BARONE & BARONE
[2011] FMCAfam 902
•1 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARONE & BARONE | [2011] FMCAfam 902 |
| FAMILY LAW – Parenting – best interests of children – allegations that children are exposed to unacceptable risk of harm in mother’s care – allegations of family violence. |
| Family Law Act 1975, Part VII |
| Patsalou and Patsalou (1995) FLC 92-580 JB and BG (1994) FLC 92-515 CDJ v VAJ (No. 1) (1998) 197 CLR 172 |
| Applicant: | MS BARONE |
| Respondent: | MR BARONE |
| File Number: | SYC 6392 of 2009 |
| Judgment of: | Pascoe CFM |
| Hearing dates: | 25-27 October 2010, 14-15 February 2011, and 1 April 2011 |
| Date of Last Submission: | 2 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell |
| Solicitors for the Applicant: | Brischetto & Ford Solicitors |
| Counsel for the Respondent: | Mr Lethbridge |
| Solicitors for the Respondent: | Parry Carroll Lawyers |
| Counsel for the Independent Childrens Lawyer: | Ms Falloon |
| Solicitors for the Independent Childrens Lawyer | Peter Baker Solicitors |
ORDERS
All previous parenting orders in relation to the children [X] born [in] 2006 and [Y] born [in] 2007 (“the children”) are discharged.
The mother and father shall have joint parental responsibility for the children.
The children shall live with the mother except when they are spending time with the father pursuant to these Orders.
The children shall spend time with the father as follows:
(a)Each alternate weekend, from after school on Friday until 5.00pm on Sunday;
(b)On the other week, from after school on Thursday until 9.00am on Friday;
(c)From the commencement of the school year in 2015, for half of all school holidays, being the first half of holidays commencing in odd-numbered years and the second half of holidays commencing in even-numbered years;
(d)For up to two (2) hours on each of the children’s birthdays if they are not otherwise with the father on that day;
(e)From 5.00pm on the Saturday before Fathers’ Day until 5.00pm on Fathers’ Day if they would not otherwise be with the father during that time;
(f)From 5.00pm on Easter Saturday until 5.00pm on Easter Sunday in odd-numbered years and from 5.00pm on Easter Sunday until 5.00pm on Easter Monday in even-numbered years, if they would not otherwise be with the father during those times;
(g)From 2.00pm on 24 December until 2.00pm on 25 December in even-numbered years.
The days and times in Order 4 above for the children to be with the father may be varied by agreement in writing between the parents.
Orders 3 and 4 shall be suspended as necessary for the children:
(a)To be with the mother from 5.00pm on the Saturday before Mothers’ Day until 5.00pm on Mothers’ Day;
(b)To be with the mother for up to two (2) hours on each child’s birthday when the children are not otherwise with the mother;
(c)To be with the mother from 2.00pm on 24 December until 2.00pm on 25 December in odd-numbered years.
The operation of Order 4 above is conditional upon the father living independently of the paternal family and not residing in premises occupied by them;
Unless the mother agrees otherwise in writing, the father shall not permit the children to spend more than six (6) hours with the paternal grandparents Mrs B and Mr B or the paternal aunt Ms E, on each occasion the children are with the father pursuant to Orders 4 above.
The children shall not spend any unsupervised time with the paternal grandparents until the commencement of the school year in 2019.
Notwithstanding Orders 8 and 9, the paternal grandparents may attend any school event specifically organised for grandparents.
Other than in the event of an emergency, the children’s General Practitioner is to be Dr B or any other general practitioner from the [L] Medical Centre, [address omitted], or the medical practice where Dr B practices medicine;
The father is restrained from taking the children to any medical practitioner while they are in his care except in the event of a medical emergency. In such event, the father shall:
(a)Inform the mother of the emergency; and
(b)Advise the hospital of the mother’s contact details; and
(c)Provide the mother with all relevant details about the hospital and the child’s admission; and
(d)Do nothing to prevent the mother from attending the hospital.
In the event that a child is admitted to hospital while in the mother’s care, the mother shall:
(a)Inform the father of the emergency; and
(b)Advise the hospital of the father’s contact details; and
(c)Provide the father with all relevant details about the hospital and the child’s admission; and
(d)Do nothing to prevent the father from attending the hospital.
In the event that a parent is unable to care for the children, or expects to be unable to do so, or becomes unable to do so, then that parent shall advise the other parent and give the other parent the option to care for the children during that time.
The father shall not:
(a)Take photographs of the children for the purpose of recording any bruises or other marks on them;
(b)Require the children to answer any questions about the mother or otherwise discuss with the children any actions of the mother;
(c)Except as provided in Order 12 above relating to medical emergencies, take either of the children to any medical practitioner, psychiatrist, psychologist, counsellor or therapist;
The father shall not permit any other person to do anything that Order 15 prohibits him from doing.
In the event that either of the paternal grandparents (Mrs B and Mr B) or the paternal aunt (Ms E) do any of the acts referred to at Order 15 above, the father is thereafter to ensure that they children do not spend any further time with them unless that time is supervised by the father and is to be no more than one hour on any occasion when the children are with the father.
Changeovers of the children shall take place at pre-school or school, except on non-school days, when the parent who has had the children in his or her care shall take them to the home of the other parent.
The mother shall facilitate telephone contact between the children and the father from 5.00pm to 6.00pm each Tuesday.
The father shall facilitate telephone contact between the children and the mother if the children wish to speak with her while they are with him.
Neither parent shall speak critically about the other parent in the presence or within the hearing of the children, or either of them, and the parents shall use their best endeavours to prevent any other person from doing so.
The parents shall not discuss these proceedings in the presence or hearing of the children.
Neither parent shall physically discipline the children or permit any other person to do so.
The parents shall at all times keep each other advised of their respective addresses and contact telephone numbers.
In the event that the parties are not able to agree on a school for the children or in relation to any future medical treatment, the mother’s decision will be final, provided that she has given the father access to all relevant material including any medical advice and has also given him a reasonable period, in all the circumstances, to consider the material, advise the mother of his views and that the mother has taken these views into account.
The mother is permitted to take the children out of Australia provided the father has been notified of any travel plans including departure and return dates and flight details at least twenty-one (21) days prior to the date of departure.
The parties are to utilise a communication book to convey messages about the children’s health and general care.
The parties are to engage in joint Counselling and/or Family Therapy at Relationships Australia to discuss issues relating to the welfare of the children in September/October each year, commencing September/October 2011 until 2015 at the earliest.
Both parties are to attend and complete a Post Separation Parenting Course at Relationships Australia before 01 March 2012.
The parties are to pay costs of $17,712.40 to the Legal Aid Commission of NSW for providing separate representation for the children. This amount is to be paid as follows:
(a)$10,000 by the father; and
(b)$7,712.40 by the mother
The costs of the mother and father are reserved.
Any further application for costs with regards to these proceedings must be filed within 14 days of the date of these Orders.
AND THE COURT NOTES THAT:
A.The contact number for Relationships Australia in Sydney is 02 8874 8025.
IT IS NOTED that publication of this judgment under the pseudonym Barone & Barone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6392 of 2009
| MS BARONE |
Applicant
And
| MR BARONE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter involving two children: [X], born [in] 2006 and [Y], born [in] 2007 (“the children”).
The orders sought by the applicant mother, as outlined in final submissions filed on 18 April 2011, include the following:
a)The mother to have sole parental responsibility, with the children to spend time and communicate with the father pursuant to a schedule, dependent on the father living in accommodation independent of the paternal grandparents;
b)The father to be restricted from bringing the children into contact with the paternal grandparents except for not more than two hours on Christmas Day, Easter Sunday and each of the children’s birthdays, with such time to be supervised by the father;
c)A restraint on the father and other members of the paternal family taking the children to a general practitioner outside the [L] Medical Centre practice, except in case of an emergency, from photographing any bruises on the children, and from “requiring the children to answer any questions about the mother or otherwise discussing with the children any actions of the mother.”
d)A restraint on the father “assaulting, molesting, harassing or otherwise interfering with the mother”.
The respondent father, in final submissions provided to the Court dated 10 May 2011, seeks joint parental responsibility of the children, and a determination from the Court as to whether the mother poses an unacceptable risk of harm to the children. The father submitted that this determination from the court should then lead to one of two outcomes:
a)in the event of a positive finding the children should live with the father and spend supervised time with the mother; or
b)in the event of a negative finding, the children should reside with both parties on an equal time basis.
The applicant mother was represented by, Mr Schonell, of Senior Counsel, the respondent father was represented by Mr Lethbridge, of Senior Counsel and Ms Falloon appeared for the Independent Children’s Lawyer.
Due to the complexity and gravity of the issues raised in evidence, and also due in part to the late lodgement of evidence by the father regarding a core issue in the matter, final hearing in this matter took six days, which is unusually protracted for a final hearing in this court. These six days were spread over three separate blocks: 25-27 October 2010, 15-16 February 2011 and 1 April 2011.
After the initial three days of hearing, the Court and the parties were in agreement that Interim Orders were appropriate. These Orders were given ex tempore on 27 October 2010 and were followed by Reasons for Judgment delivered on 27 November 2010
Background:
The accumulated factual background to this matter has been provided in two interim judgments of this Court, however I provide a brief summary here. The father and mother met when they were aged 32 and 33 years respectively, and were married [in] 2004. The relationship produced two children: [X], born [in] 2006 and [Y], born [in] 2007. The parties separated in October 2009. At the date of final hearing, the mother was residing at the former matrimonial home at [address omitted] and the father was residing in accommodation independent of the paternal family.
Until the date of Interim Orders of this Court (27 October 2010), the children had been living with the mother and spending time with the father from 9am Saturday until 9am Monday in week one and from 9am Sunday until 9am Tuesday in week two, pursuant to Interim Orders made by Walker FM on 11 November 2009.
Subsequent to the Orders of 27 October 2010, the children continued to spend the same periods of time with the father as outlined in the paragraph above, however the Court ordered that this contact was to take place outside the paternal family home. The Court further ordered that the children were only to come into contact with the paternal grandparents for a maximum of one hour per week during the children’s time with the father, and one hour on Christmas Day and the children’s birthdays.
These severe limitations were placed on the time the children spent with the paternal grandparents due to evidence presented at the interim hearing which demonstrated that both the father and the paternal grandparents were repeatedly examining the children for signs of abuse, and were taking the children to the doctor on a great number of occasions. The intended purpose of these visits was to establish that [X] in particular was exhibiting bruises which were caused by the Mother. Dr R, the author of the Single Expert Report in this matter, gave evidence that such behaviour was almost tantamount to “institutional abuse”. He recommended that one course available to the Court was to restrict the children from seeing the paternal grandparents entirely, however I did not take this step at the time, given that I had not had the opportunity to hear the grandparents’ evidence, and in consideration of the potential impact on the long-term welfare of the children that a cessation of contact with the grandparents might cause.
The proceedings:
The mother filed her Initiating Application on 23 October 2009, and the father filed his Response on 11 November 2009. The matter came before the Court for Interim Hearing on 11 November 2009. Walker FM’s orders of this date contained the time share arrangements that – with some modifications, as contained in Interim Orders dated
27 October 2010 – prevailed until the date of final orders.
The Issues:
The issues in dispute by the parties include the following:
a)
Whether there is an unacceptable risk of harm to [X] and
Mr Barone whilst in the care of their mother; and
b)The weight to be given to evidence from different expert witnesses, including Dr R, Dr V and Dr B; and
c)The extent to which the paternal grandparents should play a role in the lives of the children; and
d)Whether there has been domestic violence between the mother and the father; and
e)Whether joint parental responsibility is appropriate.
Evidence:
At the hearing the applicant mother relied upon the following material:
a)Affidavit of mother filed 11 October 2010;
b)Affidavit of Mr J filed 11 October 2010;
c)Affidavit of Dr B filed 11 October 2010;
d)Report of Dr R dated 15 March 2010;
e)Application filed 23 October 2009.
The respondent father relied upon the following material:
a)His affidavits sworn 10 November 2009 and 7 October 2010;
b)Affidavits of Mrs B sworn 10 November 2009 and 7 October 2010;
c)Affidavit of Ms E sworn 10 November 2009;
d)Affidavit of Mr B sworn 11 November 2009;
e)Response filed 11 November 2009.
Single Expert Report
On 29 March 2010 Dr R’s Single Expert Report dated 15 March 2010 was released. As I noted in my interim judgment, his reported was prepared after interviews with the parties, the children, family members, practitioners and a Department of Community Services representative. Dr R also considered the documents on file. His report recommended that the children reside with the mother, and spend time with the father on the condition that the father remove himself from an “overly close” family environment.
Among the specific recommendations of the report were that the father find separate residence, and that there be no contact with the extended paternal family for six months. Dr R was concerned by the paternal family’s “inappropriate” response to abuse concerns, and wrote: “[[X]] is at risk of… institutional abuse by repeated examinations”. For this reason, Dr R recommended that the mother take over parental control of the children’s health issues.
On 12 October 2010 Dr R responded to questions from the father’s legal representatives pursuant to r.15.66 of the Family Law Rules2004. These questions and answers were tendered as exhibits at hearing.
At hearing, Dr R was cross-examined at length, and expounded upon the findings and recommendations in his Single Expert Report. Dr R provided further oral evidence on 1 April 2011, in response to issues raised in the affidavit and oral evidence of Dr V.
I found Dr R’s evidence measured and reliable, both at hearing and in his Single Expert Report, and weighted it accordingly.
As outlined above, in making interim orders, I did not prevent the paternal grandparents seeing the children as recommended by
Dr R, as I had not at that stage had the opportunity to hear evidence from them nor from the paternal aunt. There was no evidence of the paternal family harming the children in any way other than by way of what Dr R described as a “Folie en famille”, which resulted in [X] being regularly photographed and enduring constant visits to the doctor.
Against this, I was mindful of the potential harm to the children if their relationships with the paternal grandparents were suddenly brought to a halt and they did not see their paternal grandparents for an extended period of time. In this regard, I note the comments of Dr R at page 114 of the transcript, where he outlines potential negative consequences for the children if their contact with the paternal family were to be halted: (emphasis added):
“The other possibility is that the – because of these – this belief system that’s being acted upon, it may be that, due to other events, that the children lose the relationship with their father and the paternal family, and they would then experience a similar situation. They would grow up with the mother, and lose their relationship with the father and the paternal family, and have similar loss issues to do with not having a father and not having paternal grandparents and paternal family to – to have in their lives, and are likely to suffer emotionally and psychiatrically in the long term as well.”
Subsequently, Dr R was asked in cross-examination about a situation whereby the children were prevented from seeing the paternal grandparents entirely. At page 122 of the transcript, he is recorded as answering: “Obviously, that’s a very drastic outcome and would be a bad outcome.”
Although preventing the children seeing their paternal grandparents may have had a salutary effect on the father and his family, I was not convinced that this was in the best interests of the children, given the potential long-term adverse consequences.
Ms Barone (the mother)
I found the mother to be a credible witness and I accept her evidence as to her care of the children. Her present occupation is, in her own words, “a mum”.
The mother was open and frank about her difficulties with post-natal depression and the problems she felt that had caused for her both in relation to raising the children and also in her relationship with the father. The situation was clearly not helped by the fact that the mother, father and children were living with the father’s family at the time, albeit downstairs in a self-contained flat.
I was unable to come to any clear conclusion as to the mother’s allegations of domestic violence on the part of the father. This is discussed in more detail below. However, as to the allegations made by the father, I am of the opinion that the mother is a caring and supportive parent and that she is not engaged in any systematic abuse of her children.
Mr Barone (the father)
I found the father somewhat evasive in his responses. I was particularly concerned at his lack of insight as to the effect of the constant photographing of bruises on [X] and visits to the doctor were having on both children. He seemed to be overly influenced by the views of his family and unable to take any objective view of the issues in dispute.
I was concerned also at his failure to acknowledge his issues with anger management despite significant evidence which pointed to this being a problem. For example, in the annexure to her affidavit filed
11 October 2010, Dr B states:
“At a residential stay at [T], staff were concerned about [Mr Barone]’s temper and one counsellor felt so threatened that she asked him to leave the room during a counselling session.”
However, when I asked the father about this statement while he was giving evidence at hearing, he contradicted Dr B’s account:
The father: That never happened. I was never asked to leave.
His Honour: So you say that a counsellor never asked you to leave the room ?
The Father: No.
His Honour: At [T]?
The Father: That’s correct.
Similarly, when Mr Schonell cross-examined the father about the claims of aggression towards [T] staff contained in the annexure to
Dr B’s affidavit, the father categorically denied any such incident had occurred.
With regard to the father’s evasiveness in his responses, I note paragraphs 36-38 of my interim judgment:
“36.Prior to the interim hearing on 11 November 2009, the issue of abuse had been referred to the Department of Community Service by Dr L, after the father took [X] to Dr L for an inspection of her bruising. In his affidavit of 10 November 2009, the father says at paragraph 17:
“Until the Department of Community Services have investigated the injury to [X] I propose that the children of the marriage continue to live with me in the self contained premises at [address omitted], and I ask this Honourable Court to make the interim Orders which I seek in my Response.”
37.During cross-examination for the present interim hearing, the following exchange occurred, with regard to the DOCS investigation:
Mr Schonell: Right. So, certainly, what, by 7 or 8 November, you knew that the department had conducted their investigation? Correct?
Father: That’s correct.
Mr Schonell: And they’d closed their file?
Father: That’s correct.
38.Mr Schonell asked the father why – given that he knew the DOCS file was to be closed – he included paragraph 17 in his sworn affidavit of 10 November 2009:
Mr Schonell: Well, the two propositions don’t stand consistent with each other. Do they, sir? Do they?
Father:They stand because my daughter still has marks and still expresses how the marks appear.”
In short, the father’s credibility was damaged by his inability or unwillingness to give direct answers to very specific questions.
Mrs B
I found Mrs B to be a credible witness. She answered questions carefully and after appropriate consideration of her answers. She presented as a caring grandmother who clearly loves her grandchildren and is concerned about the welfare of her granddaughter [X]. These concerns were centred on bruises that appeared on [X], some of which were unexplained and may have appeared inconsistent with normal falls and patterns of childhood bruising. Here I refer to the small round bruises. I note however that the medical evidence did not support any sinister interpretation and that Mrs B did not seem able to accept that.
There has clearly been a breakdown in communication between Mrs B and her daughter-in-law, which seems to have prevented any ongoing conversation and mutual nurture and caring between them. This breakdown is demonstrated by Mrs B having taken her granddaughter to the doctor on a number of occasions without first informing the mother.
From her evidence it is apparent that Mrs B is concerned about the mother’s mental state. Some level of concern may be justified, at least at a period in time. The mother did suffer post-natal depression after the birth of her second child in 2007 and depression after the death of her mother in 2000, but this is not abnormal and is treatable. Indeed, in his Single Expert Report, Dr R writes that:
“It was my assessment that she [the mother] was now well. She had suffered previously from some mild depression which I believe was within normal limits of many women after they have children…. There was no indication that she was suffering from any significant depressive symptoms.”
Mrs B appears to have drawn a link between these concerns over her daughter-in-law’s mental health and the bruising on [X], and concluded that the mother is causing the bruises.
Unfortunately, instead of expressing her concerns to the mother and working with her in a supportive way to find an explanation,
Mrs B chose to take [X] to a number of doctors, photograph [X]’s bruises on many occasions and generally fuel concern within the family that [X] was being abused by her mother. These actions were entirely improper. Apart from this, however, there is nothing to suggest any other aspect of the Mrs B’s behaviour toward the children is in any way contrary to their best interests.
The issue for the Court is whether her concern for [X] is justified. There was, in my opinion, nothing to justify constant photographing of the child, constant visits to doctors and the state of heightened vigilance which persisted in the paternal family’s household.
Mr B
I found Mr B’s testimony of little value. His recollection appeared faulty at best and his demeanour in the witness box did little to inspire confidence in his testimony.
Ms E
Ms E gave considerable evidence about what she had seen through the windows of the downstairs flat occupied by the father and his family. She seemed to have a remarkable facility to be in or near the garage with access to the window into the flat at times when the mother was allegedly abusing [X].
Ms E is, I am sure, an honest person, but I discount her testimony as it was clearly influenced by the Barone family’s perception of her sister-in-law. Further, her recollection of various incidents was demonstrated to be faulty during cross-examination by Mr Schonell. Although there was no evidence that Ms E had ever photographed the children or taken them to a doctor, I have included her in the Orders relating to the paternal grandparents as I accept Dr R’s evidence and recommendations in this regard.
Mr J
Mr J gave clear and concise evidence, and I found him balanced and unemotional in his approach. He seemed to have a desire to maintain appropriate relationships with the father’s family, although clearly wishing to support his daughter. In this regard I note that Mr J stated in his affidavit filed 11 October 2010 that he provided care and assistance to the children at least once a week, and that at hearing he stated that he would be happy to continue providing such assistance. I accept him as a credible witness.
Dr B
Dr B is a general practitioner who, on her own evidence, graduated from [omitted] University in 1989 and has been in general practice since 1992. She presently works as a general practitioner at the [L] Medical Centre, located at [address omitted].
In the letter to the Department of Community Services dated
06 November 2009 which is annexed to her affidavit filed 11 October 2010, Dr B stated that she was at the time of writing the report the “regular family practitioner” for members of the Barone family including the mother, the father, the children, the paternal grandparents, the paternal aunt and the paternal uncle, [first name omitted].In the letter annexed to her affidavit, Dr B states that the paternal grandparents first raised allegations of physical abuse against [X] with her in June 2009, at which time they showed her photographs of bruising. Dr B further states:
“This allegation was followed up by myself with a report to the Department of Community Services and a call to a paediatrician, Dr J, to arrange an urgent appointment. However the grandparents had not informed me that they had sought advice from another GP and had already seen Dr J. I enclose a copy of her report. She did not support the abuse allegations. Despite this, the grandparents have continued to allege abuse based on bruise marks on [X]’s legs and torso.
I have never seen any suspicious bruising on [X]. She often has bruising that I would readily associate with the normal activities and tumbles of a two year old child.
I have known Ms Barone for at least four years and I do not agree with the allegations of abuse made against her. She is a dedicated and loving mother who has strived to cope as well as she can with two very young children. She has always placed the children ahead of herself and endeavours to be a good person. She has had a residential stay at [T] to help develop her parenting skills and they were very supportive of Ms Barone as a mother.”
In the same letter, Dr B canvasses a number of other issues, including:
·Complications the mother experienced with the birth of her second child, [Y];
·The mother’s diagnosis of post-natal depression following the birth of [Y];
·Allegations of domestic violence perpetrated by the father against the mother;
·Concerns raised by [T] staff about the father’s temper.
·Allegations of mental illness made against the mother by Mrs B and Mr Barone.
On 26 October 2010, Dr B was cross-examined on her evidence while under oath. This cross-examination included extensive questioning regarding the contents of her report, and her perceptions as to the mother’s mental health. After observing Dr B’s testimony, I came to the conclusion that she was a reliable witness who had a genuinely-held concern for the welfare of the children and the mother. It was clear that Dr B had kept detailed and appropriate notes from her consultations with the Barone family members, and that these notes assisted her in giving reliable evidence to the Court.
Given the extensive past contact between the children and Dr B, I have stated in my Final Orders that except in the event of an emergency, the children’s doctor is to be Dr B or any other general practitioner from the [L] Medical Centre, [address omitted], or the medical practice where Dr B practices medicine
Dr V
The late provision by the father of evidence from Dr V was very unusual, and contributed to the trial being adjourned part-heard on
16 February 2011 and listed for an additional day final hearing on
1 April 2011. The evidence was first brought to the attention of the Court at 2.30pm on 16 February 2011, at which time counsel for the father informed the Court that:
“…during the course of the luncheon adjournment, my instructing solicitor was looking through some documents that had been sent to the court and comprised the residual subpoenaed documents. What has come to light is a bundle of documents apparently received by the court on 27 October of last year. Those documents, among others, comprise a statement apparently signed by Dr V. I would be seeking, in light of these documents coming to light at this stage, to tender them.”
It is unclear why the documents referred to remained undiscovered for so long. Counsel for the father stated at the time that “[t]hese documents have neither the subpoena, to which, presumably, they were produced, annexed. It may be that, as doctors sometimes do, the doctors decided to send them all to the court and not the person requesting them…”.
Counsel for the mother voiced objections to the documents being tendered for a number of reasons, including uncertainty of authorship, inappropriate form, and the unavailability of Dr V for cross-examination. The Independent Children’s Lawyer did not make a submission as to whether the documents should be tendered, however noted that “there is a potential for this to have some importance for the children.”
Upon reviewing the document, I agreed with the submission of counsel for the mother that the document was not in affidavit form, that its authorship could not be verified and I was also cognisant of the fact that Dr V was not available for cross-examination before the close of Court on 16 February. I also concurred with counsel for the father and the ICL that the opinions expressed by Dr V in the letter pertained to a core issue in the matter, namely the allegations of abuse being inflicted upon [X]. In view of these factors, and in order to attend to the best interests of the children while affording both parties due process, I adjourned the matter for a further day of hearing on
1 April 2011. Orders of this Court dated 16 February 2011 required the father to file and serve an affidavit by Dr V by 25 March, and granted the ICL liberty to provide a copy of any affidavit of Dr V to Dr R.
An affidavit of Dr V was duly filed on 28 March 2011. In her affidavit, Dr V stated that she is a qualified medical practitioner, and examined [X] in the “last months of 2009 and the first months of 2010”. During these examinations, Dr V states that she “found she [[X]] had a number of round bruises, mainly on her legs and arms but also on other parts of her body”. At paragraphs 6 and 7 of the affidavit, Dr V further states (emphasis added):
“I continued to observe bruises on [X] when she came to see me. On 10th January 2010 I reported these injuries to the Department of Community Services.
The bruises which I had seen are consistent with being inflicted physically. In my view the bruises could not have been caused by the child falling over or because of any bleeding disorder (for which she has already been tested).
During the cross-examination of Dr V on 1 April 2011, there was much discussion of her qualifications and experience. Dr V, on her own evidence, was registered as a practitioner by the Medical Board of New South Wales in 1996 after studying in India. Dr V stated that prior to migrating to Australia “I was practising as an ophthalmologist and I was in faculty with the medical school in India”. Dr V stated that she passed exams for the Royal Australian College of General Practitioners, and she agreed with Mr Schonell that she had been practicing as a general practitioner for “seven years at most”.
Concerns were raised during cross-examination as to whether
Dr V had completed a full clinical history of [X] as required by guidelines in a white paper published by the Royal Australian College of General Practitioners in relation to violence and abuse. Counsel for the mother noted the lack of information as to clinical history on
Dr V’s notes and concluded that Dr V had not completed a full clinical history. This claim is repeated in final submissions provided by the mother. At hearing, Dr V stated in response to this issue:“I think I would have done clinical history, just not always on the paper. When somebody walks into your room, your clinical sense starts working as soon as the patient walks into your room.”
Dr V was also questioned as to whether she should have ordered more tests in order to determine the origin of [X]’s bruising, given that she herself is neither a paediatrician nor a haematologist. She stated in response that she was “still comfortable there was no medical problem [causing the bruising]” and that “we don’t subject all the patients to all the tests all the time”. Then followed this exchange between Dr V and counsel for the mother:
Mr Schonell: And you didn’t think, consistent with your clinical knowledge that it was appropriate to refer this girl – little girl to a paediatrician or a haematologist?
Dr V: No.
Mr Schonell: And, of course, had that happened that would have given you a more definitive diagnosis that there was no medical problem, correct?
Dr V: Could be.
Counsel for the mother also cross-examined Dr V on paragraph 7 of her affidavit where she states that “the bruises which I had seen are consistent with being inflicted physically.” When asked to expand upon this statement, Dr V stated that “Physically means physically. It could be – it means, I don’t know how to explain physical.” Mr Schonell then asked her to further elaborate:
Mr Schonell: Right, could it mean falling over?
Dr V: Falling over, but it doesn’t fit in with the falling over.
Mr Schonell: But that could be an explanation, falling over?
Dr V: That could be an explanation, but doesn’t lead to that sort of a bruising.
Mr Schonell: Doesn’t lead to that sort of bruising. So what leads to that sort of bruising then?
Dr V: I don’t know.
Mr Schonell: You don’t know. Has the little girl ever reported to you who was responsible for the bruises?
Dr V: No, never. She has never communicated to me, not even a sentence.
I have included these extracts as the evidence of Dr V is relevant to the central issue in this matter, namely the allegations of physical abuse performed by the mother upon [X]. I will address these allegations more fully later on in these reasons. At this stage, however, I wish to comment that during her examination in chief and cross-examination on 1 April 2011, I observed Dr V to be a credible witness with a good grasp of her duties as a General Practitioner. She was clearly concerned about the marks on [X], and the opinions of the paternal family as to their cause.
As the evidence discussed above demonstrates, however, there are many steps Dr V could have taken to enable her to form a more unequivocal opinion as to the cause of the bruises. I also discount
Dr V’s belief that her “clinical sense” was able to take the place of a full clinical history, especially in a case such as this where serious allegations were being made. Given these factors, I accorded only limited weight to Dr V’s opinion about the origin of [X]’s bruises. Furthermore, in formulating the final orders and judgments, I have remained aware of the need to consider Dr V evidence alongside other contrasting medical opinions and reports provided to the Court as evidence.
Legal Principles
The legal principles which govern this case are set out in Part VII of the Family Law Act 1975 (the Act). Most importantly, s.60CA of the Act provides that the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.
In determining the best interests of the child, the Court must consider the primary considerations, which are set out in s.60CC(2) together with those matters (‘additional considerations’) set out in s.60CC(3). Also of relevance are ss.60CC(4) and (4A) of the Act, which I have considered whilst addressing the matters set out in s.60CC(3).
Application of the law to the facts
I found this a very difficult matter because of the complex and competing issues to be taken into account in determining the central and overall issue, namely the best interests of the children. Clearly, the children are greatly loved by both of their parents and by their extended family. Unfortunately, the relationship between their parents did not work out and a toxic dynamic developed between them.
A number of factors seem to have caused this, including the mother’s post-natal depression; the obsession of the paternal family with the idea that [X] was being abused by the mother; the father’s over-dependence on his parents; and apparent aggressive behaviour by the father towards the mother. There is no evidence that any of the players in this drama have deliberately set out to harm either of the children. There is also the benefit to the children of having an ongoing relationship with their extended family.
I note that not allowing the children to see their paternal grandparents has the potential to damage their psychological development, as confirmed by Dr R during cross-examination (see paragraph 21 and 22 of this judgment). Further, it is likely to have an ongoing toxic effect on the already fragile relationship between the father and the mother, especially given the father’s reliance upon his extended family. I note Dr R’s recommendation, contained in his Single Expert Report, that the father should maintain residence separate from his parents because “it is very important that the father be able to develop his own independent views and ideas about the children.”
My decision in relation to the children would have been different, were it not for the fact that the father has established his own independent residence away from his family and that the behaviours of the father and the paternal grandparents which are clearly not in the interests of the children can be stopped without preventing any contact with the paternal grandparents. The Orders are conditional on the father continuing to maintain independent living arrangements.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
In my interim judgment I noted at paragraph 23 Dr R’s observation of the children with both their parents and the statement in his report that “[a]lthough the primary attachment was with the mother, I believe that the two children also had a significant attachment to the father”.
There is no doubt that the mother is the primary carer of the children. During cross-examination, Dr R affirmed that his observation of the mother with [X] was that she had a warm and loving relationship with her mother. Dr R also disputed any allegation that the mother was deliberately and intentionally harming [X] (or [Y]).
It was clear to me from the mother’s evidence that she saw her current role in life as primarily acting as a mother to her children and I heard nothing to suggest anything other than that she was a caring and competent mother. At paragraph 11 of her affidavit filed 11 October 2010, the mother gives a lengthy description of her maternal duties:
“I am a full time mother. The father always worked full-time as a [omitted]. I bathed the children after they returned home from each of their respective births. I put them to bed each night, cuddled them, kissed them and reassured them that they were well loved. If the children woke at night, I got up and settled them. I clothed the children, fed them, changed their nappies, played with them, taught them to speak and interact with others. I taught the children manners and how to eat food and drink. We played together. I washed their clothes, hung the clothes out to dry and brought them in, folded them and put them away. I did most of the shopping for food and household items and replaceables. I took the children to appointments to see their doctors and I administered medicines when necessary.”
Mr J supported this perception of the mother, stating in his affidavit filed 11 October 2010 that “from what I have seen she [the mother] is a caring and attentive mother for her children.”
As noted elsewhere in this judgment, I do not accept that there is any evidence whatsoever to suggest that the mother has been engaged in systematic and deliberate abuse of either of the children.
I find that the father is a caring and loving parent who has a genuine involvement in the lives of his children. There have been brief periods where the father has been the primary carer for the children and I find that he has been a responsible and loving parent.
The difficulty is that the father became caught up in what Dr R refers to as his family’s “distorted belief system”. This caused the father to believe that both [X] and [Y] were being harmed by their mother either through physical violence in the case or [X] or through involving both children in inappropriate bathing practices. It is of great concern to me that the father did not appear at any stage during the trial to accept that such harm was not actually occurring. The father simply reiterated his ongoing concerns, ignoring overwhelming evidence that these concerns were not well-founded.
Nevertheless, within the constraints of the Orders I have imposed, I believe it is in the best interests of the children to have an ongoing relationship with both parents. In this regard, I note that the authors of the Australian Institute for Family Studies’ Evaluation of the 2006 Family Law Reforms stated that two of the fundamental factors which influence long-term wellbeing of a child are “the quality of children’s relationships with their parents”, and the avoidance of exposure to “inter-parental relationships characterised by high levels of acrimonious conflict, or by fear, safety concerns or physical harm.”[1]
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence
[1] Kaspiew et al., “Evaluation of the 2006 Family Law Reforms: Summary Report”, Australian Institute of Family Studies, December 2009, p15
Allegations of spousal domestic violence
The relevance of family violence to proceedings involving children has been dealt with in Patsalou and Patsalou (1995) FLC 92-580 and
JB and BG(1994) FLC 92-515. These cases state that evidence of family violence is relevant insofar as it assists the Court in determining what Orders will be in the best interests of the child.
The mother alleged that the father became violent towards her following the birth of [Y] in November 2007. She raised one particularly graphic violent incident that was alleged to have occurred on or around 23 June 2009. The mother alleges that on this occasion the father tried to choke her. The alleged incident was reported to
Dr B, her treating doctor at the time, and Dr T, a psychiatrist to whom the parties were referred. The incident was also said to have been witnessed by the paternal grandfather, although I note that he denied witnessing any such event.
I was also very concerned at the father’s denial of any concern on the part of the staff at [T] about his anger and lack of control.
The father categorically denied that any concerns had been raised despite a letter included as an attachment to Dr B’s affidavit (referred to above) which stated that:
“At a residential stay at [T] staff were concerned about [Mr Barone]’s temper and one counsellor felt so threatened that she asked him to leave the room during a counselling session.”
In my interim judgment, I noted that the father did attempt to get some assistance with anger management. In accordance with the order of this Court dated 21 December 2009, the father attended psychological assessment on 9 April 2010 at [omitted], as a precursor to enrolling in an anger management course. On this date, the assessing psychologist found him not suitable to attend the program.
I accept that there have been periods in the relationship where the father has displayed aggressive behaviour towards the mother, although it is not possible for me on the evidence to make a positive finding that the incident related at paragraph 26(f) of the wife’s affidavit filed
11 October 2010 actually occurred.
On the basis of the evidence, I am satisfied that despite some difficulties, the parties are capable of communicating in a civilised manner about the ongoing best interests of the children without any threat of violence toward the mother. I have included in these Orders the use of a communication book between the parents to minimise the need for face-to-face interaction and to minimise the potential for conflict between them to arise in the future.
Unacceptable risk of harm to children
I find that there is no unacceptable risk of harm to the children from their mother. Dr B, who I found to be a reliable witness, saw [X] with her father and grandparents on many occasions. On some occasions, when the paternal family brought [X] in due to concerns about her being bruised, Dr B was unable to observe any bruising at all. On no occasion did Dr B indicate that she saw evidence of any abuse of [X]. Dr B also gave evidence that Dr J did not support the allegations of abuse. This is consistent with Dr J’s report of 6 November 2009, in which she wrote:
“I have never seen any suspicious bruising on [X]. She often has bruising that I would readily associate with the normal activities and tumbles of a two year old child.”
The mother has sought to have Dr B appointed as the children’s general practitioner and I have accepted this suggestion.
Dr R was even more clear about the allegations of abuse. Dr R stated “in short, I don’t believe that the mother presents as an unacceptable risk to the child.” I accept that evidence.
The respondent sought to rely upon the evidence of Dr V. Dr V gave evidence that she believed the bruises on [X] had been “inflicted physically”. However, Dr V is not an expert in the field of child abuse; furthermore, it was of concern to me that she took no proper clinical history of [X] and that she had not sought any further expert corroboration of her diagnosis.
At page 11 of his report, Dr R reported a conversation with Dr V that occurred on 27 February 2010, in which he stated that “Dr V wasn’t able to form any firm conclusions about whether the child was abused”. Dr V was unable to recall her conversation with Dr R, however the comment recorded in the Single Expert Report seems to be inconsistent with Dr V’s later evidence. Dr V’s evidence is also at odds with that of the other treating medical practitioners and the findings of the Department of Community Services which, having been called in response to allegations of child abuse, concluded that there was no evidence of any risk to the children from the mother.
Dr R, when discussing the alleged abuse, said that he considered the behaviour of the paternal family as posing a much greater risk to the children than any behaviour on the part of the mother.
“I believe that the paternal family are presenting a much greater risk [than the mother] because of their inappropriate and over-involved responses. The child is at risk of it’s[sic] institutional abuse by repeated examinations.”
In his Single Expert Report, Dr R also recounts a conversation he had with the paternal grandmother:
“Mrs B [Mrs B] explained that she had some concerns about whether [Y] could be treated badly. “Every nappy change he has an erection.” They also explained that [Mr Barone] bathed the children separately, whereas Ms Barone bathed the brother and sister together which they felt was inappropriate. “[X] was pulling at [Y]’s wee wee,” said Mrs B. [Mr B] said, “It might be petty but they kiss on the lips. We always had the girls and boys bathed separately.”
During cross-examination, the paternal grandmother was questioned about these comments:
Mr Schonell: You tell the doctor that every nappy change [Y] has an erection?
Mrs B: Yes.
Mr Schonell: I presume that you told [Dr R] about that, because it was something that you regarded as important?
Mrs B: I was concerned, yes.
Mr Schonell: Right, something that you – using your words – were concerned about?
Mrs B: Yes.
Mr Schonell: What was your concern?
Mrs B: That it was something I hadn’t experienced before – having two sons – so I was – I didn’t have a reason but I was concerned that he was – I was, you know, witnessing that but he – that no longer happened after Dr R.
Mrs B was also questioned with regards to concerns she shared with the paternal grandfather about the mother’s practice of bathing the two children together.
Mr Schonell: Right. Now, what do you say is inappropriate about the bathing of these two very young siblings?
Mrs B: Well, I have a daughter and two sons and I bathe them separately so I – it was something I had done and I guess that was just my opinion.
Mr Schonell: Well, no, it was more than just your opinion?
Mrs B: Mm.
Mr Schonell: You weren’t saying this is just different parenting. You were just – you viewed it as inappropriate parenting, didn’t you?
Mrs B: Yes.
Mr Schonell: Why?
Mrs B: Because they’re a boy and a girl.
From the above exchanges and the comments made to the family report writer, it is clear that the paternal family’s suspicions reached such a level that the mother’s simple and common practice of bathing a brother and sister together attained sinister significance. I discount entirely the allegations and insinuations made by the paternal family in this regard. Furthermore, I am of the opinion that the comments of the paternal grandparents about this aspect of the mother’s parenting are a further example of the “distorted belief system” referred to by Dr R.
I am unable to form a conclusion as to why the paternal family persisted in making allegations of abuse against the mother. It was put forward by counsel for the mother that it was in response to the mother’s allegations of domestic violence against the father. Dr R was of the opinion that “a mixture of circumstantial, personality and cultural factors… combined to create a significant degree of hysteria [with the paternal family]”. In any event, constantly photographing [X] and taking the children to doctors every weekend is clearly unacceptable and, as noted above, was characterised by Dr R as tantamount to “institutional abuse”.
I accept the evidence of the paternal grandmother that she is concerned only for the welfare of her grandchildren and, in particular, her granddaughter. However, I do not accept that her fears are well-founded. I also find that the behaviour of the parental grandparents in constantly photographing [X] and constantly taking her to the doctor amounted to abuse, regardless of motivation. I therefore recommend that the paternal grandmother seek appropriate counselling, although I have not included this as a requirement in the Orders. This recommendation is founded in part on the conclusion I have formed that the paternal grandmother is the major force in the paternal family.
The Orders I have made in this case seek to prevent this sort of behaviour that has in the past been exhibited by the paternal family recurring. If it does recur, the time the children spend with the paternal grandparents will be sharply curtailed.
Additional considerations:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
In this instance the children are too young to express a view.
(b) the nature of the relationship of the child with (i) each of the child’s parents; and (ii) other persons including any grandparents or other relative of the child;
Dr R’s report makes it clear that the children have a close and loving relationship with both their parents, although their primary attachment is to their mother. No evidence was given which would contradict
Dr R’s observations.
On the basis of the evidence presented, it would also appear that the children have had a close relationship with the paternal grandparents and with their paternal aunt and uncle. I note in particular the evidence given by Mrs B on the interaction between the children and their uncle, [first name omitted], who is legally blind and is confined to a wheelchair due to cerebral palsy. It is clear from Mrs B’s evidence, which was not contradicted, that both the children and their uncle enjoy the time they spend together. I would be reluctant to prevent the children having such contact, especially as it would be extremely difficult to explain to them why this contact had been terminated.
The evidence also indicates that the children value their time with the maternal grandfather, who is clearly an important support to the mother and a stable influence in the children’s lives.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
In my interim judgment I noted that the parents have shown a limited ability to communicate since separation. The mother gave evidence that she is happy to facilitate contact between the children and their father, and I accept that evidence. The mother referred to her use of a communication book as her preferred method to communicate with the father about the children. The father did not think this was appropriate and said he thought that there should be verbal communication about important issues to do with the children. Given the communication difficulties between the parties, I am of the opinion that a communication book is appropriate and will facilitate better communication between the parties and contribute to the mother encouraging a close and continuing relationship between the children and their father.
The situation in relation to the father is more problematic. In particular, I am concerned that the father tried to convince Dr R that the mother was a threat to the children even though there was no proper evidence of any such threat. In his report, Dr R writes of an occasion when he met with the father and both children:
“I asked him to show me where there was some bruising. He said that there hasn’t been any bruising lately which he presumed was because of the court case. He usually sees the bruising when he’s bathing her.”
I am also concerned about the father’s reluctance to concede that the communication book is likely to facilitate communication between the parties while reducing the potential for ongoing conflict. The father’s obstinacy in this regard was well illustrated by the evidence adduced during cross-examination as to his failure to read the communication book. This led the father to make a false claim in paragraph 9 of his affidavit filed on 15 February 2011 about the mother’s communication of her choice of pre-school for [X]. This is despite the father contending during oral evidence that he read each entry in the communication book, even though he did not make any additions himself.
I have taken the father’s attitudes into account in the limitations I have placed on shared parental responsibility.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I have previously dealt with the relationship between the children and the maternal and paternal grandparents and extended family. I am particularly mindful that I have continued to allow the father’s family to have regular contact with the children despite Dr R’s report and the submissions of the ICL. I have done so because in my opinion it is in the children’s best interests to have an on-going relationship with those people who have clearly previously been important in their lives.
Young children form attachments with extended family members when they grow accustomed to spending time with them, and it is very damaging if those connections are suddenly severed, especially when the children are not old enough to understand why that may have occurred. I have previously noted the children’s relationship with their paternal uncle, who is disabled, and I have taken this relationship into account in considering this provision of the Act. The fact that the children’s uncle could not appear in Court or write an affidavit does not mean that his relationship with the children should be ignored or discounted.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This was not raised as being an issue.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
I am satisfied that the mother is clearly able to provide for the children’s emotional and intellectual needs, as is the maternal grandfather. Clearly, I have concerns about of the demonstrated hyper vigilance of the paternal grandparents and aunt, which is why I have placed restrictions on the children’s contact with them.
The father has displayed conduct which would lead one to question his capacity to act independently of his family and to properly think through issues relating to the welfare of his children. There is, however, no doubt of the loving relationship which exists between the father and the children and his capacity to adequately care for them and provide for their needs.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
To the extent to which it is relevant, this consideration has been addressed elsewhere in this judgment.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
This consideration does not apply to these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I have dealt with these issues elsewhere in the judgment. I note that both parents clearly love the children and have a positive relationship with them. To the extent that there are issues relating to the father’s judgment, these have been fully canvassed in other areas of this judgment.
(j) any family violence involving the child or a member of the child's family;
The issues of family violence have been discussed above.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
No Family Violence Orders have been made in relation to the parties.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This matter has been in the Court since October 2009, when the mother filed her Initiating Application. Almost two years have elapsed since then, and the children need stability and an end to legal proceedings. In the absence of any special circumstance, which I have not found to exist, there needs to be finality to this litigation; see CDJ v VAJ (No. 1) (1998) 197 CLR 172.
I am of the opinion that the Orders I have made are the least likely to lead to the institution of further proceedings as they preserve the children’s existing relationships whilst providing appropriate ongoing protection from harm. I have also made appropriate Orders with regard to family therapy and counselling.
(m) any other fact or circumstance that the court thinks is relevant.
All relevant facts and circumstances have been addressed above.
Conclusion
I am satisfied that the mother will promote an appropriate relationship between the children and their father and that the mother and father are capable of working together in the best interests of the children, especially with the benefit of external counselling. Given the conflict between the parties it is appropriate that direct communication between the mother and the father on day to day matters is minimised. I gave a great deal of consideration to the question of shared parental responsibility, and especially the arguments which had been put forward on behalf of the mother for sole parental responsibility. Obviously allegations of family violence are always of grave concern. In this case, the allegations against the father were not proven, and there were no medical evidence or police records to substantiate the mother’s account, although I have, however, found her to be a credible witness.
In light of all the evidence, I feel shared parental responsibility, with the restrictions I have imposed, is appropriate and in the best interests of the children, with the restrictions I have imposed.
I am also satisfied that the paternal grandparents genuinely love their grandchildren and that they are capable of modifying their behaviours in the children’s best interests.
In addition to the primary considerations, I have had regard to the additional considerations under section 60CC, and especially those issues that go to the parenting capacity of both parties; specifically the extent to which each parent has fulfilled or failed to fulfil his or her parental responsibilities, the capacity of each parent to provide for the needs of the children, and the attitude each parent has shown to the responsibilities of being a parent.
Whilst the father has engaged in or been party to behaviour which is clearly not in the best interests of the children, it is worth noting that he has established some independence from his parents in order to promote his relationship with his children. There was no evidence to prove that he is motivated by anything other than the best interests of his children.
I am satisfied that the Orders I have made in this case are in the best interests of the children.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Date: 1 September 2011