Brand and Brand
[2011] FMCAfam 391
•21 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRAND & BRAND | [2011] FMCAfam 391 |
| FAMILY LAW – Parenting – Mother seeks to relocate from [Suburb A], NSW to [Suburb C] with the child aged 3 years – child primarily attached to the Mother – question of supervision long term – personality characteristics and mental health issues in Father – relocation permitted – long term supervision ordered. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAC |
| AMS & AIF; AIF & AMS (1999) FLC 92-852 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 Champness & Hanson [2009] FamCAFC 96 Cowley & Mendoza [2010] FamCA 597 KB & TC (2005) FLC 93-224 Morgan & Miles [2007] FLC 93-343 R v R (1998) FLC 92-180 U v U (2002) 211 CLR 238 |
| Applicant: | MR BRAND |
| Respondent: | MS BRAND |
| File Number: | NCC 2991 of 2008 |
| Judgment of: | Sexton FM |
| Hearing dates: | 16, 17 and 20 December 2010, and 11,15, 16 and 23 February 2011 |
| Date of Last Submission: | 23 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Eardley (for the first 3 days) |
| Solicitors for the Applicant: | Russo & Partners (for the first 3 days) then Applicant in person |
| Counsel for the Respondent: | Mr Anderson |
| Solicitors for the Respondent: | Katie Smith Solicitor |
| Counsel for the Independent Children’s Lawyer | Ms Gillies |
| Solicitors for the Independent Children’s Lawyer | Shorehills Legal |
ORDERS
All previous parenting orders be discharged.
[X] born in 2007 live with the Mother.
The Mother have sole parental responsibility for [X].
The Mother be permitted to live with [X] in [Suburb C], New South Wales.
Pending the Mother’s relocation to [Suburb C], [X] spend time with the Father for 2 hours each week at the [omitted] Contact Centre, the Father to meet any associated costs.
Within 14 days, each party contact the [omitted] Contact Centre to undertake the intake procedures necessary to enable [X] to spend time with the Father under supervision at the [omitted] Contact Centre (“the Contact Centre”) at [address and phone number omitted], upon the Mother’s relocation to [Suburb C].
Each party attend appointments as required by the Contact Centre, whether by phone or in person, to complete the assessment as soon as practicable.
[X] spend time with the Father at the Contact Centre under supervision as soon as a place is available following her relocation to [Suburb C], and thereafter on a fortnightly basis, on a day to be arranged by the Contact Centre, for a period of up to four hours, in accordance with the Centre’s protocol noting that if the Contact Centre supervisor permits supervised time outside the boundaries of the Centre, such arrangement complies with this order.
The Father give the Mother and the Contact Centre as much notice as practicable, but at least 5 days notice, when he is unavailable for any contact period.
In the event the Father does not make himself available to spend time with [X] at the Contact Centre on 3 consecutive occasions at any time, [X]’s supervised time with the Father occur monthly thereafter, rather than fortnightly.
As long as contact periods continue on a fortnightly basis, the Mother be at liberty to notify the Father in writing at least 14 days in advance, on one occasion each year, that [X] will not be available for a contact period, to enable the Mother to have a holiday away from [Suburb C].
The parties share equally any fees (at the subsided rate) charged by the Contact Centre.
The Mother ensure [X] is delivered to and from the Contact Centre on time.
The period of time spent with [X] provided in these Orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
[X] spend time with the Father under the supervision of the Father’s sister, Ms R, at any time by arrangement between the Mother and Ms R, such time to occur at the home of Ms R, (or in the vicinity of Sydney), on at least one occasion each calendar year, (including 2011), for a minimum of a 6 hour period during daylight hours, when the Mother will deliver and collect [X] from Ms R’s residence, or from a location agreed between the Mother and Ms R.
[X] communicate with the Father by telephone each week when the Mother will telephone the Father’s landline number at 5 p.m. each Monday and facilitate [X] having a conversation with the Father for up to 10 minutes on condition that:
(a)The Father says nothing negative to [X] about the Mother or the Mother’s friends or family, and that he does not ask questions of [X] about the Mother; and
(b)The parties have no direct communication with each other.
Upon the Father advising the Mother in writing that he has access to Skype, the Mother be at liberty to use Skype instead of telephone upon giving the Father at least 7 days notice of her intention to do so when the Mother will initiate the communication at 5 p.m. each Monday.
Within 14 days of her relocation to [Suburb C], the Mother provide the Father with a postal address and email address to enable him to send letters and/or gifts to [X].
The Father be permitted to send cards, gifts and letters to [X] via the mother no more than once per month and to the address provided in Order (18) and the Mother forthwith pass those items onto [X].
The Father keep the Mother informed of his residential address and contact telephone details.
The Mother send the Father copies of [X]’s pre-school/school reports and pre-school/school photographs within 14 days of receipt of those reports/photographs.
The Mother provide the Father with a written report as to [X]’s progress at least once every 6 months, with an up to date photograph of [X] until [X] completes her primary education.
The Father be restrained from:
(a)Attending any school, pre-school or extra curricular activity in which [X] is enrolled and from attending any school or preschool event without the prior written consent of the Mother;
(b)Discussing, demonstrating or participating in, self-defence training or techniques with [X]; and
(c)Taking photographs or video footage of [X] more often than every 8 weeks.
The Mother continue [X]’s enrolment in pre-school at least one day per week pending her relocation to [Suburb C].
Within 28 days of the Mother relocating to [Suburb C], the Mother take all steps necessary to ensure that [X] is enrolled in an early childhood education facility.
The Mother ensure [X] attends an early childhood education facility at least 1 day each week pending her formal education commencing, noting that it was the view of Dr S that it would be in [X]’s best interest to attend pre-school 2 to 3 days per week from the age of 4.
Within 28 days of the Mother relocating to [Suburb C] the Mother take all steps necessary to ensure she engages [X] with a general practitioner and a speech pathologist and ensure she complies with all reasonable treatment recommendations given by the treatment providers for as long as recommended by the provider(s).
Each party be restrained from:
(a)Denigrating the other in the presence and/or hearing of [X] and immediately remove [X] from the presence and/or hearing of any third party who does so; and
(b)Interrogating [X] about the other parent or a member of their household.
The Father provide a copy of these orders and reasons to Ms R.
The Mother provide a copy of these orders to the Director of the Contact Centre and to the Director/Principal of [X]’s pre-school/school.
The Court notes that when [X] has attained 7 years, the Mother will consider [X]’s time with the Father occurring under supervision in the [Suburb C] region, outside the Contact Centre by a person or persons selected by the Mother, on at least a monthly basis for at least a 4 hour period, at a venue nominated by the Mother in consultation with the supervisor(s), at which time [X]’s time with the Father at the Contact Centre can cease.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
IT IS NOTED that publication of this judgment under the pseudonym Brand & Brand is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
NCC 2991 of 2008
| MR BRAND |
Applicant
And
| MS BRAND |
Respondent
REASONS FOR JUDGMENT
This is a complex parenting case concerning [X], aged 3 years. [X]’s parents have been unable to resolve her parenting arrangements. After a 4 year marriage, including a several month period of separation in 2004/2005, the parties finally separated in September 2007 when [X] was 3 months of age. Both parties live in the [Suburb B] area. Neither party has re-partnered since separation, and neither has any other children.
The Father was represented by counsel for the first three days of the 7 day hearing, and was thereafter unrepresented. The Mother and the Independent Children’s Lawyer were represented by counsel.
The Father, aged 51, is an [occupation omitted], on a part-time basis. He does not pay any child support for [X]. He suffers from anxiety for which he takes valium each day. He has dyslexia. The Mother, aged 48, cares for [X] full time. She supports herself and [X] on government benefits but hopes to undertake further study to enable her to join the workforce within the foreseeable future.
The Father initiated proceedings in this Court in March 2009. Since the first parenting orders were made by Wyong Local Court in January 2008, [X]’s time with the Father has either been supervised, or has taken place in the presence of other adults. The current interim orders made by this Court in September 2009, following a contested interim hearing, provide for [X] to live with the Mother, and to spend a total of 5 hours a week under supervision, once during the week and once on a weekend, with the Father. Since 16 January 2010, the weekend time has taken place every alternate Sunday at a [location omitted] Contact Centre, and on the other Sunday, at the Father’s church. At times [X] has missed her time with the Father because a supervisor has not been available, the Father has not been available, or [X] has been unwell.
Ms G, Family Consultant, gave oral evidence in the interim proceedings in September 2009. She strongly recommended a psychiatric report be ordered given the concerns raised by each party as to the state of the other’s mental health. Ms G said that if the Mother’s allegations about the Father were true, the Father suffered significant mental disturbance.
In December 2009, Dr S, clinical psychologist, prepared a report for the Court[1] and recommended that the Father “have a detailed psychiatric evaluation.” Those evaluations were undertaken by Dr B, who prepared a report in November 2010[2]. Dr B also evaluated the Mother’s mental state.
[1] Exhibit 2
[2] Exhibit 1
The Father has been represented and unrepresented at different stages of the proceedings since 2009. The matter was first listed for final hearing in February 2010. On the first morning of hearing, the Father advised the Court that he had difficulty with reading and writing as a result of dyslexia, and the Court raised concerns about the Father’s capacity to conduct these proceedings on his own behalf and as to whether a litigation guardian should be appointed. The matter could not proceed to hearing on that day. Dr B considered this issue when he prepared his report in November 2010. Dr B[3] formed the view that the Father had the capacity to represent himself.
[3] At page 36 of Exhibit 1
Orders sought by the Father
At the commencement of the hearing, the Father sought to spend equal time with [X] on an unsupervised basis. He sought an order for equal shared parental responsibility. Later on the first day of hearing, the Father sought orders in accordance with Dr B’s recommendations as set out in his report, which would have seen [X] living primarily with the Mother and spending unsupervised time with the Father, gradually increasing to include overnight time. The Father sought an order that the Mother be permitted to relocate within 100km of [Suburb B] or one hour’s travel time by car from [Suburb B][4]. From the 4th day of hearing, (when the Father was unrepresented) the Father sought as much time with [X] as the Court would permit, on an unsupervised basis. In his Minute of Order tendered on the final day of hearing[5], the Father sought an order that if the Court decided to permit [X]’s relocation to [Suburb C] with the Mother, the Mother be restrained from relocating before 1 September 2011, and that thereafter, [X] spend alternate weekends with the Father, and that she communicate with him regularly by skype and/or telephone. The Father told the Court that he would not be in a position to move to [Suburb C] if the Mother were permitted to live there with [X].
[4] Exhibit 4
[5] Exhibit 18
Orders sought by the Mother
The Mother seeks to relocate with [X] to [Suburb C] as soon as possible. She seeks an order for sole parental responsibility and for [X]’s time with the Father to be supervised indefinitely at a contact centre in [Suburb C] each alternate weekend[6]. The Mother proposes to facilitate weekly telephone communication between [X] and the Father, on condition that the Father not be provided with her telephone contact details.
[6] Exhibit 5
Neither party, nor the Independent Children’s Lawyer, asked the Court to consider options other than those proposed by each party.
Recommendations of the experts
Both Dr S, and Dr B, gave extensive oral evidence at the hearing on two separate days, once before and once after the parties gave evidence. Both were complimentary of the Mother’s parenting capacity and neither found any impairment in the Mother’s mental state. Both recommended that [X] live with the Mother and that the Mother have sole parental responsibility for [X]. Dr B summarised his observations of the Mother[7]:
Ms Brand was a slim woman of medium height who appeared to be in good health. She spoke with confidence and responded clearly and promptly to my inquiries. There was no evidence of disorder of thought in either form or content. There was no evidence of mood disturbance. She showed a normal range of emotions. She appeared to be of normal intelligence and there was no evidence of cognitive deficit.
[7] At page 14 of Exhibit 1
Neither expert saw the Father as an alternate residence parent.[8] However, their recommendations in relation to [X]’s time with the Father changed markedly from the first day of hearing, when they were both cross-examined, to the 6th day of hearing, when they were again cross-examined, this time by the Father himself, who was by then, unrepresented.
[8] Transcript of evidence on 16 December 2010 at page 20
On their first day of oral evidence, both Dr S and Dr B recommended that [X] spend unsupervised time with the Father, and that [X]’s time with the Father increase over time to include overnight time. Both recommended that the Court give serious consideration to permitting the Mother to move to [Suburb C], but that the move be deferred for a period of 6 to 8 months, while [X] adjusted to spending overnight time with the Father. A preliminary Minute of Order was tendered by counsel for the Independent Children’s Lawyer at the commencement of the third day of hearing, substantially based on those recommendations.[9]
[9] Exhibit 7
On the 6th day of hearing, after being cross-examined again by counsel for the Independent Children’s Lawyer, counsel for the Mother, and the Father himself, who was self-represented, both Dr S and Dr B changed their recommendation as to [X]’s time with the Father. Both recommended that [X] remain supervised by professional supervisors at all times when in the Father’s care. Both supported the Mother’s relocation to [Suburb C] without delay, to enable her to feel more supported in her parenting role, and to remove her from the physical and psychological influence of the Father. In final submissions, the Independent Children’s Lawyer sought orders [10]substantially in accordance with those expert recommendations. In addition to supervised time in [Suburb C], the Independent Children’s Lawyer also sought an order for [X] to have two supervised visits a year at the [omitted] Contact Centre.
[10] Exhibit 17
Legal principles
Parenting orders are governed by Part VII of the Family Law Act 1975. Section 60CA provides that the child’s best interests are the paramount consideration when considering particular parenting orders, and to determine the child’s best interests the court must consider the primary matters set out in section 60CC(2) as well as the additional matters set out in section 60CC(3) before reaching a determination. Section 60CC(4) requires that the court consider the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Section 60CC(4A) provides that if the parties have separated, the Court must have particular regard to events that have happened, and circumstances that have existed, since the separation occurred. Section 65D provides, subject to the presumption of equal shared parental responsibility, that the court may make such parenting order as it thinks proper.
The objects of the parenting provisions of the Family Law Act, set out in section 60B of the Act, are to ensure that the best interests of children are met by (in summary):
·ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Relocation cases are not a separate category within the Act to be determined by their own principles and rules. Each is a case under Part VII relating to the best interests of the children[11].The High Court has held that the court is not confined to the proposals of the parties when deciding a relocation case [12].The High Court[13] has said that the Court is obliged to give careful consideration to the proposed arrangements of the parties, the objective always being to achieve the child’s best interests.[14] In Morgan & Miles[15], her Honour Justice Boland examined the impact of the 2006 amendments on relocation cases. Her Honour held that the earlier core principles which must be applied when determining a parenting matter involving relocation remain valid [16]:
· that the child’s best interests remain the paramount but not sole consideration;
· that a parent wishing to move does not need to demonstrate “compelling” reasons;
· that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
· the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.
[11] Full Court held in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 and more recently in Cowley & Mendoza [2010] FamCA 597 per [31] per Murphy J
[12] AMS & AIF; AIF & AMS (1999) FLC 92-852 and U v U (2002) 211 CLR 238
[13] As per Gummow and Callinan JJ in U v U (2002) 211 CLR 238
[14] See also Full Court in KB & TC (2005) FLC 93-224
[15] [2007] FLC 93-343
[16] At paragraph 80
The Mother’s credit
I am satisfied the Mother was a truthful witness who endeavoured to respond accurately to questions, even when against interest.
Issues arising from the Father’s mental health state
Before canvassing the evidence and making factual findings under each of the primary and additional factors in section 60CC, I address the evidence on the issue which I am satisfied is central to the outcome of this case; that is, whether the Father’s mental health status and personal characteristics so limit his capacity to parent that, for an indefinite period, [X] should be supervised when in his care. Two further issues arise. Firstly, whether the Father’s mental health status and personal characteristics render him incapable of constructive, child focussed communication with the Mother such that shared decision making about [X] would be impossible or impracticable; and secondly, whether the Mother’s parenting capacity would be enhanced and therefore [X] would benefit, if the Mother were permitted to relocate with [X] to [Suburb C], where the Mother believes she will be better supported, and less affected by the geographical and psychological proximity of the Father.
The Father’s mental health status and personal characteristics:
At the end of the 3rd day of the 7 day hearing, the court ordered the Mother’s legal representative to prepare a chronology of the Father’s medical history from the subpoenaed medical records. A chronology was later tendered in evidence[17]. Dr B summarised the contents of the same documents in his report[18]. The records disclose a long history of presentations to hospitals by the Father for anxiety and stress-related symptoms. In July 1986, the Father spent a week in [omitted] Hospital with Manic Depressive Psychosis, manic phase. The history was of weeks of increasingly unusual behaviour associated with religious delusions, general expansiveness and irritability. In October 1989, he was admitted to [omitted] Hospital with mania. In December 1995, the Father presented at [omitted] Emergency Department with anxiety. In November 1998 he presented at [omitted] Emergency Department “on the verge of a mental breakdown and needs to be admitted.” In December 1998/January 1999, the Father presented at [omitted] Emergency Department in Sydney on a number of occasions with a range of symptoms, noted in the records as including shortness of breath, high anxiety, lethargy, chest pain, dizziness, concerns about blood pressure, painful neck, leg cramps. In February 1999, the Father presented again at [omitted] Emergency Department with symptoms of dizziness, palpitations, weakness, lethargy and anxiety and chronic fatigue. Between March and December 1999, the Father presented at [omitted] Emergency Department on 6 further occasions with chronic fatigue, neck spasm, concern about hypertension and anxiety disorder. Over the next 4 years, the Father presented to hospitals on a further 19 occasions with symptoms including chronic fatigue, palpitations, chest pain, benzodiazapine addiction, neck pain, anxiety about blood pressure, shortness of breath, headache and nausea. In June 2001, the Father was admitted to [omitted] Hospital for a week with suicidal ideation, dysthemia (according to Dr B at page 20 of Exhibit 1 - “a fluctuating depression”) and personality disorder, unspecified. The traits noted were narcissistic, controlling and somatising. He was noted to be extremely preoccupied with physical illness. In 2005, the Father presented to various hospitals, on 16 occasions, with a range of symptoms including chest pain, anxiety, headache, anxiety and general malaise. In February 2005, [omitted] Hospital referred him for a mental health assessment. The Father continued to present intermittently with similar symptoms between 2006 and 2009.
[17] Exhibit 8
[18] At pages 20 to 22 of Exhibit 1
The Mother’s allegations:
The Mother alleges that the Father exhibited unusual behaviour during the marriage which caused her to feel undermined, and at times, to feel intimidated. She provides examples which I accept as truthful:
a)The Father had an obsession with buying guns and fishing gear and his favourite hobby was target shooting. He frequently handled his guns in the house. He used to turn off the lights, point his gun out the window, line people up and say “I could just get them.” In July 2003, the Mother deposes to the Father, in an agitated state, bringing 3 to 4 rifles into the living room and placing one of them directly in front of the Mother while she was watching television, saying “I’m lining up my sights”. The Father acknowledged in evidence, needing the light of the television to line up his sights. The Mother says she hates guns and did not trust the Father with guns.
b)The Father frequently belittled and berated her using terms like “You are pathetic and useless”; “You need to repent and apologise to me.” [19]When the Mother was pregnant with [X], the Father wanted to call a boy [name omitted] and a girl [name omitted]. He said to the Mother, “I want a gunslingers name. The name has to be strong as they have my blood and they’re not to be weak and pathetic like you.”
c)When the Mother was 8 months pregnant, she was admitted to hospital because of pain. When lying in the hospital bed, the Father insisted the Mother get out of bed, because he was tired and needed to have a sleep in the Mother’s hospital bed.
d)When [X] was 4 days old, and the Mother came home from hospital, severe storms cut off the power and phone connection to the parties’ home. It was the middle of winter. The Mother wanted to stay with her sister, or her friend Ms L, until power was restored. The Father insisted she stay in the home. The only light was candle light and the Mother was unable to warm or cook anything. She says she was freezing cold and was forced to eat cold, canned food. The Mother’s friend, Ms L confirmed this incident at interview with Dr S.
e)The Father claimed to suffer from chronic fatigue syndrome and would therefore not permit her to wear perfume, or use soaps or shampoos with any kind of fragrance.
f)He required the Mother to stand by the door to greet him when he arrived home. If she failed to do this, he would say she lacked respect for him. She did as he asked because he became angry if she did not agree with him.
g)The Father did not allow her to make private telephone calls to her friends or family. He would interrupt her conversation and demand her to allow him to speak to the caller. If the phone rang the Mother was not allowed to answer it, if the Father was present. Ms H, a friend of the Mother’s who originally introduced the Father to the Mother, deposes to the Father saying to her at the parties’ wedding, “I will tell you when you can see Ms Brand.” Ms H also says the Father objected to her supporting the Mother when she tore a ligament and needed hospital treatment, and when she later offered the Mother a cordless phone to minimise her movement on crutches. In cross-examination Ms H said the Father made it very unpleasant for her to be around the Mother when the Father was present.
h)The Father restricted her access to money so she had to access charities.
i)He controlled the television programmes.
j)The Father criticised her medical management of [X], yet refused to allow her to access support services.
k)The Father handled [X] roughly.
[19] At paragraph 5 of Mother’s affidavit filed 15 June 2009
The Mother says the Father’s behaviour since separation continues to cause her concern. She gives some examples:
a)The Father took videos of [X] at hand-over, without the Mother’s consent.
b)The Father has a habit of taking numerous photographs of [X] during contact visits such that [X] resists any attempt by the Mother to take her photograph at other times. [X] tells the Mother, “I tell Daddy no photos.”
c)Ms K, who has often supervised [X]’s time with the Father, confirms that the Father is often taking photographs or videos of [X] and her own daughter[20].
d)The Father takes photographs of every bump or scratch on [X] to “prove” that the Mother was an unfit parent.
e)In March 2009, when the Mother told him [X] had chicken-pox, the Father said “you must not take her outside at all. You have to keep her out of the sun or she will go blind.” [21]
f)In May 2009, when the Mother told the Father that [X] has “croup and asthma”, the Father said “you have given her asthma by giving her pain relief medication.”[22]
[20] Affidavit of Ms K filed September 2009
[21] At paragraph 46 of Mother’s affidavit filed 15 June 2009
[22] At paragraph 46 of Mother’s affidavit filed 15 June 2009
Department of Community Services involvement:
On 29 October 2007, the Mother reported her concerns about the Father to the Department of Community Services. The material produced on subpoena from the Department of Community Services[23], reveals that between July and November 2007 there were 7 notifications to the Department from professionals. The notes record concerns having been raised as to the state of the Father’s mental health. There is a report from a solicitor who reported that the father appeared “very unwell.”
[23] Exhibit 11
In late 2007, Departmental officers found the mother intelligent, articulate and child focussed, although anxious because of her fear of the Father. They found the mother appropriately protective of [X]. On the other hand, the Department recorded concerns about the Father’s attitude and behaviour. The Father is described as “controlling and manipulative” “coercive” “demanding and intimidating” “domineering” and at times “threatening” and “bullying” towards departmental officers. When issues were raised with the Father, the Department records that he was not prepared to accept any responsibility, always blaming the Mother. The file includes interviews between the Father and Departmental officers, when the Father talked over the top of the Departmental officer, spoke expansively about his connections “in high places”, and advised that the Mother suffered from clinical depression, as he alleged did one of his previous girlfriends, Ms J. The file discloses the Father behaving aggressively towards a Departmental officer and threatening her with the loss of her job if she did not do as he wanted.
The police notes[24] reveal that one of the workers at DOCS felt sufficiently threatened by the Father to seek an apprehended violence order against him. In her statement to police, the Mother says that after interviewing the Father, DOCS told the Mother that the Father was not to have unsupervised contact with [X].
[24] Exhibit 13
The Father acknowledges telling an officer of the Department that if anything happened to [X], the officer would lose her job. He acknowledges finding the private telephone number of another Departmental officer and that officer obtaining an apprehended violence order against him. He said in evidence, “Mr K has lied. He has perjured himself in court and he’s going to be caught out.”
In October/November 2007, the Department’s assessment stated that [X] was at high risk of harm. It reads as follows[25]:
Ms Brand presents as an intelligent and articulate woman who is very child focussed. …
Mr Brand presents as a very controlling and manipulative man. He has made numerous phone calls to this office and attended a face to face interview. Each time he has been demanding and intimidating. Mr Brand has used a range of tactics in an attempt to get caseworkers and managers to accept his views as the truth and to provide him with information to which he is not entitled. He has been domineering … has not allowed the person he was talking to to put forward their position and has made threats about ‘knowing people’ indicating workers could ‘lose their job’ to both DOCS and Health staff. ….. his interactions have included threats, bullying and intimidation.
Mr Brand has demonstrated that he is unwilling to accept responsibility for his behaviour and the impact it has on his wife, child and others. He consistently blames his wife when issues are raised with him and minimises his role. …he has been unwilling to engage in any discussion that does not support his view point.
[25] At page 212 of Exhibit 11
Behaviours acknowledged by the Father:
The Father was challenged about some of his behaviours and in oral evidence he readily acknowledged that:
a)He arranged for two people he met in a park handing out Christian brochures to supervise one of [X]’s contact periods, only a few days after he met them.
b)He intends to press charges against the Mother for perjury in relation to the Apprehended Violence proceedings and understands one of the possible penalties is a term of imprisonment for the Mother. He said[26]:
[26] Transcript of evidence on 20 December 2010 at page 64
I’m going to try and do the best to go through the courts to reveal the lies, that the mother has lied from the very start.
When challenged by counsel for the Independent Children’s Lawyer as to whether the Mother going to gaol would be in [X]’s best interests, the Father insisted this was a necessary course. He said[27]:
I believe that, as a law abiding citizen, that you know, if people break the law they should be put before a court. ..The Judge will definitely make some sort of bond or something on her….
she has perjured herself hundreds of times. I have proof enough to prove it, right, and I’m going ahead with it, OK. Right. It’s a law. It’s sad. I wish she never. I warned her before it went to court.”
The Father insisted this was the best course because the “lies” might affect the child.
c)The Father claims that his solicitors are suing the Department of Community Services on his behalf, and invited the Mother to join him in the claim.
[27] Transcript of evidence on 20 December 2010 at page 66
The expert reports:
Dr S says that the Father presents “as having some personality features which may make him more challenging for others to deal with.”[28] During her assessment, she found that the Father tended to go off on tangents and at times, it was difficult to follow “the flow of his thoughts or to pin him to providing a specific answer to the question he was asked.” Dr S said the Father appeared to become “quite fixated about particular points and talk at length about them.” She says in her report[29]:
These aspects of his functioning could potentially have a detrimental impact on his ability to develop relationships and it is difficult to know to what extent it would eventually begin to be a feature of his relationship with [X].
[28] At paragraph 59 of Exhibit 2
[29] At paragraph 59 of Exhibit 2
Dr S observes in her report that the Father shows no insight into the impact on others of his habit of recording and videoing material without the consent of those involved and recommended that the Court restrain the Father from continuing this practice. Dr S expressed concerns about the Father’s ability to care for a young child for any significant periods of time without another adult present. She recommended supervision of [X] continue until the Father was psychiatrically evaluated.
Dr B assessed the Father as having[30]:
….a psychiatric problem which is more a personality style of high anxiety, obsessiveness, perseveration, disinhibition, and impulsiveness under stress. He may be predisposed to this by his learning disability. As such, I do not expect a great deal of change in the future. He does not seem to have any substantial insight in to his nature…. His personality style has strong narcissistic elements to it and he has a long history of blaming others for his problems, so he is unlikely to feel that he is the one who needs to change.
he seems to selectively believe those things which confirm his views and simply ignore or challenge those which do not…. A number of these ideas…. are fairly central [to [X]’s interests] because he also thinks that they affect Ms Brand’s parenting… quite erroneously….. this whole process creates ongoing tension for Ms Brand which in my view is starting to affect [X]…..It is quite likely that Mr Brand will not be able to keep his views about Ms Brand away from [X] the older she gets and the more he thinks that she is able to understand what he thinks. It is also disruptive to Ms Brand’s parenting abilities.
[30] At page 35 of Exhibit 1
Dr B’s view was also expressed by Dr K (a psychiatrist consulted by the parties in 2007) in a letter of 11 December 2007.
Dr B highlighted in his report some of what the Father said to him, including:
a)His allegation that the Mother suffers from clinical depression, as did his previous girlfriend, Ms J. Dr B saw this as an example of the Father’s rigidity of thinking that the Father believed that the Mother demonstrated similar features as a previous girlfriend Ms J and that because Ms J had clinical depression, the Mother also suffered from clinical depression[31].
[31] Transcript of evidence on 16 February 2011 at page 125
b)His belief that the Mother was not afraid of him and had no basis for any such fear[32].
[32] At page 3 of Exhibit 1
c)His belief that the Mother was coerced by the Department into taking out an Apprehended Violence Order against him. Dr B says it is likely that the Mother was trying to appease the Father by telling him her decision to seek an order was at the Department’s insistence.
d)The Father’s claim that he had developed martial arts skills “so that he could take on 20-30 people at once” and had once helped out a 7 foot tall bouncer who had been attacked by 10 people.
e)His claim that he had started shooting when he was 3 years of age[33].
f)His belief that the Mother showed such poor judgment in her care of [X] that [X] was at risk of harm in her care. In particular, the Father gave Dr B these examples:
i)The Mother wanted to put [X] in a small tent on the beach, which he said had no ventilation and would have put [X] at serious risk of harm.
ii)The Mother put [X] in the back of the car when the temperature in the car was 50-60 degrees and she failed to see that [X] looked “very limp”.[34]
iii)He had a video recording of [X] “bolting out the door of the church and towards the road before his wife noticed that she was gone and retrieved her.”
iv)He was worried that the Mother would “end up killing [X]” because of his heat stroke concerns and because she will go to sleep at the wheel of the car if she drives after 9 p.m.
g)The Father’s view that “he would rather [X] lived with one of his family than with the Mother if he does not get unsupervised visits.”[35]
[33] At page 14 of Exhibit 1
[34] At page 17 of Exhibit 1
[35] At page 24 of Exhibit 1
Dr B noted in the police records that the Father’s previous girlfriend Ms J complained of the Father’s harassing and threatening behaviour towards her.[36]
[36] At page 19 of Exhibit 1
Dr B noted that the long series of text messages between the parties, annexed to the Father’s affidavit of October 2010, disclosed that the majority of the text messages came from the Father which were “by far the most voluminous” and increasingly traversed issues irrelevant to the initial inquiry.[37]
[37] At pages 24 to 25 of Exhibit 1
Dr B summarised his observations of the Father[38]:
Mr Brand is a lean man of medium height…. Although cooperative with the interview, he often digressed (less so by the end of the interview), although he still tended to repeat a number of themes including that the mother was an accomplished liar… and arguing strongly and repeatedly that she had an untreated clinical depression which had been most evident immediately after their daughter’s birth and had contributed to DOCS persuading her to leave the marriage. Although he tended to be rather over-inclusive and digressive, there was not a disorder in the stream of his thoughts suggestive of a psychosis not did there appear to be delusional ideas. His thinking about his wife’s mental state tended to be more obsessive and overvalued…. I did not think there was elevation of mood. However, he was a bit inclined to boastfulness and the use of superlatives. He appeared to be a person of at least average intelligence.
[38] At page 27 of Exhibit 1
Dr S and Dr B agreed that, particularly with regard to [X], the Father has some strong opinions and might have difficulty shifting from those[39]. Dr B says[40] that the Father could become fixated about issues and could become impatient and hectoring with certain people, if those ideas were not accepted by that other person.
[39] Transcript of evidence on 16 February 2011 at page 96
[40] Transcript of evidence on 16 February 2011 at page 96
On the first day of his oral evidence, before he was cross-examined, Dr B said that he had a further recommendation not included in his report, which was that the Court should make a self-executing order relating to the Father’s behaviours, that would operate as a stay of any orders relating to [X]’s time with the Father, until the Father could successfully establish that the orders should be reinstated. These behaviours would include unnecessary communication with the Mother and communication that is unrelated to [X]’s welfare.
In cross-examination on the first day of giving oral evidence, Dr B said that he did not recommend supervision because the Father has an eccentric personality and the complaints about him concern “offensive, intrusive, difficult behaviour” not a public record of behaviour normally associated with the need for supervised contact. He was not concerned about the Father harming [X]. However, Dr B said that the Father would have to satisfy the court that he could deal with his behaviour constructively. In his view, if the Court found that the Father was “profoundly insightless”, and was not able to open his mind to other possibilities than the ideas he rigidly held, then the Court could only contemplate professionally supervised time at a contact centre in [Suburb C][41]. Dr B also said that supervision should continue if the Father exhibited a hectoring, impatient and threatening approach to the Mother during the hearing.
[41] Transcript of evidence on 16 February 2011 at page 106
The Father’s response to [X]’s illness in January 2011:
Dr B commented at some length on the Father’s response to [X]’s illness in January 2011. I consider it important to look at this event in detail.
The following background facts are not in dispute:
a)[X] had a sore throat on the morning of Sunday, 23 January 2011. She was finding it difficult to take fluids, so the Mother took her to the doctor that same afternoon. She was prescribed antibiotics.
b)Late that night or in the very early hours of the next morning, [X]’s temperature was high and she suffered a febrile convulsion before beginning to improve.
c)On the afternoon of Monday, 24 January 2011, the Mother was concerned about [X]’s asthma symptoms and took her to the local hospital where they spent approximately 3 hours. The Mother was given an asthma plan which involved administering various drugs over the next several days. On the same day, the Mother advised the Father by text message that [X] had been in hospital. The text message read:
[X] is on a six day plan for asthma, she needs a puffer every four hours today and less often the following days, plus steroids for the next two nights. [X] has had a small iceblock – first fluids since Sunday morning.
d)The Father responded by telling the Mother to have [X]’s chest and head x-rayed because she may have a pencil up her nose. (The Father says that though he said “pencil” he meant “pencil liner”).
e)The Mother sent the Father a text message to tell him again that [X] had asthma and that her symptoms were not related to a pencil being in her nose and the Father sent another text to the Mother telling her she should insist on an x-ray.
f)The Father had sent the Mother a text message in November 2010 about the same issue, as he had seen a programme on television about a child of a similar age being found to have a pencil, or pencil liner up her nose, causing respiratory symptoms.
g)On Tuesday 25th January the Father sent a text and left the Mother a phone message asking how [X] was. The Mother telephoned him and took a contemporaneous note of the conversation[42].
h)As a result of the conversation, the Mother contacted police who came to see her. The Mother now says she feels her life is in danger.
i)As a result of the conversation, the Mother has changed her mobile phone number.
[42] Exhibit 10
While the Father does not accept the Mother’s version of the precise words he used in the conversation of 25 January, I prefer the Mother’s evidence on this point. I find the conversation was as recorded by the Mother at the time:
Father: you fuckin’ smart arse bitch, you listen to me
Mother: I beg your pardon, apologise if you want me to talk to you about [X]’s health
Father: Sorry, but you listen to me children can get pencils up their nose I saw it on TV.
Mother: I did not ask the hospital to xray [X]. She has asthma. What do you need to know?
Father: you have no idea how I’m feeling, you’d better go and get an AVO you bitch. I know people in [Suburb C] you have no idea who I know and you’d better fuckin’ take care of [X] or else.
Mother: are you threatening me? Did you just threaten me? I will not be phoning or texting you anymore.
Father: you’d better take care of [X] or else you have no idea how I’m feeling you fuckin’ bitch.
The Father says the Mother was putting [X] “at danger of death”. He says “I was very very concerned because the poor little girl was in temperatures over 30 degrees, no water since Sunday I was told and I’m expecting her to be nearly dead….”
Dr B says that the Father took the text in the most literal, possible form:
…He completely misses what the message seems to be” – an incredibly literal and uphelpful communication…he seems to be extremely rigid … and inflexible in his way of thinking,…he has an extraordinary amount of difficulty sorting out relevant and irrelevant, important from unimportant and misreading information. Just plain misreading stuff.
Dr B saw the Father’s concern about the pencil up her nose as “an obsessional preoccupation”[43] and further evidence of the Father’s lack of insight. He said this kind of communication is very disruptive and difficult for the Mother. Dr B said:
… his judgment on these things is not very good. He takes a piece of information on board and it just sort of gets stuck in his head and then he applies it to what seems to be – he applies it, I think, somewhat indiscriminately and inappropriately.
[43] Transcript of evidence on 16 February 2011 at page 131
Dr S said that any delay in the Mother’s move to [Suburb C] might cause the Father to become fixated on losing [X] at a particular point in time, and to him becoming more fixed in his concerns about the quality of the Mother’s care in the meantime.
The Father’s presentation during the hearing:
In cross-examination, the Father had difficulty answering a question. He gave long answers, often unrelated to the question asked. For example, Ms Gillies for the Independent Children’s Lawyer, asked the Father whether he attributed [X]’s speech problems to the Mother. In his response, the Father referred to the Mother leaving [X] with friends and to [X]’s difficult birth. He said:
…there was problems with her birth with tractions. Every time the tractions were happening [X]’s heart would race because her umbilical cord was getting caught between [X] and mummy’s tummy…” “that’s what Dr W said to me was there difficulty to do with the birth of the child, right, because that could have an impact on her speech, and I forgot to tell him that the child had a bruise about the size of a football, which I did mention in the court, in the mother’s care, and I took a photo of that…..
The Father often gave a speech rather than answering the question asked. He frequently interrupted before counsel had the opportunity to finish asking a question.
When cross-examining a witness, the Father often gave a commentary rather than asking a question. He interrupted answers to his questions. He often gave his own commentary on the answer. He frequently stopped the witness completing an answer to a question. He often repeated a question if the answer was not acceptable to him. He appeared agitated and distracted when the Mother did not give the answer he wanted. By way of further example, when cross-examining Dr B, the Father spent considerable time, in a repetitive manner, asking Dr B about his opinion that the Father had a problem with his communication. He would not accept Dr B’s answer. It seemed probable that he wanted Dr B to say that the Mother had the problem with communication, not him.
The Father was either unwilling or unable to take direction from the Bench. I reminded him repeatedly not to interrupt when someone else was addressing the Court. However, he persisted with his own approach.
At times I find that his manner was aggressive. By way of example, when cross-examining Ms H, this exchange occurred[44]:
[44] Transcript of evidence on 16 February 2011 at page 153
Father: I just want to remind you that you are under oath.
Ms H: I understand that.
Father: and perjury can be an imprisonment. Do you realise that? Father: Did I say to you that Ms L did a fantastic job helping at the hospital at [Suburb B] when [X] was being born? It’s a simple question. What’s taking you so long?
When the Father did not agree with one of Ms [Ms H] H’s answers, he said[45]:
[45] Transcript of evidence on 16 February 2011 at page 173
I will be very careful what you say, Ms H, because…
…I’ve got her here big time.
No, no there’s charges…
On 17 December 2010, the second day of hearing, while the experts were still giving evidence in cross-examination, the Father’s counsel sought an urgent adjournment. There was an outburst from the Father. This was the exchange that appears in the transcript:
Mr Eardley (Father’s counsel): Excuse me Your Honour. I really request an adjournment rather urgently. I need to speak with my client. I’m sorry. I’m sorry to do this. I need to speak with my client.
Court: Two minutes, Mr Eardley.
Mr Eardley: Thank you, your Honour, I’m obliged.
Father: Yes. I’m just about losing it your Honour. I wish I could have a talk to them to straighten a bit of the mess out….
Father: Yes. But he is going to come in and it’s going to go on and on and on, and all the crap is going to go on, and what am I going to end up in the end? Nothing, because the truth hasn’t got out….
Father: What if it was the other way around and the mother had the problem communicating with the father, and that was the case? Think about that – and that was the case. Think about that, because that’s the truth. ….I’m the victim here and it’s not a mental issue….and this is atrocious losing a child over this. I can’t believe what’s going on. No. I can’t believe it. I’m eccentric yes… Musicians are. I’ve sang on the radio. So what? I’ve had people in the music game. You want to hold it all against me so I can’t even see my child?
When the Father was leaving the courtroom, the Mother says, and I accept, that she heard the Father say to her father, who was sitting at the back of the court:
…Mr A, [Mr A] I also know bikies mate, and they’re going to fix you up.
The Father acknowledged saying to the Mother’s father:
…your day is coming mate, you know. You are not going to be aware of it. It’s going to come.
The Father also acknowledged saying “you bunch of mongrels” as he left the courtroom. In cross-examination, the Mother said of these outbursts:
I felt he was having a meltdown…it’s fairly typical of what happens in his life when he’s under stress.
The Father frequently referred to the Mother as a liar and repeatedly turned to me to say he would prove the Mother was a compulsive liar. He referred to Dr S as a liar.[46]
[46] Transcript of evidence on 20 December 2010 at page 48
Expert opinion after cross-examination by the Father:
I accept Dr B’s opinion of the Father’s parenting style. He says[47]:
It’s quite concerning because…it seems to indicate that.. what goes on between them [the parties] is that – it’s not that he sees the communication in a positive and constructive way, but that he’s intent on sifting through everything that he sees and hears for evidence that confirms his series of beliefs about the mother. That she’s neglectful, that she’s depressed – it indicates … that … communication between the two of them is never actually going to be that, it’s just going to be an information gathering exercise on his part. ….
It would make me concerned about – about how he would behave with unsupervised contact as well. Because I think he would be interrogating [X] about things or whatever [X] might say of an incidental or accidental nature would be interpreted in the wrong way in terms of the mother’s attitude and behaviour and that. …. It’s very concerning in terms of him being able to actually make constructive use of time with his daughter… because… his focus is so much on the mother’s failing and that seems absolutely undimmed. … his time with her… needs to protect her from the time being misused as an information gathering and ammunition gathering exercise. … And make sure whatever time she does have, is able to be properly supervised, so that at least the two of them can enjoy their time together.
[47] Transcript of evidence on 16 February 2011 at page 117
Dr S raised the possibility of the Father having limited cognitive ability overlaying personality issues[48]:
…it’s the same pattern that unfortunately once he gets a point in his mind he appears to sort of keep on at it even when it’s clear that really he should stop because he’s digging a hole for himself… I suspect that happens in other arenas. … I’m going more towards …professionally supervised contact.
[48] Transcript of evidence on 16 February 2011 at page 119
I accept the evidence of the experts that the Father exhibits a profound lack of insight into his own behaviours and communication style and their negative impact on others, in particular, the Mother. I accept Dr B’s opinion that given the nature of his condition, the Father is unlikely to improve in the future. I find the Father’s response to the Mother’s reporting of [X]’s illness in January of this year, a vivid example of this profound lack of insight. I find that the unanimous expert opinion of Dr S and Dr B, combined with the police records, the Father’s hospital records, the observations of the Department of Human Services officers, the Mother’s reporting of the Father’s behaviour over many years, the Father’s concessions about his own behaviour, and the Father’s presentation during the hearing, present a compelling picture of the Father’s serious difficulties.
I give very significant weight to these findings.
THE PRIMARY CONSIDERATIONS
The benefit to [X] of having a meaningful relationship with both parents
The law provides that the benefit to a child of having a meaningful relationship with both parents is a primary consideration. Dr B says that children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future. He says those principles apply in the present case[49].
[49] At page 38 of Exhibit 1
Dr S and Dr B assessed [X] as having her primary attachment relationship with her Mother, with whom she has lived since her birth. Both experts assess [X]’s relationship with the Mother as a secure and healthy one. I accept their assessments.
As already noted, both experts support the Mother’s relocation to [Suburb C] and recommend that [X] spend regular time with the Father for short periods under supervision in a contact centre in [Suburb C]. In Dr B’s opinion, the Mother’s proposal for [X] to spend 2 hours each fortnight with the Father, under supervision, is sufficient for [X] to maintain a meaningful relationship with him.
Dr B says professionally supervised time keeps a relationship at a “fairly basic level” and “doesn’t really develop into a more sophisticated relationship that involves … living with each other… and that involves you really getting to know the other person as an individual…”[50] However, in Dr B’s view, [X] “has developed a nice relationship with the Father” and “she knows she has a Dad” and it is useful for her to maintain that relationship. He says that in 3-4 years, it might be possible for supervision to occur away from the Contact Centre in the presence of a family member. Dr B believes that if ongoing contact does occur [X] might have “quite a good relationship” with the Father when she is older. I accept his evidence.
[50] Transcript of evidence on 16 February 2011 at page 134
I give moderate weight to these findings.
The need to protect [X] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The Mother told Dr S that the Father used to go from “zero to boiling” in a short period of time when they argued[51]. The Mother described the Father as “domineering” and “a law unto himself”. She alleged that the Father was “controlling, overbearing and intimidating”. She says in evidence that she is fearful for her personal safety and continually apprehensive of the Father.
[51] At paragraph 14 of Exhibit 2
In particular, the Mother alleges:
a)As already noted under the heading relating to the Father’s mental state, the Father used to handle his many guns inside the house which made the Mother feel threatened and frightened.
b)In January 2004, the Mother was about 8 weeks pregnant to the Father. He asked her to help him lift a bookcase about 4 ft x 2.5ft, full of books. The Mother asked if she could remove the books first as she was not otherwise strong enough to lift it. The Father rejected this suggestion and instead screamed at the Mother, threw the bookcase and broke it. Shortly afterwards, the Mother suffered a miscarriage. The Father denied the Mother’s version of this incident, though admitted screaming at the Mother to lift the bookcase another half an inch to prevent it falling through the window and hurting them both.
c)In or about late 2005, the Father wanted the Mother to look at a property in the Lithgow area. The parties drove to a remote location in a forest. The Father insisted the Mother get out of the car in the dark or threatened to drag her out and leave her there. The Mother claims it was impossible to see the property in the darkness and she was terrified. The Father says that it was not completely dark, but concedes that he did ask the Mother to get out of the car. He says she started “freaking out”. He says “she imagined in her mind, that I was going to grab her by the hair” and “drag her out of the car” which was “just ridiculous”.
d)In 2007, prior to separation, the Father punched the walls and doors in anger.
e)In October 2007, the father threatened the mother by saying:
…if I wanted to hurt you, I could just put my thumb through your eye and into your brain. I don’t need a gun.
f)In December 2007, the Father asked the Mother not to take out an Apprehended Violence Order against him because he would have to give up his guns. He said to the Mother words to this effect:
…You don’t need a gun to hurt a baby. You can accidentally drop them. Don’t take an AVO out on me. If they take my guns, my wife and my child I could just snap.
g)In January 2011, as already noted, the Father verbally abused and threatened the Mother on the phone causing the Mother to fear for her life.
Ms H observed [X] becoming particularly unsettled by loud noises or a raised voice when the Mother and [X] stayed with her after the parties separated. [X] would scream if she heard the noise of a vacuum cleaner. Ms H deposed to the Father’s aggressive language and rudeness towards her when she delivered [X] to contact at a playgroup on 1 July 2008. He used the words “fuck” and “fucking” in front of [X], and tried to snatch [X]’s bag from Ms H while she was carrying [X].
While the Father denies the Mother’s version of these incidents, he does not deny that the incidents occurred. The Mother’s contemporaneous reports of these incidents are disclosed in police records and I note are consistent with her evidence at hearing[52].
[52] Exhibit 13
In April 2008, after a defended hearing concerning final apprehended violence orders, initiated by the police, a Local Court Magistrate accepted the Mother’s evidence, as against the Father’s, and orders were made against the Father for a period of 2 years. The Father appealed the decision unsuccessfully. The appeal court Judge said this[53]:
…in my assessment of the evidence before the magistrate … the respondent [the mother] feared her husband and she had reasonable grounds to do so.
[53]Annexure LMB3 of the affidavit of the mother sworn on 2 September 2009
As a result of the apprehended violence order, the Father was required to surrender his firearms. According to police records, the police collected 10 firearms, bow and arrows, six butcher’s knives, a meat cleaver, banding saw and ammunition.[54]
[54] Exhibit 13
Dr B shares many of the Mother’s concerns about the Father’s conduct and believes that [X] is at risk of harm in the care of her Father, because of the abusive and negative remarks he will make about the Mother to [X] and because of his inability to control his anger when he is anxious. He finds the Mother’s apprehension of the Father genuine and believes that she feels badgered and harassed by the Father which is affecting her parenting[55] and therefore impacts adversely on [X]. He says the Father can be “quite intimidating” but that although it is not possible to exclude the possibility that the Father will carry out threats to harm, in his view, the Father poses a more psychological risk than physical risk to [X] as a result of his threatening behaviour. He says the Father gets anxious and angry at the same time because his anxiety and panic “sort of fuels him” and he therefore says and does things impulsively. In Dr B’s opinion, this kind of behaviour would be “very unsettling” for [X] if it occurred in her presence.
[55] Transcript of evidence on 16 December 2010 at page 21
I find it noteworthy that Community Services officers experienced the Father’s aggressive manner less than two years ago. I am satisfied on the basis of the DOCS and the police material that the Father has behaved in an aggressive and bullying fashion towards DOCS officers and towards hospital staff when the Mother and [X] attended hospital. I accept Ms H’s evidence about the aggressive way the Father treated her at a contact change-over and her evidence about [X]’s reaction to loud noises when living in her home after separation which I find on balance means [X] had been exposed to family violence and suffered harm. The police records[56] disclose that the Father’s previous de facto partner Ms J reported the Father making threats against her in 1997 and again in July 1998. I find it noteworthy that the Father was unable to control his anger and threatening conduct even while under the spotlight of the Court. I accept the Mother’s evidence in relation to the Father’s threatening and aggressive manner towards her both before and since separation, and I accept that she is frightened of him.
[56] Exhibit 13
I give substantial weight to these matters.
THE ADDITIONAL CONSIDERATIONS
[X]’s expressed views and the weight those views should be given
Given [X]’s young age, this factor does not apply.
The nature of the relationships between [X] and each parent and the child and other persons
I accept Dr B’s and Dr S’s opinions that [X] has a secure and warm relationship with the Mother, to whom she has a primary attachment.
Dr B observed that [X]’s demeanour was much the same with both her parents[57] and that she seems to have developed “quite a secure and happy relationship with him” [58] despite his “anxious and obsessive nature”. He noted that the documents produced by [omitted] Contact Centre relating to supervised visits from January to September 2010 record that [X] seems to be happy with her Father and his behaviour with her seems to have been appropriate.
[57] At page 31 of Exhibit 1
[58] At page 32 of Exhibit 1
I take these matters into account.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between [X] and the other parent
I find the Father has an inconsistent attitude to [X]’s relationship with the Mother. At the time of interview with the experts, the Father believed the Mother suffered from clinical depression, a view he has held since 2004. The Mother says, and I accept, that after separation, at contact changeover at the church, the Father shouted to [X]:
…Yes, I miss you too. It won’t be long before I have you all year and mummy is locked up in a funny farm.
However, at hearing, the Father says he no longer holds that belief. The Father also says that the Mother’s poor management of some aspects of [X]’s care, could lead to [X]’s death in the Mother’s care. Yet the Father seeks orders which would leave [X] unsupervised in the Mother’s care, for prolonged periods of time.
Dr B is not confident about the Father’s capacity to facilitate and encourage [X]’s relationship with the Mother because of his poor opinion of her and “general rigidity of thinking and capacity to maintain a fixed false idea despite numerous opinions to the contrary.” [59] I agree with Dr B.
[59] At page 33 of Exhibit 1
Dr B says that the Mother understands that [X] loves her Father and needs to spend time with him. While the Mother proposes that [X] spend regular time with the Father under supervision, she says she does not believe there is much depth to [X]’s relationship with the Father, and therefore little benefit in the relationship for [X]. She says “[X] is very affectionate, very outgoing, gives him lots of attention. I think he likes the attention.” However, the Mother says she has tried to encourage the relationship. She purchased a book called “I love my daddy” and has read it to [X]. She has [X] include the Father in her prayers at night. She has encouraged [X] when she has resisted contact time with the Father.
The Independent Children’s Lawyer cross-examined the Mother at length about her failure to comply with Court orders on two occasions in 2010. In July 2010, it is not in dispute that the Mother went to Melbourne at short notice and [X] was not available for contact with the Father on three occasions. And again in December 2010, the Mother travelled to Melbourne with [X] for Christmas, despite the Court advising the parties that if agreement about Christmas could not be reached, (which it was not) the interim orders providing for twice weekly supervised contact would continue. While I accept that the Mother offered the Father compensatory contact time on her return, on both occasions, I find the Mother was in breach of Court orders on both occasions.
Dr B says that the Mother accepts that [X] loves the Father and needs a relationship with him, but the Mother finds communication with him so difficult, that she finds it hard to see a way forward. Dr B believes that, given those difficulties, the presence of an apprehended violence order and the view of the agencies that the Father may be “a dangerous person”[60] the Mother has adhered to previous orders reasonably well. Dr B notes that the Mother has even given [X] some telephone contact with the Father, despite there being no order requiring her to do so. Dr B believes the Mother’s attitude is a mixture of both a recognition that [X] needs to have a relationship with the Father, and also that the Mother is vulnerable to the Father’s harassment of her[61]. Dr B believes the Mother will probably comply with Court orders if she relocates to [Suburb C], particularly given her law-abiding nature flowing from her religious faith.
[60] At page 33 of Exhibit 1
[61] At page 33 of Exhibit 1
The Mother says during the hearing that ideally, the Father would be out of her life completely and I am satisfied this is the Mother’s current view. I accept the Mother’s evidence that she is not convinced of long term benefit to [X] of an ongoing relationship with the Father, because of his inability to relate to her in an appropriate way and his poor capacity to understand her needs. I have considered whether the Mother might have developed a tendency to view the Father’s behaviour with [X] in the worst possible light, when perhaps a more benign interpretation might at times be appropriate. I have regard to her concession that she has at times responded to the Father’s text messages in a sarcastic manner, deliberately ‘pushing his buttons’, when she is well aware of his frustration at not being able to communicate directly with [X]. However, when considered as a whole, I am satisfied on balance, that the Mother does have some basis for concern. I refer to two examples in particular:
a)In an affidavit sworn in February 2010, the Mother complains of [X]’s top being wet after a contact visit and initiated a number of communications with the Father about how this came about. She came to the view, after information from the Father and the supervisor, that [X] had been hit with water bombs which the Mother believed age inappropriate. While I find it unlikely that [X] suffered as a result of this incident, I consider that the Father engaged [X] in an activity, water bomb throwing, more appropriate for an older child.
b)The Mother recalls the Father being obsessed with self-protection during the marriage, and believes he has been teaching [X] how to defend herself. [X] has returned from visits with the Father mimicking strengthening exercises, hanging off door knobs and demonstrating karate moves. The Mother says [X] has recently become uncharacteristically aggressive after contact visits, hitting and punching the Mother. She believes the Father has been teaching [X] to build up her muscles, and to do strength and stretching exercises, way beyond [X]’s capacity to understand in what context she should use her strength. While I accept Dr B’s view that there may be some other causes for [X]’s poor behaviour after contact visits, including the tension between the parties, I also share his suspicion that the Father has been prematurely encouraging [X] to learn how to defend herself, and this is at least partly the cause of her aggressive outbursts on return to the Mother.
I am not persuaded that the Mother will fail to comply with Court orders. The Mother did not intend to remain away from [Suburb A] for more than short periods when she travelled to Melbourne, and despite her misgivings about the water incident and the exercising regime, the Mother has continued to make [X] available for supervised contact visits. While I am critical of the Mother for breaching orders in July and December 2010, I also accept that the Father’s refusal to accept her need to travel to Melbourne to spend time with her family would have been frustrating for the Mother.
I accept Dr B’s opinion that the advantages for [X] of the Mother’s parenting being less interrupted by the Father, are likely to outweigh any risk of the Mother failing to comply with court orders.
The likely effect of any changes in [X]’s circumstances, including the likely effect on her of any separation from a parent or any other person with whom she has been living
The Mother wishes to relocate to [Suburb C] with [X] as soon as possible. The Father opposes the move, but would consent to the Mother moving with [X] up to an hour away from the [Suburb B] area, or up to 100 kilometres by car. The Mother has no wish to move 100 kilometres away from [Suburb B]. She wishes to move to [Suburb C], but if the Court refuses her application, she will remain in [Suburb B]. If [X] were permitted to live with the Mother in [Suburb C], she would be at least 6 hours away by car from the Father’s residence at [Suburb B].
Presently, [X] spends two supervised periods with the Father each week - a total of approximately 5 hours. On the Mother’s proposal, [X] would spend two hours with the Father each alternate weekend, under supervision.
The Father says he would not live in [Suburb C], even if the Mother were permitted to relocate, and was unable to speculate as to how often he could travel there to see [X]. He says:
…emotionally – there is no way in the world I could live in [Suburb C]… I’m used to the coast. It’s barren out there. I couldn’t live there.
The Father says he has a phobia about plane travel and has never travelled on a plane. He says he would do his best to see [X] and would travel as frequently as he could financially manage it.
I accept that [X] will spend less time with the Father if she were living in [Suburb C]. However, given that I am persuaded the Mother, as [X]’s primary carer will be a more effective parent if living in [Suburb C], and given that I accept Dr B’s view that [X] could still, in these circumstances, enjoy a meaningful relationship with the Father which may develop more fully when she is older, I am not persuaded [X] will necessarily suffer any detriment as a result of such a change.
I find there would be a number of benefits for [X] if the Mother were permitted to relocate to [Suburb C]:
a)I accept Dr B’s view that the Mother’s parenting ability is likely to be enhanced by increasing the distance, both psychologically and physically, between her and the Father[62], and therefore is likely to benefit [X]. He says the poor relationship between the parties, which in his view will continue, is unsettling [X], and undermining of the Mother who finds the Father “overbearing, insensitive to her discomfort and intrusive”.
b)I accept Dr B’s view that the Mother is likely to be a more relaxed parent and that she is likely to remain “rather tense”[63] if she remains in [Suburb A] which is likely to adversely affect [X]. The Mother says she would hate to be forced to remain in the [Suburb B] area and would need the support of a counsellor to manage her distress in such circumstances. I have regard to the authorities [64] which require the Court to consider the welfare of a resident parent when considering parenting orders, because of its importance to the welfare of the child.
c)Dr S supports the Mother’s relocation to [Suburb C] as [X]’s long term carer. She could see no benefit to [X], having the Mother forced to remain in [Suburb A] against her wishes[65]. Dr S says distance may make things “clearer and calmer”.
d)I accept the Mother’s evidence about the benefits she sees in a move to [Suburb C]. The Mother was living in [Suburb C] for approximately 10 years until 2001 and the area is therefore very familiar to her. She has close friends in [Suburb C], including friends with young children, with whom she has remained in close contact since living in [Suburb A]. The Mother has lost some of her previous supports in [Suburb A]. Her friend Ms H has moved and other friends are not as available because of difficulties with their own children. As a result of her relationship difficulties with the Father, the Mother found it necessary to leave her usual church in [Suburb A]. The Mother knows a church community in [Suburb C] into which she would be accepted, the church community having been an important component of her support network for many years.
e)I accept the Mother’s evidence that she has been unable to save any money in [Suburb A], even for items such as car insurance, and that she would be better off financially in [Suburb C] as the costs of living are cheaper, particularly rental accommodation. She is presently paying $230 a week in rent and understands from her inquiries she would pay at least $60 a week less in [Suburb C]. I accept that the Mother will be in a position to transfer [X]’s speech therapy placement to [Suburb C], and that she will be in a position to afford [X] attending day care on 2 days a week, at $5 a day, rather than the $20 a day it costs in [Suburb A]. The Mother has been accepted to study at the [omitted] TAFE and [X] has a place at the TAFE pre-school 2 days a week. The Mother would be only 3 hours away from her parents and sisters who live in Melbourne.
f)I accept the Mother’s evidence that [X] would have greater opportunity to spend time with her grandparents who live in Melbourne.
[62] At page 33 of Exhibit 1
[63] Transcript of evidence on 16 December 2010 at page 39
[64] See for example R v R (1998) FLC 92-180 at paragraph 86
[65] Transcript of evidence on 17 December 2010 at page 7
Whilst counselling might alleviate some of the Mother’s distress if required to remain living in [Suburb A], I am persuaded that the Father’s manner of relating to the Mother is unlikely to change, and as a result the Mother is likely to be increasingly unsettled if she is not permitted to change her location, which will in turn impact adversely on her parenting capacity.
These are findings to which I give considerable weight.
The practical difficulty and expense of [X] spending time with and communicating with a parent
As already noted, I accept that there will be practical difficulties and expense for the Father if he is required to travel to [Suburb C] to spend time with [X]. I accept the Father’s evidence that he earns a low income as a [occupation omitted], and although the Father has plans to improve his financial position, I am not satisfied on the evidence available, that significant improvement is likely in the foreseeable future.
I accept the Mother’s evidence that there are daily coach services from Sydney to [Suburb C] at a cost of $105-115 return, and that there are two train services a day.
These are matters to which I have regard.
The capacity of each parent to provide for [X]’s needs, including emotional and intellectual needs
I have earlier referred to concerns raised by the Father as to the Mother’s parenting capacity. Dr B noted the Father’s persistently held view since at least 2004, that the Mother suffers from clinical depression and that she could potentially kill [X] through negligence. Dr B carefully examined the records available and says any suggestion that the Mother suffers from or has suffered from clinical depression “can be safely excluded”. In his view, the Father’s complaints are “largely fanciful”. [66]
[66] At page 36 of Exhibit 1
Dr B says the Father’s exaggerated views about [X]’s risk in the care of the Mother reflects “a degree of impulsive thoughtlessness… and could be consistent with an impulsive use of profanities if he gets angry, frustrated or impatient…”[67] None of the Father’s concerns are accepted by the Department of Human Services or by either of the Court experts. I accept the evidence of both experts that the Mother has shown good capacity to provide for [X]’s needs in difficult circumstances, and continues to do so.
[67] At page 35 of Exhibit 1
The Father’s parental capacity has already been addressed to a large extent under the heading of his “mental health state and personal characteristics”. As already noted, I agree with Dr B that the Father’s personality characteristics impact adversely on his capacity to parent. This includes his impatient and intrusive manner with the Mother which unsettles the Mother and in turn, unsettles [X].
It is common ground that the Father has learning difficulties, and I am therefore satisfied that he is unlikely to have the same capacity as the Mother to assist [X] with her academic work.
The Mother raises a number of concerns about the Father’s capacity to care appropriately for [X]. I give some examples:
a)The Father is over controlling of [X], isolating her from others and not allowing her to play with other children when they are together at the church. Ms B, a witness for the Mother, confirms that this is so. Ms B regularly attends church on Sundays and deposes to the Father preventing [X] from interacting with other children, including her young grandson[68].
b)During 2010, [X] has returned from time with the Father exhibiting extreme and aggressive behaviours. She describes one occasion when [X] covered herself with a garbage bag in a shopping trolley, crawled into a ball, and stopped moving. She describes [X] after recent contact visits, repeatedly wetting herself, toileting on the carpet, drawing on the table and the television set, punching, hitting and screaming at the Mother in a totally uncharacteristic way.
c)[X] has returned from time with the Father demonstrating how she can deal with people with a broom: “for bad people, I go whack”. The Mother believes the Father has shown [X] how to hit people with a broom. She says the Father was obsessed with self-protection during the marriage. He used to have an iron bar at the front door and by his side of the bed. She says he was constantly practising self defence moves with this bar, spinning it around, doing roundhouse kicks, telling the Mother she was weak and pathetic and that his daughter would not be weak and pathetic like her.
[68] Affidavit of Ms B sworn 28 January 2010
There is no dispute, however, that [X] also has fun when she spends time with the Father. His sister, Ms R, says that when she has been present during contact visits, [X] plays musical instruments with the Father, enjoys playing in her dolls house, plays ball with the Father, helps the Father feed the pigeons and goes fishing with him. Ms K, another supervisor, describes [X] enjoying trips to the park with the Father and engaging in activities the Father arranges there for [X].
However, I accept Dr B’s view that the Father has “strong traits of obsessiveness”[69] and an “inflexibility in his thinking” which pose emotional risks to [X] when in the Father’s care. Dr B says that the Father “has a strong disposition towards seeing things very much through his own eyes.” I also accept both experts’ view that the Father’s interactions with [X] are likely to be intense and pressurised and that the Father needs to modify this behaviour[70]. Dr B says [X]’s time with the Dad would be “a pretty adrenalised sort of experience”. He also formed the view that [X] picks up her Father’s attitude to her Mother which unsettles her on her return to the Mother.
[69] At page 34 of Exhibit 1
[70] Transcript of evidence on 17 December 2010 at page 2
I find it unlikely that the Father will change his approach. I share both experts’ opinions, expressed at the end of their evidence, that the Father demonstrates no insight into his need for assistance in processing information in a more thoughtful and slower way, and that the Court should be pessimistic about any prospect of improvement in the Father.
These are matters to which I give considerable weight.
The children’s maturity, sex, lifestyle and background
[X] is 3 years of age. The Mother told Dr B she had been slow to develop clear speech.
A report from speech pathologist Ms W, dated 15 November 2010[71], states that:
[X] would benefit from therapy to improve her speech intelligibility and sentence construction skills. Her fluency should be monitored.
[71] Affidavit of Mother sworn on 29 November 2010
A report from Dr P, paediatrician, dated 2 December 2010[72] states that:
Her speech therapy assessment revealed a mild to moderate expressive language delay with normal receptive language. She had moderate articulation difficulties.
[72] Exhibit 9
While the Father was keen to blame the Mother for [X]’s expressive language delay, Dr B said it is likely to have a biological basis related to the Father’s dyslexia.
Dr S described [X] at 2 years 5 months as an “alert little girl who appeared happy and well cared for.”[73] Dr B observed [X] to have good comprehension and a good expressive vocabulary. He said:
[73] At paragraph 48 of Exhibit 2
[X] is an animated, robust child who seems to be well cared for…
She was quite high spirited but she seemed to have an excellent attention span and her mood appeared to be quite stable… she seemed to be an intelligent child for her age.
[X] suffers from symptoms of asthma when she has a cold or respiratory infection, but the Mother says she settles quickly with medication. Dr B assessed the Mother as having good capacity to meet [X]’s medical and development needs. In his view, with which I agree, the Mother is able to listen to professional advice, respond appropriately and undertake any speech exercises with [X].
Dr S believed it important for [X] to attend pre-school, at least in the year before she starts school. I accept the Mother’s evidence that she intends to send [X] to day-care/pre-school at least one day a week, if she is permitted to relocate. At present, I accept that the Mother can afford only limited day-care for [X].
I accept the Mother’s evidence that she will ensure [X] continues in speech therapy for as long as recommended by a speech therapist, and that she will continue to manage [X]’s asthma symptoms in accordance with the medical advice she receives. I have particular regard to the appropriate manner in which the Mother managed [X]’s respiratory illness in January 2011. I agree with Dr B when he says he would not have confidence in the Father doing the same, for reasons earlier referred to.
I have regard to these matters.
The attitude each parent has demonstrated to the responsibilities of being a parent
I have little to add under this factor. While I agree with Dr B that both parents have demonstrated a strong emotional commitment to [X], I find the Mother has demonstrated a vastly superior attitude to the practical responsibilities of parenting. The Father has provided [X] with no financial support. He has made no contribution to her medical costs or her child care costs. He has not supported the Mother in her parenting role.
On the other hand, the Mother has taken responsibility for addressing [X]’s speech delay, and has been vigilant in her management of [X]’s medical problems. The Mother has met all the costs associated with [X]’s care.
I have regard to these matters.
Any family violence or family violence order involving the child or a member of the child’s family
The Mother had a final Apprehended Violence Order against the Father from April 2008 for a period of two years. The Father was prohibited from approaching or contacting the Mother or [X] except in accordance with Court orders, and was ordered to surrender all firearms and related licences. The Father’s appeal against the order was dismissed. The Mother sought an extension of the order but was unsuccessful.
I have addressed issues of family violence earlier in these Reasons.
What orders would minimise the risk of there being further Court proceedings about the child?
I have nothing to add under this factor.
The extent to which each parent has fulfilled or failed to fulfil, his or her responsibilities as a parent, including spending time with the child, participating in decision–making about their welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child.
I have already addressed the problems in communication between the parties as a result of the Father’s difficult communication style.
I have already noted that the Mother has never received child support for [X] from the Father. It is common ground that the parties were in conflict over financial issues during the marriage, and that the Mother was frustrated by the Father’s failure to provide financially for herself and [X].
I am not satisfied that the Father has appreciated the level of financial stress the Mother has been under and the negative impact this has had on [X]. I am not satisfied the Father has taken appropriate steps to relieve the Mother of that stress. I accept that the Mother has reason to be distressed and apprehensive about her financial future.
I give these findings moderate weight.
Parental Responsibility
The Father seeks an order for equal shared parental responsibility, and the Mother seeks an order for sole parental responsibility.
Section 61DA requires the court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I find the presumption does not apply in this case because, as already noted, I find there has been family violence. In addition, as a result of findings I have made earlier in these reasons, I am not satisfied it would be in [X]’s best interests for the Mother and Father to have equal shared parental responsibility and therefore, the presumption is rebutted.
Both experts support the Mother’s position that she have sole parental responsibility for [X]. Dr B says the parties cannot communicate effectively or meaningfully, the Father being unable to maintain boundaries when communicating with the Mother, and as a result of the Father’s personality traits, the position is unlikely to change in the future. Dr S says it would be impracticable for these parties to have shared parental responsibility given their inability to communicate constructively. The Independent Children’s Lawyer supports the expert opinion, as I do.
I find that the parties in this case do not have the capacity to communicate effectively, or at all, and would not be able to work together constructively to make decisions about [X]. The Father acknowledges as much when he says, in cross-examination [sic] “I’m at fear with the mother. As plain as day, I cannot communicate with the mother …”
Dr B, with whom I agree, sums up the situation in this way:
Mr Brand is contemptuous of Ms Brand and he also has a very hectoring and harassing manner with her with effectively stifles communication. It is quite clear to me that she communicates with him, bearing in mind a need to appease him, and this also undermines the effectiveness of any communication that they might have about their daughter’s welfare.
Conclusion
[X] will be 4 years old in June. The legislation makes clear that [X] must be the focus of the inquiry and the Court must make orders it considers to be in the best interests of [X] in both the short and longer term. In consideration of her best interests, the court must consider the impact of the Mother’s proposed relocation on [X]’s interests. The Mother’s relocation to [Suburb C] will inevitably reduce [X]’s time with the Father, and long term supervision, will inevitably restrict [X]’s relationship with the Father.
[X] enjoys a happy relationship with the Father and the experts agree that she is likely to benefit from that relationship continuing. While on the one hand, [X] needs a continuing relationship with the Father, on the other hand, [X] needs the Mother, her main attachment figure, to be supported in her role as the Mother, free from the ongoing emotional stress of dealing with the Father who communicates so inappropriately, and who constantly undermines her as [X]’s primary caregiver. The dilemma for the Court has been finding a solution to this difficult problem.
The Father has suffered from an anxiety disorder over a long time, and has troublesome features in his personality. His problems impact on his capacity to relate to others, particularly the Mother. They impact on his parental capacity, on his attitude to his responsibilities as a parent, on his ability to support [X]’s relationship with the Mother and on his ability to make child-focussed decisions for [X]. I find that the Father does not accept or understand these difficulties and as already noted, I accept the expert opinion that the Father is unlikely to do so, and therefore is unlikely to change. I find no evidence to support his strongly held belief that the Mother is the cause of his problems.
After being cross-examined for a second time at the end of the hearing, which included being cross-examined by the Father who was, by then, self-represented, both experts recommended that [X]’s time with the Father remain supervised for at least the next few years in a professional Contact Centre. Both formed the view that the Father had not understood their evidence on the first day of hearing about the negative consequences of his way of relating to the Mother and his tenacity at not letting ideas go. Both experts concluded that the Father would be unable to limit that behaviour. Dr B was concerned about the Father continuing to hold ideas that are destructive to the child’s relationship with the Mother. Overall, he was concerned about the adverse impact of the Father’s unusual and difficult personality traits on the emotional health of [X] and of the Mother trying to parent [X].
Neither Dr S nor Dr B were able to predict when supervision might safely be lifted, but Dr B believed supervision by a family member outside the Centre might be possible when [X] reaches 7 years of age, perhaps older. The Mother herself hopes that when [X] is more mature, she may be able to manage unsupervised time with the Father, when she is at a stage of being able to communicate and relate more confidently.
I am satisfied that [X] should have the opportunity to maintain her relationship with the Father. The Full Court has accepted that it is open to a Court in the exercise of its discretion to make a long term supervision order in a contact centre[74]. I agree with the expert opinions that [X] should be professionally supervised when with the Father for at least the next few years, to protect her from the negative impact of her Father’s condition. I have given consideration as to whether the arrangement should be formally reviewed at some point in the future, but have decided it is impracticable to do so in the circumstances of this case.
[74] Champness & Hanson [2009] FamCAFC 96
I agree with the expert witnesses that the Mother should be permitted to re-locate to [Suburb C] immediately to give her physical and psychological distance from the Father and to take advantage of the many benefits I find such a move will provide for the Mother, and in turn, for [X]. I have decided fortnightly time is appropriate, given the geographical distance involved for the Father and the costs involved, and given this is the order sought by the Mother and the Independent Children’s Lawyer. If a frequency of fortnightly proves impracticable, the time will be varied to monthly visits.
Given the Father’s sister Ms R has supervised [X]’s time with the Father in the past, an arrangement the Mother has found helpful, and given the travel which will be involved for the Father to spend time with [X], I have decided that on a minimum of one occasion each year, the Mother will take [X] to Ms R’s home at [Suburb D] to spend up to 6 hours with the Father under Ms R’s supervision. This will give [X] an opportunity to spend time with members of her paternal family, and make telephone communication between [X] and members of the Father’s family, more meaningful. I have not ordered supervised contact in [Suburb B] on 2 occasions each year, as sought by the Independent Children’s Lawyer, because of the unlikelihood of the Centre accommodating such an ad hoc arrangement.
As a result of the concerns of the experts about the Father engaging [X] in self-protection behaviours, I have decided to restrain the Father from continuing to demonstrate these behaviours to [X]. As a result of my concerns about [X]’s reaction to the Father’s focus on taking photographs and videos of [X], I have limited his ability to do this.
As already noted, I find the parties are unable to communicate in any meaningful way, and that direct communication between the parties, has for the most part, been unhelpful to [X]. I have decided the Mother will not be required to communicate directly with the Father, and will not be required to provide him with her address or mobile telephone details. The Mother will, however, be required to initiate telephone communication between [X] and the Father each week, as she proposes. The Mother will be required to provide the Father with an email and a postal address, to enable him to send [X] letters or gifts, on no more than a weekly basis.
I am satisfied that the Orders set out at the commencement of these Reasons are in [X]’s best interests.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 21 April 2011
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