BUTCHER & TYRANE
[2013] FamCA 1013
•20 December 2013
FAMILY COURT OF AUSTRALIA
| BUTCHER & TYRANE | [2013] FamCA 1013 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Where the Father has a history of alcohol abuse – Where the Mother has a resolute belief that the child is at risk of harm when in the Father’s care –Whether the child is at an unacceptable risk of harm – Where orders made for time between the child and the Father to occur and increase on a graduated basis leading to unsupervised overnight time. | |
| Family Law Act 1975 (Cth) | |
Child Protection Act 1999 (Qld)
| APPLICANT: | Mr Butcher |
| RESPONDENT: | Ms Tyrane |
| INDEPENDENT CHILDREN’S LAWYER: | Kate Cherry |
| FILE NUMBER: | BRC | 3225 | of | 2011 |
| DATE DELIVERED: | 20 December 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 19, 20, 21 and 22 August 2013 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Melissa Cullen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Colville Johnstone Lawyers |
Orders
It is ordered that
All previous parenting Orders and parenting plans be discharged.
Parental Responsibility
It is declared that the presumption of equal shared parental responsibility is rebutted in the best interests of X Butcher born … 2010 (“the child”).
Subject to Order (4), the Mother shall have sole parental responsibility with respect to “major long-term issues” as that expression is defined in the Family Law Act 1975 (Cth) (“the Act”) in respect of the child, excluding any decisions in relation to the child’s religion or where the child shall live should that decision make the operation of the arrangements set out in these Orders impracticable, save that prior to making the sole ultimate decision about any such issue, the Mother shall:
(a)notify the Father in writing prior to making decisions about any major long-term issues;
(b)invite the Father to indicate his views in writing;
(c)consider, by reference to the best interests of the child, any such response from the Father prior to making any such decision; and
(d)advise the Father in writing as soon as reasonably practicable of her ultimate decision.
The Father shall have sole parental responsibility with respect to “major long-term issues” as that expression is defined in the Act in respect of the child’s religion only, save that prior to making any decision concerning this issue, the Father shall:
(a)notify the Mother in writing prior to making a decision;
(b)invite the Mother to indicate her views in writing;
(c)consider, by reference to the best interests of the child, any such response from the Mother prior to making any such decision; and
(d)advise the Mother in writing as soon as reasonably practicable of his ultimate decision.
Live With, Time and Communication
The child X live with the Mother.
Until the Father has completed his Anglicare Anger Management course, and provides evidence of completion of same to the Mother and the Independent Children’s Lawyer, the child shall spend time with and communicate with the Father as follows:
(a) each Friday from 9:00am until 3:00pm;
(b) each Saturday from 9:00am until 3:00pm;
(c) on Father’s Day from 9:00am until 3:00pm;
(d) on the child’s birthday from 9:00am until 3:00pm;
(e) on Christmas Day from 12:00pm until 5:00pm;
(f) on the Father’s birthday from 9:00am until 3:00pm.
Following the Father’s completion of his Anglicare Anger Management course, and provision of evidence of same to the Mother and the Independent Children’s Lawyer, the child spend time with and communicate with the Father as follows:
(a) until the child turns five (5) years of age:
(i)each alternate weekend from 9:00am Friday until 3:00pm Saturday;
(ii)each other Saturday from 9:00am until 3:00pm;
(iii)at Christmas in odd numbered years from 9:00am Christmas Eve until 12:00pm Christmas Day, provided the child is with the Mother from 12:00pm Christmas Day until 5:00pm Boxing Day;
(iv)at Christmas in even numbered years from 12:00pm Christmas Day until 5:00pm Boxing Day provided the child is with the Mother from 9:00am Christmas Eve until 12:00pm Christmas Day;
(v)on Father’s Day from 5:00pm on the Saturday preceding Father’s Day until 5:00pm Father’s Day, provided the child is with the Mother from 5:00pm on the Saturday preceding Mother’s day until 5:00pm Mother’s Day;
(vi)on the child’s birthday from 12:00pm until 5:00pm; and
(vii)on the Father’s birthday from 9:00am until 3:00pm.
(b)upon the child turning five (5) years of age and until he commences formal schooling in 2016:
(i)each alternate weekend from 9:00am Friday until 3:00pm Sunday;
(ii)each other Saturday from 9:00am until 3:00pm;
(iii)at Christmas in odd numbered years from 9:00am Christmas Eve until 12:00pm Christmas Day, provided the child is with the Mother from 12:00pm Christmas Day until 5:00pm Boxing Day;
(iv)at Christmas in even numbered years from 12:00pm Christmas Day until 5:00pm Boxing Day provided the child is with the Mother from 9:00am Christmas Eve until 12:00pm Christmas Day;
(v)on Father’s Day from 5:00pm on the Saturday preceding Father’s Day until 5:00pm Father’s Day, provided the child is with the Mother from 5:00pm on the Saturday preceding Mother’s day until 5:00pm Mother’s Day;
(vi)on the child’s birthday from 9:00am until 2:00pm; and
(vii)on the Father’s birthday from 9:00am until 3:00pm.
(c) upon the child commencing formal schooling in 2016:
(i)each alternate weekend from after school Friday until before school Monday;
(ii)in the alternate week, from after school Thursday until before school Friday;
(iii)at Christmas in odd numbered years from 9:00am Christmas Eve until 12:00pm Christmas Day, provided the child is with the Mother from 12:00pm Christmas Day until 5:00pm Boxing Day;
(iv)at Christmas in even numbered years from 12:00pm Christmas Day until 5:00pm Boxing Day provided the child is with the Mother from 9:00am Christmas Eve until 12:00pm Christmas Day;
(v)on Father’s Day from 5:00pm on the Saturday preceding Father’s Day until 5:00pm Father’s Day, provided the child is with the Mother from 5:00pm on the Saturday preceding Mother’s day until 5:00pm Mother’s Day;
(vi)on the child’s birthday should it fall on a non-school day, from 9:00am until 2:00pm in odd numbered years or from 12:00pm until 5:00pm in even numbered years;
(vii)on the child’s birthday should it fall on a school day, from after school until 5:30pm;
(viii)on the Father’s birthday from 9:00am until 3:00pm should it fall on a non-school day, or from after school until 5:30pm should it fall on a school day;
(ix)for one half of all Queensland Gazetted School Holiday periods, being the first half in even numbered years, and the second half in odd numbered years, with the Christmas holiday period to be shared on a week above basis until the child is eight (8) years of age;
(x)by telephone at all reasonable times as may be requested by the child.
Changeover
Until such time as the child attends formal schooling, changeover for all periods of time referred to above shall take place at the R Children’s Contact Service ....
In the event that R Children’s Contact Service cannot facilitate such changeovers, changeover will take place at Southbank train station at the commencement of such time, and C Train Station at the conclusion of such time.
The parties equally share the costs of using the R Children’s Contact Service centre for the purposes of changeover.
Upon the child commencing formal schooling in 2016, changeover for all periods of time referred to above shall take place at the child’s school, or at an agreed half way point between the parties’ respective residences should changeover occur on a non-school day.
Exchange of Information
The Mother and Father will keep each other informed of their current email address, residential address and contact telephone number at all times and notify the other of any change thereto within forty-eight (48) hours.
The Mother and Father will inform each other as soon as reasonably practicable by email of any serious medical condition, health issue, injury or illness suffered by the child. Should the injury or illness suffered by the child be sufficiently serious to involve hospitalisation, the Mother and Father will advise the other immediately by telephone.
The Mother and Father shall inform the other in writing of the name and address of any and all medical practitioners who are involved in treating or caring for the child.
The Mother and Father shall be entitled to receive at their own request and expense any and all information relating to the health, education and welfare of the child, including but not limited to details of any illness suffered by the child and treatment required, school reports, photograph order forms and details of any disciplinary matters.
This Order shall be authority for each of the child’s medical practitioners, allied health practitioners and schools and/or child care facilities to provide information to the Mother and Father at their request and expense.
In the event that the child is prescribed medication or a particular form of medical treatment which is required to continue within the period when the other party will be caring for or spending time with the child, any medication or materials required for treatment will be emailed to the other parent in advance of the child going into the care of that parent with the description in writing of the condition for which it is required and the appropriate dosage or method of treatment.
The Mother’s Psychotherapy
As a condition of these parenting Orders, the Mother shall within twenty-one (21) days attend upon her General Practitioner to obtain a referral to a suitably qualified psychologist to explore how her past history has affected her relationships and co-parenting relationship and to assist her to promote the relationship between the child and the Father.
The Mother will advise the Father and the Independent Children’s Lawyer of the name and contact details of the psychologist appointed for this purpose.
Leave be granted to the Independent Children’s Lawyer to provide the Mother’s treating psychologist with copies of Dr V’s psychiatric report and copies of Mr N’s family reports filed in these proceedings.
The Mother will attend upon the psychologist no less than once per month and otherwise as recommended by the psychologist for a period of not less than twelve (12) months.
The Mother will provide the Father and the Independent Children’s Lawyer with documentary evidence by email of her attendances upon her psychologist, pursuant to these Orders, and copies of any prescriptions provided to the Mother for any mental health related condition should those be provided.
The Mother will provide a written authority to her psychologist to release information to the Independent Children’s Lawyer in relation to her compliance with these Orders and any recommended treatment.
Restraints
Neither party shall consume alcohol beyond the legal limit for driving or any illicit substances whilst the child is in their care or for the twenty-four (24) hours prior thereto.
Neither party shall physically discipline the child or expose the child to domestic violence, nor allow any other person to physically discipline the child or expose the child to domestic violence.
Neither party shall denigrate or insult nor allow any other person to denigrate or insult the other party or the other party’s relatives or friends to or in the presence or hearing of the child.
During the time the child is with either party, that party shall respect the privacy of the other party and not question the child about the personal life of the other party and shall speak of the other party respectfully.
Alcohol and Drug Testing
The Father submit to drug and alcohol tests as follows:
(a)submit to supervised alcohol testing of carbohydrate deficient transferrin levels and a urine alcohol screen, as required by the Independent Children’s Lawyer, such tests to be undertaken within twenty-four (24) hours of any such request being received;
(b)submit to one (1) random drug screen by urinalysis that complies with the chain of custody requirements as to temperature and handling, as required by the Independent Children’s Lawyer, such tests to be undertaken within twenty-four (24) hours of any such request being received;
(c)provide the results of those tests to the Independent Children’s Lawyer within forty-eight (48) hours of receiving the same.
Parenting Orders Program and PPP
The Mother and Father (if they have not already done so) shall enrol in a Parenting Orders Program with Relationships Australia and a PPP Program with Queensland Health within twenty-one (21) days and shall complete such programs within six (6) months of the date of these Orders.
The Mother and Father shall provide the Independent Children’s Lawyer and the other party with evidence of completion of these programs.
Independent Children’s Lawyer
The Independent Children’s Layer will monitor the parties’ compliance with Orders (18) to (23) and (28) to (30) hereof, and will be discharged twelve (12) months after the making of these Orders.
Miscellaneous
Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Butcher & Tyrane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 3225 of 2011
| Mr Butcher |
Applicant
And
| Ms Tyrane |
Respondent
REASONS FOR JUDGMENT
Introduction
The child X Butcher (“the child”) born in 2010 who was two years nine months of age as at trial is the subject of these parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The parties seeking competing parenting orders are the Applicant, Mr Butcher (“the Father”); the Respondent, Ms Tyrane (“the Mother”); and the Independent Children’s Lawyer (“the ICL”) appointed pursuant to section 68L of the Act to independently represent the child’s interests in the proceedings.
Pursuant to his Amended Initiating Application filed 15 December 2011 the Father is seeking final orders which provide, inter alia, for the child to live with him, for the parties to have equal shared parental responsibility for the child, and for the child to have contact with the Mother each alternate weekend from 5 pm Thursday until 9 am Monday.
At the conclusion of the trial, the Mother sought final orders that the child live with her, that she have sole parental responsibility for the child, and that the Father have unsupervised day time contact with the child each week from 9 am until 3 pm on Sunday and Monday, with no overnight contact to occur until the child commences grade one of school.
The ICL seeks orders that the Mother have sole parental responsibility for the child, save for decisions regarding religion; that the child live with the Mother; and upon the Father completing an anger management course, that the child spend unsupervised time with the Father on a gradually increasing basis such that upon the child attending school the Father would have contact each alternate weekend from after school Friday to before school Monday and in the alternate week from after school Thursday to before school Friday.
The parties’ relationship is highly conflicted and there are allegations of violence by each of the parties against the other along with allegations of excessive alcohol and drug use by the Father. Whilst there are several areas of factual dispute between the parties, the central issue in these proceedings was whether the child would be at risk of harm should he spend unsupervised overnight time with the Father.
Factual and Procedural History
The Father was born in 1978 and is now 35 years of age. The Father was employed as a labourer; however, he is currently on the Newstart Allowance.
The Mother was born in 1972 and is now 41 years of age. The Mother is a qualified health professional; however, she is currently on the single mother’s pension.
The parties commenced their relationship on 14 March 2009, began cohabitating in or around June 2009, and separated on 1 January 2011. They were never married.
The Father currently resides with his new wife, Ms B, and her two children from a previous relationship, E and A, who were aged nine and three respectively at the time of the trial. The Father commenced a relationship with Ms B in March 2011 and married her in December 2012.
Following separation in early 2011 the Mother made a number of historical complaints to police of physical and sexual assault perpetrated by the Father going back as far as May 2009. Both parties have also made allegations of various instances of family violence during the relationship; however, these have not been reported to police.
On the Mother’s case, there is a history of ongoing domestic violence, drug and alcohol abuse throughout the Father’s relationships which has continued into his current relationship with Ms B.
As already noted, the child was born in late 2010 and is the only child of the relationship. Since separation the child has resided with the Mother and, for the most part, had supervised contact with the Father.
The Father instituted parenting proceedings in the then Federal Magistrates Court on 14 April 2011 seeking final orders that Xaviar live with the Mother and spend time with the Father periodically each week.
On 17 June 2011 the parties entered into interim consent orders that provided for the parties to have equal shared parental responsibility and for the child to live with the Mother and spend supervised time with the Father each Saturday and Sunday from 9 am to 10 am for four weeks and then from 8 am to 10 am thereafter.
On 20 September 2011, following the release of the family report, interim consent orders were made by Federal Magistrate Spelleken (as her Honour then was) for the Father to have time with the child, initially supervised until 21 December 2011 when time would become unsupervised, with a gradual increase in time such that upon the child reaching 18 months of age the Father would spend time with the child from 9 am until 3 pm each Saturday and from 3 pm to 6 pm each Wednesday.
On 25 November 2011 the Mother filed an Application in a Case seeking orders that the Father’s time with the child revert to supervised time. The basis of the Mother’s application was that the Father had allegedly committed a criminal act, namely driving an unregistered motor vehicle, whilst the child was in his care, and also that the Father’s contact with the child had not been supervised on two occasions.
After several instances of withholding the child by the Mother, the Father filed an Amended Initiating Application on 15 December 2011 seeking final orders that the child live with the Father and spend time with the Mother each alternate weekend from 5 pm Thursday until 9 am Monday.
On 2 February 2012, following the hearing of the Mother’s Application in a Case (filed 25 November 2011), Federal Magistrate Spelleken made interim orders that the Father spend supervised time with the child each Wednesday from 10 am to 1 pm and each Saturday from 9 am to 3 pm and that the proceedings be transferred to this Court.
Due to the Mother’s continual withholding of the child, the proceedings were listed for a compliance hearing before Federal Magistrate Myers (as his Honour then was) on 20 June 2012. His Honour made findings that the Mother contravened the orders made on 2 February 2012 on six occasions without reasonable excuse and ordered that the Father be provided with make-up time; that the Mother enter a good behaviour bond for 12 months; and that the Mother undertake a post-separation parenting course within 16 weeks and provide evidence of her completion to the ICL. As at the date of trial the Mother had still not undertaken such a course.
On 23 August 2012 orders were made by consent for both parties to undergo drug and alcohol testing (CDT testing) within 24 hours of receiving a request from the ICL.
On 12 October 2012 the Mother filed an Amended Response and supporting affidavit material as well as a Form 4 Notice of Child Abuse or Family Violence alleging that the Father had exposed the child to family violence and drug use and had allowed the child to sustain significant injuries while in his care. The Mother sought orders that she have sole parental responsibility for the child and that the child live with her and spend time with the Father for a period of two hours at a contact centre at such times as arranged between the Father and the contact centre.
On 27 November 2012 Principal Registrar Filippello made interim orders that the child live with the Mother and spend unsupervised time with the Father each Wednesday from 2 pm to 5 pm and each Saturday from 9 am to 3 pm with changeovers to be supervised by R Children’s Contact Service. The Father was also ordered to immediately complete his anger management and domestic violence course with K Service and provide evidence of the same to the Mother and ICL.
The Father’s oral evidence at trial was that he had previously enrolled in the Anglicare Living Without Violence program on two occasions, however he has not completed the course on either occasion due to work and personal commitments. During cross-examination the Father stated that he intends to re-enrol and complete the course after the conclusion of these proceedings.
At the trial before me the Mother submitted that during the hearing on 27 November 2012 the Principal Registrar warned the Father that should another incident of family violence occur the Father’s time with the child may be reduced to supervised time. The Mother contended that the Father disobeyed this warning and was involved in another family violence incident following the interim hearing in late November 2012. On the Father’s case, the family violence incident occurred prior to the interim hearing.
As will be discussed further below, whilst it is accepted that the Father was involved in an incident of family violence in or around November 2012, the exact date of the incident is unknown. In any event, there is nothing in the evidence before this Court to suggest that such a warning was made, in particular, there is no order or notation to that effect within the interim orders made on 27 November 2012.
The Parties’ Proposals
As noted earlier, the Father is seeking orders that the child live with him, that the parties have equal shared parental responsibility for the child, and that the child have contact with the Mother each alternate weekend from 5 pm Thursday until 9 am Monday and half of all school holidays.
The orders sought by the Mother have been varied on several occasions over the course of these proceedings. On the final day of trial the Mother handed up Minutes of Orders, admitted and marked as exhibit 17, which differed to the orders sought in her Amended Response filed 12 October 2012. In summary, the Mother seeks orders that the child live with her; that she have sole parental responsibility for the child; and that the Father have unsupervised time with the child each weekend from 9 am to 3 pm on Sunday and Monday, with changeovers to be supervised at a contact centre, and that no overnight contact occur until the child commences grade one of school, provided that various conditions are met. The Mother also sought, inter alia, orders addressing the Father’s history of alcohol and substance abuse and for the child’s name be changed to X Tyrane, although no evidence was led on this point.
At the conclusion of Counsel’s submissions on behalf of the ICL, detailed Minutes of Orders were proposed by the ICL (exhibit 16). In summary, those orders provide for the child to live with the Mother and for her to have sole parental responsibility, save for decisions regarding religion, with a provision for consultation with the Father. The orders for time proposed by the ICL would see the child involved in a graduated increase in time with the Father, from supervised day time periods expanding to unsupervised overnight time each alternate weekend upon the Father’s completion of an anger management program.
Thus, the fundamental difference between the orders sought by the ICL and those sought by the Mother relates to when the child should commence overnight time with the Father. The ICL seeks orders that overnight time commence once the ICL has received evidence that the Father has completed an anger management course. In contrast, the Mother seeks orders that overnight time not occur until the child commences grade one of school due to the increased likelihood of alcohol abuse and family violence occurring at the Father’s residence between 6.00 pm and 4.30 am.
Statutory Framework
Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders. By reason of the date of institution of these proceedings the amendments to Part VII which came into effect in June 2012 do not apply to them.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests.
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, 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 (s 61DA(4)).
The effect of s 65DAA of the Act is that if the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider an order for substantial and significant time with each of the parents.
The operation of the statutory framework and the manner in which the Court approaches its application including the determination of the s 60CC “best interests” considerations is well-settled by authority (see for example Goode & Goode (2006) FLC 93-286; MRR v GR (2010) 240 CLR 461; Sayer & Radcliffeand Anor (2013) 48 Fam LR 298 and Cox & Pedrana (2013) FLC 93-537).
Allegations re: Unacceptable Risk of Harm
It is evident on both the evidence before me and the orders proposed by the Mother and the ICL that the key issue in this case is one of risk. The allegations made by both parties raise the following questions of risk to the child:
a)whether, in light of the Father’s alcoholism and associated propensity for family violence, the child will be at a risk of physical and/or emotional harm if orders are made for the Father to have overnight time with the child; and
b)whether, as a result of the level of conflict between the parties, particularly the Mother’s conduct and negative view of the Father, the child is at risk of alienation from the Father.
The determination of whether these risks amount to an unacceptable risk of harm is dependent on the evidence of the parties and the credibility and veracity of such evidence.
Credit Issues
Counsel for the ICL made submissions that the Court could not prefer the evidence of one party over the other as the accounts of both parents lacked sufficient credibility.
In making this submission Counsel for the ICL referred to the failure of both parties to provide accurate reports to family report writer, Mr N and psychiatrist, Dr V. The ICL also referred to the Mother’s concessions at trial including that she had exaggerated allegations of harm to the child on 90 per cent of occasions, and that she had falsely made allegations that the Father had failed drug tests when the Father was merely late in respect of a drug test.
Mr N, psychologist, has prepared three family reports in these proceedings dated 14 September 2011, 23 July 2012 and 30 July 2013. Mr N undertook interviews of the parents and Ms B on 2 July 2013 for the purpose of compiling his most recent updated report dated 30 July 2013 attached to his affidavit filed 5 August 2013. Mr N also gave oral evidence at trial and was cross-examined by each party.
Dr V, psychiatrist, undertook a psychiatric assessment of both parents at the request of the ICL for the purpose of compiling his report dated 12 December 2012 attached to the affidavit of Dr V filed 18 December 2012. Dr V also gave oral evidence at trial and was cross-examined by each party.
In their reports and during oral evidence both Dr V and Mr N expressed concerns about the reliability of the accounts of each of the parents, particularly regarding their lack of insight into how their own behaviour has damaged the welfare of the child. I accept their reservations for reasons now discussed.
With respect to the Father, as will be discussed further below, it is evident that he fails to see any risk in continuing to consume alcohol in light of his history of family violence and predisposition toward aggressive behaviour whilst intoxicated.
It is noted that during interviews with Mr N the Father failed to voluntarily disclose instances of binge drinking and family violence which conduct resulted in the parties each obtaining domestic violence orders against the other (it is noted that these orders were made without admission). Mr N subsequently became aware of these instances prior to conducting interviews for the most recent family report.
Mr N opines in his most recent report, at paragraph 11.3:
I am very concerned that [the Father] appears to fail to see any significance in his past behaviours and parenting ability. He appeared to see it not relevant that he had not raised to anyone two occasions of domestic violence which had resulted in domestic violence orders. He appeared to see it not relevant that he had not admitted at the last interview to excessive drinking which resulted in having a conviction for DD and admitting himself for treatment. He dismissed his past excessive alcohol intake as ‘There is no problem now, and no problem then. Damascus was in 2009, and HADS was a bender. I do CDT tests now as well’. [The Father] appears to show little insight into what appears fact that when drinking DV appears to happen around him, as evidenced with [Ms B] on two occasions, and strongly claimed by [the Mother].
The Father’s treating psychiatrist, Dr L, also prepared a report for the purpose of these proceedings dated 21 January 2013 attached his affidavit filed 31 January 2013. Dr L also gave oral evidence at trial and was cross-examined by each party.
The Father failed to disclose to Dr L the same incidents of family violence referred to above that resulted in domestic violence orders. Consequently Dr L was unaware of the Father’s involvement at the time of compiling his report and subsequently became aware during cross-examination. However, as will be discussed below, this did not vary Dr L’s ultimate conclusion with respect to the Father’s prognosis.
With respect to the Mother, as will be discussed below, I find that she is unable to differentiate between her own needs and those of the child. Consequently, as was noted by Dr V and Mr N, the Mother fails to see how her anxiety, hypervigilance and overreactions of the Father may adversely impact upon the child’s welfare.
In his report, at paragraph 12.2, Mr N opines that the Mother is:
…unable to see herself as having any difficulties, including denial of any past abuse whereas this had clearly occurred, ongoing smoking during pregnancy and post pregnancy, seeing her parenting as magical, when most parents of a three year old fully realise they at times have difficulty coping, and appearing to see all that occurs around herself is due to others if negative, and herself if positive… [the Mother] appears to be unable to see the needs of [the child] as being different to her own needs. She appears to be becoming enmeshed and lacking perspective of the needs of [the child] separate to her own needs.
The above concerns simply reinforce a need to consider her evidence with caution.Dr V noted in his report that the Mother is “a somewhat unreliable historian”. Dr V attributes this, at least in part, to “significant prejudicial features” in the Mother’s childhood, particularly, her history of sexual abuse within her adoptive family.
I accept the opinions expressed by each of Mr N and Dr V. Such acceptance gives consequent causes for concern about each parent’s parenting capacity as well as their reliability as witnesses.
History of Drug and Alcohol abuse by the Father and Family Violence
The central issue in the Mother’s case is the contention that the Father cannot have overnight time with the child due to incidents of family violence, alcohol and drug abuse occurring within the Father’s home. The Mother’s position is that there is a continual pattern of alcohol abuse and associated family violence in the Father’s relationships which is unlikely to change. The Mother contends that if the Father were to have overnight time the child would suffer harm as a result of being exposed to alcoholism and family violence at the Father’s residence.
The Father has a history of alcohol and substance abuse dating back to his youth. Between the ages of 18 and 24 the Father reportedly smoked marijuana on a daily basis and used amphetamines on a monthly basis. In or around 2002 when the Father was 24 years of age he decreased his marijuana use in favour of alcohol consumption. The Father claims that he ceased using marijuana permanently sometime in late 2011.
In November 2007 the Father reportedly began binge drinking to cope with relationship problems he was having with his then partner, Ms O.[1] In January 2008 mutual domestic violence orders were obtained by both the Father and Ms O.
[1] Affidavit of the Father filed 14 April 2011, paragraph 20.
The Father reports that he recommenced binge drinking shortly after meeting the Mother in January 2009. The Father states in his affidavit material that he continued to drink excessively until August 2009 when an incident of domestic violence between the parties caused him to seek treatment for alcohol dependence at the rehabilitation unit of a private hospital for 10 days.[2] The Father remained sober for 18 months following treatment until his most recent binge incident in November 2011.
[2] Affidavit of Dr L filed 31 January 2013, p 2; Affidavit of the Father filed 14 April 2011 paragraph 23; Affidavit of Dr V filed 18 December 2012 p. 7.
In October 2010 the Father reportedly began experiencing depressive symptoms following the birth of the child. He sought assistance from his general practitioner who referred him to psychiatrist, Dr L, for assistance in maintaining his mood and abstinence from alcohol.
On 24 May 2011 the Father began seeing Dr L on a fortnightly basis. At that time Dr L diagnosed the Father with Major Depressive Disorder as well as Alcohol Dependence in remission and cannabis abuse.[3]
[3] Affidavit of Dr L filed 31 January 2013 annexing medical report, p 3.
At trial the Father gave evidence that in or around November 2011 he became very distressed after the Mother denied him access to the child on the child’s first birthday. Upon hearing that he would not be seeing the child for his birthday the Father went on a binge for several days which ceased shortly after the police pulled him over for driving under the influence. The Father was subsequently charged on 30 November 2011 and lost his license for 12 months. The Father gave oral evidence that he recognised the problem and sought assistance shortly after he was pulled over by police from the Alcohol, Tobacco and other Drugs Service (“ATODS”). ATODS referred the Father to the … detoxification unit at W Hospital where he was admitted for rehabilitation for four days.
The Father maintains he does not have a problem with alcohol anymore and has had no binge incidents since November 2011. When questioned by the family report writer during interviews regarding his failure to disclose his alcohol relapse in November 2011, the Father replied “[t]here is no problem now, and no problem then. [The private hospital] was 2009, and [W Hospital] was a bender.”[4]
[4] Affidavit of Mr N filed 5 August 2013 annexing family report paragraph 7.3.
The Father continues to consume alcohol, mostly on weekends. During cross-examination the Father conceded that he knew he should not drink but stated he was no longer at risk of relapse as he now has strong support mechanisms in place, in particular, he is no longer depressed; he is in a stable loving relationship; and he and his wife Ms B are heavily involved in their church. Further, the Father reports that he is currently undertaking couples counselling with Ms B at D Christian Church[5] and is also seeking the assistance of a counsellor at ATODS to address his alcohol triggers.
[5] See the letter from D Christian Church dated 5 August 2013 admitted and marked as exhibit 9.
Dr V and Mr N have raised concerns regarding the Father’s varied reporting of alcohol use.
Mr N states in his report that the Father’s reporting of alcohol consumption “varies greatly depending on when he is asked – an occasional beer, half a bottle of wine to a six pack”.[6]
[6] Affidavit of Mr N filed 5 August 2013 annexing family report paragraph 11.4.
Dr V expressed the following as part of his conclusions in his written report (at p 19):
I also note that it appears that the father has struggled with alcoholism for various periods of his life and that he most recently suffered a relapse earlier this year but claims to have been able to manage his alcohol intake since that time. His alcohol intake would still be classified as in a binge pattern as he is drinking up to 8 to 9 standard drinks at a sitting and would still be considered unhealthy, especially considering his propensity to anger and violence whilst intoxicated. His propensity to anger suggests difficulty in regulating his affect and this could only be worsened by an intoxicated state.
The Father gave evidence in cross-examination that he currently consumes a six pack of mid-strength beer – equal to six standard drinks – over the course of a weekend, usually on Sunday when the child is not in his care. However he noted “there is no set pattern”.
When Dr V gave oral evidence he was told that the Father’s evidence was that he consumes a six pack of beer and perhaps a bottle of wine over the course of a weekend. Dr V maintained his initial conclusion and opined that six to eight standard drinks would still be classified a “moderate binge”.
In noting the Father’s history of alcohol abuse and pattern of regressing into binge drinking both Dr V and Mr N raised concerns that the Father is at significant risk of relapse whilst he continues to consume alcohol.[7] Dr V also noted a further risk of ongoing anger and aggression as long as the Father continues to drink.[8]
[7] Affidavit of Mr N filed 5 August 2013 annexing family report paragraph 13.3; Affidavit of Dr V filed 18 December 2012 annexing psychiatric report pp 19-20.
[8] Affidavit of Mr N filed 5 August 2013 annexing family report paragraph 13.3.
On the evidence of Dr V and Mr N, there is a pattern in the Father for abuse of alcohol and a relationship between his abuse of alcohol and his propensity toward anger and violence whilst intoxicated.[9] During his oral evidence Mr N stated that he continues to have concerns about the Father in those respects, including a concern about the Father’s lack of insight regarding his alcohol intake and an associated propensity to engage in family violence.
[9] Affidavit of Mr N filed 5 August 2013 annexing family report paragraph 13.3; Affidavit of Dr V filed 18 December 2012 annexing psychiatric report, p 19.
Each of the experts who gave evidence before me, Dr V, Dr L and Mr N, noted that the Father has taken significant steps to change his behaviour.
On the evidence provided by Dr L, since the Father began attending upon him in May 2011 the Father has regularly attended sessions and complied with all prescribed treatment and management plans. Further, the Father has submitted to regular drug testing conducted by Dr L since August 2011 with no evidence of illicit drug use or excessive alcohol use. Dr L notes that, at the time of writing his report, the Father had been off antidepressants for over six months and assessed the Father as not displaying any features of relapse of his depressive symptoms. Further, the Father has made ongoing appointments with Dr L and, as at trial, continues to see Dr L on a monthly basis.[10]
[10] Affidavit of Dr L filed 31 January 2013 annexing medical report.
During cross-examination Dr L reported that he does not see it as problematic that the Father continues to drink a six pack of beer each week. When questioned whether it would be better that the Father cease drinking entirely given his past difficulties with alcohol Dr L replied:
I suppose one view would be that of course it’s better not to consume alcohol, but then this is a society where alcohol is very much knitting to community and connection between community members, and I think as long as it’s controlled I wouldn’t have a problem with that.
In his report Dr L acknowledged the Father’s history of alcohol dependence, including his most recent lapse in November 2011, but ultimately concluded that the Father’s prognosis is “very positive” as “…he has sought out help and been successful in achieving sustained abstinence”.[11] Further, Dr L stated that as the Father has committed to ongoing sessions with Dr L and his ATODS counsellor, he believes the chances of the Father relapsing into alcoholism “are very small”.[12]
[11] Affidavit of Dr L filed 31 January 2013 annexing medical report, p 6.
[12] Affidavit of Dr L filed 31 January 2013 annexing medical report, p 6.
In reaching his conclusion Dr L distinguished the Father’s binge incident in November 2011, which he described as a “single significant lapse”, on the basis that it arose “…in the context of high levels of stress” and the Father sought assistance and obtained treatment following the incident.
Upon further questioning during cross-examination Dr L stated that normally 12 months is considered a significant period where someone has abstained from alcohol. I note that as at the date of trial the Father had allegedly abstained from binge drinking for approximately 18 months.
Dr L went on to state that in predicting a patient’s prognosis what he found most informative were certain “protective factors” which assisted him in reaching the conclusion that a patient has achieved sustained abstinence. In the case of the Father, Dr L referred to the fact that the Father is now in a stable relationship; he has support mechanisms in place, including his church involvement and counselling; he has put in considerable effort to stabilise his life and reduce stress; and he has made a consistent effort to obtain employment.
Family Violence
There are three family violence incidents of concern, two of which resulted in police attendance at the Father’s residence. On the first two occasions a fight erupted between the Father and Ms B after they had consumed copious amounts of alcohol which resulted in physical abuse being perpetrated by both parties.
The first incident occurred on 11 October 2011 at approximately 6 pm. At that time an argument arose between the Father and Ms B in the presence of Ms B’s two children. Based on the subpoenaed documents, particularly a report by the Queensland Police Service (“QPS”) (exhibit 3), the Father grabbed Ms B by the throat and threw her to the ground in front of the child E and reportedly told E that the police would take his mother away if they came. The Father then proceeded to sit at the top of the stairs holding a large plank of wood for “self-protection” until police arrived. Upon police attendance E reported that the Father had “pushed mummy over”. The Father denied to police that any physical contact had occurred. Following an application by police a protection order was issued against the Father for Ms B and her two children on 16 November 2011 (exhibit 3).
The Father gave evidence during cross-examination that he could not recall whether he had grabbed Ms B by the throat, he could only remember knocking her to the ground. However, the Father later conceded that it was possible that he had grabbed Ms B by the throat but he could not recall if he had done so as he was heavily intoxicated at the time.
The second incident occurred on 14 March 2012 at approximately 9.30 pm. On this occasion the Father contacted the police following an incident of physical abuse perpetrated by Ms B (exhibit 4). The Father alleged that Ms B pushed him down the stairs during an argument. At that time Ms B’s children were reportedly asleep in another room and did not witness the incident. Shortly thereafter the police applied for a temporary protection order for the Father against Ms B which was issued on 21 March 2012.
Child concern reports were made to the Department of Child Safety and Disability Services (“the Department”) following both incidents. No further involvement was taken by the Department after the incident on October 2011. Following the incident in March 2012 the Department made findings that neither E nor A suffered or were at risk of suffering significant harm as a result of the incident.
The third and most recent incident occurred in or around November 2012. On that occasion a family violence incident arose resulting in physical harm to the child A. During that incident the Father reportedly threw a bowl at a wall which smashed causing a piece of the bowl to hit A in the head. At trial the Father gave evidence that at the time of the incident he was washing dishes and was extremely frustrated as the Mother had withheld contact with the child X. The Father maintains that he threw the bowl as a result of that frustration and did not intend to hit or injure A in any way. The day after the incident the Father reportedly attended upon his pastor to seek counselling to address the matter.
The Department conducted an investigation between late 2012 and early 2013 in relation to the various child concern reports made regarding the children X, E and A. The Case Note Summary of this investigation and other associated case notes were admitted and marked as exhibit 6 in these proceedings. The Department made findings that both E and A suffered emotional harm as a result of the incidents of family violence addressed above. The Department also made findings that E suffered physical harm as a result of the bowl throwing incident (it is noted that this finding is an error by the Department and it was actually A who suffered physical harm).
The Department ultimately concluded that whilst there were findings of substantiated harm to E and A, the children were not in need of protection as they were not at an unacceptable risk of harm. Further, the Department found that the child X had not experienced harm in relation to any of the notified child concern reports and was thus not in need of protection (exhibits 1 and 2).
Recommended Overnight time
As noted earlier, a key issue of risk in this case is whether, having regard to the Father’s alcoholism and the alleged associated propensity for family violence, the child X will be at risk of harm if orders are made for overnight time with the Father.
In his most recent report, filed 5 August 2013, Mr N recommended that the Father have overnight time with the child. This recommendation is strongly contested by the Mother who maintains that the child would suffer harm as a result of being exposed to incidents of family violence, alcohol and drug abuse occurring within the Father’s home between 6.00 pm and 4.30 am.
The evidence of Dr L supports the Father’s assertions that he has turned a corner in relation to his alcoholism and family violence.
During cross-examination Mr N acknowledged the history of family violence and alcohol abuse raised by the Mother, however he went on to state that it is only in his most recent report that he has recommended overnight time. Mr N based this decision on the fact that that there is no ongoing family violence at present and the last incident was in November 2012. Further, the CDT testing results do not show ongoing drug or alcohol abuse or excessive alcohol intake by the Father.
After taking into account that the Father has sought treatment at appropriate times and is accessing therapy to address his depression and alcoholism, Mr N concluded that, on balance, the need for the child to have a relationship with the Father is outweighed by the potential risk of harm and recommended overnight time. In making this recommendation Mr N concurred with the recommendation of Dr V that should the Father have another incident of alcohol abuse or family violence, supervised contact should be reinstated for a period of up to six months.
Mr N also recommended in his report that both parties undertake courses within six months “on the effects of ongoing disputation upon children”.
On the expert evidence, which I accept, the relevant risk of harm to the child posed by overnight time with the Father is minimal and is to be considered and compared with the risk of harm the Mother poses.
Continuing conflict and alienation
I now turn to the other key issue of risk identified above, namely whether the child is at risk of alienation from the Father as a result of the continuing conflict between the parties, particularly in light of the Mother’s conduct and negative view of the Father.
The Mother has a resolute belief that the child is at risk of harm in the Father’s care. As earlier noted, Dr V and Mr N opine that as a result of this belief the Mother has become hypervigilant and has displayed highly inappropriate behaviour when it comes to the Father spending time with the child. In particular, the Mother has withheld the child from contact on various occasions; has followed or enlisted others to follow the Father when he is spending time with the child; and has made numerous allegations to the Department, the QPS and the contact centre that the child has sustained injuries whilst in the Father’s care.
As a result of these behaviours Mr N raised significant concerns in his report and at trial regarding the Mother’s lack of insight into her own behaviour and how it may damage the welfare of the child.
Mr N opines in his second family report, at paragraph 14.5:
[The Mother] appears unable to differentiate between her own needs and those of [the child]. She has become hypervigilant and over-reactive to all aspects of interaction with the father and [the child] as evidenced by her behaviour and noted by Dr. [V]. Her resultant behaviours have become excessive, obsessive, and place [the child] at potential psychological harm.
The Mother has a history of undermining the Father’s relationship with the child and withholding the child from contact as evidenced by the findings of Federal Magistrate Myers in June 2012. As earlier noted, on that occasion Federal Magistrate Myers found that the Mother withheld the childin breach of orders on six occasions without reasonable excuse and ordered the Mother to enter a good behaviour bond for 12 months.
Orders were subsequently made on 27 November 2012 for changeovers to be supervised by the R Children’s Contact Service.
Children’s Contact Service Supervisor Ms M gave oral evidence at trial during which evidence she confirmed that between late January and mid August of this year the Mother cancelled contact on approximately 18 occasions and the Father had cancelled contact on 11 occasions.
During her oral evidence Ms M listed the various reasons the Mother gave for withholding the child from contact. These reasons ranged from the ill health of the child and the Mother to the Father’s alleged failure to comply with orders. Ms M indicated that in more recent times the Mother has simply failed to provide the child for changeovers and provided no reason at all.
What is perhaps most concerning, as was noted by Dr V in his report, is the Mother’s withholding of the child on his birthday “as he had a vaccination the day before however in the mother’s Affidavit she had attended a birthday party with [[the child]] that day and had a lovely time.”[13]
[13] Affidavit of Dr V filed 18 December 2012 annexing psychiatric report, p 15.
During cross-examination the Mother initially maintained that she cancelled contact on the child’s birthday on the basis that he was unwell, however, she later conceded that she had planned a birthday party during the Father’s contact time which the Father was not aware of, nor invited to.
It is the Father’s position that the Mother has acted inappropriately at changeovers and stalked the Father and his family.
To support the Mother’s allegations that the Father has acted inappropriately at changeovers and that the child has sustained injuries whilst in the Father’s care the Mother has followed or had her associates follow the Father during the periods when the child is in his care.
As earlier noted, the Mother filed an Application in a Case on 25 November 2011 on the basis that the Father’s contact was not supervised on two occasions and that the Father had allegedly driven the child in an unregistered motor vehicle. Attached to the Mother’s supporting affidavit filed 21 November 2011 are photographs of the Father’s vehicle, allegedly demonstrating that the Father replaced the registration plates on his unregistered vehicle with those from another vehicle.
It was noted by Mr N that, as at the time of compiling his report in July 2013, there was a domestic violence order in place (contested) against the Mother regarding stalking and other intrusive behaviours toward the Father and his family. The Mother has filed various affidavits sworn by friends who “witnessed” the Father acting inappropriately during changeovers or during his time with the child.
The Mother began photographing the child before and after changeover and videorecording changeovers through the use of a camera that was concealed in a pen that she wore around her neck. Following time with the Father the Mother would attend upon her doctor and other medical professionals with the child to report the child’s “injuries”.
The Mother deposes in her affidavit (filed 5 February 2013) that upon seeking help to “protect” the child, she was advised by a police officer within the Child Protection Investigation Unit and also by the child’s doctor to take photos of the child before and after time with the Father to demonstrate that the child was returning with injuries. The Mother has subsequently filed voluminous affidavit material annexing photos of the child’s injuries to support her allegations.
To refute the Mother’s allegations the Father subsequently began videotaping and photographing the child.
As a result of this conduct and the ongoing conflict between the parties Dr V and Mr N raised concerns that the child is at risk of emotional and/or psychological harm.
Mr N opines in his report that:
[The child] appears at this age to be developing within normal guidelines. I would predict that if the current situations of adversity continue he is at significant risk of psychologically [sic] damage.
(emphasis added)
I note that Dr V made the following recommendation in his report (at p 20):
With respect to the potential emotional harm, clearly the child is at significant risk of emotional harm from both parents due to the conflicted nature of their co-parenting relationship. I would strongly recommend that both parents desist from seeking evidence through photos or videos or any other means in proving the other parent is causing physical harm to the child. As the child matures this would be grossly disturbing to him.
At trial the Mother maintained that she had not taken photos or video recordings of the child since she read the report of Dr V, save for one occasion in December 2012 where the child allegedly sustained a head injury at the Father’s wedding.
Since the November 2012 Orders were made, which required changeovers to be supervised at the R Contact Centre, the Mother has raised numerous concerns with Ms M and other supervisors at the contact centre, often in the presence of the child. During cross-examination by the ICL Ms M listed the various concerns the Mother raised with her, including that the Father appeared under the influence of drugs and/or alcohol at changeovers; that the child had returned from time with the Father with bruises and head lice; and that the Father was “involved with porn”. Ms M gave evidence that, in her opinion, there was no substance to any of the Mother’s concerns.
Several child concern reports have been made to the Department that the child is at a risk of harm and has sustained injuries whilst in the Father’s care. At trial the Mother conceded that she was the source of some, if not all, of these child concern reports. As earlier noted, as a consequence of the child concern reports made regarding the children X, E and A the Department conducted an investigation and assessment, a case note summary of which was admitted and marked as exhibit 6 in these proceedings.
The Department of Child Safety Investigation and Assessment Team Leader Ms S gave oral evidence by telephone at trial and was cross-examined by each party. Ms S confirmed in her evidence that the Department found no risk of harm to the child during their investigation and assessment of the Father. Ms S also confirmed that, as part of their investigation, the Department assessed whether the child was at any ongoing risk of harm in the Father’s care and found that the child was at no risk of harm in the care of either of the parties.
During cross-examination Counsel for the ICL asked Ms S whether she had had any further contact with the Mother since the conclusion of the investigation. Ms S stated that on 20 March 2013 she received a telephone call from the Mother requesting a further internal review of the Department’s finding that the child had not been harmed. This review was subsequently completed by a senior practitioner of the Department who concluded that the child had not experienced “harm” as the term is defined in the Child Protection Act 1999 (Qld).
In February 2013 an anonymous complaint was made to Crimestoppers, which was then referred to the Child Protection Investigation Unit at U Police Station, that the Father possessed child exploitation material of the child. The QPS Child Protection Investigation Unit (“the CPIU”) Detective Senior Constable F gave oral evidence at trial and confirmed in his evidence that the CPIU conducted a search of the Father’s residence and electronic devices and no child exploitation material was found.
Detective F gave evidence that upon discussions with the Father during an interview it became apparent that the Father had created a DVD of the child which contained images of the child’s genitalia, legs and other parts of his body to disprove the Mother’s allegations. The Father provided a copy of this DVD to the parties in these proceedings. Detective F confirmed that this DVD did not contain child exploitation material, no charges were laid against the Father, and no ongoing investigation has occurred.
During cross-examination by the ICL Detective F confirmed that the Mother had telephoned him regarding the outcome of the investigation on approximately four or five occasions, with the most recent call being received only a couple of weeks before trial. Detective F stated that on each occasion he advised the Mother that investigations would not be proceeding and that the Father would not be charged. However, the Mother requested that further clarification be obtained. Detective F subsequently consulted with his supervising officer and the Department of Public Prosecutions both of whom reached the same conclusion. That is, both the supervising officer and the Department of Public Prosecutions concluded that the DVD did not contain child exploitation material and thus, the Father should not be charged and no further investigation is warranted.
The Mother’s persistence in making allegations against the Father, even after the Department and the QPS have confirmed that the child is not at a risk of harm, resonates with the conclusions of Dr V who observes in his report, at pp. 17-18:
It is also clear that the mother has formed a belief that the child has been exposed to violence, both directly and indirectly because of the father and is hypervigilent to injuries to the child which often appear quite minor but also to behaviours in the child which she believes indicate exposure to abuse.
…
The Mother does appear to have developed a fixed idea that the Father is abusing the child... [which] has arisen in the context of her extreme anxiety about the welfare of the child in the care of the father and a hypervigilence around this with a tendency to jump to conclusion [sic] on quite minimal evidence and to endow great importance to suggestions otherwise that would objectively appear inappropriate but to ignore evidence to the contrary to her fixed belief. [14]
[14] See also, Affidavit of Mr N filed 5 August 2013 annexing family report, paragraph 13.2.
During cross-examination by Counsel for the ICL the Mother conceded that on 90 per cent of occasions the injuries she noticed on the child after contact with the Father may not have been noticed by the Father and that she “overreacted” in reporting those injuries.
Based on the evidence of Dr V it is likely that the Mother’s perception of the Father may be prejudiced as a result of sexual abuse during her own childhood by members of her adoptive family. Both Dr V and Mr N have recommended that the Mother “seek referral from her GP to a suitably qualified mental health practitioner to engage in psychotherapy”[15] to address her past history and experiences. However, to date the Mother has failed to do so.
[15] Affidavit of Dr V filed 18 December 2012 annexing psychiatric report p. 20
It is noted that the Mother is currently seeing a counsellor through Relationships Australia. However, as observed by Dr V, these sessions appear to be focussed on issues of domestic violence rather than broader issues which need to be dealt with, namely, the Mother’s parenting of the child and negotiating a co-parenting relationship with the Father.
Counsel for the ICL submitted in final submissions that the Court can be quite reasonably concerned that the Mother will alienate the child from the Father. The ICL based this submission on the plethora of evidence before the Court which demonstrates that the Mother has failed to support a relationship between the child and the Father.
In making this submission Counsel for the ICL made reference to the Mother’s ongoing failure to provide the child for changeovers and spend time with the Father in accordance with orders, including the Mother’s failure to allow the Father access to the child on his first and second birthdays. As earlier noted, in the course of her oral evidence the Mother admitted that she cancelled contact on the child’s birthday under the pretence that he was unwell, when in actual fact she had intentionally planned a birthday party during the Father’s contact time which she then hosted in the absence of the Father.
Counsel for the ICL also referred to the numerous allegations of harm made by the Mother to various authorities regarding bumps, scratches and bruises, which on the Mother’s oral evidence, were exaggerated on 90 per cent of occasions.
Application of s 60CC Best Interest Considerations
To adopt the terminology of Mr N, “…the outcome of where [the child] lives and who has parental responsibility appears more who of two not ideal parents would be better in their ‘not idealness’ for [the child’s] long term welfare.” Another, perhaps more accurate description, is that this case presents the Court with the selection of the “least worst” outcome in the child’s best interests.
As noted, the child was born in 2010 and is now three years of age. The parties separated when the child was two months old and since that time the child has lived with the Mother and had predominantly supervised time with the Father for a few hours each week.
The child clearly has a meaningful relationship with the Mother. It can be readily concluded, based on the history and evidence before me, that the child’s primary attachment figure is his mother. Mr N opines at paragraph 16.2 of his report that:
… The child already has an ongoing close bond to the mother, and to break this would be detrimental.
Mr N reported that the relationship between the Father and the child was “positive” but not as positive as that of the Mother and the child. He records at paragraph 11.2 of his report:
… Due to the difficulties in ongoing contact it is not possible to judge the closeness of the relationship, as all contact has been under what could be described as stressful conditions. It is not possible to actively compare attachment to either party, or to compare parenting skills, again due to the nature of the ongoing dispute, and that at nearly three [the child] will be significantly influenced by the behaviour of his primary caregiver. However, I can conclude that [the child] did appear to be comfortable with [the Father]. This has also been noted at the Contact Centre.
The ongoing conflict and lack of time the Father has spent with the child indicates that the Father and the child are likely to not at present have a meaningful relationship. However, there is a clear prospective benefit to the child developing and maintaining a meaningful relationship with the Father in the future (s 60CC(2)(a)).
As already discussed, I have found that there is minimal risk of harm to the child while in the Father’s care (s 60CC(2)(b)).
The orders sought by the ICL are the orders most likely to ensure that the child has a meaningful relationship with both his parents. They would see a gradual change in the child’s circumstances in that the child would initially spend unsupervised day time contact with the Father until he completes an Anglicare anger management course at which point the child would start having regular overnight time with the Father on a gradually increasing basis as the child gets older (s 60CC(3)(d)).
The Mother’s proposed orders would see a continuation of the child’s present circumstances, that is, him living with the Mother and having regular unsupervised time with the Father during the day and no overnight time until the child commences grade one of school. Upon the child reaching grade one, the Father may be eligible for overnight time if certain conditions (as outlined in the Mother’s proposed orders) are met. The Father would have overnight time with the child on a graduated basis culminating in overnight time each alternate weekend from 5.00 pm Friday to 4.00 pm Sunday when the child commences grade two.
Given the fact that the child has had no overnight time with the Father since separation it would not be a significant change to the child’s present circumstances if the Mother’s proposed orders are made. However, these orders would potentially sacrifice the child having the experience of his Father that he would be given by overnight time.
The Father’s proposal that the child now live with the Father would have a significant impact upon the child as it would reverse his present care arrangements. Given the attachment the child has to the Mother, his primary attachment figure and primary caregiver, there would need to be sufficient justification for this order to be made. As Mr N opines, the removal of the child from the Mother’s care “would be detrimental”.
Upon questioning the Father during his cross-examination it became clear that the Father’s decision to seek alternate orders for the child to live with him was based, in large part, on the Mother’s pattern of withholding the child from contact.
On the Father’s case, the only way that he will be able to have a meaningful relationship with the child would be if the child were to live with him because the Mother will otherwise continue to withhold the child from contact and do whatever she can to prevent a relationship between the Father and the child.
The Mother gave evidence in cross-examination that she would facilitate a relationship between the Father and the child in the future; however, upon further questioning by Counsel for the ICL it was readily apparent that the Mother would not facilitate such a relationship.
As has already been referred to, there is evidence in this case that historically the Mother has often and unreasonably taken opportunity to undermine the Father’s time with the child and has frequently found reasons (and not legitimate reasons) to withhold him from time in breach of court orders (s 60CC(3)(c)).
During her oral evidence I asked the Mother whether, in the event that that orders were made for the child to have overnight time with the Father before school age, she would comply those orders. The Mother repeatedly refused to answer the question. However, in a later passage of her oral evidence, after hearing the evidence of Dr L, the Mother changed her position and told Counsel for the ICL that she would comply with such orders.
As noted above, on 20 June 2012 the Mother was ordered to undertake a post-separation parenting course, however, to date she has not done so. The Mother gave evidence during her cross-examination by the ICL that she had enrolled in the course after the trial however has been unable to complete the course as she is on a waiting list (s 60CC(3)(i)).
During cross-examination Counsel for the ICL asked the Father whether the court has ordered or recommended that he undertake a post-separation parenting course. The Father acknowledged that in November 2012 the Court recommended that he undertake such a course, however to date he has not done so.
The Father has also enrolled in various anger management courses, however, to date he has not completed the same. Whilst I note that the Father stated during cross-examination that he has undertaken enquiries to recommence the course to date he has not done so.
As earlier noted, in his most recent report Mr N recommended that both parties undertake courses within six months “on the effects of ongoing disputation upon children”. The fact that both parties have not taken steps to follow such recommendation is indicative of their attitudes toward the child and the responsibilities of parenthood.
In that regard, Counsel for the ICL proposed in final submissions that orders be made for the Mother to engage in mandatory counselling in respect of the importance of supporting the relationship between the child and the Father.
The child is still very young. Given the history of the conflict between his parents, essentially for the whole of his life, there can be little confidence that these proceedings will necessarily bring an end to that conflict (s 60CC(3)(l)). This consideration was addressed by Counsel for the ICL who submitted that the ICL’s proposed orders are based on the present circumstances and, given the child’s young age, may only be appropriate for the foreseeable future if, as was submitted by the ICL, the parties “do the right thing”.
In that regard, the ICL made submissions that the current orders, that the Mother have sole parental responsibility for the child and that the child live with the Mother, are only being proposed because the Father does not have sufficient history to prove that he is capable of maintaining a stable home environment to the extent necessary to show that there is no risk to the child if the child were primarily living with the Father.
Given the Mother’s history of withholding the child, the ICL noted that should the matter return to Court it is highly likely that the ICL’s position will be different if the Father does not fall into a pattern of family violence or binge drinking.
Mr N opines in his report that unless orders are made for the child to live with the Mother, he does “not see the mother has an ability to cease legal action”.[16]
[16] Affidavit of Mr N filed 5 August 2013 annexing family report, paragraph 16.1.
Balancing of best interests considerations
As already noted the Father seeks orders for the child to live with him on the contention that this is likely to be the only way in which the Father will be able to have a meaningful relationship with the child and to spend time with the child on a regular basis.
On all of the evidence concerning the Mother’s conduct there is considerable substance in the Father’s position.
In circumstances where the Mother has been the child’s primary carer and the child is still so young the best outcome for him, if it is achievable, is for him to remain primarily living with the Mother but having regular time and communication with the Father uninterrupted by the Mother’s propensity to cause conflict.
If time proves that the Mother simply will not facilitate a relationship with the Father then the time will have arrived for a court exercising jurisdiction under Part VII to review the arrangements with a view to placing the child in the Father’s primary care. The child is entitled to a relationship with the Father, irrespective of any failings in the Father, and if that can only be achieved by the child living primarily with the Father then, unfortunately, that must be a likely outcome.
In this sense I emphasise to the Mother that she is being given a “last chance” to demonstrate her capacity to provide for the child’s needs by reasonably supporting and facilitating the child’s relationship with his father.
I note the recommendation of Dr V that:
If either party were to withhold the child against the Orders of the Court in an ongoing manner, this may also indicate to the Court an inability of that parent to prioritise the needs of the child to have a relationship with the other parent again would demonstrate them putting their own needs ahead of that child.[17]
[17] Affidavit of Dr V filed 18 December 2012 annexing psychiatric report p. 21.
In terms of time with the Father, resonating with the s 60CC considerations is the child’s young age and the fact that he has not spent any significant time out of the Mother’s care.
On that basis a proper balance in terms of s 60CC considerations is struck if the child live with the Mother and spend time with the Father on each alternate weekend, initially supervised until completion of an anger management course, at which point time may be unsupervised for a period before increasing to overnight time as the child gets older.
I find that the orders proposed by the ICL are orders which best meet the child’s best interests.
The Father has been abstinent from the worst kinds of drinking he pursued historically for a relatively short period. The Father may be able to demonstrate that his life is free from family violence after a longer period of time has elapsed, at which point the care arrangements may be able to be revisited by the Father.
I intend to make the proposed order by the ICL that the ICL monitor the parties’ compliance with these orders and that the ICL be discharged 12 months after the making of these orders give the considerations already discussed.
I do not propose to make an order for the Father to continue psychiatric treatment as sought by the ICL. The Father sought out Dr L and has been attending upon him on his own accord. I find he is willing and able to manage his treatment and is aware of the potential issues that would arise if he ceased to do so or failed to monitor his alcohol use. I will, however, make the order sought by the ICL for the Father to submit to drug and alcohol testing upon request of the ICL. This order can ensure that the Father’s drinking does not increase to a dangerous level and be a means of assuring the Mother of the child’s safety while in the Father’s care.
On all the evidence I am satisfied that it is in the child’s best interests that the Mother undertake the psychotherapy suggested by the experts and on that basis I propose to make the orders sought by the ICL in this respect.
Given no evidence was lead nor submissions made on the issue, I do not propose to make the Mother’s proposed order for the child’s name to be changed.
Parental Responsibility
Section 65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility in terms of decision making about major long-term issues.
Subsection (3) of that section provides:
The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
Notably, the section does not provide any mechanism for resolving any deadlocks. That is, if the parties are unable to come to a joint decision about an issue, being a major long-term issue as defined in the Act, then resort must be had, ultimately, to the Court to resolve the issue.
It is not in issue that family violence has occurred in the parties’ relationship and as such the presumption in s 61DA of the Act is rebutted in this case.
In any event, these parents were together only briefly and there is no realistic prospect based on their history that they will be able to co-operatively negotiate or even communicate and therefore it would not be in the child’s best interests for the parents to have equal shared parental responsibility. Mr N records in his second family report at paragraph 16.3:
… The now nearly three year old completely dysfunctional communication between the parties precludes even agreeing on the purchase of a communication book. Joint parental responsibility would result in further dysfunction.
I find that the Mother, as the parent with whom the child will primarily live, should retain sole parental responsibility, with the exception of decisions regarding religion and subject to the obligation to receive and consider the views of the Father. The Father clearly has a strong attachment to his religion and the Mother indicated during submission that she did not take issue with the Father having parental responsibility for decisions concerning the child’s religion.
Costs
Various interim orders made have included a provision for costs to be reserved to the conclusion of the proceedings.
By her Minute of Orders, tendered on the last day of trial (exhibit 17), the Mother sought an order that the Father pay her costs of and incidental to these proceedings. However, no evidence was led by the Mother on this issue at trial.
The material of both the Father and the ICL makes no reference to the issue of costs. Further, no evidence was provided by the Father nor the ICL at the final hearing in relation to the issue of costs. As such pursuant to s 117(1), each party shall bear his or her costs.
Further, as both parties were self-represented at trial they would have needed to produce evidence of specific disbursements or out of pocket expenses that could fall within the meaning of “costs” within s 117 of the Act (see for example Bones & Piwari [2000] FamCA 392).
It is noted that the Father was represented by Journey Family Lawyers from the commencement of proceedings in April 2011 until 27 June 2013 and the Mother was initially represented by Reardon & Associates until 10 August 2011 and was subsequently represented by Couper Geysen Family & Animal Law until 7 October 2011. However as the parties did not raise the issue at trial I am not minded to make any orders pursuant to s 117 such that the parties are left to bear their own costs.
For these reasons I make the Orders set out at the commencement of them.
I certify that the preceding one-hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 December 2013.
Associate:
Date: 20 December 2013
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