [X] told him that she had a sore bottom and when he asked her why she said “He touched it.”
The father said that he discussed the matter with Ms F and decided to take [X] to Town H Medical Centre where they saw Dr J. The father said that he also spoke to someone at the Department of Family & Community Services (DOCS).
The father said that on 23 October 2011 when [X] was drawing some pictures she again said “My bottom is sore” and when he asked why she said “Mr A touched me.” He said that on 24 October 2011 he tried to raise the matter with the mother but she was not willing to discuss it.
The way the father set out in his trial affidavit what occurred in 2011 and suggests that he was intent on demonstrating that notwithstanding that he later conceded that there was no evidence that Mr A had done anything wrong and that he had overreacted he could not be blamed for reacting to the things [X] was saying the way he did. This was also the line he took with Dr C, Mr B and Dr D.
However the mother was and remains of the view that the father maliciously made allegations or manipulated [X] into saying certain things with the intention of forcing the mother to end her relationship with Mr A.
The mother gave the following evidence in her affidavit about why she had that belief.
She said that after [X]’s birth in … 2009 she found out that the father was having an affair. She said that this led to them having discussions about their future and that the father began saying things during arguments such as:
Step-father’s abuse kids. You will never bring one into my child’s life.
She also said as follows:
In particular, I recall at least one occasion in 2010 when Mr Attwood said to me
“I don’t want to be a part-time dad. I don’t want [X] to be part of a blended family. You know what stepfathers do to their stepdaughters. I see it all the time at work. If anyone you meet touches my daughter I’ll kill them and kill you.”[2]
[2] Mother’s affidavit paragraph 21
She alleged that in January 2011 she and the father argued after she found out that the father was having an affair and that the father attacked her with a knife and yelled:
I’ll stab you and the cunt you’re fucking.
Notwithstanding this after the parties separated on 17 January 2011 the mother readily agreed to [X] spending time with the father.
The mother said that on 8 February 2011 she went to the former matrimonial home where the father was living and found two letters in a notepad on the coffee table, one a suicide letter addressed to [X] and the other a list of his wishes regarding what he wanted done with his assets. The mother made a report to police and the father was located in his motor vehicle. Police scheduled the father for assessment at the Mental Health Unit at Town L Hospital. The father was released the following day.
The father was aggrieved about being admitted to the mental health unit and said that there was nothing wrong with him.
Not long afterwards the mother saw the father wandering at the Town L Hospital and stopped to speak to him. She said that he was agitated and aggressive. She persuaded him to return home with her and while they were at the home the father hit her on the side of the head while she was holding [X].
Notwithstanding these incidents the mother continued to agree to [X] spending time with the father. However she said that he continued to make statements along the lines of “if anyone touches my daughter I’ll kill them” and “If you meet someone who does I’ll kill you.”
The mother said that on 14 May 2011 the father again said that one day she would find him hanging from the rafters and it would be her fault and demanded to know who she was “fucking”.
The mother began dating Mr A on … 2011 and on 19 July 2011 after Mr A had met [X] only twice and with the mother present on both occasions she met the father at the father’s insistence and he made allegations about [X]’s behaviour which he said suggested abuse by Mr A. The mother gave extensive evidence about this in her affidavit, partially referring to text messages and notes she made at the time.
The mother said that Mr A was extremely disquieted about the allegations which he felt might stain his name whether true or not and expressed doubt about whether he should stay in a relationship with her. The mother did not want to lose the relationship and she put arrangements in place to protect both [X] and Mr A which included always having [X] with her even if she went to the toilet. She said that it was a massive strain on her having to monitor where Mr A and [X] were at all times and that it strained her relationship with Mr A.
On 2 August 2011 the mother collected [X] from the father and the father again made allegations. She said that she telephoned one of the father’s aunt’s while she and the father were arguing to see if she could calm the father down and handed the father her mobile so that he could speak to her. She said that the father did not calm down and he threw her phone through the open front door causing it to smash.
Notwithstanding this time between the father and [X] continued and the mother said that the child began making concerning comments to her upon returning from the father which it seemed to her were parroting the father including “Do you fuck Mr A?” and that she repeatedly used the words “fuck” and “fucking.”
On 25 October 2011 the father approached the mother at changeover and said that [X] had told him she had a sore bottom and that Mr A had touched it. He told the mother that he had taken the child to a doctor and had called DOCS.
The mother was deeply distrustful when the father persisted with allegations because of the considerable pains she had taken to ensure that Mr A was not left alone with [X] and when the father made allegations again in October 2011 she responded by accusing him of coaching the child and causing her psychological harm and jeopardising his relationship with her and following these allegations she withheld the child from the father.
The mother took the child to a doctor and she sought advice from a child psychologist and subsequently took the child to see the psychologist. She also had a conversation with someone DOCS.
In due course the mother arranged for the father to attend a session with her and the psychologist. At that session it was agreed that [X] would recommence spending time with the father and that this would be start with short visits with the mother present.
Three visits of this nature took place and [X] then spent 3 hours with the father unsupervised and spent further time with him following a swimming lesson on 23 April 2012.
The mother said that on 24 April 2012 [X] was in the bath and said to her:
Tell Mr A he’s not allowed in the bathroom while I’m in the bath.
The mother said that at this time Mr A was still not living with her and had never been in the bathroom when [X] was in the bath.
Notwithstanding this the mother did not stop time. Overnight visits commenced and one took place on 27/28 May 2012.
In his trial affidavit the father said that on 28 May 2012 when he was assisting [X] to do up her jeans after she had been to the toilet she said “Daddy, Mr A touched my bottom.” Ms F was present and heard what the child said.
The father dropped [X] home at 5.00pm and he and Ms F then had a discussion and decided that the matter was serious enough to make a complaint to the police. They went to the police station and Ms F took the initiative in making the complaint, telling police what she had heard.
[X] was then 2 years and 10 months old.
The mother said that at about 7.30pm she received a call from The Town K Police Station asking her to come to the station. When she arrived she was told that the father had made a complaint that Mr A had sexually abused [X].
A JIRT investigation took place and [X] was interviewed as was the mother, the maternal grandparents and the maternal aunt. [X] made some disclosures but Dr C noted in his 2013 report that she was very confused about dates and places and who touched who. No charges were laid and the police did not apply for an Apprehended Domestic Violence Order made for the protection of the child.
In his trial affidavit the father said as follows about the investigation:
A police investigation took place. Mr A refused to be interviewed. No action was taken. I accepted this. Ms Rigby believes that I made the report to disrupt her relationship with Mr A. This is not the case, when I heard all of the things [X] was saying to me and some of her actions, I was genuinely concerned for her wellbeing and left the matter to be determined by the appropriate people.[3]
[3] Father’s affidavit paragraph 28
The mother said that it was not that Mr A refused to be interviewed, rather that he was not required to attend an interview because nothing emerged from the interview with [X] which justified asking him to do so.
The mother refused to allow the father to spend time with [X] after the complaint to police and on 25 October 2012 he filed an application seeking parenting orders and in due course Dr C was asked to prepare a report.
In his report Dr C said that in March 2013 court orders were made for the father to spend supervised time with the child at a contact centre. It is unclear to me exactly what happened with that and whether time commenced supervised by a contact centre or by Mr M, a private supervisor, but it is not essential that I try to resolve that issue.
Dr C expressed the opinions and made the recommendations referred to earlier but it is important to note that he also very thoroughly considered the issue of whether Mr A might be a perpetrator of sexual abuse and gave detailed reasons for his conclusion that he did not consider that to be the case.
The matter did not settle after Dr C’s report was released and a trial commenced on 2 October 2013. However shortly before the trial the father through his solicitors withdrew his allegations that the child had been sexually abused by Mr A. The father and Ms F gave evidence on 2 October but the matter then settled as recorded earlier and the father began spending time with [X] pursuant to those orders supervised by Mr M.
The father consented to the Notations to the orders which refer to him having made allegations in the context of sensitivity about step-fathers but he did not admit at the hearing before me or at interview with Dr C in January 2017 that he had made the statements about step-fathers which the mother claimed he had made or that he had made allegations about Mr A maliciously. He maintained that he had misinterpreted the things a two year old had said to him.
The hearing before me did not focus on who was telling the truth about conversations the mother alleged had occurred after separation but the mother was a credible witness about these conversations and she was not simply stretching her memory back seven or eight years; her evidence derived from notes or text messages from that time and material prepared for the earlier trial. Dr C also went into detail in his first report about why he was sceptical about the father’s denials that he had said these things and his scepticism was based in part on his examination of notes made by a psychologist the father saw after his time with [X] ceased.
I incline to accept the mother’s evidence about those conversations and they provide foundation for her strong belief that in 2011 and 2012 the father engineered disclosures and made allegations with the intention of damaging her relationship with Mr A and damaging Mr A.
During cross-examination the mother said that the father would have to apologise and mean it before she would remotely begin to trust that he would not make allegations or manipulate [X] in the future but it is clear from her counsel’s closing submissions that this is not exactly the nub of the problem. The mother does not just want an apology for the allegations being made; she wants the father to admit that he made false allegations and manipulated [X] to say certain things about Mr A and apologise for having done so.
The father has never made such admissions and given the content of his trial affidavit there is no likelihood of him doing so in the future and there is therefore no likelihood that the mother will ever receive the apology she desires.
The outcome of the 2013 trial was that the father accepted supervised time but insisted on it being made plain on the face of the orders that he had not given up on being able to have unsupervised time in the future. In pursuit of that he continued counselling with Mr B and saw Dr D and he regularly requested the mother to agree to either additional or unsupervised time but she refused to agree to any alteration at all and on 3 September 2015 the father filed an application seeking fresh parenting orders.
The mother applied to have the application dismissed at a preliminary stage pursuant to the Rule in Rice & Asplund. Judge Myers heard the mother’s application on 21 July 2016 and dismissed it.[4]
[4] Attwood & Rigby [2016] FCCA 2219
On 7 September 2016 Judge Myers made an order appointing Dr C to prepare an expert report going to the issue of whether the father was able to demonstrate any change. He also ordered a family report.
Dr C interviewed the father and released a report on 28 January 2017. Following this a family report was prepared and it was released on 17 February 2017.
It emerged during the family report interviews that Mr M who was supervising the time was not properly carrying out his duties as supervisor and on 11 March 2017 the mother informed the father that she no longer consented to Mr M supervising the visits and that he would need to make arrangements with Contact Centre.
The father would not agree to Contact Centre. He said that was because he discovered that it would mean travelling to Town O; the mother said that it was because he objected to the amount they charged. I cannot determine where the truths lies about that but in due course the parties made an application to Region N Children's Contact Centre and time at that centre commenced on 5 August 2017 and has been ongoing ever since.
When Mr M was supervising the visits were three hours in length but the contact centre only provides two hour visits.
Regrettably the matter languished in the court system in 2017. Judge Myers ceased to sit in the Newcastle Registry in February and the Judge appointed to replace him in October had a conflict. The matter came into my docket after being mentioned before a visiting judge and on 5 February 2018 I listed the matter for trial in August 2018.
The trial proceeded on the designated days of 22 & 23 August 2018 and judgment was reserved.
On 3 October 2018 the mother filed an application in a case seeking to reopen the hearing and present fresh evidence. I heard submissions about this on 13 November 2018. I declined to re-open the matter and judgment was again reserved.
The father’s circumstances
The father lives in rented accommodation and he said and I accept that he has a room set up for [X]. He is a shift worker but he said and I have no reason to doubt that his work arrangements were stable and that he could accommodate alternate weekend time.
The father and Ms F have a son, [P], born on … 2014 but they separated in April 2014 and an unsatisfactory aspect of the father’s life is that he has spent virtually no time with [P] since separation and he has made no concerted effort do so. There is no reason to suppose Ms F would oppose it, indeed she said in her affidavit that she regretted that [P] was not able to know his father.
The father told the family report writer that he had not pursued time with [P] because he could not fight on two fronts and needed to resolve the issue of his time with [X] first. That is not terribly convincing.
The father has been employed by the Employer for some years and in recent years was employed as a dog handler.
An issue raised by the mother in her material after the father recommenced proceedings was that in July 2015 a number of the father’s workmates made a complaint about his treatment of a dog named …. They reported that he shook the dog and yelled abuse at it.
The father took leave following the complaint and made a claim for workers compensation. His claim went to arbitration and on 22 January 2018 the husband’s employer was ordered to pay him weekly compensation from 14 August 2015 to 11 June 2016.
Mr E gave evidence in the father’s case in support of his claim that he had not excessively disciplined or mistreated ….
In closing submissions the mother’s counsel said that I should place no weight on Mr E’s evidence because it was only valuable if the father had correctly described to Mr E how he treated the dog. That is true but it is impossible on the state of the evidence for me to make a finding that the complaints made about the father’s treatment of the dog had substance or that he behaved in a harsh or inappropriate way to ….
The mother’s circumstances
The mother married Mr A on … 2013 and they have two children, [Q] born on … 2013 (5) and [R] born on … 2015 (3).
According to the family report Mr A is a tradesman.
The mother said that organising her life with Mr A after the allegations began in 2011 was very difficult. They put in place a regime where [X] was never left alone with Mr A and found it hard to relax that after final orders were made.
The mother said that this caused problems for [X] who could not understand why she could not go to the shops with Mr A unless the mother accompanied them. She said that in July 2014 they relaxed the regime and Mr A spent some time with [X] during which neither she or the maternal grandmother were present but she expressed concern that this opened it up for the father to make further allegations.
She also said that it was simply not practical for [X] never to spend any time with Mr A in the future without another adult being present.
The mother said that she and Mr A had been to marriage counselling since the proceedings restarted because of their individual difficulties in coping with the prospect of the father spending unsupervised time with [X]. She said that she remained extremely fearful that if the father spent unsupervised time with [X] he would manipulate [X] into saying something which he can use to make false allegations against Mr A. She expressed the view that the proceedings were not about [X] but were about her and about the father wanting to bring her down and ruin her life.
The mother said that the thought of seeing or speaking to the father was unbearable for her. She said that the thought of [X] spending unsupervised time with him made her feel physically ill because she believed that he would continue to use [X] to ruin her.
In her trial affidavit the mother said that as follows:
I have spoken to Mr A about the current proceedings and told him that Mr Attwood wants unsupervised time with [X]. Mr A has said to be words to the effect:
“I will not stay if [X] is going to spend unsupervised time with him. I will not put myself or [X] or our girls in the position for something to be made up. I will move out and that will be it. You won’t have to worry about him making things up again.”[5]
[5] Mother’s affidavit paragraph 155
The mother went on to say that:
Even if I do not leave Mr A, I know that he will leave me.[6]
[6] Mother’s affidavit paragraph 159
During closing submissions the mother’s counsel was adamant that if the court made orders for unsupervised time the mother and Mr A would immediately separate.
The mother did say that if the court ordered that the father continue to spend time with [X] supervised she would comply with the orders but this did not detract from her statement that she and Mr A would separate if such an order was made.
Mr A said that the situation where he and the mother had to ensure that he was never left alone with [X] was in place for about three years and took a toll. He said that he could not go back to this and was afraid that if the father spent unsupervised time with [X] the allegations would commence again, either because the father coached [X] or because he made things up.
Mr A said he could not live with a situation where he might be accused of sexually interfering with a child and that if the court made an order that the father spend unsupervised time with [X] he would move out.
Mr A said that even if recreating the old arrangement of him never being left alone with [X] was an appropriate shield his family simply could not live with the artificiality of that situation.
[X]’s best interests
Any orders I make about [X] must be orders determined by treating her best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act set out the matters to which I must have regard in order to determine her best interests.
The primary considerations are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
[X] does not have a meaningful relationship with her father at present, in other words a relationship which is significant, valuable and important to her.[7] She plays with him during a two hour visit each three weeks but he has no nurturing role in her life. The father said that he sought longer time including overnight time so that he could become an important and significant figure in her life.
[7] Mazorski & Albright (2007) FamLR 518
The mother did not refer to the second primary consideration as a disqualifying factor for the father and I am not going to wrestle with the issue of whether making malicious allegations about the step-father might come within the definitions of abuse or family violence. The father denies that the allegations were made maliciously and I will consider the mother’s belief about why the allegations were made and the impact on the mother of the allegations and her fear that they may be made again in the future in the context of assessing parenting capacity.
There are a number of additional considerations in s. 60CC (3) and the first of these is any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The mother said that [X] sometimes looked forward to spending time with the father and sometimes did not, depending on whether it clashed with something else she wanted to do. This is likely to be true because [X] told the family report writer that she would prefer not to have to miss out on occasions such as birthday parties due to spending time with her father.
[X] also told the family report writer that she sometimes missed her mother when she was with the father but when she felt sad her father cuddled her and she got happy again.
She told the family report writer that she wanted to change the time to two hours every three weeks. This has since occurred as a result of supervision being changed from Mr M to the contact centre.
The family report writer asked [X] how she would feel if Mr M, who was then supervising the time, was not present and she said that she had a funny feeling in her tummy thinking about Mr M not being there.
However, [X] has no memory of the events which led to her time with her father being supervised and the family report writer said as follows about this issue:
It is interesting [X]’s perception is Mr M is required and necessary for her to spend time with the father. This may be because as far back as she can remember, Mr M has been a constant presence in her time with the father or it may be because she is aware of the mother’s anxiety regarding the father and regards Mr M as a person who looks after her.[8]
[8] Family Report paragraph 115
[X]’s views can be put this way: she is not expressing any unhappiness about seeing her father but is not pressing for more time or asking why time cannot be unsupervised. She told the family report writer that she felt funny about the idea of Mr M not being present but this could simply be because she cannot remember anything other than supervised time. It does not necessarily mean that with the right support she would not adjust to unsupervised time.
I must consider the nature of the child’s relationship with each of her parents and any other person including a grandparent of the child.
The father said that he had a close relationship with [X] prior to separation and that this continued after separation. He maintained that supervised time was going well and that [X] was keen to see him and sad to see him go.
The father may have had a close relationship with [X] immediately after separation, indeed the fact that the mother continually allowed extensive time to occur suggests that she recognised that. However, [X] has no memory of those happier times; her only memory is of the supervised time which has occurred since 2013.
Dr C conducted an observation between the father and [X] in April 2013. He said that she was happy to separate from her mother and come into the playroom and appeared both shy and also happy to see her father.[9]
[9] Dr C 2013 report paragraph 104
He described his observation of the father and [X] in detail and ended as follows:
There were some differences in the contact between [X] and her father and her mother. With her father [X] revealed less ability to sustain activity. Mr Attwood, although he was attentive to her was less attuned to her (as expected given his lack of knowledge of her). There was less spontaneity in their interactions. However despite that the contact did proceed reasonably well and there was little doubt that [X] was enjoying her interaction with her father.[10]
[10] Dr C 2013 report paragraph 108
The family report writer conducted an observation between the father and [X] in February 2017. [X] expressed no opposition to that happening but when the time came for it to occur she required considerable persuasion by her mother and the family report writer to enter the room to spend time with her father. She cried and clung to her mother and when she finally entered the room tears were visible on her face.
However she warmed to the father and began interacting with him and after providing detailed information about their interaction the family report writer ended by saying as follows:
As time continued, [X] and the father began to play in a more integrated manner. [X] directed the play with the father, often in a slightly bossy manner, and the father complied with her requests.
This observed pattern of behaviour seems similar to the behaviour exhibited between the father and [X] in the report of Dr C in 2013, that is, an initial shyness and subdued behaviour of [X] observed in the interaction with the father which slowly warmed over time but not to the level of warmth observed in the observation between the mother and [X]. [11]
[11] Family Report paragraph 124
The family report writer did not consider that the father and [X] had a close relationship indeed she expressed the view that [X] would not grieve if time stopped. She said that there was a limited relationship between the father and the child as a result of supervision having been in place for four years and expressed concern about the child’s difficulty separating from her mother to spend time with her father and about her failure to share her emotions about this with the father.
[X] is closely bonded with her maternal family unit.
Dr C observed [X] to have a good relationship with her mother and with Mr A in April 2013.[12]
[12] Dr C 2013 Report paragraph 54 -56
In February 2017 [X] attended the interviews with her mother, Mr A, [Q] and [R] and the family report writer said as follows:
In summation, the observation session revealed [X] in her comfort zone in the midst of a warm and loving family.[13]
[13] Family Report paragraph 116
This opinion is underpinned by detailed information about her observations of the family and I accept it.
[X] raised with the family report writer a wish to have the surname Rigby because everyone else in her household was called Rigby. She said that she was concerned that once her sisters started school people may not realise that they were her sisters because they had a different surname. The father said that in conversation with him [X] often called Mr A “Dad”.
The family report writer recommended that [X] be allowed to change her surname. The mother did not seek an order to this effect at trial but [X]’s wish to have the surname “Rigby” is an illustration of the strength of her enmeshment with the maternal family unit.
The mother contacted Ms F in late 2016 and they have since arranged for [P] and [X] to meet from time to time. [X] therefore has knowledge of [P] but there was no evidence that she had a strong bond with him.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to support maintain the child.
The father is assessed to pay child support for [X] and he pays as required.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the child, to spend time with the child and to communicate with the child.
The mother said that the father had not always availed himself of opportunities to spend supervised time with [X] and in 2015 had spent time with her on only eight occasions. She was also critical of him for not taking advantage of supervision by the Contact Centre in March 2017 which meant that he did not see her for nearly six months.
The father claimed that time was missed when Mr M was supervising because Mr M was not always available and gave reasons for not agreeing to the Contact Centre. He did not accept that he had been less than diligent in spending time with his daughter.
I cannot determine where the truth lies about this and in any event the mother said that since supervised time commenced at the Region N Children's Contact Centre in August 2017 the father had been regular in spending time with [X] each three weeks as permitted by the orders.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of her separation from either of her parents or any other child or person including any grandparent or other relative of the child with whom he or she has been living.
This is the central issue in this case.
The father’s case was that if [X] commenced spending unsupervised time of reasonable duration with him he would be able to develop a meaningful relationship with her and provide her with nurture and guidance for the remainder of her childhood and adolescence.
The mother disputed this and maintained that the father’s character flaws and true motivation in seeking time (namely to damage her) meant that a relationship which was significant valuable and important to the child would not develop as a result of unsupervised time.
I will need to return to this issue after making further findings.
The mother asked the court not to simply make no order for time but in effect she proposed a no time order.
I tend to agree with the opinion of the mother and the family report writer that as things stand [X] would be quite accepting of an outcome which saw her time with her father cease. She has spent only limited supervised time with him for five years and it is clear from the family report interviews that he does not have a special place in her life.
Whether it would be overall in her best interests to have no relationship with her father is a bigger issue and again one which I will have to return to after making further findings.
There is a third change proposed in this matter, that the mother and Mr A they will separate if I make an order for [X] to spend unsupervised time with the father.
[X] has no inkling that this might happen and it would be a devastating outcome for her. It would be devastating even if she did not know why it had happened, because it would mean ceasing to live with Mr A who is her de facto father and spending less time with her siblings who would have to be shared between the mother and Mr A.
If she understood the reason for it, namely that it was because of her, and it is difficult to see how this could be kept from her, it could result in her suffering serious psychological harm.
That is why I find it so repellent that the mother and Mr A baldly announced that they would separate if I ordered unsupervised time and expressed no concern for the impact this would have on [X].
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The only practical difficulty is that of organising and paying for supervised time if that is to continue but the parties have managed that to date.
I must consider the capacity of each parent to provide for the needs of the child including her intellectual and emotional needs.
The father’s capacity to provide for [X]’s day to day needs was not challenged at the hearing. The mother’s concern was that if he spent time alone with her he would manipulate her into making allegations about Mr A, which would be emotional abuse.
Dr C considered that the father’s propensity to act in that way was still there but that self-interest meant that he might not do so. He said as follows:
It is my view that Mr Attwood continues to view the actions of Ms Rigby as hostile to him and he remains in my view in competition with her (and by extension with Mr A.). What he has learnt is not to give voice to such concerns, or at least not in such loud a voice. I think his parenting capacity remains unchanged to any great extent. However, he is conscious of the consequences of giving into his impulses in this regard and I think less likely to cause difficulties for [X] and her relationship with her mother and Mr A now, than in the past. To that extent he has become a somewhat safer parent for [X], providing the opportunity for him to exhibit controlling behaviour remains heavily circumscribed.[14]
[14] Dr C report paragraph 91
There is nothing in that heavily qualified opinion which is likely to give comfort to the mother.
The family report writer expressed significant concern about whether the father accepted responsibility for his past actions. She referred to the fact that:
i)He had written a letter of apology to the mother and Mr A and never sent it.
ii)He asserted that the mother was the reason why he could not see the child unsupervised and perceived this as alienation.
iii)He said that if the court made a no time order [X] might search him out when she was older and he would “hate for the mother to lose her daughter later in life once [X] found out about the court case and why she had not spent time with her father.”[15]
iv)He expressed dissatisfaction with Dr C’s 2017 report and appeared annoyed that he was the only person in the matter who had completed psychometric tests and that he “wondered whether Mr A would have worrying personality traits if he were subject to a personality assessment, thus suggesting that he may still have ongoing concerns about Mr A despite his assertions that he does not.”
[15] Family Report paragraph 80
There is nothing in this accurate analysis of available evidence to give comfort to the mother either.
The father’s counsel submitted that rather than focussing on these opinions, I should place weight on Dr C’s opinion that out of self-interest the father was likely to “refrain from the worst excesses of such controlling and manipulative behaviour”. He also asked me to have regard to the fact that due to Mr M’s lax supervision the father had already had the opportunity to get in [X]’s ear and he had clearly not done so.
Mr M conducted supervision at an outdoor venue or venues. The father brought a bike to the venue and the mother brought a bike for [X]. Mr M usually remained seated on a bench and sometimes [X] and the father cycled out of his sight and hearing. The father said that it was an innocent use of the bikes and that Mr M was a slack supervisor and sometimes fell asleep on the bench.
There are some notes made by Mr M in existence which suggest that the father cycled off in order to avoid him and was being manipulative in taking [X] out of Mr M’s sight and hearing. However the family report writer commented that it is unclear from Mr M’s notes whether they were written contemporaneously, and the possibility that they were written by Mr M at a later date to exculpate himself cannot be excluded.
In any event regardless of why it occurred it is clear from [X]’s responses during her interview with the family report writer that the father did not make use of the opportunity to attempt to manipulate [X].
The difficulty with this however is that given the mother’s personal experiences this is not an argument she finds remotely convincing and the family report writer discussed at length the likely impact on the mother and Mr A of an order for unsupervised time. She said as follows:
The Family Consultant is very concerned as to the functionality and emotional stability of the family unit if the father were to have unsupervised time with the subject child. Both the mother and Mr A reported they would be on high alert for future allegations, that is, they would experience regular and daily high levels of anticipatory anxiety regarding future allegations, which will not abate, regardless of whether a Court determines it is in the best interests of the child to have unsupervised time with the father.[16]
[16] Family Report paragraph 142
The family report writer did not agree with Dr C’s view that [X] was less susceptible to manipulation because of her age and after discussing that she again returned to her concern about the impact of an order for unsupervised time on the mother, saying as follows:
This opinion suggests the subject child is old enough to be responsible for and manage the concerning presentation Dr C’s reports, which is in opposition to the view of the Family Consultant. This viewpoint of Dr C fails to examine the impact unsupervised time would have on the primary care giver and the family unit the subject child spends the majority of her time contained within. [17]
[17] Family Report paragraph 145
An issue the family report writer perceived to be of concern was the mother’s psychological and parental functioning if the father was granted unsupervised time with [X]. She noted that:
The mother is unable to forgive or forget the past and is anxiously anticipating future issues with the father. The mother observed that the father had never apologised for his actions in the past…….[She] cried whilst talking about Mr A and how he is still regarded on the COPS Notes as a person of interest in a sexual abuse matter.[18]
[18] Family Report paragraph 46
The mother told the family report writer and I accept that she was stressed with the ongoing litigation and had returned to therapy with a psychologist since it commenced.
The family report writer also said as follows:
The mother appeared fearful on her behalf as well as on behalf of her husband, Mr A. Given the past allegations were made by the father against Mr A, this level of concern by the mother appears appropriate. The mother expressed significant concern about the longevity of her marriage if the father made new allegations regarding her or Mr A. She had already thought about options if the father made further allegations, such as [X] living primarily with the maternal grandmother; the mother and [X] living on their own or Mr A being forced to move out of the family home.[19]
[19] Family Report paragraph 49
She said as follows about Mr A:
Mr A presented as a man experiencing significant ongoing stress. During the session he appeared angry and frustrated at the current court situation. Behavioural indicators of this were loud talking, clenched fists and frequent agitated movements. It is noted none of these behaviours were directed at the Family Consultant and the Family Consultant did not experience any feelings of fear or apprehension whilst assessing Mr A.[20]
[20] Family Report paragraph 84
Mr A told the family report writer that he feared the impact on the mother and on his family of the father making further false allegations of sexual abuse.
By the time of trial the position of the mother and Mr A had hardened. They announced that they would separate if I made an order for unsupervised time rather than wait to see whether what happened.
It causes me considerable disquiet that rather than endure anxiety the mother has decided to inflict immediate pain on her daughter, pain which might turn out to have been unnecessary because the evil the mother feared might not have come to pass. It reflects extremely poorly on her parenting capacity.
Having said that I accept that the mother genuinely fears that the father will manipulate [X] and make further allegations if he spends time alone with her and I also accept that given the level of distress the mother and Mr A feel about this prospect it is inevitable that [X] is going to become aware of the stress and tension surrounding her spending time with her father if I make an order for unsupervised time.
There is clear authority for the proposition that the court is entitled to take into account the impact on the parent a child’s lives with of an order for the child to spend time with the other parent.
In Russell & Close the Full Court said as follows:
In upholding children’s right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving capacity.[21]
[21] Russell & Close (unreported, Appeal No. SA 45 of 2002, 25/6/1993)
In Sedgley & Sedgley the Full Court upheld an appeal against the order of a trial judge for a child to spend supervised time with her father and said as follows:
Whilst the welfare of the child may require that there be continued access, the need for peace and tranquillity in the custodial parent’s home may be a more compelling need for the child.[22]
[22] Sedgley & Sedgley (1995) FLC 92-623
An aspect of the father’s personality which Dr C thought was unchanged and which may impact on whether [X] coped with unsupervised time is his lack of empathy.
Dr C identified lack of empathy as an issue for the father in his 2013 report.
Mr B agreed that the father’s PAI test result indicated a high level of defensiveness and flagged potential issues in the areas of empathy and self-identification although he did not consider that the fact that the father might “get frustrated and angry and miss some of his daughter’s cues” was not sufficient to justify limiting his time with his daughter. [23]
[23] Mr B’s report dated 20 June 2013 not page or paragraphed numbered but at pages 16 & 20 of the father’s affidavit
Dr C felt that lack of empathy was still an issue for the father in 2017 and the family report writer agreed, saying as follows:
Dr C continues to regard the father as unempathic, “it is my view that Mr Attwood remains essentially an unempathic person” (paragraph 91, page 27). This was evidenced in interview by the father revealing a very limited understanding of why Mr A would have strong negative feelings towards him, revealing his difficulty to place himself in the viewpoint of others. The father was unable to think about what a JIRT formal interview would have been like for the subject child 3 years of age, instead focusing on the fact she has not discussed it with him, therefore, it must not be an issue. Again, the father shows regret for the actions his behaviour has caused but shows no genuine empathy or understanding of how his past behaviours have influenced or distressed others.[24]
[24] Family Report paragraph 144;
[X] does not have a close relationship with the father and she displayed considerable distress before going into a room with him in 2017. If I make an order for unsupervised time it will cause great distress and anxiety for her mother and [X] will inevitably pick up on this and that may make it difficult for her to part from her mother. The father is not likely to pick up on [X]’s distress, just as he did not ask about the tears on her face in February 2017, which may make unsupervised time an anxiety provoking experience for [X] rather than a happy experience.
The solution Dr C proposed for any difficulties [X] faced with spending time with the father was that she should not be forced to go if she expressed opposition to going but I cannot easily build such a provision into orders. If I make orders and time does not happen the father may seek to enforce them leading to yet more litigation for these parties.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant.
This does not assist me.
I must consider any family violence involving the child or a member of the child’s family.
The mother alleged that the father was violent to her during and after their relationship. She alleged that he attacked her with a knife, hit her on the side of the head and threw her phone.
These allegations were not a focus of inquiry the hearing before me and were not the subject of in depth cross-examination as to exactly what happened or the circumstances surrounding the incidents and I am not prepared to make a finding that the father perpetrated family violence.
On the mother’s case, although she did not press for a finding to that effect, the father’s manipulation of [X] in 2011 and 2012 was family violence in that it was an attempt to coerce and control her when she formed a new relationship.
I am not convinced however that putting that label on the father’s behaviour would assist me.
Ms F made extensive allegations of family violence but for reasons I gave earlier it would be unsafe for me to place weight on her evidence.
I must consider if a family violence order applies, or has applied, to the children or a member of the children's family--any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
There have never been any family violence orders.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of her parents.
In speaking to the family report writer and in his affidavit the father was critical of the mother for not agreeing to allow him additional time with [X] after he provided reports from Mr B and Dr D. The family report writer said that he perceived what was happening with [X] as alienation.
This proposition is not supported by the evidence. For over twelve months after separation the mother persisted in agreeing to time and trying to revive time and gave up only in the face of persistent allegations.
The mother has complied with the orders for supervised time since they were made. It was clear during the family report interviews in February 2017 that [X] had no knowledge of what had occurred when she was younger and there was not the slightest sign that the mother had tried to influence her against the father.
I must consider 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 an important consideration because the parties separated in January 2011 and there has been very little peace since then. The period from mid-2011 to May 2012 was marred by the allegations and the parties were in the court system between October 2012 and October 2013 and have been back in it since February 2015.
By some miracle [X] has been sheltered from awareness of what has gone on but it has been stressful for the mother and no doubt for the father and Mr A demonstrated the effects of that stress during the family report interviews in 2017.
An order which ceases time between [X] and the father is the order least likely to lead to further proceedings; any other order carries a risk of further litigation.
It is apparent from the family report interviews that [X]’s relationship with her father is somewhat fragile, and Dr C recognised the possibility that at some point in the future she might refuse to spend time with the father. That is especially likely to be the case if I make an order which places intolerable pressure on or even destroys the family unit in which she is so comfortable and she transfers blame for this to the father.
That last factor would not apply if the order for supervised time was continued but that carries other risks with it. [X] might become increasingly resistant to that, or bored, and there could be problems with agreeing on a supervisor if the current supervision ceases and problems with supervised time could result in the matter returning to court.
I must consider any other fact or circumstance which the court thinks is relevant.
In cross-examination Dr C said that supervision could not go on forever because there was a dynamic involved. He said that supervision inhibited spontaneous behaviour and the relationship between the child and the person being supervised did not develop.
Parental Responsibility
I must make a decision about parental responsibility before considering the proposals about [X]’s time with the father because depending on the decision I make s. 65DAA of the Family Law Act may be engaged.
Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in the child’s best interests that her parents have equal shared parental responsibility for her absent a finding that one of the parents or a person living with one of the parents has engaged in abuse of the child or family violence.
The presumption is not rebutted because of any findings I have made but I can decline to make an order for equal shared parental responsibility if consider that this would not be in [X]’s best interests, and I am satisfied that an order for equal shared parental responsibility would not be in her best interests.
The mother is capably parenting [X] and has made good decisions about her in the last five years. The parents do no communicate and the mother is extremely wary and distrustful of the father.
An order for equal shared parental responsibility would by force of s.65DAC of the Family Law Act require the mother to communicate with the father and attempt to reach a joint decision with him if a major long term issue arose. She would find that extremely stressful and difficult.
The father’s counsel urged me if I rejected the father’s application for equal shared parental responsibility to consider making what he termed “a Murphy order” in other words an order which would require the mother to inform the father if a decision needed to be made, give him an opportunity to put forward his views and take those views into account in making a decision.
This would create the same difficulties as an order for equal shared parental responsibility; it would require the parties to talk to or at least correspond with each other. I do not intend to alter the situation that the mother has sole parental responsibility for [X].
Conclusion
Unpalatable as it is for a court to be threatened, in my view the course to I am required to take for [X]’s sake is to put those threats to one side and consider in light of my findings about the s. 60CC (2) & (3) matters which outcome would be in [X]’s best interests: unsupervised time in some form, a continuation of supervised time in some form, or no time which was the effect of the orders the mother sought.
Dr C and the family report writer both expressed the view that there had been little change in the father’s personality since the 2013 orders were made and it was the mother’s case that in light of this there was an unacceptable risk that the father would again manipulate [X] if she spent unsupervised time with him.
The father does not accept that there has been no change in his personality or even necessarily accept that he has a tendency to be manipulative and controlling but I cannot disregard the expert evidence without a cogent reason to do so, and the approach wisely taken by the father’s counsel was not to attack those opinions but to ask me to place weight on Dr C’s view that the father was likely to refrain from the worst excesses of controlling and manipulative behaviour because he was well aware that it would instantly lead to him spending no more time with his daughter.
He asked me to have regard to Dr C’s evidence about the limitations of supervised time and the evidence about [X] enjoying her time with the father and to make orders that she spend unsupervised time with him rather than allow a situation to continue where the relationship might wither and die because of the limitations inherent in supervised time.
There are things to be said in favour of an order for the father to spend unsupervised time with [X].
[X] has enjoyed activities such as bike riding with her father at supervised visits and she warmed to him during the observation session at the report interviews in 2017. It is open to me to find that he would be able to keep her occupied and happy for a period if some unsupervised time was ordered provided that she was not inconsolable about separating from her mother and spending time with him alone.
One of the principals underlying the objects in s. 60B of the Family Law Act is that children having a right to spend time on a regular basis with and communicate with both of their parents, and parents do not have to be flawless for children to benefit from that connection being maintained.
That section does not talk about whether the time should be supervised or unsupervised but the tenor of the submissions of the father’s counsel was that there would have to be a powerful reason connected with the child’s safety to deny her unsupervised time with her father, and the mother’s counsel did not articulate in submissions any reason to be concerned about the father’s capacity to care for [X] other than a concern that he might manipulate her into making allegations.
The father’s counsel ended by submitting that it would be tragic for [X] if Mr A was able to bring such pressure to bear on the mother and the court by threatening to separate from the mother if the court made orders for unsupervised time that the court was effectively blackmailed into dismissing the father’s application. However as I have already made clear if I dismiss the father’s application it will not be because of blackmail by the mother and Mr A.
I am also conscious of the fact that I do not have to order unsupervised time of the length the father proposed. Some unsupervised time, even if it was once a month for the day as Dr C suggested, would allow more scope for activities and allow the father to adopt some sort of a caring role with the child.
However there are some powerful reasons for not ordering unsupervised time if the matter is looked at from [X]’s perspective.
Dr C’s opinion that the father was likely to restrain himself because he did not want to lose the chance of seeing [X] carries no weight with the mother. She has a genuinely held fear that this has never been about [X] but has been about the father being willing to do anything to destroy her.
It is not unreasonable for her to have that fear based on her account of the conversations after separation.
The fact that the father is not pursuing time with [P] must also suggest to the mother that his interest is not in having a relationship with children but in destroying her.
The fact that Dr C and the family report writer both say that they can see little change in the father means that the mother cannot even begin to let go of her fears.
[X] is a happy well-adjusted child who is sure of her place in the mother’s household and is oblivious to why she is spending supervised time with the father. If I make orders for her to spend unsupervised time with him it is inevitable that she is going to quickly sense that something is wrong even her mother and Mr A do not separate.
She will go from having a happy untroubled life to having to deal with a source of tension centred on her.
The family report writer made pertinent observations about the impact on the child’s household of an order for unsupervised time. She said as follows:
If unsupervised time did occur, this would raise the psychological distress levels for the mother and Mr A significantly and would impact upon both of their ability to function within the family unit as parents and a couple. Concern would be raised regarding the effect of long-term anticipatory stress on the mother and Mr A and whether this may result in a mental health diagnosis. This would then cast doubt as to the ongoing parenting capacity of the mother and may result in a decreased ability of the mother to meet the emotional, psychological and physical needs of the subject child. The subject child has always been cared for by the mother and this relationship is the most important relationship to the subject child and needs to be prioritised above all other relationships.[25]
[25] Family Report paragraphs 151, 152
The family report writer was also concerned about how [X] would cope if ordered to spend unsupervised time with the father. She said as follows:
If unsupervised time is ordered for this child, there is no doubt this will result in high levels of separation distress at least initially and it is unknown how this will progress over time for the subject child. She has shown a consistent history of separation anxiety from the mother for limited supervised time and there is no evidence before the Court as to how this would change if unsupervised time did occur. Given her observed separation distress in observation and Dr C’s report regarding the personality characteristics of the father, if unsupervised time is recommended by the Court, it is suggested that the time be limited and irregular for example, once every 6 weeks for a 4 hour period of time.
There is force in these concerns and in my view the cost to [X] of an order for unsupervised time is simply too high: at best she will be exposed to stress and tension in her household which she knows centres on herself although she has done nothing wrong. At worst her family may disintegrate.
As a result of the father’s actions in 2011-12 he lost the right to spend anything more than brief supervised time with his daughter. They do not have a close relationship and [X] required considerable persuasion to see him at the family report interviews. She may not be able to tolerate spending unsupervised time with him given the reaction of her mother which she is inevitably going to sense, and the father lacks the capacity to assist her to adjust. He did not comment on the tears on her face in February 2017. She does not confide her fears and worries to him.
If the father had been able to demonstrate real change and if he had been judged to be an empathic person then the balance might have tipped in favour of requiring the mother to master her fears and anxiety and making an order for unsupervised time. However the father has not demonstrated real change, meaning that I cannot dismiss the mother’s fears about what he might do as fanciful, and he lacks empathy which means that there is a very considerable risk that [X] will be distressed about unsupervised time and be unable to overcome her distress.
I intend to dismiss the father’s application for unsupervised time.
I still need to decide what to do about the existing orders. Should supervised time each three weeks continue or should supervised time in any form continue?
As a result of supervised time having occurred for the last eight years [X] knows her father but she does not have a close relationship with him. She is gaining little from the existing supervised time other than to put a face to a name and have someone to play with. She is sometimes resistant to attending and that could increase as she gets older. The contact centre may cease to offer the parties a place which may mean that the parties turn to the court for a solution.
The parties were only able to parent [X] uneventfully for a few months after separation. They have been in dispute since mid-2011. They have been in the court system for much of the period between October 2012 and the present day.
The Family Report writer carefully considered the option of a reduced amount of unsupervised time and said as follows:
If time for identity purposes is ordered, this will ensure the child retains the current limited relationship with the father and will permit her to determine what level of relationship she wishes with the father when she becomes an adult. However, the subject child is currently aged 7 years of age, suggesting there would be 10 years or more of supervised time for identity purposes. This option would reduce the level of stress on the mother, and reduce the likelihood of false allegations resulting in less stress to the subject child’s family unit. It is anticipated the father would be extremely unhappy with this option as the time is less than he is currently receiving. It is proposed the child would still have difficulties separating from the mother in order for this time to occur but the response would be reduced to a few times per year and thus less likely to have a significant impact upon the subject child. [26]
[26] Family report paragraph 149
However there is no benefit to [X] in an order for supervised time a few times a year. She knows who her father is as a result of spending supervised time with him for the last five years. She does not need this identity contact and an order for supervised time in any amount carries with it some risk of further proceedings.
I intend to order that there be one more supervised visit so that the time is not abruptly ceased but I consider that it is otherwise in [X]’s best interests that I make the orders sought by the mother which are the only orders which will ensure that there is no further litigation.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding two hundred and fifty four (254) paragraphs are a true copy of the reasons for judgment of Judge Terry.
Date: 27 June 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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