Bain and Stewart (No. 6)
[2008] FamCA 1135
•7 November 2008
FAMILY COURT OF AUSTRALIA
| BAIN & STEWART (NO. 6) | [2008] FamCA 1135 |
| FAMILY LAW – CHILDREN – Parenting orders – presumption of equal shared parental responsibility rebutted because it was not in the best interests of the child – The father to have sole responsibility subject to providing information to the mother – Orders for the mother to have limited time with an 11 year old child because of destructive nature of previous relationship – Suspension provision in orders where psychologist considers on-going time and communication is again destructive of child’s emotional welfare |
| Family Law Act 1975 (Cth) |
| Godfrey & Sanders (2007) 208 FLR 287 Mazorski & Albright (2008) 37 Fam LR 518 Re W v W (2001) FLC 93-085 Rice v Asplund (1979) FLC 90-725 |
| APPLICANT: | Mr Bain |
| RESPONDENT: | Ms Stewart |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | DGF | 766 | of | 2005 |
| DATE DELIVERED: | 7 November 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 20, 21, 22 OCTOBER 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR WERNER |
| SOLICITOR FOR THE APPLICANT: | RIGOLI & ASSOCIATES |
| COUNSEL FOR THE RESPONDENT: | MR FINKELSTEIN |
| SOLICITOR FOR THE RESPONDENT: | FLA PARTNERS |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MR WILLIAMS |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | ROBERT HALLIDAY & ASSOCIATES |
Orders
That all existing parenting orders are discharged.
These parenting orders relate to the child … born … September 1997 (“the child”).
That the father have sole parental responsibility for making decisions concerning the child.
That notwithstanding that the father has sole parental responsibility, in respect of all decisions relating to major long-term matters as defined in s 4 of the Family Law Act 1975, by email, the father shall notify the mother of his decision as soon as practicable after it is made.
That for the avoidance of doubt, decisions concerning health issues shall relate only to those requiring treatment or counselling from a health professional other than day to day medical matters normally treated by a general medical practitioner.
That each party keep the other advised of any illness or injury requiring medical attention and if so, authorise the medical practitioner for the child to provide all such information as a parent would normally be entitled to in respect of a child.
That the mother and the father be at liberty to produce a copy of these orders to any health practitioners and education authorities.
That the child live with the father.
That subject to the matters set out in paragraphs (11) to (15), the mother spend time with the child as follows:
(a)During each alternate weekend in Melbourne from 15 November 2008;
(b)For the period from 3 pm until 8 pm on Christmas Day 2008 in Melbourne;
(c)During one half of all school term and Summer holidays commencing with the holidays at the end of the Victorian schools third term in 2009 by agreement and in default of agreement, the first half in even-numbered years and the second half in odd-numbered years without restriction as to location.
That the mother communicate with the child by:
(a) telephone each Wednesday and Friday on the following conditions:
(i)the calls be initiated by the mother at 7.00 pm to the father’s landline but if the child will not be there present at the appointed time, at a telephone number (whether mobile or landline) advised to the mother by the father no less than 1 hour before the appointed time for the mother’s call;
(ii)the duration of the call be 30 minutes and therefore conclude at 7.30 pm; and
(b)post (whether by letter, card or present) no more than once per week,
and for the purposes of (a) and (b) of this paragraph:
(c)the mother be restrained from providing the child with mobile telephones or credit facilities that would enable the child to telephone her outside of the provisions of these orders;
(d)the father shall ensure that the child is available to speak to the mother at the appointed time and for its duration;
(e)the father shall do all things necessary to enable the child to speak to the mother in private including ensuring there is no interference from extended family members;
(f)the father shall ensure that the child has available to him, sufficient stationery and at least one standard letter postage stamp per week;
(g)the father encourage the child to communicate in writing to his mother; and
(h)if the child does write to his mother, the privacy of the child in respect of any such letter be respected.
For the purposes of paragraph (9)(a) and (b) of these orders, every period is conditional upon the mother:
(a)notifying the father by email by 4 pm on the Monday before the weekend that she will be attending for the purposes of spending time with the child;
(b)advising the father of her estimated time of arrival and departure at Tullamarine Airport;
(c)advising the father of the Airline Carrier upon which she is arriving;
(d)advising the father of the flight number of her arrival and departure.
Further for the purposes of paragraph (9)(a) of these orders, unless the parties otherwise agree, any sequential alternate weekends commencing with the weekend of 15 November 2008 shall not be altered because the mother has not been able to spend time with the child.
For the purposes of paragraph 9(a) of these orders, the maximum amount of time (as distinct from the amount of time that the mother can capably arrange) to be spent between the child and the mother in Melbourne shall be as follows:
(a)for the first 4 periods so spent, from 9 am until 6 pm on either the Saturday or the Sunday but not both;
(b)after the first 4 periods, from 9 am on the Saturday until 6 pm on the Sunday.
For the avoidance of doubt, the overnight times on the weekends will not commence until after the mother and the child have actually spent 4 periods of time as required by these orders regardless of how long that may take.
For the purposes of paragraph (9)(c) of these orders, notwithstanding the reference to it commencing at the conclusion of the third school term of 2009, that paragraph shall not commence until the mother has spent at least 8 overnight periods of the weekends referred to in paragraph (9)(a) and if that is the case, the first such holiday period will commence after that has occurred.
Notwithstanding the provisions of paragraphs (9)(a) to (c) and (10), until 31 December 2010, if Dr T advises both the mother and the father in writing that the continuation of the times allocated for the child to spend with his mother or the means of communication are detrimental to the child’s psychological health for reasons which must be so set out and that the periods and means should cease, the provisions of paragraph (9) and (10) are suspended until further order.
If under the provisions of paragraph (15), notice is given by Dr T to both the father and the mother, each party shall have liberty to apply on short notice to a court exercising jurisdiction under the Family Law Act to determine whether the time so suspended should be resumed.
That the father, at his expense and not that of the mother, take the child to see Dr T as follows:
(a)for one appointment before 25 December 2008, the responsibility for arranging which shall fall upon the Independent Children’s Lawyer;
(b) at any time that Dr T wishes to see the child; or
(c) at any time that the child reasonably wishes to see him,
and, regardless of the views of the child, IT IS REQUESTED that Dr T advise the mother and father in writing of the child’s emotional well-being and such letter shall be common to both the mother and the father.
For the purposes of all changeovers of the child under these orders, unless the parties otherwise agree:
(a)the father or his nominee deliver the child to the mother at the point of her entry into the Tullamarine Airport from her designated flight at the time advised by her under these orders provided that it is not earlier than 9 am; and
(b)the mother return the child to the father or his nominee at the departure drop-off point at the outside of the mother’s designated Airline carrier at Tullamarine Airport and on the basis that the mother will be waiting at the designated time and the father or his nominee will be able to drive to that spot and not have to alight from the vehicle at the conclusion of the mother’s time with the child.
That each party keep the other advised of any changes to their current residential address or telephone numbers including mobile telephone numbers.
That the mother be at liberty to attend all sporting and cultural events, school productions and exhibitions, valedictory meetings, presentations and celebrations, prize presentation events and ceremonies, parent-teacher meetings organised by the school and also be at liberty to communicate with the principal and teachers at the school at which the child attends as to his progress.
That to the extent that it is necessary to say so, the mother is entitled (and not at the expense of the father) to all information including newsletters, information bulletins and photographs normally provided to parents and if the father’s consent is required for the provision of those, he shall give it.
That the mother and the father be equally liable for and pay, one half of the expenses of Dr J attending the court hearing on 22 October 2008.
That the Independent Children’s Lawyer provide a copy of these orders and my reasons for judgement to Dr T.
That the Independent Children’s Lawyer provide to the Principal of the child’s school, a copy of these orders with a request that the school use its best endeavours to implement the provisions applicable to it.
That subject to the completion of the tasks set out in paragraphs (17)(a), (23) and (24), the Independent Children’s Lawyer be discharged.
That all other applications outstanding between the parties are otherwise dismissed and removed from the list of cases awaiting a hearing.
That all material produced under any subpoena be returned to the recipient of that subpoena.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Bain & Stewart is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGF 766 of 2005
| MR BAIN |
Applicant
And
| MS STEWART |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The subject child is 11 years of age. He was born in September 1997. His parents have been embroiled in litigation about him for the majority of his life.
On 25 June 2008, I took the difficult step of ceasing any communication between the child and his mother pending the comprehensive hearing of this case.
In the intervening four months, the child has not only thrived but also stabilised. It is now time to see whether he can benefit from any meaningful relationship with his mother again.
On 25 January 2007, Guest J delivered judgment and made orders that removed the child from his mother’s care where he had lived since birth. Guest J ordered that the child live with his father.
In 2004, in proceedings between the parties in which the father of the child was endeavouring to establish a consistent relationship with his son, Guest J said that he hoped that the mother of the child would embrace the role of the father in the child’s life. His Honour exhorted her to do all things possible to foster the father’s image to the child. That exhortation seemed to have fallen on deaf ears. The proceedings culminated in a defended parenting hearing in which Guest J gave a long judgment.
On 25 January 2007, Guest J in his judgment said:
…Overall, I have little hesitation in preferring the evidence of the father to that of the mother, for there is much about her evidence that gives me cause for real concern…
…
…There are a number of matters arising from the mother's evidence that lead me to conclude that she is quite duplicitous in certain significant aspects of what she had to say and misleading, for the reality is that she could see no benefit in the father as a parent or being a worthwhile person to contribute to [the child’s] life or general nurture. That, in my view, was a grave mistake of judgment on her part and reflective of her utterly negative disposition towards him.
…
The mother was quick to assign blameworthiness to the father, to demean him as a parent and to defend her own actions. She did this at times in quite untenable circumstances. The mother was argumentative, offensive and in a number of instances thoroughly unreasonable. She struck me as the sort of person who would say that which best suited her case.
…
The strength of the mother's antipathy, indeed detestation of the father was such that it would be bordering on the ludicrous to find that she shielded [the child] from the fact and that she clutched such stringent emotion to herself.
…
It seems to me that the mother's attitude sat seamlessly with her view of any situation or person that did not fall into line with her nor agree with her personal views.
…
Many of the mother's allegations, consistent with much of what she said in her oral evidence reflected her negative attitude and personal, deeply held hostility, indeed odium of the father. Her affidavit reflected a litany of complaints without a word suggesting any positive trait vested in the father, his conduct or any aspect of parental responsibility. In my view, her target was to demote, indeed destroy, any claim proffered by the father and to urge me to view him in the poorest possible circumstances as lacking any interest in [the child’s] life…
In the proceedings before me, much was made by the mother’s counsel of the mother’s employment, studies and career as a nurse. Her current financial position in which she is dependent upon Centrelink was highlighted as a handicap to having time with the child in Melbourne. It is interesting to note that the same situation was a subject in the proceedings before Guest J. His Honour said:
The mother claimed that she was anxious to resume her Bachelor of Nursing studies without which she would continue to suffer financial hardship. She claimed that such studies would improve her prospect of employment. She deposed that otherwise she was able to return “back home”, as she styled it, to Tasmania it would not be possible for her to continue her studies under her current financial circumstances.
…
As in the proceedings before me, much was made before Guest J of the mother’s view about the credibility of the father. Guest J said:
The mother made it clear that she believed the father would make a false deposition if he believed it would be to his advantage.
Thereafter, in his judgment, Guest J traversed a number of factual issues that were in dispute. He generally if not always, found in favour of the father.
His Honour’s aspiration was as follows:
It is within the framework of my proposed orders that the father will have the opportunity to build a meaningful relationship with his son who will be introduced to family life in the traditional sense. I have every confidence in the father's ability to achieve this desired goal, thus enabling [the child] to have the benefit of two parents in stark contrast to the position and future were he to continue to reside with his mother.
His Honour’s summary in that case said it all:
I have throughout this judgment directed a number of my findings to determine issues very much dependent upon credibility and respect for the truth. Such matters open the doorway to trust and reliability. It is inarguable, nor has it been sought to argue the contrary, that I should not in all the circumstances accept the mother as a witness of truth. Put simply, I not (sic) trust her. These proceedings have mirrored, to a remarkable degree, those before me in October 2004. She claims she came to court as a no-contact parent and with the progress of the proceedings greeted the dawn of enlightenment and agreed to a series of carefully constructed orders, paving the future development of a meaningful relationship between father and son. All representations made by and upon her behalf proved hollow and insincere.
During some early interlocutory hearings, there were questions raised by the father (and indeed by Guest J himself and also Senior Registrar Fitzgibbon) about the application of the principle in Rice v Asplund (1979) FLC 90-725 and also the prospect of an application by the father that the mother’s application to change the existing orders be summarily dismissed. All of those issues faded away as the circumstances of serious problems for the child came to the fore and what was a potential change of residence application became a claim by the mother for a resumption of some sort of relationship with the child.
The judgment of Guest J acts as a barometer to see whether things have changed. Importantly, there were many findings of fact. I am bound by those findings. It is not that the Court commences this case with some prejudice but rather in respect of the best interests of the child, the judgment of Guest J lays out the foundation to see whether there has been change for his benefit. The orders of January 2007 are the starting point for the proceedings before me.
The change of life for the child did not go smoothly. It was quick and tumultuous. I am satisfied that the child’s father was not entirely prepared for that change.
On 26 July 2007, the mother filed an application to discharge the orders of Guest J and for the child to live with her. Rather than that occurring, on 27 November 2007, Senior Registrar FitzGibbon in a defended hearing, suspended some of the orders of Guest J on an interim basis and ordered that the mother spend time with the child at a contact centre for two hours per fortnight and some restricted communication by telephone.
The Senior Registrar’s orders included inter alia:
7.That until further order the mother her servants and agents shall not otherwise spend time or communicate with the said child in any form otherwise as is permitted by Order of the court.
8.That until further order the mother is restrained from providing the said child with any mobile telephone.
9.That until further order the mother is restrained from being within 500 metres of the said child’s school except for the sole purpose of attending parent-teacher interviews instigated by the school.
On 29 February 2008, the mother brought a contravention application. Of the 47 allegations in that application, two were proved and found to fall within sub-division E of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
In that hearing before me, I endeavoured to get the telephone communication moving again by varying the orders of the Senior Registrar to allow specific time, facilitation of that communication and its duration. Notwithstanding I found that there had been breaches of the order by the child’s father, it would be fair to say that the breaches were not significant amongst those alleged by the mother.
A further contravention application followed alleging 54 breaches relating to the telephone communication orders. That matter was listed before me on 25 June 2008.
On 25 June 2008, on an oral application by the Independent Children’s Lawyer’s counsel, I suspended all communication between the mother and the child on the basis of evidence I heard. I reserved judgment until my reasons were published on 9 July 2008. However it was clear that the orders were made on 25 June. I will not repeat my reasons in full but simply say that the following statements I then made were significant:
92.[The mother] then accuses [the father] of being a “no contact parent” and that he is lying to this Court. She says that this is part of a concerted effort to block her out of [the child’s] life. Again, the difficulty [the mother] faces is that she has the very strong findings of Guest J which do little to support the accusation that [the father] is a “no contact parent”.
93.Turning to her own position, [the mother] denies any endeavour to undermine the orders of Guest J or that she uses her influence over [the child] to cause him to be disruptive. She says that [the child] is the most important person in her life. She makes the assertion that [the child] was on the road to achieving full potential to develop into a well-adjusted young man up until the orders of Guest J. Again, the finding of Guest J would strongly suggest that that is not so.
The mother said that the orders I made and those of the Senior Registrar were untested and based on untrue evidence. In my conclusions on 9 July 2008, I said:
141.I have already expressed serious reservations about taking away what little relationship [the child] now has with his mother. However, in my view, the evidence is overwhelming in this case that [the child] needs a rest from the turmoil. That turmoil was clearly described by Dr [T] and I accept, is heightened around the time of the association between [the child] and his mother and/or court proceedings. Accordingly, I find that it is in the best interests of [the child] that he has that respite until the matter can be comprehensively examined.
With that background, I approached the proceedings that were conducted over three days. All parties were represented. All parties specified the material they relied upon.
THE MOTHER’S POSITION
Although the mother’s initiating application sought a discharge of existing parenting orders and a change of residence such that the child was to live with her in Tasmania, her counsel opened her case on the basis that she was no longer seeking that. On the contrary, she was seeking to resume the relationship with the child generally.
Precisely, the mother sought the following orders:
…
4. That the Child spend time and communicate with the mother as follows:
4.1From the first available flight after 4:00 pm on Friday until the first available flight after 6:00 pm on Sunday each alternate weekend commencing 31st October 2008 (extending to include any public holiday or curriculum day that falls on either side of the weekend that the child is to be with the mother.
4.2The first half of all school term holidays commencing at the first available flight after 4:00 pm on the last day of school until the first available flight after 6:00 pm on the middle Sunday of the school holidays;
4.3Each ‘even’ calendar year; the first half of the long summer school holiday from the first available flight after 4:00 pm on the last day of school until the first available flight after 6:00 pm on the middle Sunday of the long summer school holiday commencing on 19th December 2008.
4.4Each ‘odd’ calendar year; the second half of the long summer school holiday from the first available flight after 4:00 pm on the middle Saturday of the long summer school holiday until the first available flight after 6:00 pm on the second last day of the long summer school holidays.
4.5Each Mother’s Day weekend from the first available flight after 4:00 pm on Friday until the first available flight after 6:00 pm on Sunday.
4.6Each child’s Birthday commencing […] September 2009 Child will spend time with the mother from 3:00 pm until 9:00 pm. Whereby the Mother will travel to Victoria for the purpose of this contact visit at her own costs.
(a)On school days the mother will collect the Child from the Child’s School at the conclusion of the school and return the Child at 9:00 pm at [M]Police Station.
(b)On the weekends the Mother will collect the Child at 3:00 pm from the [M] Police Station and return the Child back at 9:00 at the [M] Police Station.
4.7The Child will travel to Tasmania for Mother’s University Graduation Day at the costs to the mother. Mother to advise the father in writing with the Child’s flight itinerary 4 weeks in advance.
4.8Save for paragraphs 4.6 and 4.7 until [the child’s birthday in] September 2009 the Child will travel from Melbourne to Tasmania as “unaccompanied minor” on Virgin Blue or Qantas Airlines, or any other such Airline that provides “unaccompanied minor” service. After [the child’s birthday in] September 2009 the child will turn 12 years of age and will be able to travel alone for contact visits with the mother.
4.9That until 30th June 2010 the father will pay for all the Child’s travelling costs for the purpose of contact visit with the Child’s Mother.
4.10Commencing 1st July 2010 the mother will pay for all the child’s travelling costs for the purpose of contact visits with the Child’s Mother. Whereby the full costs of the travelling expenses for the purpose of contact visits will be subtracted from the Child Support Payments.
4.11Until 1st July 2010 the father will book the flights for the purpose of contact visits minimum 4 weeks in advance and accordingly provide the copies of the Child’s itinerary to the mother. The mother is required to do the same after 1st July 2010.
There were other orders sought by the mother but they are not significant. There was little or no evidence led that could lead me to make orders outside of those sought by the mother in paragraph 4.1-4.11 as I have set them out above.
The mother’s evidence in chief was set out in an affidavit that she prepared herself. Not all of that was relied upon and I shall return in some detail to what she said below.
The mother also relied upon affidavits of Mr E, Mr L, and Mr K. None of those witnesses was required for cross-examination and I shall refer to their evidence below. The mother also filed two affidavits by Ms B on 13 March 2008 and 23 May 2008. Ms B is a psychologist in Tasmania and gave evidence by telephone during which she was cross-examined. I shall return to her evidence.
On the first day of the hearing, there was considerable discussion about the fact that I did not have any evidence of an assessment undertaken by a Dr R who is a psychiatrist in Tasmania. There was no dispute that the mother had sought an opinion from Dr R. I permitted that evidence to be called without any of the parties having been provided with an affidavit, proof of evidence or even opportunity to inspect the psychiatrist’s notes.
THE FATHER’S POSITION
The father’s position in his written application was effectively that the Court return to the orders of Guest J. His counsel however departed from that saying that his client wanted all contact between the mother and the child to cease only to be revisited when an appropriate assessment by a psychiatrist was made.
THE INDEPENDENT CHILDREN’S LAWYER’S POSITION
Initially, the Independent Children’s Lawyer said that he wanted to test the evidence. In final address, he urged a resumption of the relationship between mother and child but sought that it be limited to Victoria and with the possibility of suspension if Dr T felt that the welfare and emotional health of the child was prejudiced by a continuation of the contact and communication.
Similarly to the position that Guest J found himself in, the positions could not have been more stark. I make that comment in the light of my earlier remarks about the fact that my starting point was the judgment of Guest J and his Honour’s orders from early 2007.
The father’s evidence
The father filed an affidavit on 2 September 2008. There was very little if any cross-examination about his evidence. He gave reasoned and plausible evidence and I generally accept him as a witness of truth.
The events of 2007 and 2008
The child lives with his father and step-mother along with his half sister who is aged 5 years. He is currently 11 years old and attends the P Primary School where he is in Grade 5. I had the advantage of hearing the evidence of not only the principal of the child’s school but also his class teacher. There is some significance in that evidence because both educators told me that 2008 had not been a difficult year for the child. They were referring to the whole of the academic year. That was important having regard to the fact that in June 2008 upon the evidence that I then heard, I found that the child’s psychological health was at risk if the existing orders continued.
In August 2007, there were significant problems with the child. He refused to go to school and hid behind his bed. The mother was having contact with the child at that time.
On 19 August 2007, the father was approached by police to be told that a complaint had been made that he had assaulted the child and that an application for an intervention order would be lodged against him in the Children’s Court. The father’s version which was not tested in cross-examination was that when he spoke to the child, the child had a shoulder injury which included bruising but no broken skin. The child told his father that he had fallen over at his mother’s home and landed on a brick. Only days later, as had been indicated by the police, the father had to appear in the Children’s Court in relation to an intervention order concerning the child.
The appearance before the Children’s Court was the subject of some evidence before me. The father said that he chose to consent to an order in relation to the child because he would otherwise have had to have challenged his son’s evidence and cross-examined him. He decided that that was not appropriate. The mother was asked about this course of action and she decried the father’s stance on the basis that if he had done nothing wrong, he should have challenged the evidence and certainly not consented to the order. I was left with a very strong impression that the mother’s interest lay with criticism of the father rather than getting to the bottom of why the complaint was made in the first place. Importantly, as the evidence before me was unchallenged, I have no reason to doubt what the father said was the cause of the injury to the child let alone doubt the wisdom of the course of action he took in the Children’s Court.
In September 2007, the father was approached by the child’s teacher indicating that the child’s behaviour had been poor and that there was homework not done. The behaviour at school was reflected in behaviour at home because he not only refused to do the homework but refused to do domestic chores. The father reported that the child said that he hated living with him and wanted to live with his mother. At that time, the father found a mobile phone in the child’s bedroom which he then confiscated. Around this period the father had a problem in getting the child out of bed and off to school. He said he contacted the mother and asked her to help him get the child to school and offered to meet her at a police station where they could talk about the matter on a face to face basis. The parties disputed what actually then occurred. According to the father, the mother told him that these were parenting problems and not anything to do with her. He said she offered to collect the child on the basis that he signed residence over to her. The mother denied that evidence saying that it was “absolutely false”. She gave an explanation about the fact that she was unable to do what the father wanted because of a commitment anyway. In so far as it is relevant, I accept the father’s version.
There were further problems with the child in September in that he was refusing to do his school work and that required the father to collect him. There is a litany of unchallenged incidents that occurred in that month including behavioural problems associated with both school work and home life. During that same time, the relationship between the mother and the child continued with the assistance of the contact centre. According to the father and again this evidence was unchallenged, when he collected the child from O Centre on 16 September 2007, the child was quiet and refused to cooperate at home. On the following morning, the child was uncooperative, swearing and threatened to run away from school.
On 22 September 2007, the mother began a one week holiday period with the child and on the very day that the contact commenced, the father received an email from the mother saying she would not be returning the child at the end of the week. This was the week during which the intervention order was granted to which I have earlier referred. Despite the email, at the end of the week, the child was returned to the contact centre but refused to leave, speaking abusively to the father and to the contact centre staff. At that time, as a result of an allegation by the child to the staff and the contact centre that he had been punched, the Department of Human Services became involved. Eventually that night, the child returned home with his father. According to the evidence of the father, he found another mobile phone which the child had smuggled into the house hidden in the base of a toy. When this subject was the matter of scrutiny in evidence before me, the mother laughed.
In October 2007, things did not improve. On Sunday 14 October 2007, when the father went to collect the child from the contact centre, the child accused him of assaulting him again. The child was carried to the car by the father struggling, swearing and being abusive. Another mobile telephone appeared that night. It was confiscated by the father.
This type of behaviour with the father spilled over into the child’s school life and in the month of October, the child was suspended for four days. At this point in time, the child consulted Dr T for the first time. Dr T gave evidence before me in June and again in this hearing and I found him an impressive and honest witness. His evidence was not only enlightening but important and I accept it. That evidence is set out in some detail below.
The Mother’s evidence
The mother’s evidence was contained in an affidavit filed on 28 August 2008. At a preliminary hearing, I requested that as the affidavit was drawn by the mother, her practitioner identify what paragraphs he would be leading. Mr Finkelstein told me that she was only relying on the following paragraphs. Those were paragraphs 1, 2, 5, 6, 13-17, 20, 24, 28, 34, 36, 39, 45, 46, 49, 57, 60-63, 70-77, 81-83, 86-91, 94-98, 103, 106-108 and 113-115 together with Exhibits “SS4”, “SS6”, “SS7” and “SS8” thereto. Some of that material was ruled by me as inadmissible and noted on the relevant affidavit.
The mother referred to the fact that at the time that orders were made by Guest J, she was residing in Victoria. She subsequently moved to Tasmania.
She referred to the “numerous” promises that the father and his wife made to Guest J that they would promote and encourage her relationship with the child and also engage a psychologist to assist the child with the changes that came about because of the Court’s orders. Her case was that in respect of the former, those promises had not been fulfilled. I reject that. I accept on the evidence that the period subsequent to the orders of Guest J has been a difficult period for the father but all of the evidence presented to me from objective sources would suggest that he has done a reasonable job. In respect of the engagement of the psychologist, whilst that may not have happened immediately after the child changed households, the child has now developed a rapport with Dr T. It is not possible for me to find on the evidence that the delay by the child in getting to see any professional has had an adverse impact upon him. In my view, the disruptive behaviour of the child is largely as a result of his mother’s undermining of the orders. That is the only conclusion I can draw from the evidence of Dr J to which I shall turn below.
The mother also complained that she had provided her personal details to the Independent Children’s Lawyer for distribution to the father and she said that as such, there was no excuse for the father telling the school that he did not know her details. Having regard to the sequence of events from when the father enrolled the child at the current school until when the mother provided the same school with her details, nothing turns on this point.
In paragraph 17 of her affidavit, the mother set out a moving statement of what the child told her in her visit with him only days after changing households. Not only is the statement moving but also not surprising. What is not stated is what the mother said to the child. That would be an important piece of evidence because it would tell me how she grappled with the difficult problem of her own emotions as well as those of her distressed child. As with many pieces of evidence from the mother in this case, I have a concern that she has been selective.
An example of the way the mother conducted her case throughout can be seen in paragraph 24 of her affidavit. She complains that notwithstanding there was a suggestion by me that the father undertake a parenting course, he had not done so. She was content for me to know his reaction when she challenged him about that but said little about what she was doing to attempt to organise a co-operative parenting arrangement and ease the pressure on the child. The only conclusion I can draw, and this was the flavour of the mother’s case, it was all the fault of the father. That comes through again in her retelling of the conversations with the father on 20 March 2007 and 39 May 2007. None of that was helpful in my determination of what was in the child’s best interests now and into the future.
In respect of the child’s behavioural difficulties at home and at school, the mother’s evidence was that the father did nothing to initiate positive strategies relating particularly to the child’s schooling. That assertion, unsupported by any evidence of her own, does not sit at all comfortably with what the School Principal and teacher told me. Their evidence is set out below.
The mother said that when speaking on the telephone to the child, she could hear clicking on the line. She relayed what the child told her. There was no evidence of an expert nature presented to me that would support the proposition that the father and his wife were interfering with the child’s calls. I heard the father’s evidence on this subject and have no reason to disbelieve him.
The mother said that the father listened to her telephone conversations with the child in order to “fabricate and manipulate” the contents of her conversation with the child in order to portray her in a negative light. She said his motive was to prevent any meaningful contact with the child. She pointed to the fact that the father was “shopping” for a child psychiatrist in order to obtain a biased Family Court report. She listed the names of the various health professionals. Having heard the evidence including that of the professionals who subjected themselves to cross-examination, I reject the wife’s assertion.
The mother detailed her past experiences as a parent and what she did with the child. Somehow, that seems to have been lost on her that her conduct as found by Guest J has overshadowed what was otherwise competent parenting.
There is evidence of the mother in which she makes serious complaints about her endeavours to speak to the child by telephone being obstructed. I dealt with these issues in the contravention proceedings in early 2008 and I do not intend to repeat those matters. I shall endeavour to make orders that will promote the relationship between the mother and the child but it must be clear by now that the child has found these conversations confusing and difficult. In light of the evidence of Dr T and the school teachers, it is clear that the mother has to reconsider the way in which she approached the child so that he understands and accepts her acceptance of the change of residence being permanent.
I have already set out what views Guest J held about the mother. In her evidence in chief at paragraph 113 for example, she had not resiled from her views about the role of the father in the proceedings. She maintains that he is a liar. I do not accept that to be the case.
When she filed her proposed orders in July, the mother had proposed that the father be prohibited from further using the services of Dr T for the purposes of providing counselling for the child. The mother was very strong in saying that she wanted the child to have counselling and in fact, was critical of the father for having delayed getting the child into counselling after the Guest J orders. However, when cross-examined about the suggested order, the mother’s objection to Dr T was that he had not kept her informed. She went further and said that she wanted to participate for the benefit of the child. However, when I heard the evidence of Dr T in June 2008, he confirmed that he had in fact spoken to the mother. He described her as animated and irritated saying that the child was hers. He found her hostile and she bluntly told him that no-one was going to take the child away from her.
The only inference I can draw is that up until the mother’s application was filed on 23 July 2008, she wanted the removal of Dr T from the child’s life notwithstanding he had a professional and objective role to fulfil. There was nothing in the evidence that I heard in June nor more importantly, I heard in the evidence that he gave before me in October that would suggest Dr T had anything other than an important role to play in counselling the child. The observations of Dr T about the mother in December were poignant. I have no reason to doubt Dr T’s evidence. I find that the mother was hostile, irritated and focussed on her needs rather than those of the child. Sadly, little has changed.
Dr T
I mentioned Dr T above. He gave evidence by telephone. He is a psychologist with a Doctorate of Philosophy. The purpose of his evidence was to update what had happened since 26 June 2008. He said he had seen the child on a number of occasions over that time.
Dr T saw the child on 18 August 2008 with his step-mother as the father was overseas. He said he found him relaxed and smiling and he had a positive demeanour. Dr T spoke to the stepmother first to obtain details and she told him that the child was pleasant, less confrontational and that there were no behavioural problems. He said that she told him that the child did not talk about his mother.
Dr T then said that he saw the child by himself. The child said that he would still prefer to be with his mother but things were “pretty good”. He said he missed his mother but when asked about things with his father, the child replied that they were “okay”. The child said that he could “live with” a decision not to reside with his mother. He was described as smiling and joking freely and relaxed and there was no aspect of irritation which had been noted in earlier times.
Dr T saw the child in October and this time his father came as well. The child was smiling, giggling and very happy. He engaged easily but still wanted to live with his mother preferably in Tasmania. His explanation was that his mother did things with him but if he had to stay with his father, it would not worry him. Importantly, the child said that he still wanted to see both parents but that in his eyes, his mother needed him more than his father. That is an enormous burden for a child of this child’s age to carry and one that is of concern. It must be remembered that that statement was made at a time when the child had not seen his mother for some months and was otherwise excelling in school and home behaviour. The child said that he was treated okay at home which was a complete contrast with matters that he was earlier alleging against his father and step-mother. He said he would still like to see his mother in the holidays.
Dr T’s view was that these sorts of disputes took a lot out of children and it was important that the child not see Dr T frequently but rather that there were periodic reviews.
Dr T was cross-examined by counsel for the father who said that the child was influenced by his mother’s behaviour. He said that the child would not be adversely affected if he did not see his mother pending some further assessment of her. He made the observation that the child was a child who was intelligent and thriving on the right sort of nurturing. Dr T was very critical of the way in which the mother had used the child by photographing him for evidentiary purposes on the basis that if the child found out about it, it diminished his father in the child’s eyes. All of that adversely affected the child’s self-esteem.
Dr T was also critical of the mother for providing information such as an abuse hot line number to the child and in respect of the future, he saw no benefit for the child in going to Tasmania because what he needed was stability. His view was that the mother should see the child but here in Victoria.
The mother’s counsel cross-examined Dr T. Dr T responded to questions openly saying that he did not think the absence of the mother from the child’s life would damage their relationship because the child built self-belief and self-esteem in an environment where there was no conflict. Mr Finkelstein suggested that what Dr T was doing was experimenting with the child but Dr T denied that. It was pointed out to Dr T that the child travelled a lot in 2007 but in many ways, the problems in 2007 may have all been attributed to those sorts of constant changes in the child’s life.
Dr T was asked about the risk factor having regard to the very strong statements that had been made by Guest J and my own suspension of the time she was to spend with the child in June. Dr T’s view was that children thrived with both parents and if there was a change of the mother’s demeanour, it could only assist the child. That change of attitude had to include a change of her views about the father.
Dr T’s evidence is very strong and persuasive and I accept it.
The November incident
At the end of October 2007, after the first attendance by the child on Dr T, there seemed to be no difficulty over the contact weekend. Just over a week later, the child had another conversation with Dr T during which the child made assertions to Dr T that his father had hit him whereupon the child became angry and refused to communicate.
It is clear therefore that the child was confused and angry but the continued association with his mother did nothing to alleviate those problems.
In November 2007, the child was again in trouble at school after a fight with a child at a camp. According to the contractual rules of the school, the child had to be taken home.
The mother was cross-examined about the period from the commencement of the orders of Guest J until this particular point in the chronology. She said that there had been no problems about which she was concerned until an incident that occurred on 24 November 2007. This occurred outside of the contact centre and was the subject of considerable evidence.
On Sunday after the conclusion of the mother’s contact visit, the child refused to leave O Centre. The father lifted the child to take him to the car whereupon the child threw a punch hitting his father on the lip. The child was swearing and kicking. This occurred in the presence of one of the employees of the contact centre.
The father’s evidence was that he reached his car and put the child on the passenger seat and then walked around to the other side of the car to commence to leave. As he did so, the child left the car and ran away. The father followed him back into the grounds of O Centre where he attempted to hide behind some bushes. The father’s evidence was that he managed to free the child from the bushes and lifted him up taking him back to the car. There was considerable resistance by the child. As the father put the child into the car, the mother appeared from across the street carrying a video camera. She accused the father of assaulting the child and an unseemly incident occurred.
The father’s version was that a scuffle occurred between the two of them and he ultimately attended the police station and set out what he said occurred.
The mother’s version of what occurred was that she was leaving the contact centre and witnessed the struggling child. She said she parked her car and went to the boot to collect her video camera but by the time she had the camera on, the father had placed the child in the seat of the car. She then witnessed the child running away from the car back to the contact centre where he hid among the bushes. She then said that she saw the father grabbing the child by the ankle and dragging him across seven metres of the front yard of the centre. She said that this was witnessed by the staff member. She then gave evidence that the child was held in a headlock and pushed violently inside of the father’s car where the child cried out in pain and later alleged that his father had punched him in the stomach.
There is no independent version of what happened to that point in time. Neither party called the contact centre staff to give evidence. Having regard to the findings of Guest J and the fact that the father’s evidence was largely not challenged in cross-examination, I have no reason to doubt what he said was the truth.
In relation to the scuffle between the mother and the father, the mother’s version was that she “approached” the father to tell him that she would report his actions to the police. I have grave doubts about whether she approached him in any calm manner. She said he grabbed her upper arms and pushed her with much force causing her to fall backwards over the fence. To do that, the mother must have been within centimetres of the father which on any view, was unnecessary.
The mother’s evidence was that when she got up, the father pushed her again and she lost consciousness by which time, the father and the child were gone. However, when she walked back to her car, she said the father appeared in front of her, grabbed the collar of her shirt, holding it very tight around her neck, pushed her against the wall of the shed and repeatedly punched her in the face and upper chest. She in turn, bit him on the left forearm.
The father’s version was not markedly different. He said that having pushed the mother away, he turned to see the child was running across the road towards a football oval. He started looking for the child and being unable to find him, returned to his car only to be again confronted by the mother. According to the father, the mother accused him of assaulting the child at a school camp two weeks before. The confrontation continued and she blocked his path whereupon another scuffle occurred. He said to get her to release him, he hit her on the left hand side of her head with his right fist and in turn, she bit him on the arm.
In her evidence, the mother maintained that it was she who was assaulted and that she has sustained an injury to her ear in particular which will ultimately require surgery.
The police were involved with both parties. Each party asserted that the police were interested in their particular version. Ultimately it would appear that the police did nothing. It matters little.
Having regard to the credibility of the mother or lack thereof, I find that it was the mother who was the aggressor that day. If she was concerned for the welfare of the child, confronting the father in that way was not the appropriate answer. I do not accept that she acted appropriately.
One of the explanations given to me by the mother was that the child was consistently complaining about his treatment from his father and that is why she had the video camera because no-one would otherwise believe her. Even if that was so and I reject it as being the basis behind her having the camera that day, to confront the father struggling with a child who at that time was having behavioural problems of which she was aware, was unreasonable.
The incident in November was followed by a court hearing to which I have already referred.
December 2007 to June 2008
In December, the child had ongoing problems. It was the father’s evidence that on 18 December 2007, after the child spoke to his mother, he appeared upset. The father found him crying but he would give no explanation. He then spoke to his mother by telephone and returned to the father. According to the father, the child was upset. He then swore at his father in an angry way.
On Christmas Eve 2007, the father found another mobile telephone.
In February 2008, school had just resumed when an incident occurred in which the child got into trouble. The school principal told me that that incident was unrelated to family problems but had been something to do with another child.
THE CHILD’S SCHOOLING
According to the school principal and the child’s teacher, 2008 has been an excellent year. The child has been seen to be a cooperative child who has caused no trouble. He has leadership qualities. Unlike his performance at a camp in 2007, he was not only a model student, but helpful. The relevant educators told me about his progress at school academically and that the child is so proficient in information technology that he is capable of undertaking tasks for the school itself.
MR H
Mr H was called by the Independent Children’s Lawyer. He is the principal of the child’s school. He has been in that role for almost 2½ years so has had an opportunity to witness the child since the orders of Guest J.
Mr H referred to the behavioural problems in the past which he says have become less and less over time. Importantly, he said that he had not suspended the child during 2008. As a result of that, he did not speak to the child on a regular basis and I infer from that, things have changed markedly.
According to Mr H, the child had a lot of issues in relation to the change of his family life which the school put down to his living arrangements. When the child did speak to Mr H and his teacher, he told them that he wanted to live with his mother. Sensibly, the school accepted that that was something in which they should not become involved.
The school provided access to Mr Y who was a social worker and according to Mr H, the child responded and engaged well.
Importantly, Mr H said that he noticed that the child became unsettled each time a hearing in the court would take place making the child difficult to manage.
This year however, the child has engaged with his teacher and there appeared to be a good relationship. Mr H reported an incident earlier in the year of rock throwing but he felt that that was unrelated to his home life.
When asked, Mr H said that there had been no problems for some three or four months.
MR W
Mr W gave evidence at the request of the Independent Children’s Lawyer. He is the child’s teacher in 2008 and had something to do with him in 2007 during the difficult period when he was acting assistant principal. He said that the major problems related to management within the classroom and the child was deemed to be a risk. He referred to the camp situation and the substantial change that has now occurred.
Mr W said he had some 18 to 20 hours per week with his students and he found that the child had settled in class and was reliable and cooperative. He said that the child had a go at everything and there was little fluctuation this year. He had made steady progress from last year’s report. Mr W was complimentary of the father’s involvement in the school.
Mr W told me that he has an excellent relationship with the boy. The child has good friends and always has other children to play with. He was settled in class and reliable. The child has now a “Grade 1 Buddy” as part of the school mentoring role. There has been no issue about his attendance and certainly nothing remarkable about such matters as hygiene or provision of adequate food. Academically, the child has made steady progress.
Mr W also made reference to the fact that sometimes the child signed his name “Stewart” but like Mr H, the parental situation was avoided. When asked about that signature, Mr W said that it was something that children occasionally did and that the child was guarded by which I understood him to mean that it would be pointless to try and inquire too much about the situation.
When comparing 2007 and 2008, Mr W said that the child was pretty well fantastic all year.
As for any probing of the child’s life outside of school, Mr W said that the child was “guarded”.
Both of these educators gave confident, objective and insightful evidence. I have no reason to doubt their objectivity and sincerity. They have been clearly impressed by the changes taking place in the child’s life. Mr H was troubled about the school being embroiled in a parental dispute and asked for clarity in orders so that they knew where they stood. I hope that I can achieve that.
THE CHILD’S PROBLEMS AT HOME
Notwithstanding what would appear to be an extraordinarily good change in the child at school, the father’s evidence was that there were difficulties at home and that these continued up until June when I terminated the existing orders. The father gave evidence about the child “misbehaving” and being in a “foul mood” as well as finding him hiding in a cupboard on an occasion. The Department of Human Services were involved. The child had made a call to 000 and alleged violence. He spoke to the Department of Human Services representatives and alleged that his father had pushed him over and punched him whilst he was lying on the ground and that he spent all of his time in his room at home and had nothing to do. It was alleged by the child that his father and step-mother kept a recorder on the wall which recorded all of the telephone conversations between he and his mother and that the father and step-mother were fighting and yelling at each other and drinking alcohol. Not only did the Department find that there was no issue of concern from their perspective but I am satisfied that there was no basis for any such concern on the evidence that I heard.
DR J
Dr J is a psychiatrist whose qualifications were not challenged. He is consultant psychiatrist in private practice. There was some murmuring about Dr J’s previous engagement as a psychiatrist in Hobart but it has not affected anything that I have to determine.
Dr J was appointed as the single expert witness to examine the mother and father. He had an enormous amount of material provided to him including medical reports and photographs concerning “[the child’s] injuries” and the “mother’s injuries”. He was also provided with DVD evidence of the child being dragged by his father and photographs of “neglect” of the child by his father. Those documents and the commentary were provided by the mother.
Dr J went through the history of the mother. In respect of her present psychiatric history, he quoted her as saying that she cried most days and felt very flat for most of the time especially when she talked to her son and the child was distraught. He referred to the fact that the mother said that her enjoyment of life was greatly reduced and that she sometimes had difficulty getting to sleep and was affected by the pain from the confrontation with the father. She said her concentration was impaired and that she had nightmares about the child being dragged along by the father.
Dr J had difficulty getting a history from the mother because she was “long-winded” and frequently distressed and tearful.
In his opinion and recommendations, Dr J said that Borderline Personality Disorder was a possible descriptor for the patchy relationship history and dysphoria. He said that she had major depressive disorder and if she had been assaulted, it was likely that she had post-traumatic stress disorder.
Linking all of those together, Dr J said that in a case like this, the specific risk to a child surrounded exposure to emotional distress. He did not identify any suicidal ideation or history of self-harm and did not consider there was a significant risk of physical harm to the child.
Importantly, Dr J said that he had read the judgments that were critical of the mother’s behaviour. He thought she needed specialist psychiatric treatment and a resolution of the question of how she was to cope with the child having contact with his father continuing as it had since the orders of Guest J. He felt that it was important she participate in and successfully complete a post-separation parenting course. He said that after that and if she successfully engaging in psychiatric treatment, she would be fit to have the day to day care of her son including overnight, weekends and school holiday periods. The unashamed opinion was that at the present time, the mother was not in a position to fulfil those tasks.
I interpret from the evidence however that Dr J has serious reservations about the mother’s role as a full time carer of the child but she has attended a parenting program, is intelligent and been to another psychiatrist to obtain an opinion.
The mother did not accept the opinion of Dr J and as a consequence, saw Dr R. I shall come to Dr R’s evidence in a moment. However, in respect of Dr J, a question arose as to whether he had had sufficient time with the mother to adequately determine the diagnosis that he had. He said he spent 70 minutes with the mother which in his view, was an extremely long session because of the complexities of the case as well as the difficulties he encountered as the mother was long-winded.
He initially confirmed that his diagnosis of Borderline Personality Disorder was not conclusive because the indicators were only suggestive but he was formally and confidently prepared to stand by his diagnosis of the major depressive disorder. In respect of that, he said that it could be treated with either cognitive behavioural therapy or anti-depressant medication. There was some concern that only two out of three people responded appropriately to the medication but equally, cognitive behavioural therapy only worked in a proportion of cases.
Dr J said that the mother did not tell him about some psychiatric treatment that she had had and that concerned him. He confirmed that he had asked about other psychiatric attention but she only told him about a psychologist. He said it cast doubt on her history and therefore the diagnostic analysis could be in doubt.
When pressed by counsel for the mother about his diagnosis, Dr J became more positive and said it was most likely that she did have Borderline Personality Disorder and major depressive illness.
Dr J identified four out of the nine diagnostic criteria and when he read the judgment of Guest J relating to issues of impulsivity, he identified a fifth. He said on the basis of those criteria, it was more likely than not that his assessment was correct that the mother does suffer with Borderline Personality Disorder.
I have no reason to doubt the diagnosis of Dr J. He gave his evidence confidently and made concessions particularly in relation to the prescriptor points about Borderline Personality Disorder and it was only when cross-examined that he became more assertive and confident that that was the problem.
I find on the evidence that it is more likely than not that the mother does suffer from a Borderline Personality Disorder but for reasons to which I shall turn, that ought not be a disqualifying feature at this point in time for the mother to resume a relationship with the child providing there is a proper and adequate safeguard in place for the child. The safeguards provide a resolution of the course of action suggested by Dr J.
Dr R
Dr R is a specialist in psychiatry in Launceston Tasmania who has been in medical practice since 1964 and specifically in psychiatry since 1970. He has an impressive array of qualifications.
Dr R was called as I have early mentioned without a proof of evidence or affidavit. No-one complained about that.
Dr R said that the mother’s general practitioner referred her and he met her on 8 August for a little over an hour. He has not seen her since.
He said he was asked to see her because she wished to question the diagnosis of Dr J’s report about Borderline Personality Disorder as well as the major depressive diagnosis. He said that Borderline Personality Disorder was not justified. He said that a diagnostician had to be circumspect on the basis of a single interview because the interview circumstances will affect the behaviour on that occasion. He referred to the fact that people could be tense, hostile or angry as an example. He said contrary to the assertion that the mother was suffering depression, she had been reasonably successful in undertaking studies at a high level which was incompatible with major depressive illness. He referred to the post-traumatic stress disorder incident and indicated that he did not think that all of the symptoms for post-traumatic stress disorder were present.
Dr R said that in his view, the mother needed legal assistance and then she might consider a forensic psychiatrist. He said he had been reluctant to give an opinion because of a possible professional conflict with Dr J. Having considered why that was so, I am satisfied that Dr R was being professionally and sensibly cautious but there was no basis for me to be concerned about his evidence. Dr J was asked about Dr R and he spoke in glowing terms of the assistance that Dr R had provided him when he worked in Tasmania.
Dr R conceded however that he had not read the judgment of Guest J. In his view, that was unnecessary because he was there to assess the patient as he saw her. In fact, he was given a lot of papers and they were 2½ inches thick. He said he handed them back. He said the only document he read was the report of Dr J.
Dr R said that in diagnosing Borderline Personality Disorder, there were nine diagnostic criteria which included a number of things including strong feelings of insecurity, difficulty with getting on with other people, frequently distressed emotional states and uncontrollable feelings. He said that on his view, you would need to see a patient between four and six times to make a proper diagnosis. He said that Borderline Personality Disorder usually manifested itself in adolescence and if that was the case, there would have had to have been a long history of some 40 years in the case of the mother.
Dr R however conceded that he did not have a full history of the other professionals that the mother had seen. She did not tell him about two other psychiatrists. In fact, the mother told him that she had no other psychiatric history and that her only other similar health professional was psychologist Ms B and that that was largely in relation to the situation that she found herself in at the time. He said that he was not aware of any serious previous disorders.
Counsel for the Independent Children’s Lawyer asked him if he had been aware of the serious findings made by Guest J, he might have formed a different view and he conceded that that was possible. The other psychiatrists and their involvement about which he was not told may also have affected his judgment.
Importantly in the eyes of Dr R, there had to be an enduring pattern of behaviour pointing to the fact that the patient was different from most people in society in mood, functioning and dealing with impulse. He contemplated specific features such as disturbance to self-esteem and the efforts made to avoid abandonment. These were the various aspects of the nine factors indicative of Borderline Personality Disorder. In his view, the opinion of Dr J did not justify his diagnosis. He said there was no one criterion which was indicative alone of Borderline Personality Disorder but there had to be at least five out of the nine. He felt that Dr J did not establish that.
When questioned about the matters that Dr J stated, Dr R said that such things as crying most days did not fit with the Borderline Personality Disorder but it could be indicative of depression or an adjustment disorder. A number of matters pointed to depression.
In his view, the mother had a problem which was situational. If that diagnosis was right, the appropriate form of treatment was support through a recovery process similar to grief counselling.
Dr R was impressed with the fact that the mother had good psychological support.
I have no reason to reject the evidence of Dr R. He is a competent, experienced and credible professional. Like Dr J however, his role was limited to an assessment based upon what he was told.
It is difficult to determine which of the two professionals was more persuasive. In the end, I am convinced that Dr J provides a more authoritative diagnosis because of the nine recognised criteria for Borderline Personality Disorder, he recognised four and it was when he read the judgment of Guest J that he decided that there was a fifth namely impulsivity. Dr R did not have the advantage of that judgment because he did not read it. That is not a criticism of Dr R. His role was to comment upon that of Dr J and Dr J did not set out in any comprehensive detail where he got the fifth criterion from.
In the circumstances, I accept the evidence of Dr J and find that it is probable that the mother suffers a Borderline Personality Disorder.
Ms B
I have already mentioned that Dr R referred to the fact that the mother had comprehensive and supportive psychological assistance. That was in the form of professional help from Ms B who is a psychologist in Launceston. She provided two reports. The first was dated 10 March 2008 and the second 20 May 2008.
Ms B’s evidence has been the subject of an earlier comment by me in the interim hearing in June. Ms B accepted what she was told by the mother and in my view, became an advocate rather than an objective assessor of and for the mother. The Full Court in Re W v W (2001) FLC 93-085 cautioned the calling of experts who acted as an advocate rather than as an independent witness saying that if there was such a demonstration of bias, the evidence should be given little weight. Having made the remarks that I earlier did about what I had read of Ms B’s report, I wish to say that I have taken it into account but it is of little persuasive value.
Statements such as “[the mother] was devastated” and “[the mother] became rather desperate” are not objective and balanced. They are emotive and accept the basis upon which the client or patient gives the history.
Ms B had the benefit of the history of the case from the judgment of Guest J. She commented upon the judgment but made such statements as:
The matter went to the Family Court and after discussions with [the father] it was considered reasonable for him to have contact with [the child] every Saturday and Ms [C] (the family consultant) apparently negotiated the times with [the father]. However no consideration was given to the fact that this was difficult for [the mother] because of her work schedule. Apparently, [the father] refused to compromise in any way and took the matter to a Hearing on the basis that [the mother] was denying him contact with [the child].
Based upon that assertion, Ms B said that the mother did not have the knowledge or skills to handle cross-examination without allowing her emotions to interfere with the way she spoke to the witnesses particularly when she thought they were not telling the truth. Ms B said that consequently, the judge did not allow her to continue with cross-examination. With great respect, that is a misunderstanding of the process and having read the judgment of Guest J, I am satisfied that if it was the basis upon which Ms B was working, she was wrong.
Ms B also commented that the Court did not take into account a number of factors and then went on to say:
Consequently, [the mother] was penalised by being denied one contact weekend.
These comments point to the observation I made earlier about advocacy rather than objectivity.
There is a long discussion set out in the report which ultimately concludes:
In my professional opinion, I believe that the decision to make his father the residential parent has not been beneficial. As a psychologist, I would generally refrain from forcing a nine year old child against his will to leave his mother and live with his father. Moreover, denying [the child] contact with his mother for such a long time and, including Christmas, does not seem to be in [the child’s] long term best interest.
The statements of Ms B ignore all of the findings of fact and importantly, findings by which I am bound. The comments also act as a catalyst for the mother to feel she has an ally whose assessment she should accept rather than the findings of the Court. If Ms B has been counselling the mother over a space of 20 visits particularly in relation to the matters about which Dr R made comment, it is hard to see that there has been any impact. The mother made it clear in evidence and Ms B confirmed that she was aware of this, the reason why there was a change from an application for change of residence was not so much the acceptance of the determination of the Court but rather that the law precluded her from being successful in a change.
It is clear on the evidence that the mother values the input of Ms B. They have a sound professional relationship. I am left puzzled however as to exactly what form of counselling the mother is getting from Ms B and where it is leading. It goes without saying therefore that I find the evidence of Ms B did not assist me in working out what was best for the child.
Mr K
Mr K provided an affidavit for the mother and was not required for cross-examination. He said that between 25 January 2007 and 25 November 2007, he observed the child during contact visits with his mother. He said that the child and the mother had a loving and caring relationship and that the child never complained of any mistreatment. He said that the child was pleased to see his mother and that he had no concerns about her care of him. He said that the child did however make a number of disclosures about being unhappy in his father’s home ranging from not having any fun to mistreatment. All of those matters are consistent with the problems that were manifested in the difficulties that not only the father had but the school had as well during 2007. Importantly, Mr K has not seen the child since 25 November 2007.
Mr K was very supportive of the mother as a parent but I have to weigh that against the very strong findings of Guest J.
Mr E
Mr E reported in affidavit form and was not required for cross-examination that on 29 February 2008, at his home, he overheard a conversation between she and the Bain household. The reported conversation could only be of what the mother said and did and as such, is of very little relevance to what I have to determine.
Mr L
Mr L filed an affidavit and was not required for cross-examination. He was the school principal at the school at which the child attended prior to the orders of Guest J. When the mother overheld the child in July 2007, she took the child back to the F Primary School. He said that the child appeared to be happy and pleased to be back in the environment and quickly reformed friendships that he had had previously settling into a reasonable level of work. He said his behaviour was acceptable. Importantly, Mr L said that the child appeared to be secure and comfortable with his mother.
Mr L’s evidence also has to be seen in the context of the difficult time that the child was having in during 2007. I have no reason to doubt what he saw was correct bearing in mind that the child should not have been overheld and was no doubt feted by his mother. That action did nothing to solve the problem that the child was then enduring.
Submissions
I have already set out the positions of the parties.
Notwithstanding the significant and disputed psychiatric evidence, the Independent Children’s Lawyer adopted the view that the relationship had to be resumed and that the best way to solve the problem was for the only objective person to have some control over the ongoing relationship between the child and his mother. That person was Dr T. Mr Willams of counsel said that if Dr T put in writing his concerns about the impact of the relationship on the child, the relationship should stop. Mr Williams said that sad as it may be, the mother was on a mission which was clearly articulated in an email that she sent to the Independent Children’s Lawyer. That email was irrational and unreasonable and I do not intend to repeat it. Most importantly, it was recent. It was clearly directed to the Independent Children’s Lawyer at a time when the mother was seeking a change of residence back to her. It was intended to influence the Independent Children’s Lawyer to support her. He did not. The mother was given an opportunity to resile from the position she had adopted about the child’s father. She did not do so. All of that strongly points to the fact that nothing has changed from when the case was before Guest J.
Sadly however, as Mr Williams put it, the mother has no possibility of developing any insight into the problem.
The Independent Children’s Lawyer put the proposition that the child should see his mother for a limited number of hours on a building-up basis over a number of periods during which there should be weekly telephone communication. I cannot distinguish between the sort of relationship that the child would have with his mother by telephone or face to face. There is obviously a different dynamic but if the child is to speak to his mother by telephone on a weekly basis, I do not see any point in her not having face to face time.
It is trite to say that a positive relationship can be developed in a 30 minute telephone conversation in the same way as it can be developed in a 30 minute face to face conversation but conversely, so can an enormous amount of psychological damage. It seems important to give the child an opportunity to explore that relationship with his mother and I see no point in limiting that time other than for the purposes of enabling the child to fulfil other needs and obligations in his life such as homework, family involvement and extracurricular activities. Thus the limitation here should really be determined by the limits of the weekend. There needs to be an initial period of reintroduction so that the child is not overwhelmed but after that, there should be weekend time with his mother including overnight if she can manage it. I reject however, any need for the child to go to Tasmania at this time.
Mr Finkelstein on behalf of the mother said that if I was to restrict the mother to having limited time with the child in Melbourne, I was effectively decreeing that there would be no relationship. For the reasons I will outline, I reject that. He said that any relationship had to be meaningful. However the fundamental provision of s 60CC is that the child has to benefit from that meaningful relationship. What might be meaningful to the mother may not benefit the child if I was to allow him to spend some foreseeable time with her in Tasmania.
The mother’s evidence was that she was reliant on Centrelink payments from which she was committed to paying a mortgage on a home that she spoke glowingly about. It is a property which appears very much to provide her with some solace. It is not surprising that on Centrelink benefits, she has very little money. This will continue whilst she studies. This evidence is at odds with what Guest J understood would be her means of support.
It was the mother’s case that with the father’s wealth, he could afford to provide for the child’s travel. For reasons which should by now be apparent, I do not propose to allow the child to travel to Tasmania for some time. When he does, the mother should be working in her chosen profession. Thus, the question is how she could afford to come to Melbourne now. She spent thousands of dollars on legal expenses and she said she had spent large sums on medical expenses from the fracas with the father. She has encumbered her home to do that. She will now have to work out a solution that will provide her with air travel which, I accept, if booked early enough, can be cheap. She said that she would need a car if she came to Melbourne but I reject that. There is a reasonably priced airport to city bus service giving her access to things that she can do with the child. This is a difficult but not impossible task but it is for her to sort out for the child’s sake.
Mr Werner of counsel on behalf of the father proposed that there be no contact between mother and child until a comprehensive psychiatric assessment was undertaken. I reject that as being inappropriate on the basis that I already have two psychiatric assessments of the mother. Dr J was emphatic in his suggestion of a restriction on the mother’s time until she received treatment. I interpret that however to mean having a significant role and time in the child’s life. Dr R says that she does not need treatment because she has a supportive psychologist.
My view is that it is more sensible for the child to resume the relationship with his mother on the basis that if the stressors occur again, a court will have sufficient evidence of the impact upon the child as was seen in the pre- and post-June 2008 period.
The safeguards I propose are unusual. I have hesitated about leaving the suspension power in the hands of any person other than the Court but here the overwhelming evidence is that the child is disturbed by court events. The mother has heard that evidence and I find it credible. The child needs to have an objective trusted adult to whom he can turn who also has the capacity to assess whether the regime of contact whether by personal touch or by telephone, is damaging. I am not delegating my responsibility to Mr T but rather taking out of the father’s hands any defence of health and safety as might be argued in a contravention application. To protect the mother, I propose to put in place a liberty to apply clause.
Mr Werner also said that his client’s case was that I should make an order under s 118 declaring that the mother not have access to the courts without leave of a judge. It is a draconian power to exercise to preclude someone from having access to justice. I am not satisfied at all that the mother fits into the category of vexatious litigant. She is clearly obsessed with the fact that in her mind, Guest J got it wrong. However, she has now made an application, albeit late, to pursue only a resumption of the relationship rather than a change of residence. If that does not work, she would have significant problems because of the objective evidence of Dr T upon which I rely so heavily. Accordingly, in my view, it is not appropriate to make an order under s 118 of the Act.
Part VII of the Act provides the structure for the determination of any parenting dispute.
Section 60B(1) of the Act provides as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount but not the only consideration.
Section 60CC(1), provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Sections 60CC(2)(a) and (b), provide as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no legislative definition of “meaningful relationship”.
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In Mazorski & Albright (2008) 37 Fam LR 518 Brown J said about a meaningful relationship:
“meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In Godfrey & Sanders (2007) 208 FLR 287 Kay J said:
what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
It is important to consider from the respective proposals of the parties, how the child will benefit from having a meaningful relationship as it has been defined above.
It is important for the child to have a meaningful relationship with both of his parents but more importantly, for him to benefit from that. If any period of time ordered by the Court destabilises the child to the extent that I found in June 2008, that has the effect of destroying the relationship between the child and his father. Accordingly, it is important that the Court endeavour to work out what arrangement will enable the child to benefit from a relationship with both parents. Until such time as a court can be satisfied that the mother is positive about developing a relationship with her son in such a way that it will not destroy the relationship with his father, the time she spends with him must be limited.
To enable me to determine what is in the best interests of a child, Part VII of the Act directs me to the provisions of s 60CC. I turn to those provisions now.
I have already dealt with the question of the first of the primary considerations namely the benefit of the child having a meaningful relationship with both parents. I will not repeat what I have just said.
The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The mother maintained throughout the proceedings that the child was subjected to physical violence but as I have said, I reject that. I suspect in this case that the exposure to psychological harm has been much worse than that relating to physical harm. There were no doubt physical scuffles with his father as a result of what happened at the contact centre. Those pale into insignificance in relation to the psychological damage from being constantly drawn into a parental dispute which had been already decided by Guest J. The manifestation of that psychological disturbance is best seen in the way that the child behaved in 2007 at home and at school. The best evidence of how that is overcome is the evidence of the school and the child’s father in relation to the period from June 2008 onwards and in particular, the evidence of Dr T about how the child feels now that he has had an opportunity to settle down and have a stable relationship with his family. Accordingly, it is vital that any renewed relationship between mother and child have the safety valve proposed by the Independent Children’s Lawyer which would enable the Court to re-examine the matter in the event that an expert like Dr T felt that the child was being subjected to further psychological damage.
Section 60CC(3) provides a number of additional considerations. The first of those relates to the views expressed by a child. Dr T had no hesitation in saying that the child told him that he still would like to live with his mother but he accepted that that was not likely to be the case and that living with his father was otherwise okay. It is only a factor that I have to take into account and when weighed against the many other problems in this case, I am satisfied that whilst the child does have a view that he would like to live in Tasmania with his mother, he also accepts that the relationship with his father is satisfying and a happy one. This is a case in which I would not follow the child’s views.
A second consideration is the nature of the relationship between the child and each of his parents. There is no doubt that each parent loves the child and each manifests it in a different way. My concern with the mother is that she is obsessed with establishing that she is right and that the child is caught in the middle as the object of her desire. I have already referred to what she said in evidence about the things she used to do with the child and I compliment her on those activities. They are positive and the child can only benefit from them. Embroiling him as I find she has in these proceedings to the extent that he has been a tool of her desire to right what she saw was wrong, is unfortunate for the child. I have no hesitation in saying that I find that the nature of the relationship between the father and the child is good and becoming better when the child is stable and feeling secure.
Another consideration is the willingness and ability of each of the parents to facilitate and encourage a close and loving relationship between the child and the other parent. I do not accept that the father has been destructive of the relationship between the child and his mother. All of the objective evidence suggests that he has complied with court orders and been persistent in endeavouring to ensure that the child was safe and happy. I cannot say the same about the mother. In my view, looking at the judgment of Guest J, I can only conclude that she has not learned by any of the suggestions that his Honour made.
I am obliged to take into account the likely effect of any changes in the child’s circumstances on the basis of the separation from either of his parents. Ironically, this is a case in which no contact between mother and child has benefited the child. Equally ironically however, the child has not forgotten his mother. He would like to be with her and to use the words of Dr T, he misses her. That is a very clear message to the mother that she has to get her house in order and start working with the child on the basis that he is going to continue to live with his father and that her role in his life for the foreseeable future has to be distinctly different from what it has been in the past. She must adopt a positive approach. If she fails to do that and continues with what I have found is a negative attitude towards the relationship between father and son, a situation similar to the past will reoccur. At the moment, the child does not seem to be distressed by the absence of his mother. The question of what role his mother will play in the foreseeable future is very much in her hands.
I am obliged to take into account the practical difficulty and expense of the child spending time with his mother. I will not repeat what I have already said about how I appreciate her dilemma but it seems to me that this is a temporary period of time and she has to find some solution to it herself. I have looked at the capacity of each of the parents to provide for the needs of the child and find that each has the capacity to provide all of the physical attributes that a child needs.
There are no cultural issues here of which I am aware.
I am obliged to take into account the attitude to the child and the responsibilities of parenthood demonstrated by both parents. I will not repeat what I have already said when I find that I have no criticisms of the father but serious concerns about the approach of the mother.
There are now no family violence issues about which I am concerned notwithstanding the evidence. The lack of contact between the parties themselves may have enabled the tensions to settle and I propose in the interim period to see whether they can cooperate by meeting at the Tullamarine Airport rather than in the unpleasant and sterile environment of a police station or a contact centre. If this attempt does not work, there will be little choice but to resort to those measures. The delivery of the child to the Tullamarine Airport to meet his mother from a plane and her returning him there to his father will place both parents in a difficult position of having to quell the initial and the subsequent emotional downside when the mother returns to Tasmania. If both can put aside their differences and relate to one another in a civilised fashion in front of the child he can only benefit.
Section 60CC urges courts to make final orders wherever possible to prevent further litigation. On the proposed orders, I cannot see how the parties can avoid further litigation unless they can finally start to communicate with one another and develop a collateral parenting arrangement. If the proposed arrangements work and are beneficial for the child, the parties should not have to return to court because they will each see the benefit of the child developing as a confident young man. If there is no such cooperation, I have little doubt that the parties will resume the litigation.
Section 60CC also requires a court to consider historically what has happened in sub-secs (4A) and (4) but in this case, those matters were all extensively canvassed by Guest J in his long judgment in 2007 and I can contribute little further.
In the circumstances, it is time to endeavour to resume the relationship between the child and his mother. For the reasons I have outlined, I accept the evidence of Dr T that it would not be in the child’s best interest to travel to Tasmania. I appreciate very much for the reasons I have already said why the time must be spent initially in Melbourne with the child and it will be a matter for the mother to work out how those arrangements can be implemented. I do not accept that the limitation creates a barrier of the nature argued by Mr Finkelstein.
I propose that Dr T be given a copy of my reasons for judgment. I would urge the mother to discuss with her psychologist my views about where she needs to address future counselling and to suggest ideas of how the child and she can develop their relationship in a substantially different way from that which was otherwise intended by her until the commencement of these proceedings in 2008.
It goes without saying therefore that I find that the orders that I am about to make are in the best interests of the child.
Part VII of the Act also requires that in any parenting application, the court start from the fact that each parent has equal shared parental responsibility. Those matters were canvassed by Guest J and his Honour ordered that each parent have equal shared parental responsibility. It is now the father’s case supported by the Independent Children’s Lawyer that the father should have sole parental responsibility in relation to the child. The presumption of equal shared parental responsibility is rebutted by one of two situations. The first relates to family violence and the second is in relation to a finding that it would not be in the best interests of a child for the parents to have equal shared parental responsibility. In this case, I find that the latter is the case having regard to the appalling relationship between the parties. It seems to me that as they have no means of sensible communication at the moment, they have no way of working out what is in the child’s best interests in terms of the major long term issues that affect his health, education and general welfare. Until such time as there is some evidence that the parties can communicate, I find that it would not be in his best interests for the parents to have equal shared parental responsibility.
Accordingly, I propose to rebut the presumption and make an order that the father have sole parental responsibility for the child.
Finally, I reject the suggestion of a changeover at a police station. The mother sought orders making the father contribute towards making the contact work. The father’s role will be to get the child to and from his mother in the public environment of the airport. Such a changeover will require co-operation, punctuality and a joint approach with the child. If that fails, the stress upon the child will be significant thus putting him back to seeing Dr T. I propose ordering that the child be taken to Dr T just before Christmas 2008 to see how the re-establishment is going.
I certify that the preceding One Hundred and eighty eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 7 November 2008
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