Bates and Whittaker
[2016] FCCA 2601
•14 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BATES & WHITTAKER | [2016] FCCA 2601 |
| Catchwords: FAMILY LAW – Parenting – where there is dispute between the parents as to whether there should be equal shared parental responsibility – where the evidence indicates many years of conflict and distrust particularly on the part of the father – where the father has an acquired brain injury and as a result is fixated on concerns as to the child’s safety in the mother’s household – where there is no evidence of risk to the child – where there is evidence that the child has become aware at least passingly of the father’s concerns and that the mother’s behaviour at handover is “a little weird” – where the father and others in his locality have subjected the child to questioning, interviews and the involvement of various authorities – where the best interests of the child are able to be met by providing certainty and stability through orders generally as proposed by the independent children’s lawyer and supported by the mother. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CA, 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE |
| Cases cited: MRR v GR (2010) 240 CLR 461 |
| Applicant: | MS BATES |
| Respondent: | MR WHITTAKER |
| File Number: | BRC 5790 of 2014 |
| Judgment of: | Judge Coker |
| Hearing dates: | 27-29 June 2016 |
| Date of Last Submission: | 29 June 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 14 October 2016 |
REPRESENTATION
| Applicant: | In Person |
| Respondent: | In Person |
| Counsel for Independent Children’s Lawyer: | Ms Cullen |
| Independent Children’s Lawyer: | Boughton Legal |
ORDERS
That all previous parenting orders be discharged.
That the child X born (omitted) 2005 live with the mother.
That the mother have sole parental responsibility for the major long term issues for the child.
Except in the event of an emergency involving the child, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)The mother shall inform the father of the issue about which a decision needs to be made, the decision she would like to make in respect to such issue and the reasons for the proposed decision, in writing; and
(b)The mother shall give the father 14 days to respond; and
(c)The mother shall consider the father’s views/response when coming to her decision; and
(d)The mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
That the child spend time and communicate with the father at all times as may be agreed between the parties, and failing agreement as follows:-
(a)Each alternate Sunday and on Father’s Day each year for a period of six hours from 9.00am to 3.00pm with the changeover to take place at (omitted);
(b)By the father sending letters and/or postcards to the child at the address provided by the mother in accordance with the orders;
(c)On one occasion each year the child spend time with the father during school holidays for up to a period of seven nights for the purpose of the child and the father spending time with the extended paternal family, the father to provide the mother with not less than eight weeks” notice of travel dates for he and the child and the father to provide the mother with a copy of the flight itinerary and details and the mother to deliver the child to and collect the child from the airport for the purpose of such travel with the father.-
That the father is prevented from taking the child to any counsellor or other agency, including the Department of Communities and Queensland Police.
During periods that the child spends time with the father the father is to ensure that there is no other adult present aside from members of the child’s extended family.
That each year the time that the child spends with the father may be suspended for up to two weeks on not more than three occasions for the purpose of the child spending uninterrupted holiday time with the mother (either at home or away) upon the mother giving the father notice of such suspension not less than four weeks prior to the suspended time.
Specific Issues
That the mother and father shall:
(a)Keep the other parent informed at all times of their residential address and landline contact telephone number and of any changes within forty-eight (48) hours of any change occurring;
(b)Keep the other parent informed of the names and address of any treating medical or other health practitioners who treat the child;
(c)Inform that other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent;
That this order is authority to the schools attended by the child to give each parent information about the child’s education progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
That this order is authority to any treating medical or other health practitioner for the child to provide to each parent such information that they are lawfully able to provide about the child.
That during the time the child is with either parent, that parent shall:-
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully and refer to the other parent as “mum:, “dad”, “mummy” or “daddy” as the case may be;
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent I the hearing or presence of the child;
(d)Not consume alcohol to excess or use any illicit drugs so as to be under the influence of either alcohol or any illicit drugs or permit the child to remain in the presence of a person using illicit drugs.
That all outstanding applications otherwise be dismissed.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Bates & Whittaker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 5790 of 2014
| MS BATES |
Applicant
And
| MR WHITTAKER |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The proceedings in this matter were commenced with the filing of an initiating application by Ms Bates on 3 July 2014. That application included specifically orders sought with regard to the parenting of the child, X. X, born (omitted) 2005, is the daughter of the applicant, whom I shall refer to during the balance of these reasons as the mother, and Mr Whittaker, whom I shall refer to as the father.
APPLICATIONS
The initiating application included in particular, orders with regard to the child living with the mother and some form of assessment being effected, in relation to ensuring that the father was physically and mentally capable of ensuring an appropriate arrangement, in relation to meeting the needs of the child. The wording that was suggested as being required was to the effect that:
If the respondent is deemed fit to provide an adequate duty of care following a mental health assessment, the father is to have school holiday access with the child.
The matter has been one which has been alive for a considerable period of time. The parties were in a relationship in the period leading up to 2007, but have in fact lived separate and apart at the time of hearing for a period in excess of nine years. It is noteworthy in that respect therefore that this little girl has, to all intents and purposes, spent the entirety of the years in which she would have had any appreciation of relationships and passing time, in a situation where her parents were separate and apart. It is a factor which has taken some particular significance in relation to these proceedings. I shall come to that particular aspect of the matter a little later in these reasons.
The orders that were sought by the mother were included in her initiating application, but as I have indicated, that was not in fact the first form of applications that were made. There had been previous instances where there was dispute between the parties and in or about October of 2012 and again in January of 2014 there were circumstances where the father held the child, X, over and applications were made by the mother with regard to the urgent recovery of the child.
The mother’s final orders in the initiating application, including of course that which related to an assessment being made in relation to the father, included otherwise orders simply to the effect that:
·The child live with the mother.
·That the father spend holiday time with the child, if assessed to be able to provide adequately for her.
·That the father have telephone communication with the child, subject to him providing a phone and credit for the child to facilitate such communication.
·That future parenting orders and decisions to be made with regard to the child be made following family dispute resolution.
·That any orders be subject to review after a further period of one year, so as to assess whether they are working or not.
Additionally, the mother sought a specific order, which was to the effect that the father be restrained and an injunction issue restraining him from visiting with a friend, Ms S, at any time that the child was in his care. The circumstances of Ms S became relevant in relation to these proceedings and, again, I shall address them a little later in these reasons.
The mother’s position with regard to this matter became a little clearer when she filed a case outline a few days prior to the date of hearing. The outline of case document detailed the specific orders that the mother sought with far greater particularity in relation to the future parenting of the child, X. The terms of those orders were as follows:
1. That all previous parenting Orders in relation to the child, X, born (omitted) 2005, be discharged;
2. That the child continues to live with the mother;
3. That the mother has sole parental responsibility for the major long term issues for the child, with the issues to include but not be limited to:
(a) The child’s education; and
(b) The child’s health;
4. That if the Court is unwilling to accede to paragraph 1 above, Part 3 of the Consent Orders dated 1 March 2013, whereby it states ‘that the mother ensures the child is not left unsupervised with the child Y at any time’, is removed;
5. That except in the event of an emergency involving the child, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)The mother shall inform the father of any issues in respect of decision needs to be made, the decision she would like to make in respect to any issue and the reasons for that proposed decision, in writing; and
(b)The mother shall give the father 14 days to respond; and
(c)The mother shall consider the father’s views/response when coming to her decision; and
(d)The mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter;
6. That the child will spend time and communicate with the father at all times as may be agreed between the parties and failing agreement on an unsupervised basis for not less than six (6) hours one Saturday or Sunday each month at McDonald’s in (omitted);
7. That the father be permitted to telephone the child at any reasonable time, but no less often than every Sunday, Tuesday and Thursday nights between the hours of 6pm and 8pm with the mother to ensure the child is available to receive the father’s call;
8. That a Recovery Order be granted by the Court immediately in the event of the father withholding the child for which the filing of a sworn affidavit on the part of the mother shall suffice to trigger this Order;
9. That the father be permitted to send the child birthday cards, gifts and letters with the mother to make available any birthday card, gift or letter to the child;
10.That the mother and father shall:
(a)Keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within forty-eight (48) hours of such change; and
(b)Notify the other at least twenty-one(21) days prior to relocating their residence; and
(c)Inform the other as soon as is reasonably practicable of any medical emergency involving the child;\:
11.That within twenty-eight (28) days of receiving the same, the mother shall provide the father with a copy of any school report relating to the child;
12.That within three (3) days of receiving the same, the mother shall provide the father with a copy of any school report relating to the child;
13.That within seven (7) days of receiving notification of school photos, the mother shall provide the father with the notification to allow the father the opportunity to purchase school photos of the child;
14.That neither parent denigrate the other, their partner or their family to, or in front of, or within the hearing of, the child and shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the child and failing the third parties’ compliance with such a direction shall remove the child from that environment immediately;
15.That neither parent shall discuss these proceedings with the child save for as may occur during any counselling interaction;
16.That during the time the child is with either parent, the parent shall:
(a)Respect the privacy of the other party and not question the child unduly about the personal life of the other party;
(b) Speak of the other party respectfully; and
(c)Not denigrate or insult the other party or the party’s family in the presence or hearing of the child and use his or her best endeavours to ensure that others do not denigrate or insult the other party or the party’s family in the hearing or presence of the child;:
17.That the father be prevented from taking the child, X, to any counsellor or other agency;
18.That the Respondent father be restrained (and an injunction be granted restraining these persons) from approaching the child Y;
19.That the following named persons be restrained (and an injunction be granted restraining these persons) from approaching the children X and Y;
(a) Ms S
(b) Mr M
20.The Respondent father meet the Applicant mother’s costs of and incidental to these proceedings as agreed or assessed;
21.That the Independent Children’s Lawyer be discharged;
22.That all outstanding applications be dismissed.
The father responded to the application filed by the mother on 3 November 2014. There the father sought orders on a final basis, which could be summarised as follows:
·That the child live with the father.
·That the parents have equal shared parental responsibility.
·That notwithstanding an order that the child live with the father, that the child live with, spend time with and communicate with each of the parents for such periods of time or upon such manner as might be agreed between the parents in writing and, failing agreement, in accordance with the following provision of orders.
That the child spend time with the mother for one-half of the end of term 1, term 2, term 3 and term 4 school holiday periods, provided that any such time not coincide with the time that the mother may have the child, Y, in her care.
That for the purposes of the parents each spending time and communicating with the child, that the parents share equally in the costs of travel associated with the child moving between the mother and the father’s household, with the mother to purchase or facilitate flight bookings for the child to travel to her and the father to be responsible for bookings to be made with regard to the child returning to his care.
That the parents have liberty to communicate with the child at times when the child is not living with them and that such telephone communication or other electronic communication be facilitated for not less than three times each week.
That the parents exchange information in relation to the child, including residential address and telephone number, as well as information with regard to the child’s physical wellbeing.
·That the orders provide authorisation to any doctor, hospital or allied health professional to facilitate the provision of information to one or other of the parents, concerning the health of the child.
·That the order authorise any day care or educational provider for the child to provide to either parent information with regard to the child’s progress and to further authorise each parent to obtain copies of school reports, school photographs and any other relevant documentation regarding the child’s academic progress or achievements, at their own costs.
·That the parents exchange information as to an appropriate means of communication, should they intend to travel with the child outside the State of Queensland.
·That each parent be restrained and an injunction issue restraining them from denigrating the other parent or their respective partners or allowing the child to remain in the presence of other persons behaving in such a manner, as well as restraining the consumption of alcohol beyond the legal limit or from either parent being under the influence of illicit drugs or substances, whilst the child is in their care.
Additionally, the orders proposed that each parent should respect the other parent’s privacy and speak of that parent respectfully, as well as ensuring that the child is not brought into contact with:
…irresponsible people or left unattended with people who are not known to the other party.
Specifically, the father sought an order to the effect that the mother be restrained from bringing the child into contact with her older son, Y, provided, however, that the father was to ensure that he facilitate supervised time between X and her older brother, Y, at times as might be requested by the child, X.
By the time this matter proceeded to hearing the father had more specifically detailed what he proposed in relation to the parenting of this little girl. In particular, he provided to the court a document headed Final Orders Sort [sic], which detailed the orders which were proposed by him, though they needed some expansion, noting that they were to include various elements of orders previously made in March of 2013. The terms of the orders, as proposed, subject to alteration or addition, were as follows:
1. That the court set a program to re-establish my time with my daughter X, as per the original orders, dated 1st March 2013, so that by the end of the year we can travel together to (omitted) for Christmas holidays on my families’ farms.
2. Come 2017 my time increase to two thirds of all school holidays and Friday to Sunday every second weekend for catch up time.
3. I am prepared to undertake any educational courses that the Court feels fit to enable me to develop the skills to manage X during her developing years. Ultimately I seek to have joint parenting as an equal principal.
4. Any other standard orders, school, medical and contact information.
5. Concerning the children and Order 3 of the original orders dated 01/03/13, I leave up to the Court to decide.
Noting obvious issues of concern, and in particular that which related to the father’s own mental capacity, as a result of an acquired brain injury arising from a motor vehicle accident that the father was involved in more than 20 years ago, it was considered appropriate, along with recognising the fact that by the time the matter went to hearing neither of the parties were legally represented, that an independent children's lawyer should be appointed.
The independent children's lawyer conducted a number of significant inquiries in relation to the proceedings before the court, including obtaining a report from Ms L, a clinical neuropsychologist, and two family reports under the hand of Ms Q, a Regulation 7 Family Consultant. Those family reports were dated respectively 21 April 2015 and 26 May 2016, and were released on 23 April 2015 and 31 May 2016.
I shall come to the expert evidence in relation to this matter a little later in these reasons, but it is important that it should be noted that the independent children's lawyer handed to the court and to the parties at the commencement of the hearing draft proposed orders with regard to the parenting of X and those orders were generally adopted by the mother, though she did express a concern that there was not, if you like, a self-executing order with regard to the issue of a recovery order directed to the marshal of this court and to appropriate federal and state police officers, in the event of the child being held over.
The father for his part sought, as is clear from what is indicated in his proposed orders, more significant opportunities for time with the child, reflective of overnight periods each alternate weekend as well as more significant periods to be spent with X during school holiday periods.
The orders proposed by the independent children's lawyer were in these terms:
1. That all previous parenting orders be discharged.
2. That the child X born (omitted) 2005 live with the mother.
3. That the mother have sole parental responsibility for the major long term issues for the child.
4. Except in the event of an emergency involving the child, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)The mother shall inform the father of the issue about which a decision needs to be made, the decision she would like to make in respect to such issue and the reasons for the proposed decision, in writing; and
(b)The mother shall give the father 14 days to respond; and
(c)The mother shall consider the father’s views/response when coming to her decision; and
(d)The mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
5. That the child spend time and communicate with the father at all times as may be agreed between the parties, and failing agreement as follows:-
(a)Each alternate Sunday and on Father’s Day each year for a period of six hours from 9.00am to 3.00pm with the changeover to take place at (omitted);
(b)By the father sending letters and/or postcards to the child at the address provided by the mother in accordance with the orders;
(c)On one occasion each year the child spend time with the father during school holidays for up to a period of seven nights for the purpose of the child and the father spending time with the extended paternal family, the father to provide the mother with not less than eight weeks” notice of travel dates for he and the child and the father to provide the mother with a copy of the flight itinerary and details and the mother to deliver the child to and collect the child from the airport for the purpose of such travel with the father.-
6. That the father is prevented from taking the child to any counsellor or other agency, including the Department of Communities and Queensland Police.
7. During periods that the child spends time with the father the father is to ensure that there is no other adult present aside from members of the child’s extended family.
8. That each year the time that the child spends with the father may be suspended for up to two weeks on not more than three occasions for the purpose of the child spending uninterrupted holiday time with the mother (either at home or away) upon the mother giving the father notice of such suspension not less than four weeks prior to the suspended time.
Specific Issues
8. That the mother and father shall:
(a)Keep the other parent informed at all times of their residential address and landline contact telephone number and of any changes within forty-eight (48) hours of any change occurring;
(b)Keep the other parent informed of the names and address of any treating medical or other health practitioners who treat the child;
(c )Inform that other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent;
9. That this order is authority to the schools attended by the child to give each parent information about the child’s education progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
10. That this order is authority to any treating medical or other health practitioner for the child to provide to each parent such information that they are lawfully able to provide about the child.
11. That during the time the child is with either parent, that parent shall:-
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully and refer to the other parent as “mum:, “dad”, “mummy” or “daddy” as the case may be;
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent I the hearing or presence of the child;
(d)Not consume alcohol to excess or use any illicit drugs so as to be under the influence of either alcohol or any illicit drugs or permit the child to remain in the presence of a person using illicit drugs.
12. That the Independent Children’s Lawyer be discharged.
13. 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 the 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.
THE EVIDENCE
This hearing proceeded over some three days. There was extensive cross-examination of both the mother and the father and, in addition, the mother’s partner as well as the father of her older child, Y, were required to give evidence. It was also noted that the father’s two brothers gave brief evidence in relation to the proceedings, but that a number of witnesses who had sworn affidavits in relation to the proceedings in support of the father’s case were not called. I shall come to their evidence or at least some comments in relation to the failure to call those witnesses a little later in these reasons.
The two family reports by Ms Q were accepted in relation to the proceedings and Ms Q was not required for cross-examination. The report of Ms L was also to form part of the evidence before the court, though Ms L was required briefly for some cross-examination directed to her, particularly by the mother. I shall come to the evidence of those experts later in the reasons.
As is almost invariably the case, the most significant evidence fell from the mother and the father, in relation to their proposals with regard to X and of course from what could be assessed as their hopes, aspirations and expectations, in relation to the future opportunities to be made available for this little girl, including those opportunities with regard to a relationship to be had with each of her parents.
THE SUPPORTING WITNESSES
Insofar as the evidence of the mother’s supporting witnesses were concerned, I should note that both Mr A and Mr P were impressive witnesses. Both had filed affidavits in relation to these proceedings, both had been the subject of commentaries that had been provided by each of the parents, in relation to the various other parties of some significance, in relation to the matter and of particular note, was the fact that Mr P specifically had been taped, unbeknownst to him, by the father, in a telephone exchange on or about 24 March 2016, relating to Easter holiday time sought by the father with the child, X. I shall come to that particular aspect of the matter when commenting upon Mr P’s evidence.
Also from the father’s perspective evidence was taken from his two brothers, Mr S and Mr D. It was noteworthy that all four of the gentlemen called as support witnesses in relation to the proceedings, to varying degrees were impressive and I thought forthright and honest witnesses.
Insofar as Mr A is concerned, he had been in a relationship with the mother from about 1998 until 2000 and that there is one child of their relationship, the child previously referred to, Y, born (omitted) 2001. Y has just recently turned 15 years of age. Y has been the subject of a quite vile whispering campaign, in relation to his behaviour.
It became clear early on, that there were concerns held by the father, rightly or wrongly, with regard to Y’s interaction with his younger sister. It would appear clear, that the evidence that has fallen in relation to the matter, particularly with regard to inquiries conducted by both the Queensland Police Service through the Child Protection Investigation Unit and the Department of Communities Child Protection and Disability Services have revealed, that whatever inquiries have been made have indicated no basis upon which there could be any suggestion of inappropriate behaviours on the part of the child, Y, toward his sister.
At best, it could be surmised that the father has heard certain statements made by the child and has unfortunately drawn the most unfortunate of conclusions from the information that has been provided. Far more significant, however, and far more tragic has been the consequence for both of these young children. The father, no doubt in part because of his limited cognitive and intellectual capacity, arising from the motor vehicle accident more than 20 years ago, has confided in friends and confidants in the small community of (omitted) in which the father lives.
As a result of those confidences, the persons to whom various disclosures had been made have generally drawn the worst possible conclusions that could have been drawn from any statements, but have, in fact, inflamed and escalated the issues of concern, with regard to this young man.
I will come to those particular aspects of the evidence and of the concerns that arise from them in due course, but it would be remiss of me, notwithstanding that it was suggested on the part of the independent children's lawyer, that it may not be necessary to do so, to not make a specific finding in relation to the welfare of this little girl and any risk that might arise as a result of her association with her older brother. Quite simply, there is not a skerrick of evidence that arises in relation to the relationship between this brother and sister, other than that it is a normal relationship in which there would no doubt be highs and lows, occasions when they were close and occasions when, as siblings, they were at war with each other.
However, their interaction has been to a significant degree, affected by the whispering campaign, sometimes much louder than should have been ever appropriate and that has significant effects upon both of these children.
Y’s father was certainly an impressive man. He gave me the distinct impression that under the most significant provocation from busybodies and those with opinions based on nothing but supposition, he has acted with decorum and respect. The behaviours of certain members of the (omitted) community have been nothing short of abusive in the extreme. And whilst it would be expected that there would be little change in their behaviours, in my assessment, the behaviour and actions of Mr A have been of the highest order insofar as being child focused and protective of his son, as well as recognising the importance of the relationship between Y and his younger sister.
Mr A was nothing other than a supportive, loving, compassionate and caring father for his son and I gained the distinct impression, that he also had a good degree of care and concern for the mother, and of course as a result of those issues for the child, X. Mr A was impressive as a witness and I would find specifically that where he has made comments with regard to the father and his behaviours within the home or as to issues with regard to safety at the father’s home, that they are accurate assessments, in relation to the observations that were made. However, where Mr A noted that there had been occasions where he has attended at the father’s residence and the father has been naked, there is certainly no suggestion, and it is to the mother’s and Mr A’s credit that that was clear, as to anything inappropriate, in relation to the behaviours of the father, other than to perhaps note that, whilst he may have been naked at times in the past, in the presence of the child, X, it would be highly inappropriate for such behaviours to occur now, as she approaches puberty and her early adolescence.
Mr A was, in my assessment, an honest, open and frank witness providing a clear and precise assessment of the (omitted) community. Insofar as his comments in relation to Ms S are concerned, he noted generally as follows:
Ms S is aggressive and not communicative. Her son, A, has stood outside my driveway and stared at Y. This would have occurred 80 to 100 times that I am aware of. A walks up the side of my house and stares into Y’s bedroom. It is for that reason that security cameras have been put in. There has been a psychological impact upon Y and it is disturbing, as it is almost as if Y is being stalked.
Mr A has taken steps to arrange alternative pick ups and drop offs for Y at school when such instances occurred and it is indeed tragic that the bullying and humiliating behaviours of members of the (omitted) community have led to this little boy being required to live with his mother, though of course he no doubt enjoys that aspect of the matter. Mr A was indeed an impressive witness.
Also called on behalf of the mother was her partner, Mr P. Mr P is a (occupation omitted) by occupation. He is 53 years of age and has been in a relationship with the mother for a period of approximately nine years. It is important that that be recognised, because it reflects the fact that Mr P has been, to all intents and purposes, the step-father of X and of course flowing from that a significant person in the child’s life, for virtually the entirety of her life.
Mr P was also an impressive witness. He gave me the distinct impression that he was both an intelligent man and one who gave honest and thoughtful consideration to the answers that he gave, in respect of cross-examination. Mr P was cross-examined by counsel for the independent children's lawyer and, even where certain answers may not have reflected positively upon his encouragement of the relationship between the father and X, he gave his answers openly and frankly.
For example, he was asked whether he supported X spending time with her father and responded that he did, but that he now had concerns in relation to that time being spent with the father because of the father’s trenchant beliefs, at least as were indicated until the time of trial, in the fact that the relationship between X and her brother, Y, was one which gave rise to a risk, in relation to the child. He noted that his concerns stemmed from the fact that the father had held the child over, notwithstanding arrangements with regard to parenting on two occasions, and that the father had had the child questioned by members of his community and friendship group, as well as by various persons in apparent authority, with regard to allegations of sexual abuse by Y.
He acknowledged that he had a fear therefore, that the child might not be returned if she spent time with her father, that she would be questioned about behaviours within the household and in particular questioned with regard to sexualised behaviours or actions on the part of Y and that she may also be questioned by other persons or the father in circumstances which would give rise to distress to the child. Such concerns were understandable and Mr P particularly acknowledged that he had concerns for the consequences or impacts of such behaviours upon Y and X and their relationship, which is important and close.
In particular, he was asked whether in his view, if Y were impacted by allegations that were being made or rumours spread within the (omitted) community, then that might flow on to his relationship with X. He rather astutely noted that it may cause Y to “fall back from his sister” and to not interact with her in a manner which would be reflective of a normal brother/sister relationship.
Mr P was also cross-examined by the father. There appeared on a number of occasions to be circumstances where the father simply suggested that Mr P’s recitation of dates or times or events that occurred on those particular dates and times were not accurate. I am far more inclined to the view that Mr P’s recollection would be more precise than any recollection of the father and certainly, whilst not suggesting that the father may be in any way failing to be honest in his recollections, it is simply an unfortunate consequence of the acquired brain injury that occurred as a result of the accident in the past.
Mr P was, I thought, a thoughtful and considered influence upon the life of X and a positive support for the mother. I gained the distinct impression that, whilst Mr P held the concerns that he expressed in relation to an opportunity for time to be spent by X with her father, he would without doubt, abide the orders of the court and do all that would be appropriate, so as to facilitate opportunities for time to be spent by X with her father, should that be the order of the court.
Insofar as the father’s brothers were concerned, each filed short affidavits in relation to these proceedings. Rather surprisingly, those affidavits were sworn respectively by Mr S on 27 May 2015 and by Mr D on 12 August 2015, but were not filed until 8 April 2016. Both of those affidavits, however, were short and to the point. They indicated their support of their brother and of the importance, as they both assessed it, of X having a relationship with her extended paternal family. Mr S noted at paragraph 3 of his affidavit as follows:
Mr Whittaker’s daughter, X, has an extensive, loving and supportive family in New South Wales and for the past six years her contact with us has been restricted and infrequent. X has been denied a free and natural relationship with her ageing grandparents, cousins of similar age and other family.
Mr D noted in a similar vein at paragraph 9 of his affidavit the following:
On numerous occasions he (the father) has visited our farm and family home with his daughter, X, where X and my three children have had a great time with their extended family in an environment that allows for freedom and experiences that are becoming rarer in an increasingly urban Australia.
Both of the father’s brothers impressed me. Both were cross-examined by counsel for the independent children's lawyer with regard to whether they were aware of the concerns that the father had expressed, in relation to the relationship between X and her brother, Y, but, more significantly, were specifically asked what their position would be if X were given the opportunity to spend time in (omitted) in New South Wales with the paternal family and whether they would avoid discussing any of those allegations with the child or in her presence. Both indicated that that would be an essential consideration from their perspective and that they would each take steps to ensure that the child was appropriately and properly cared for and supervised, at each time that the child was in that locality.
It was noteworthy, and again pleasing, that the mother did not challenge that evidence and acknowledged, as she put it, that the family were a good family and that they would do nothing other than act in an appropriate and proper manner, when it came to ensuring that X’s interests to the fore. It should also be noted that after each of the parties had given evidence, but particularly following the evidence of Mr D, that he asked if he could make a general statement and leave was given for that to occur.
Mr Whittaker simply noted, that in New South Wales X had a stable home and family and one that loved her and wished to provide for her and to ensure that she grew up knowing all that was appropriate, in relation to her family. He indicated that from his perspective, whilst perhaps he did not appreciate all of the nuance that might have arisen, in relation to the matter, it was indeed tragic that she had been isolated from her family.
All, including both the parents, acknowledged that that was the case and I gained the distinct impression that both of the father’s brothers were sensible, concerned and compassionate men who would, true to their word, provide assistance and support for this little girl.
THE PARENTS
Insofar as the parents were concerned, it is important that it be noted that both were loving, caring and nurturing parents. I have no doubt whatsoever that the relationship that the parents had with each other, prior to the separation and the obvious deterioration of their relationship, was one in which each respected and loved the other parent. It was noteworthy that the mother, in particular, was questioned about her time with the father and her relationship with the father. When cross-examined by the father as to whether it was ever really the mother’s intention for him to be, as he put it, “a father to X” she responded, I thought honestly and genuinely when she said words to the effect:
Yes. I genuinely loved you. I thought you were a kind man, had a good heart and I believed it, even after separation. I really cared about you.
There was a real ring of sincerity and truth in those statements that were made by the mother in relation to the father.
The mother was generally, I thought, an impressive witness. She was concerned for her little girl. She was protective of the child, and in light of what had gone on, particularly insofar as the behaviours of friends and acquaintances of the father’s in (omitted), it was to the mother’s very great credit that she would still propose that there be some opportunities for time to be spent by X with her father.
The mother impressed me in every way as being genuinely desirous of a resolution that would meet X’s best interests. She did not seek to simply and entirely exclude the father from the life of the child, but sought orders which at least in her assessment, provided some certainty and security for X.
Many of her answers were a melding of the concerns that she had for both X and for Y. She was asked by counsel for the independent children's lawyer whether she had concerns that X, as she got older, would be exposed to her father’s views as to molestation of the child by Y and what would be the consequences of that. She rather astutely assessed that it would be confusing and invasive for her. She went on to say that it had affected her household and in fact how the whole family did things together as a family.
She said that she and Mr P were constantly in a heightened state of alert and monitored the children at all times to ensure that there may not be a situation where it could be suggested that there was some inappropriateness in the dealings between X and Y. She said that that gave rise to confusion for the children and that they could not understand at least completely, why such actions were being taken. She said also that she had concerns that in the longer term, the way that they now live their lives as a family would affect X’s views of what a brother/sister sibling relationship should properly be like.
The mother also commented that in the longer term it may affect the sibling relationship between Y and X and that she was concerned at the impact that there might be upon both of the children of these allegations being made and therefore how she and Mr P on a day to day basis parented the children. She went on to say words to the effect, “It is so wrong. They are good kids. We are trying to protect them when they’ve done nothing wrong.”
As I have indicated previously, I am absolutely of the view that there is not a skerrick of evidence which would suggest anything other than a normal relationship between X and her brother, Y, and that there are very real concerns that arise as a result of the actions of others, not necessarily the father, in relation to the interests and the welfare of these children.
The mother was patient in the face of cross-examination by the father. It is indeed always troubling when parties, because of financial circumstances or otherwise, find themselves required to represent themselves and then to cross-examine persons who have been so close in the past, but with whom they are now, at least to varying degrees, at war. It is something of a great concern and one that needs to be understood in light of the difficulties that arise in relation to litigation.
The mother remained patient, however, with the father’s questioning and answered in a respectful and appropriate manner, even on occasions where the father questioned the mother upon a basis of her failures to do things, for example, to take steps with regard to mediation. She remained calm and presented her position thoughtfully and respectfully. She indicated that there had been repeated attempts at mediation, but that there had been little that had been able to be agreed.
The mother was a genuine witness, one concerned for her child and seeking in all respects to provide for this little girl. It was to the mother’s great credit that she answered the father respectfully and appropriately, notwithstanding the obvious position of the father with regard to not believing what the mother had to say. That was particularly the case, for example, in January of 2014, when the mother and Mr P, through their employment, both had work commitments at the (omitted).
Whilst there, the mother attended with Y and X. It would seem that X made a disclosure to the father that she had slept in a tent with Y, notwithstanding the terms of earlier orders which precluded the child being left unsupervised with Y. The mother’s evidence, and I accept it categorically, is that, whilst in a family or social group, many persons were present and X and Y might have been in the tent that Y was sleeping in and X may have fallen asleep in the tent, but she was not left there. As the mother indicated, that might have been the child’s perception as a “confused eight year old”, but she was removed and slept in the bus or caravan that was occupied by the mother and Mr P.
I have absolutely no doubt whatsoever that the mother abided the terms of the orders and that the children were appropriately supervised at all times. And whilst X may have had a perception that she had slept in the tent, falling asleep there, it was not actually the case.
The great tragedy was that the father jumped to a conclusion adverse to the mother and of course that has given rise to the child being held over again and for there to be further investigation and inquiry made, including “interviews” by Ms S, which were nothing short of a direct abuse of this little girl. Ms S, as I have indicated, has much to answer for and should, with respect, be giving serious consideration to her behaviours and attitudes.
It is clear that the mother’s behaviours have at all times been appropriate and have been reflective of a desire to facilitate a relationship with the father, but at the same time protect the child from the unwarranted hurt that has arisen from the father’s rather misguided perceptions, in relation to the matter and the malicious actions of others within the (omitted) community.
Before turning to the evidence of the father, it is important to note that the father produced a USB stick to the court, relating to recordings of conversations he had had with the mother and with Mr P, it would appear on 13 December 2015 and twice on 24 March 2016. Unfortunately the recording in respect of the exchange between the father and the mother is unclear, in that the mother’s voice cannot be heard at all and there are therefore obvious limitations as to what could be drawn, in relation to any discussions between the mother and the father.
It is clear, however, from what is able to be heard in that conversation, that the father was seeking to “set the mother up” at least to the extent of him repeatedly making reference to the mother going against the orders and that that would not look good for the mother.
The more telling recordings, however, relate to the conversations between the father and Mr P on 24 March 2016 and it would appear also in relation to a call in December of 2015 with regard to arrangements for the father to spend time with X around the Christmas period.
The father attempted to suggest that the behaviours of Mr P as evidenced in the recordings were far short of what was appropriate. It was suggested by the father that Mr P had sworn, and he did, but in circumstances where it would not be unexpected that that would occur, particularly in light of the heightened emotions that were in play. Additionally, it was suggested that Mr P was intimidating and overbearing.
I would simply record here that that was not at all my assessment in relation to the matter. And as I indicated after hearing the tapes, it is interesting that one judging a matter often draws more of assistance in relation to a tape from what is said by the person who knows that it is a recorded conversation, than from the person who does not.
The father, notwithstanding that he knew that the conversation was being taped, could not help but himself become aggressive. And whilst he did not swear, certainly raised his voice in exchanges with Mr P. Mr P raised his voice and on one occasion told the father that he was a “prick” and on another occasion indicated that he was “such a shit”. Such statements related to the apparent indication given by the father to X, that a change in relation to time spent with him at Easter 2016 could occur, but then subsequently the father communicated with the mother and Mr P about their responsibility in encouraging X to spend time with him and that they had to remedy the situation, notwithstanding that it was clear that the father had indicated to X that he would be agreeable to some change or compensatory arrangements being put in place, with regard to his time with the child.
It is perhaps unnecessary to say other than that the tape that was relied upon reflected far more positively upon Mr P and the mother than it did in any way upon the father. Further, it was troubling that the father, no doubt in part as a result of his acquired brain injury, had little real appreciation of the impact of his behaviours upon the child and her relationship with her father, her mother and Mr P generally.
As I indicated a little earlier in these reasons, however, I have absolutely no doubt whatsoever as to the father’s love for his daughter and his absolute desire to be a best father that he can be and one intimately involved in his child’s life.
The father has never been in real employment, since he was involved in an accident more than 20 years ago. That is perhaps understandable, and whilst I do not mean in any way to sound disparaging or critical of the father, it is clear that the circumstances of the accident have significantly affected his capacity to consider the finer details and nuance of the parenting of children. In particular, that is evidenced in the fact that the father has, unfortunately on numerous occasions, drawn conclusions in relation to the statements of this little girl, which have had in the longer term, dreadful consequences, not only for X, but for her brother, Y, and of course in the wider consideration, also for the mother and Mr P.
It is also clear, that whilst the father and others on his behalf have made complaints and had notifications given of concerns with regard to the relationship between X and Y, nothing has arisen which would give rise to any concern. It is indeed enormously troubling that Ms S has taken it upon herself to, as she indicated, “interview the child”, as well as contacting the child’s doctor and the child’s school.
It is troubling in the extreme that such invasive and inappropriate behaviours have been allowed to occur and it is indeed pleasing, that only in the last eight months at least, has the father realised that the behaviours and attitudes of his friend, Ms S, have been nothing other than damaging to his children, but perhaps more significantly from his own perspective, damaging to his case and to his position with regard to the parenting of these children.
It is also of concern that the father has, at least until literally the commencement of the hearing, failed to properly appreciate the outcome of investigations that have been done, in relation to the complaints and notifications that have been made. The father struggled to explain why in 2009 he thought that he had observed inappropriate interactions or behaviours between Y and X, but had not taken any steps until mid-2013 to even approach various authorities.
Even if one were to accept that the father was, as he put it, “challenged” in relation to what should occur and how it should be dealt with, there are certainly inferences that can be drawn and suggestions made that the father’s failure to take any actions in relation to what he says were serious concerns held with regard to the interaction between Y and X, draw a real question as to how seriously he actually viewed those matters and whether his actions in 2011 and 2012 were anything other than actions, specifically designed to hopefully assist him in an application being made to the courts, with regard to having parenting arrangements changed.
The father had not perused the documents that had been provided by way of subpoena almost a year before the matter had gone to court. In fact, the independent children's lawyer and her counsel had provided a short tender bundle of documents drawn from Queensland Police Service records, Department of Communities Child Safety and Disability Service records and in particular a one-page report from a psychologist who had spent time with X, all of which indicated that the concerns and notifications were unsubstantiated and seemed more likely than not to be designed for the purposes of family law proceedings than any genuine or real concerns arising with regard to the welfare of the child. In particular that there was no indication whatsoever of issues arising from X as to inappropriate behaviours or any psychological harm to her.
Even when that brief summary of information was provided to the father, he had not fully apprised himself of the contents of it and it would seem only on the final day of hearing did he acknowledge that there may have been inappropriate and unsubstantiated inferences drawn by he and others, in relation to the interactions between Y and X.
The fact is that, whilst this father loves his daughter and has sought, he says, to act protectively, the great tragedy is that nothing that the mother or Y have done have caused anywhere near the hurt or possible future harm psychologically to the child, X, than has been the case as a result of the actions of the father. Quite simply, the father has been influenced by those who have unfortunately failed to fully or even at all, appreciate the unfairness and the irresponsibility of the actions that they have taken.
It is indeed a great tragedy, that the father’s relationship with his little girl, but more significantly X’s relationship with her father, may to a significant degree be affected, as a result of the influence of others upon the father.
It is also of concern, that the father struggled in the witness box to explain his position even now, with regard to Y. The father was cross-examined by counsel for the independent children's lawyer at length in relation to many of the positions taken and the stance that he had with regard to the relationship between Y and X and how that then affected X’s relationship with her brother and more widely, her relationship with her mother and her father.
Specifically the father was asked whether he believed that Y was in fact a sexual predator or whether the interactions between Y and X, as at least suggested in passing, might be the case, were entirely innocent interactions between a little boy and a little girl in a shower, without any sexual connotation to be drawn. He was also asked to consider whether, if he considered that Y might be referred to as a “sexual predator” whether he, the father, had anything to be concerned about with regard to the fact that he had failed for years to take any steps to report concerns.
The father’s response was wishy-washy. He gave some significant consideration to his answer and when finally answering suggested that, “As Y is the older boy, he should be more responsible toward his sister.” When the point was pressed and he was asked whether he believed Y to be a sexual predator, he avoided the question and suggested that as best he could answer it, he believed that there had been a sexual encounter between Y and X in the past, but then, trying to avoid the obvious consequences of such a suggestion being made, indicated that as the incident had occurred in the past, the situation could have changed.
The fact is that, whilst the father made statements which to some extent it might be considered he felt he had to make, in light of the complete lack of any evidence with regard to the relationship between Y and X being inappropriate, he deep down did not accept that there was not a risk. He was asked particularly in that regard whether he took comfort from the determinations made by both the police department and departmental officers after notifications had been given and he responded, I think quite honestly, “No.”
When asked how he could become more confident that there was an appropriate relationship between X and Y and that there was not any risk to the child, his suggestion was that the only way that that could occur was for him to have more time with X, so that he could “recognise her state of mind” and that by seeing her more would alleviate his fears. The father seemed betwixt and between. He could not acknowledge that his beliefs were based upon a false premise, and even when given the opportunity to provide some comfort was unable to do so.
He was asked, for example, whether he believed that Y was still a risk to X. He responded with words to the effect, “I have in the past.” He was asked whether he now realised that he was wrong in holding those beliefs and his response was telling. He said, “I realise it is very hard to prove.” The fact is that the father still believes that there is a risk, notwithstanding that there is no evidence whatsoever in relation to that risk. And of course that gives rise to other real concerns with regard to the future wellbeing of the child.
It would seem almost a given now that time to be spent by the father with the child should not occur in circumstances where X were to be brought into contact with the father’s acquaintances or friends in (omitted). Quite simply, the toxic nature of the behaviours of Ms S, and also perhaps to a somewhat lesser extent of Ms A, are such that the father’s opportunities for time with the child are to be more restricted.
But what also needs to be considered is the very real concern as to the effect upon the child, not only insofar as her relationship with her father is concerned, but in the wider view, as to her ability to form appropriate and proper relationships in the future, when the father still is unable to acknowledge that he should not raise issues with X, into the future. In that regard he was asked specifically by counsel for the independent children's lawyer whether he intended to discuss his concerns with X. He was asked specifically whether he thought that X could be psychologically scarred if she came to know his beliefs, which was summarised as a belief that X had tasted Y’s penis, as he had put it in her mouth.
The father’s answer was less than comforting. He indicated that it might be or could be psychologically harmful to the child and he indicated that was why he had tried to deal with it in the manner that he had and had not raised it with the child himself. More concerning, however, was that when asked whether X should ever know his concerns and whether there was ever going to be an age in which it would be appropriate to raise those concerns, the father, again, to a significant degree avoided the obvious answer of it never being something that should be raised with the child, but rather said words to the effect, “Perhaps when she’s older, but I don’t think she needs to discuss it because the issue is behind her.”
He was then pressed in relation to that and asked what he would do if, for example, X approached him at some time in the future and inquired why his attitude or approach to Y was as it was and he again avoided the question or a direct answer, suggesting that he would say that:
“We (the father, the mother and Y) had had difficulties and with different outlooks and that an approach had to be made to the court.”
Quite simply, there is an ongoing concern with regard to the father’s capacity to separate his feelings and beliefs from those of the best interests and the welfare of the child and it is a factor which clearly needs to be considered, in relation to the ultimate determination of the best interests and the welfare of the child.
Before turning to the evidence of the experts, it is important that I should also make reference to the evidence of various witnesses who were not called. In particular, the witness, Mr M, was not called as it became obvious very early on, that the father required the assistance of a ‘McKenzie friend’ and Mr M, if he was to act in that role, would not be able to be a witness in the proceedings. His evidence was withdrawn, and whilst there were some concerns that I had with regard to the assumptions made by Mr M, he appropriately withdrew and performed diligently his role as a McKenzie friend assisting the father.
More particularly, however, the evidence of Ms S and Ms A was troubling. Quite simply, they had drawn the most caustic and dreadful conclusions from scraps of evidence. In particular, the evidence of Ms S was of particular concern. Ms S was nothing short of a busybody whose actions jeopardised the father’s opportunity for a relationship with his little girl. It was clear that she had acted in the most inappropriate of ways. It was clear that she was untruthful, noting her suggestions in her affidavit as to what might have been the case of an approach by the mother and Mr P to the father in relation to the return of X to the mother’s care. Ms S’s behaviours were deplorable. Her actions gave rise to very real concerns with regard to the welfare and best interests of this little girl.
Similarly, the matters raised by Ms A were troubling. Both Ms A, and perhaps to a lesser degree Ms S, suggested that the behaviours of Y were predatory and inappropriate. There is not a skerrick of evidence in that regard and it is damming of them and disastrous from the father’s perspective that their evidence should have been called at all.
Counsel for the independent children's lawyer suggested that if their evidence were not relied upon, then it might in fact be the case that an inference could be drawn that any cross-examination of Ms S or Ms A would have caused their evidence to fall apart and that the only assessment that could be made was that their evidence was designed to throw mud or muck at X and Y. More particularly, it was suggested that the only inference that could be drawn was that their statements were made without concern as to the impact upon young children and that the behaviours of those witnesses was disgraceful.
I do not suggest that the father knowingly sought to do so. The great tragedy is that he has placed reliance upon persons with such ill-considered actions and behaviours, that there were real concerns as to the welfare of these children. I was troubled in the extreme by the evidence of Ms S and Ms A and it is at least comforting that the father has realised that they are of no assistance to his case, of no benefit to his little girl and that, if anything, their actions are harmful in the extreme.
THE EXPERT WITNESSES
I turn now to the expert evidence called in relation to this matter. The independent children’s lawyer commissioned the preparation of a single expert witness report by Ms L. Ms L is a clinical neuropsychologist clinical psychologist and was requested by the independent children’s lawyer to provide an assessment of the father. It was necessary for that to occur, as a result of concerns with regard to the father’s capacity to provide for and to meet the needs of X, as a result of the injuries experienced in his late teens or early 20s, from a serious motorbike accident, which left him with cognitive disabilities.
Ms L commented upon that in her report annexed to her affidavit filed 23 July 2015. Ms L was required for cross-examination, and I shall come to the cross-examination, directed entirely by the mother to Ms L, a little later in this assessment. It is noteworthy, however, that at paragraph 4.4 of the report, Ms L says:
Of significance in his history and relevant to the current assessment is Mr Whittaker’s motorbike accident in 1993. He said that he was riding his bike. He was hit by a car and then run over by another. He said that at the time of the accident, he had gone for a drive to (omitted) on the (omitted) of Sydney as he was upset that his girlfriend hadn’t turned up. He said that he thinks that he suffered a fractured skull and a frontal lobe injury as well as other physical injuries. He said he was in a coma for 6 days and in post-traumatic amnesia for about 7 weeks. He was cared for at the (omitted) Hospital for five weeks and then attended the (omitted) Rehabilitation Unit for about 6 months. He said that he has no real memories of that time, apart from knowing that he had his 20th birthday in hospital. He was then discharged to (omitted) rehabilitation unit. He said that he had to start again to learn to walk and talk, and his recollection of events and his life came back slowly. Following this, he stayed with a family friend for a while, but his reports suggest that this was a time of turmoil for him, the police were involved and he ran away and he was placed on an ITO in a psychiatric ward for about 4 weeks and placed on Tegretol. He said that after that he got money for compensation and bought a house in (omitted), he went to the (omitted) and did a meditation course and started to sleep better. He then met a (nationality omitted) girl, travelled around Australia with her, they moved to (country omitted), they broke up in (country omitted) and he got a job doing (omitted) work in (country omitted). He then continued to travel and came back to Australia in 2000. He admitted that his memory has always been a bit of a problem since the accident, but it is slowly healing with meditation. However he admitted that he remains forgetful and has short-term memory loss.
The notation goes on to include reference to the fact that the father indicated that at the present time he had no medical issues, and that after the accident, he did not use any drugs or alcohol but had subsequently had some stints where he was certainly using alcohol to excess.
The mother particularly questioned Ms L about her summary and opinion in relation to the father. She noted particularly that at paragraph 6.5, Ms L indicated the following:
On memory assessment, there were some concerns noted, especially within the visual domain; however, Mr Whittaker also displayed some mild difficulties with new verbal learning; his delayed recall also noted a number of inaccuracies. Mr Whittaker admitted that his memory was poor; hence his insight into the need for compensatory strategies appeared reasonable.
The mother inquired of Ms L what she meant by the term “compensatory strategies”. Perhaps understandably, Ms L indicated that with there being memory lapses and difficulties experienced by the father, it was important that he have, as she described it, “external assistance”. When asked to explain exactly what that meant, she indicated that it would be appropriate for the father to use notes to himself attached to the fridge, a mirror or otherwise, and that he keep a diary so that he was able to refer back to what might or might not have been the subject of discussions or agreement, at some time in the past.
She also indicated that it would be important for the father to have, what she referred to as repetitive formats in place, which would make organisation and retrieving information more efficient. In particular, that appeared to be indicated as of assistance, as it would ensure that the father was aware, because of the repetitive nature of arrangements, that he was to collect or return X at certain times and on certain days because that was the roster or arrangement that was in place. It was also noted by the mother, however, that if there were, as Ms L noted, inaccuracies that arose from delayed recall, then there was a possibility of the father, “filling in the blanks”.
Whilst Ms L was not definite in her statements with that in mind, she certainly did acknowledge that it was possible, that if the father had blanks in his recall, that he would make assumptions which may not necessarily be reflective of what was or was not agreed.
Ms L was also asked about her comment which was highlighted in paragraph 6.8 of the report as follows:
On the basis of his current neuropsychological profile, I believe that there would be involved no significant cognitive / intellectual concerns in respect of his capacity to parent.
The mother, I think quite tellingly, and perhaps as a reflection of the time that she spent in a relationship with the father, was able to investigate some of the weaknesses in his memory and inaccuracies in his recall. In particular, the mother inquired why Ms L suggested that if there were such weaknesses and inaccuracies, that it could not be suggested that there were not cognitive concerns with regard to the father, and in particular, his capacity to parent.
Ms L responded that she was making her assessment upon a professional basis. She indicated that she was talking about his cognitive and intellectual capacities, and whilst he scored on the average to low-average range, that fell within a band that would suggest that there was no significant intellectual impairment. She did acknowledge, however, that her professional assessment was made in relation to the results of testing and other inquiry made by her, and were not related specifically to the family circumstance.
She acknowledged, for example, that there could be inconsistencies in his memory and recall, such that there would be a degree of unreliability in relation to various arrangements put in place, because of those difficulties. Ms L was then asked about her comments at the very conclusion of her report at paragraph 6.11. There, she said:
My advice in this regard would be that there are likely to be some concerns with Mr Whittaker’s level of maturity in relation to his ability to manage the developmental demands of his daughter at this age; however I think that with advice and instruction and further knowledge under supervision, then there may be room for him to be supported through this time frame. There is also a naïve, immature element to his coping style, which may lend itself to inappropriate communication styles at times. I would advise that Mr Whittaker receive advice about the impact that executive dysfunction can have on behavioural regulation and decision-making and the impact that this may have on his ability to manage parenting situations and the impact this may have on his daughter. Similarly, I would advise that his daughter also receive advice regarding safe behavioural practices whilst in his care.
In that respect, and noting that Ms L recommended appropriate instruction for the father, and for X, the mother inquired whether that advice should be provided by any particular person. Ms L certainly acknowledged that any guidance should be provided by someone external and acknowledged that the father would need structure and ongoing support, in relation to ensuring that he was able to deal with the issues that might arise with regard to the parenting of his daughter, particularly noting that there may, on occasion, be circumstances that the father finds challenging, in the parenting of X.
More particularly, however, the mother inquired about Ms L’s suggestion that X receive advice regarding, “safe behavioural practices whilst in the father’s care” and Ms L went on to note that, in her words, the father;
“…could have idiosyncratic behaviours associated with the residual aspects of his head injury and that that, therefore, may lead to some possibility of inconsistencies in the father’s behaviour or decision-making and that X would need to understand how to manage such circumstances”.
When asked by the mother what might be an example of such circumstances, Ms L indicated there may, for example, be instances where the father’s behaviours were impulsive and that in certain circumstances he may show stress or anxiety when the situation becomes complex or difficult to deal with. The training or guidance for the child would then be to enable her to identify such situations arising for her father and to enable her to understand and manage those behaviours in her father.
When asked by the mother what advice should then be given to the child, it clearly being the case that there would need to be some indications of the situations that might arise, Ms L indicated that it was important that X understand that the behaviour of her father, if inconsistent or stressed, was related more to the injury that he had experienced than from her or someone else doing something wrong.
Interestingly, and I think significantly, as there was some degree of concern expressed that the mother had spoken with X about her father’s brain injury, Ms L acknowledged that it would be important for X to know about the brain trauma and how it might affect her father, though it would certainly be a fine line to be walked, in relation to ensuring that information provided was not beyond the child’s emotional state or capacity to understand.
Finally, and again I think significantly, the mother addressed another issue which, no doubt, was live for her as a result of her experiences in the past in dealing with the father. She asked Ms L why, if there were no significant intellectual concerns with regard to the father’s parenting capacity, did X need advice on safe practices. Ms L responded that that was because the father’s test presentation showed that there were some possibilities of some inconsistencies in his behaviours, perhaps more on an executive functioning level, but that that would mean that there would not be able to be excluded the possibilities of behavioural issues arising, though not so much from her assessment, intellectual or cognitive issues rather than those that might be related to anxiety, stress and the like.
I was assisted by Ms L’s opinions and recommendations in relation to this matter.
I turn now to the two family reports that were prepared and released in relation to these proceedings. Those reports, dated respectively 21 April 2015 and 26 May 2016, are under the hand of Ms Q. Ms Q was not required by either of the parties for cross-examination in relation to this matter, though, clearly, her report, and in particular her more recent report of 26 May 2016, was relied upon, in relation to the proceedings.
Ms Q’s report made strong recommendations dependent on what might be the findings in relation to this matter. Those recommendations set out, at paragraph 69 subparagraphs (a), (b) and (c), are as follows:
69. Based on this assessment it is respectfully recommended that:
a. If it is determined there is a risk of further allegations or X being exposed to her father questioning her about Y and that Ms Bates will abide by Orders then the current arrangement continue with both changeovers to take place in (omitted).
b. If it is determined the father will not make further allegations and will not discuss this with X and/or that Ms Bates will not properly facilitate X’s relationship with her father that:
i. X continue the current arrangements of spending time with her father but the visit that takes place in (omitted) be extended to include an overnight visit on the Saturday night. X should be picked up by her mother at 9.00am on the first two visits and at 4.00pm (or thereabouts) following this.
ii. After six months that X spend time with her father from 10.00am on Saturday morning until 4.00pm on Sunday afternoon each alternate weekend at his home in (omitted).
c. In both scenarios that:
i. The father be prevented from taking X to any counsellor or other agency.
ii. When X spends time with her father no other adult be present aside from extended family.
iii. The father have the option of travelling with X to spend time with his family for up to one week each year during a school holiday period. The father should provide the mother with information about the flights he has booked so she can drop X to and from the airport (if she would prefer) to travel with her father.
Relevant in relation to this matter, however, were a number of issues there were identified and unchallenged in the reports of Ms Q. In particular, at paragraph 12 of the second report under the heading, “Issues in Dispute and Issues Identified During Assessment”, Ms Q noted the following:
Issues identified during the course of this assessment in addition to the issues identified during my previous assessment include:
(a) The unwavering nature of the father’s conviction that X is at risk of being sexually abused by her brother.
(b) Ms Bates’ capacity to facilitate X’s relationship with her father.
(c) Mr Whittaker’s vulnerability and potential implications for his capacity to protect X.
All of those issues identified by Ms Q were unchallenged in relation to this matter and, as I have already touched upon in my earlier reasons, all are identified as real concerns in relation to these proceedings. Ms Q noted ongoing concerns and issues with respect to each of the parents, particularly arising from the father’s perspective, issues with regard to his recall generally of matters that had occurred and from the concerns that the mother says she has and which are ongoing in relation to the father.
More particularly, however, the interviews and observations of X were significant. At paragraph 40 Ms Q noted that X was:
Similarly shy, quiet and friendly as she had been during her last interview.
She went on, particularly, to note that X’s responses were thoughtful and considered and that there was an obvious maturity in the child.
At paragraph 43 Ms Q notes the following:
X had difficulty describing her father to me but was able to say that she likes that he is able to play around. She did not identify anything she does not like about him, aside from joking that he is bald. She denied ever being worried when with her father. In response to be asked if there was anything she would change about the visits with her father X said she likes them how they are. During her telephone calls with her father X said she tells him about her day and what she does at school.
X was, however, a little reluctant to consider overnight time with her father, and noted at paragraph 44, perhaps seeking to provide some specific indication of why she may not be minded to consider overnight time that she:
Really likes her room at home.
And went on:
In particular, she likes that she can have her dogs on her bed as this makes her feel protected.
In Heath & Hemming (No 2) [2011] FamCA 749, a decision of Justice Kent, his Honour when discussing a parenting case, went on to comment about the decided law in respect of parenting decisions. His Honour said, at paragraph 87, the following:
87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
In paragraph 87, his Honour detailed a checklist of those matters that need to be considered and, of course, they are reflective of the guidance also provided in Lansa & Clovelly (supra). I intend to follow that process in this determination.
DISCUSSION
Accordingly, if one is to follow the logical and practical approach by the court the first of the steps to be followed is to identify the respective proposals of the parties and of course in this instance also the proposals of the independent children’s lawyer as well as any other issues that might be identified by the court. As is clear from the reasons that have been given the proposals are identified and there are no other suggestions as to what might otherwise be an appropriate arrangement with regard to parenting. I am satisfied that they are the only alternatives which could properly be considered in relation to this application.
The next step then is to consider the best interest considerations informed by the objects and principals as detailed in section 60B(1) & (2) and reflected in the considerations which flow from the object and principals as detailed in section 60CC (2), (2A) & (3). The relevant parts of section 60CC are as follows:
60CC(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.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(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;
(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;
(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;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Though not determinative, it is obviously important to consider the primary considerations as detailed in section 60CC (2). There is no doubt that X would benefit and has benefitted to date from a meaningful relationship with both of her parents. It is apparent that her attachments to both parents is strong and as identified in the family report, X as would be expected from a child of her age and maturity, did not identify anything that she doesn’t like about the father though perhaps indicative of the nature of the relationship did not suggest that there should be any changes to the arrangements with regard to visits other than perhaps to reduce the amount of travel that she was required to undertake.
If that were the only consideration then there would be little else that needs to be assessed in relation to this little girl’s best interests. But it is clear that there is a need to consider the protection of X from physical, though more likely psychological harm that might arise in the care of her father or as a result of the behaviours of certain of her father’s friendship group. Both the family report writer and Ms L identified concerns with respect to the father and the need therefore to make orders which would be protective of X. Ms L identifying a naïve and immature element to the father’s coping style is in many respects similar to the concerns that were identified by Ms Q regarding the father’s lack of empathy in respect of X and how she would cope with difficulties that might arise between she and her father.
It is unfortunate that such considerations must be looked at in relation to this particular family unit because without the effects of the acquired brain injury there would be little that would give rise to concern with regard to the father and his relationship with X if issues as to insight did not arise. However, the court must deal with the facts as they are found and there are concerns with regard to the father and to the wellbeing of the child should the father fail to appreciate his actions and there consequences for X.
As required pursuant to section 60CC (2A) greater weight must be given to that primary consideration than to the benefit obvious as it might be, of a positive relationship between X and her father.
It is also apparent that the additional considerations in certain respects are significant in the determination of this matter. Obviously X’s views must be taken into consideration and whilst it is important to recognise the child’s age and as a result of that, perhaps her full appreciation of the consequences of her wishes it is clear, especially when one notes Ms Q’s comments, that X’s wish is to limit any increases in time with her father justified in a childlike way by the comments relating to her liking to sleep in her own bed and having her dogs on the bed to make her feel secure.
This little girl like her parents walks a fine line between understanding the benefits that can flow from the relationship with her father and the need to recognise the importance of security and stability for the child.
The nature of the relationship that X has with both her parents and also with her step-father Mr P is a positive and important one. Unfortunately, there is in my assessment a clear distinction between the mother and Mr P’s appreciation of the need to foster and further that relationship as opposed to the fathers limited appreciation of that important relationship. There is a real concern here that whilst the mother has apparently done all that could properly be expected to foster and further the relationship with the father, reflected in what has been observed between X and her father, the same cannot be said from the fathers perspective. He has held X over on occasions without any proper justification and has listened to the ill-considered views of friends and acquaintances rather than being able to appreciate the importance of the relationship that X has with her mother and Mr P.
Perhaps more significant than even those considerations however, is the need to recognise the importance of the relationship between X and her older brother Y. The evidence of the mother and Mr P, which I accept is that these children have a positive relationship notwithstanding the fact that the mother and her partner are constantly monitoring and observing their interaction but there are concerns as to the ultimate appreciation that X and also Y might have of a normal sibling relationship.
Of greater concern however, are the obvious limitations that arise in relation to the fathers appreciation of the importance of that relationship and the very unfortunate but inescapable concern that the father still harbours suspicions about Y and his relationship with X and that, whilst suggesting that he would not act in a manner similar to that which has occurred in the past, there is a real concern that he would be unable to constrain himself or worse still encouraged by others to act in a manner which would be detrimental to that relationship. It is again an important consideration in respect of the ultimate outcome of these proceedings.
I do not have real concerns about issues relating to each parents involvement in X’s life. The father has his own difficulties as a result of the accident many years ago and its effect upon him, but he has subject to those difficulties, appropriately involved himself in issues relating to X and his involvement in her life.
Significant here are the concerns that arise relating to the effect upon X in respect of change in her circumstances. She resides primarily with her mother. Her mother and to a lesser degree but still significant Mr P have been the continuous rock in this child’s life. As commented upon previously, in a childlike way X does not wish to have change to what currently exists. If anything she seeks to have greater involvement with her Mother in the mother’s home locality by reducing significantly the regular travel that has been pressed upon her. I have concerns for X and her capacity to deal with such change if, as suggested by the father, there are greater opportunities for time to be spent with him and in his home.
Though not an insurmountable problem, there is a concern about the practical difficulties that would arise if the father’s proposals were acceded to. X is now of an age where social interaction with her peers as well as sporting and cultural activities will mean that she has close ties to the locality in which she lives. X again in a childlike way identifies those concerns when she talks about a desire to reduce the travel that is currently imposed upon her. The difficulties for X and flowing from that her relationship with her father if significant travel were still required is again a factor weighing in favour of the proposals generally put on the part of the mother and the independent children’s lawyer.
Sections 60CC(3)(f) & (i) loom large in the consideration of this matter. Distressing as it must be for the father it is essential that there be recognised the real differences between the capacity of the father as opposed to the mother and Mr P to meet the emotional and intellectual needs of this little girl or to even fully appreciate the responsibilities that flow with the parenting of the child. Whilst I accept absolutely that the distinctions between the parties flow from the effects of the fathers acquired brain injury, it is obvious that both emotionally and intellectually the father is unable to appreciate the child’s needs in those areas and that the mother’s and Mr P’s capacities far outweigh those of the father.
Just as clearly the father’s circumstances are such that his appreciation of the responsibilities of parenting and what might be called the finer nuances escape him. He listens to the child but hears what he wants to hear. He jumps to conclusions which are inappropriate and not properly justifiable when proper consideration is given to the facts as they might be presented. It is a recipe for further litigation but more specifically a real risk to X and the opportunity to achieve all that she properly might be able to achieve.
Considerations therefore of capacity, attitude and appreciation of the responsibilities of parenthood all weigh heavily in favour of the mother and her position.
Whilst issues relating to maturity, sex, lifestyle and background would not normally arise in a matter such as this, it is clear that the father’s cognitive and intellectual capacity are a relevant consideration and whilst I do not under any circumstances make findings critical of the father because of these circumstances it must be a factor considered in the determination of the proceedings.
Issues of aboriginality and cultural considerations do not arise nor do to any real extent are there concerns regarding family violence as defined pursuant to the divisions of the Family Law Act.
The orders proposed by the independent children’s lawyer and supported by the mother are in my assessment, the orders which are least likely to lead to further litigation. The expert evidence is that the father, being somewhat rule driven would abide the orders but perhaps more significantly, if orders were made as sought by the father and they did not meet with success either because of difficulties experienced by the father in parenting X or because X wants something different as she gets older, then there is every likelihood of further litigation.
As is hopefully apparent from the discussion so far, the overarching considerations which are significant are those which relate to the protection of X from harm primarily of a psychological nature and of the very different capacities of each of the parents to provide for the child’s needs. Such factors weigh heavily in favour of the orders proposed by the independent children’s lawyer and supported by the mother.
Having made the findings I have and noting the significant matters that arise, it is necessary to determine the issue of equal shared parental responsibility and the presumption that it should apply or whether it is rebutted. The recommendations of the independent children’s lawyers are that the mother should have sole parental responsibility subject to consultation and discussion with the father other than in circumstances of an emergency. The independent children’s lawyers suggests that the presumption of equal shared parental responsibility is rebutted as a result of the fact that the parties have some difficulties in their communication with each other as well as appreciating the cognitive difficulties experienced by the father and that that could then mean that he does not fully appreciate the importance or significance of decisions that are required to be made.
I have similar concerns in relation to this matter arising primarily form the fact that the father has been unwisely guided by the thoughts and views of others and has more particularly been unable to appreciate the specific needs of the child and the importance of decisions being made which are child focused. The mother has properly sought to consult with father in the past and I am satisfied that she would continue to do so into the future, but I am also of the view that ultimately the mother is the parent best placed to determine the best interests of the child, hopefully in conjunction with the father but if they are unable to reach agreement then it is the mother whose views should prevail.
I intend therefore to make orders for the mother to have sole parental responsibility for decisions to be made in relation to X’s long term care, welfare and development.
Accordingly, as described by Justice Kent in Heath & Hemming (No. 2) (supra) section 65DAA is not triggered and parenting orders consistent with the findings made can be made. For the reasons that I have detailed herein the orders proposed by the independent children’s lawyer and supported by the mother, in my assessment reflect the best and most appropriate arrangements to be made for the future parenting of X and accordingly I make orders in terms of those detailed at the commencement of the reasons.
I certify that the preceding one hundred and sixty one (161) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 14 October 2016
Key Legal Topics
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Family Law
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Procedural Fairness
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