CAFFELL & FALCON
[2013] FCCA 1652
•25 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAFFELL & FALCON | [2013] FCCA 1652 |
| Catchwords: FAMILY LAW – Parenting orders – mother primary caregiver – child’s expressed and determined wish for no contact with the father – child’s anxiety and fear in respect of the father – child’s mental age significantly above chronological age – father’s lack of insight and mental health difficulties – sole parental responsibility to the mother – child to spend no time nor have any communication with the father – father a vexatious litigant. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 91B, 118 Federal Circuit Court Rules 2001 (Cth), r.13.11 |
| Applicant: | MR CAFFELL |
| Respondent: | MS FALCON |
| File Number: | MLC 82 of 2007 |
| Judgment of: | Judge Hartnett |
| Hearing dates: | 8, 9, 10 and 11 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 25 October 2013 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr O’Connell |
| Solicitors for the Independent Children’s Lawyer: | Peter Lynch |
THE COURT ORDERS THAT:
All previous orders are discharged.
The respondent mother (‘the mother’) have sole parental responsibility for the child X born (omitted) 2004 (‘the child’).
The child live with the mother.
The child spend no time with nor have any communication with the applicant father (‘the father’), save that as may be instigated by the child herself from time to time.
The child is permitted to travel outside the Commonwealth of Australia at any time, and no notification is required to be given to the father.
The mother is authorised and permitted to apply for and receive an Australian passport for the child without first obtaining the written consent of the father.
The father be restrained by himself, his servants and/or agents from being within 15 kilometres of the child’s school and the workplace of the mother.
The father shall not communicate with the mother, save in response to any communication instigated by the mother.
The parties henceforth exclusively use the name ‘Falcon’ as the surname of the child such that she be known as ‘X’, and they shall not cause or permit any other person to use any name other than ‘Falcon’ as her surname.
The mother be authorised to apply to the Registrar of Births, Deaths and Marriages to change the name of the child currently registered as ‘X’ to ‘X’, and the said Registrar do register the said child’s name as ‘X’, notwithstanding the consent of the father is not obtained.
THE COURT ORDERS WITH THE CONSENT OF THE MOTHER THAT:
The mother be restrained from seeking to alter the child’s surname further prior to the child’s 18th birthday, unless it is to revert to the surname of ‘Caffell’.
THE COURT ORDERS THAT:
Pursuant to s.118 of the Family Act 1975 (Cth) (‘the Act’) and r.13.11 of the Federal Circuit Court Rules 2001 (Cth), the father may not, without leave of a Court having jurisdiction under the Act, institute any proceeding under the Act against the mother MS FALCON born (omitted) 1974.
The mother shall sign all documents and do all things necessary to authorise any school the child attends to send to the father copies of all school reports and school photographs relating to X at the expense of the father.
The Order made 14 February 2012 appointing the Independent Children’s Lawyer be discharged.
Any school which the child attends from time to time may be provided with a copy of these Orders by the mother.
All exhibits tendered in the proceedings be returned after the expiration of the appeal period.
Otherwise all extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Caffell & Falcon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 82 of 2007
| MR CAFFELL |
Applicant
And
| MS FALCON |
Respondent
REASONS FOR JUDGMENT
There comes a time in litigation between parties when that litigation must cease. In respect of parenting order proceedings, that time is now. As a corollary, there also comes a time, even in family law proceedings, when the Court must act to ensure that further oppressive litigation is not instituted by one party against the other. In the history of this matter, proceedings first commenced in late 2006 when the mother instituted proceedings against the father in the nature of a recovery order sought for the return of the parties’ daughter, whom the father had over-held. Those proceedings were filed in the Family Court of Australia. The Court ordered the child to be returned to the mother’s care. Later that Court transferred the proceedings to this Court.
The child, the subject of the proceedings, is X who was born on (omitted) 2004 and who in (omitted) next year shall be 10 years of age. Following her birth, X’s mother remained at home caring for her until (omitted) 2006 when she returned to the work force. She was at that time X’s primary attachment figure. X was two years of age when the proceedings between her parents commenced, being a time shortly after their separation. They separated in approximately September 2006, and the mother and child remained residing in the former matrimonial home in (omitted) until its subsequent sale. In the intervening years between October 2006 and now, there has been on foot various pieces of litigation (the father asserts 56 court appearances) which have culminated in various orders, including final orders. As early as 23 July 2007, an interim Order was made for the mother to have sole parental responsibility of X. X’s time spent with her father was to be with the maternal grandmother or the then girlfriend of the father, Ms B, in substantial attendance, apart from kindergarten on Monday afternoons. Various restraints were imposed upon the father with regard to taking X to medical practitioners, photographing her, recording her or otherwise discussing with X, or in her presence, allegations of abuse or neglect. Dr N had prepared a report and Dr E was to become involved. Repeated notifications, mostly by the father but not exclusively, had been made to the Department of Human Services causing unnecessary emotional distress. The Court had made a request pursuant to s.91B of the Family Law Act 1975 (Cth) (‘the Act’) for the Department of Human Services to intervene in the proceedings. Final Orders were made on 11 March 2008 by Federal Magistrate O’Sullivan (as His Honour then was). Those Orders were unopposed by the father and consented to by the mother and the Independent Children’s Lawyer. They provided for the mother to have sole parental responsibility of X and the father to have supervised time spent with X. Aiders and Carers and either (omitted) Contact Centre or (omitted) Contact Centre were to become involved. By 20 October 2008, the matter was back before Federal Magistrate Riley (as Her Honour was then). On 5 May 2009, (omitted) and (omitted) Community Services were referred to in Orders as supervisors. On 23 July 2009, Federal Magistrate Riley (as Her Honour then was) made further final Orders by consent that provided for the following:-
“1. All previous parenting orders be discharged.
2. The father and wife have equal shared parental responsibility for the child, X born (omitted) 2004 (“X”).
3. X live with the mother.
4. Save in the case of medical emergencies, the father be and is hereby restrained by himself, his servants and agents from taking the child to any medical professional other than a general medical practitioner nominated by the mother (or other medical practitioner referred from the nominated general practitioner).
5. For the purposes of this order the mother shall advise the father in writing of the details of the general medical practitioner or any changes thereto.
6. The father continue to attend upon his treating psychiatrist, Dr S, or his nominee, not less than once per month for the next 12 months and thereafter as directed by Dr S or his nominee and the father cause Dr S or his nominee to forward to the mother written confirmation of his compliance with this order each three months for the next 12 months.
7. X spend time with her father:
(a) from 10.00 am to 3.00 pm Christmas Day 2009 with her time with her father be suspended on 27 December 2009 to enable X and the mother to spend Christmas in Queensland;
(b) from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2010 and alternate years thereafter with X’s time with her father and be suspended from 3.00 pm Christmas Day until 3.00 pm Boxing Day in those years; and
(c) from 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2011 and alternate years thereafter and the father’s time be suspended from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in those years.
8. Except as otherwise provided in these orders, the father and mother keep one another informed of their residential address and provide the other party with 30 days written notice of their intent to change such address.
9. The parties notify one another in the event of a medical emergency or serious injury in relation to X.
10. The parties are to keep one another advised of any medical appointments for X and may discuss X’s condition and progress with such professionals as she attends.
11. The parties use a communication book to discuss any issues associated with X.
12. The parties authorise any school that X may attend to send copies of photographs, newsletters, school reports and other information normally disseminated to parents to both the father and mother.
13. Commencing in 2010, X spend time with her father on the Father’s Day weekend from 5.00 pm on the Saturday until 5.00 pm Father’s Day if it does not otherwise fall in a period the father spends with the child and the father’s time be suspended on the Mother’s Day weekend from 5.00 pm on the Saturday to 5.00 pm on Mother’s Day.
14. X’s weekend and Wednesday time with her father be suspended during school holiday time commencing in the term one holidays of 2010.
15. The father and the mother and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of X, and from permitting any other person so to do.
16. The father and mother, and their servants and agents, are restrained from discussing any information pertaining to these legal proceedings with or in the presence or hearing of X, and from permitting any other person so to do.
17. Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, it is certified that it was reasonable for each of the parties to employ an advocate.
THE COURT ORDERS THAT:
18. The mother be restrained from changing the residence of X to (omitted) before 31 December 2009.
19. The mother is to give the father 60 days written notice of her intention to change X’s residence to (omitted).
20. In the event that the mother changes X’s residence to (omitted), the mother is to enrol X in (omitted) Primary School.
21. The mother is restrained from changing X’s school from (omitted) Primary School without the consent in writing of the father or without an order of the court.
22. X spend time with her father for three hours on 2 August 2009, 9 August 2009, 16 August 2009 and 23 August 2009 under the supervision of (omitted) Community Services with changeover to occur at (omitted) in (omitted).
23. From 30 August 2009 to 25 October 2009, X spend time with her father unsupervised each Sunday between 2.00 pm and 5.00 pm with changeover to occur at (omitted) in (omitted).
24. From 1 November 2009 to 20 December 2009, X spend time with her father unsupervised each Sunday between 10.00 am and 3.00 pm with changeover to occur at (omitted) in (omitted).
25. X spend time with her father unsupervised:
(a) from 3 January 2010 to 24 January 2010 each Sunday from
9.00 am to the following Monday at 9.00 am with changeover to occur at (omitted) in (omitted); and
(b) from 7 February 2010 at 9.00 am to 8 February 2010 at 9.00 am and each alternate weekend thereafter to 27 June 2010.
26. From 27 June 2010 onwards:
(a) if the father is living within 5 kms of X’s school, X spend time with her father unsupervised in alternate weeks from Sunday 9.00 am to Tuesday 9.00 am; and
(b) if the father is not living within 5 kms of X’s school, X spend time with her father unsupervised from after school Friday to Sunday at 5.00 pm in each alternate week.
27. From 17 March 2010, X spend each alternate Wednesday with her father unsupervised from after school to 6.30 pm with changeover at school at the commencement and at the mother’s house at the conclusion.
28. After 24 January 2010, changeovers that do not occur at school or on Wednesday occur at (omitted) Contact Centre.
29. In the April 2010 school holidays, X spend four nights with her father from after school on the last Friday of term to 5.00 pm the following Tuesday.
30. In the July 2010 school term holidays and subsequently, X spend half school term holidays with her father at times to be agreed and, in default of agreement, from after school on the last day of term to 5.00 pm seven days later.
31. X spend half of the long school holidays with her father commencing December/January 2010/2011 at times to be agreed and failing agreement for the first half of the holidays commencing in even numbered years and the second half of holidays commencing in odd numbered years.
32. On X’s birthday:
(a) X spend time with the father from 3.30 pm to 5.30 pm if it is a school day and from 12 noon to 4.00 pm if it is on a non-school that X would otherwise spend with the mother; and
(b) X spend time with her mother from 12 noon to 4.00 pm if it is a non-school day that X would otherwise spend with her father.
33. The cost of (omitted) changeover be shared equally by the parties.
34. The father forthwith enrol in an complete the ‘Stand by Me’ parenting program at (omitted).
35. Following the father’s compliance with the preceding order, the father and mother forthwith attend for mediation with respect to parenting issues at (omitted), and comply with the reasonable directions of the appointed mediator.
36. X spend such further or other times with the father as the parties may agree.
37. X communicate with her father by telephone on Tuesday between 6.30 pm and 7.00 pm, unless she is spending time with her father on that day, in which case X communicate with her father by telephone on the following Wednesday between 6.30 pm and 7.00 pm.
38. For the purposes of telephone communication, the father is to telephone X on (omitted), or such other number is advised by the mother to the father in writing.
39. The Independent Children’s Lawyer be discharged.
AND THE COURT NOTES THAT:
Pursuant to ss.62B and 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 Attachment A and these particulars are included in these orders.”
Within 12 months and in May 2010, the father came back to Court again. His variation application was dismissed in July 2010 as was subsequently his amended variation application in September 2010.
These proceedings commenced with the father filing a Contravention Application on 12 December 2011 and an Initiating Application on 13 December 2011. He filed a further Contravention Application on 13 December 2011. Those contravention applications had numerous counts. They were either dismissed by the Court or withdrawn by the father. During the currency of these proceedings, the father has given his consent to the mother relocating the residence of X to (omitted) Queensland. The relevant orders are those of 27 July 2012 and 10 December 2012.
The Orders made 27 July 2012 included, in part, the following:-
“BY CONSENT IT IS ORDERED
Until the Hearing and determination of this Proceeding or until further Order:
1. That the parties have shared parental responsibility for the Child, X, born (omitted), 2004.
2. That the X (sic), X, be permitted to relocate to (omitted) Queensland with the Wife as from 15th January, 2013.
3. That the Child, the Husband and the Wife undergo intensive therapeutic counselling with Mr G, as soon as practicable, with the Wife and Husband and the Child to accept the reasonable directions of Mr G which will include:
(a) him seeing the Child, X, initially on her own;
(b) making a determination as to when the Husband and Child should be seen together; and
(c) making recommendations for further counselling for the Husband and Child both together and independently.
4. That the Wife and Husband forthwith do all things necessary to give effect to Order 2.
5. That the costs of the intensive therapeutic counselling be shared equally between the parties.
6. That Mr G provide a Report to the Court by 25th January, 2013, detailing his recommendations regarding:
(a) the "spend time arrangements" between the Husband and the Child, once the Child has relocated to (omitted) Queensland;
(b) further counselling for the Wife, Husband and Child, collectively and individually; and
(c) any other relevant matter.
7. That the Independent Children’s Lawyer shall as soon as practicable provide Mr G with:
(a) a copy of these Orders;
(b) a copy of the 2012 Family Report; and
(c) a copy of the 2012 Ms M Report.
8. That the further Hearing of the matter be adjourned to 11th February, 2013 for a one day Hearing for consideration of Final Orders in relation to spend time arrangements for the Husband after the Child has relocated to (omitted) Queensland.
THE COURT NOTES
1. That Mr G, telephone (omitted), has been notified of Order 3, 4, 5 and 6 and agrees to do the acts referred to therein.
2. That the Family Consultant, Mr U has been advised of the Proposed Orders and does not object to them.”
The Orders made 10 December 2012 included, in part, the following:-
“THE COURT ORDERS BY CONSENT THAT:
1. The mother and father equally share the costs of Mr G’s report referred to in order 6 of the orders of 27 July 2012 (and the costs of Mr G’s attendance at Court on 11 February 2013 if attendance is required).
THE COURT ORDERS THAT:
2. The application in a case filed 29 October 2012 is dismissed.
(I note this was another application of the father).
3. The child X born (omitted) 2004 (‘the child’) is to attend (omitted) State School in Queensland for the school year commencing January 2013 until further order.
4. Order 2 of the orders made 27 July 2012 is amended such that the mother is permitted to relocate the residence of the child to (omitted) Queensland from 21 December 2012.”
Before the recent final hearing in this latest round of litigation, there were interim hearings, the contravention applications filed by the father, adjournments and amended orders sought. There has been some agreement, sensibly X’s move to (omitted) Queensland. That is a place with which the father is familiar, and which he contemplates residing in himself. He has spent considerable time in (omitted) and has friends there. The mother sought to relocate to Queensland in 2009, but withdrew such application. Her mother, one sister and brother reside in that State.
Over the many years, considerable cost has been occasioned to the parties, Victoria Legal Aid and the Court. Considerable time has been spent running proceedings in the Court. Numerous professionals have been involved, mostly in the capacity of expert witness in the various proceedings. Those professionals have included:-
a)Dr N, psychologist;
b)Ms D, Regulation 7 Family Consultant;
c)Mr U, Regulation 7 Family Consultant;
d)Ms C, psychologist;
e)Dr S, the father’s treating psychiatrist;
f)Dr E, psychiatrist, who provided psychiatric assessments of the mother and the father;
g)Dr K, consultant psychiatrist, who provided an assessment of the father; and
h)Mr G, psychologist.
For the purpose of these proceedings, the Independent Children’s Lawyer relied upon the evidence before the Court from Ms M and as contained in three expert reports; the first being from Mr U, Regulation 7 Family Consultant, who prepared a Family Report dated 27 June 2012 and the second and third being from Mr G, clinical psychologist, who prepared reports on 6 December 2012 and 21 January 2013. Mr G had regard to some of the earlier reports provided by the experts referred to in paragraph 5 of these Reasons. Some of those experts, Dr N for example, had provided a number (three) of earlier reports.
It is a rare case where orders are made that a father spend no time with, nor communicate with in any way, his child. It is not a decision arrived at lightly. It is a decision that must be made with reference to the Act and those matters which the Court is mandatorily required to consider in cases of this type. In the particular circumstances of this case, after the involvement of so many professionals over time; with the constancy and oppressive nature of the litigation upon the mother as instigated by the father; and given the child’s continued expressed and determined wish to have nothing to do with her father, the competing applications, as they present to the Court, are not finely balanced ones. The tenor of the evidence overwhelmingly supports the application of the mother. This was recognised in closing by the Independent Children’s Lawyer. He sought, with minor exception, the orders as sought by the mother.
The most compelling piece of evidence in these proceedings was that given by Mr G. He was cross-examined by each of the parties. He is a very experienced clinical psychologist, family counsellor and single expert witness in family law children’s matters. The evidence given by him withstood the father’s cross-examination and was supportive of, or confirmed, the evidence given by the mother. On a consideration of the totality of the evidence, the recommendations made by Mr G, I find, so evidently in X’s best interests. Those recommendations were crystal clear and exclude the father from X’s life for the next eight years. Because of its pivotal nature, I shall deal firstly with Mr G’s evidence.
Statements of fact in these Reasons are findings of fact on the balance of probabilities.
The evidence of Mr G
Mr G became involved in the proceedings, as he was one of the persons recommended by Mr U who could provide to the parties intensive therapeutic counselling. That therapeutic counselling, ordered by the Court on 27 July 2012, commenced on 13 August 2012. It proceeded over sixteen weeks, with X having thirteen private counselling sessions, the mother having thirteen individual consultations, and the mother and child also being seen conjointly in some part of those sessions. The father attended on nine occasions, some of which were attended also by his de facto partner, Ms S. X’s step-father, Mr M, who married the mother on (omitted) 2011 (after commencing their relationship in 2009), was also seen by Mr G both in company with his wife, and privately. Mr G described the counselling as psychotherapeutic counselling that was reasonably intensive. Each session was approximately one hour to one hour and 25 minutes in duration. It was conducted with the parties accepting the reasonable directions of Mr G. That included as to whether X would be seen by Mr G in the presence of her father. Further, whether the mother and father would be seen conjointly. Mr G concluded that it was entirely inappropriate to have both parties together in any counselling session. His reasons for that opinion were that there was a high level of hostility between them, and a very strained relationship. His belief was that there was no therapeutic gain in pursuing conjoint counselling.
In his Report of 6 December 2012 and his subsequent Report of 21 January 2013, Mr G recommended that there should be, in X’s best interests, no further court ordered requirement for X to spend time with her father, nor should there be a requirement for her to communicate by telephone with him. Mr G further recommended that it would be in X’s best interests if she were to remain in (omitted) Queensland with her mother, and that her mother should have sole parental responsibility of her. Further, he recommended that it would be in X’s best interests that there be no ongoing court ordered requirement for either the mother or the father to have counselling, and that X should only receive counselling in the event that she personally requests it, or that her mother considered it desirable.
Mr G’s evidence was that X exhibited an “extremely high” level of anxiety in respect of her father, and a “fear” of him. These elements of her presentation were pervasive in the sense that when Mr G endeavoured, by drawings or direct reference to her father, to engage in a discussion with X about him, X became intensely anxious in a short space of time. She indicated that she did not wish to talk about her father, and that she was afraid of him. Mr G determined that it would have caused great distress to the child to continue the discussion, and so desisted.
Mr G’s evidence was that X displayed trenchant and intense resistance to seeing her father. Mr G considered it would be traumatic for her to be required to do so. He noted that she exhibited a fear of the prospect of meeting him, and anxiety about him as a person. Mr G reported in December 2012, that the father had limited insight into the appropriate care of a preschool and primary school aged child. He said, for example, his endeavours to confront the father in counselling with negative reports from (omitted) workers were dismissed, because the father considered those workers unprofessional and therefore their views carried no weight in his mind. Mr G said further, the father seemed unable to consider even the possibility that some of his behaviour when X had been in his care might have, in any way, contributed to the child’s fear of him. In response to the father blaming the mother for X’s refusal to see him, and his claims that she has coached and actively alienated his daughter from him, Mr G could find no clinical evidence to support such claims. In his professional opinion, this case was quite clearly not one of parental alienation, but rather one of the father’s personality and the child’s independent reaction to it.
The father’s personality has an adverse and damaging impact upon his daughter. Her express wish, maturely held, is not to see him. The prospects of the father’s personality altering in any favourable way are remote. In Mr G’s opinion, it is highly likely that X’s extreme anxiety about spending time with her father, arises out of repeated instances of his inappropriate and gradually alienating treatment of her over a number of years. Further, in his opinion, X’s very high levels of anxiety and fear about the prospect of spending time with her father, have remained unabated despite intensive individual psychotherapeutic counselling, and he recommended to the parties that counselling with that goal in mind should be discontinued.
Mr G’s second Report of 21 January 2013 was based on a large number of counselling interviews with X; the father and his partner, Ms S; and the mother and her husband, Mr M. In addition, Mr G noted that he found it especially helpful to read the nine reports of mental health professionals who had earlier been involved in the matter. He noted that each of the mother and father had provided notes and personal documents which, to a greater or lesser extent, had also been helpful.
Mr G’s evidence was that the reports read by him had been provided to him by the Independent Children’s Lawyer. Some of those same reports may also have been provided by the mother. The father referred to a Report of Dr S which predated the two reports read by Mr G, with reference made to them in his annexures. It is clear that he was not provided with the earlier Report of 2009, but the reports that he was provided with of 12 December 2011 and 6 February 2012 were more recent in time but provided historical content. They were both favourable to the father in that they confirmed the father took no medication and concluded the father had no diagnosed mental illness. The content was based on a history as provided by the father. Mr G accurately noted such reports. Although the father seemed concerned and put to Mr G that he should have read the three reports of Dr S, Mr G indicated that he had not, but that in any event, his observations and therapeutic intervention led to his conclusions in the main, and he was only assisted – that is, they were not determinative – by the reports that he had read.
Mr G gave evidence as to X’s maturity. He described her as having a mental age significantly above her chronological age. He described her as an articulate child whose socialisation at school was satisfactory. She was well-liked. He described her as having a very affectionate, outgoing and warm relationship with her mother. He described her as quite a delightful child and one who was “rather older than her years about matters in general”. The anxiety that he spoke of in relation to X was not a generalised anxiety; it was rather “absolutely, specifically, only anxiety about meeting with her father or talking to him on the phone”. Mr G’s further evidence, that X’s description of her father as a person “who lies”, he noted to be highly significant at her age and her stage of development.
Mr G said of the child’s development, that when she was aged four to seven years, these were the magic years, being a period of intuitive thought. At this time, in many children’s lives, Father Christmas, the Easter Bunny and the Tooth Fairy are prominent. X, at that stage, he speculated, was by nature probably outgoing and cheerful and not able to understand what was happening in the relationship between herself and her father. Mr G noted that the evidence from (omitted) reports, at that time, were that the father was behaving inappropriately in his interaction with her as observed by workers there.
Mr G noted that in January 2008, X was accepting of her father, regardless of his inappropriate behaviour, as she did not have sufficient maturity to evaluate it. By late 2012, when undergoing intensive therapeutic counselling with him, she did have such necessary maturity. She had moved, in his evidence, from the magic years to the upper primary school years of logical thought and a rather more detached appraisal of other people. She observed her father’s behaviour to be inappropriate and stressful for her.
Mr G’s evidence was that the father has “very little insight at all into X’s developmental needs, now and probably in the past”. When asked to respond to the father’s recent application by amended application that X live with him, Mr G’s response was that it was an entirely unrealistic, and totally inappropriate application. It confirmed, for him, that the father’s own mental health problems resulted in the father having “absolutely no insight” into the needs of X.
Mr G noted that one feature of the father’s personality was his resoluteness. He was resolute that his own beliefs were accurate, and resolute in what he perceived to be X’s best interests. In respect of his perception, Mr G’s view was that nothing could be further from the truth. Mr G approached the therapeutic counselling with the family by, at the outset, endeavouring to come to a diagnostic understanding of the way in which X behaved in such a strongly adverse fashion toward her father, and her refusal to spend time with the father, which required an attempt to diagnose the developmental cause of the problem in order to form the counselling strategies which were required.
Mr G considered the family history, which I shall detail herein in the following paragraphs. It includes the history of X’s care from the age of two when the parties separated in late 2006 to the time of Mr G’s consultations. In 2006, X was spending time with her father and between her parents on an approximate week-about basis, which was quickly altered to X seeing her father on weekends only. The father over-held X in late October 2006, and again in early 2007. By July 2007, as referred to earlier in these Reasons, the mother was granted sole parental responsibility for the child, with the father’s time with X to occur with the maternal grandmother or the then girlfriend of the father, Ms B, in substantial attendance, apart from kindergarten on Monday afternoons.
The father has been, by order, restrained from taking X to a medical practitioner unless there was a medical emergency; from photographing or otherwise recording X; and from discussing with her any allegations of abuse or neglect. I note that by early notification (in the history of the parties’ separation), the Department of Human Services commenced their involvement with the family. Various notifications made to them over the years included, on the father’s part, sexual abuse notifications against the mother and/or the mother’s then partner and her father, and a notification from a general practitioner to whom the mother had taken the child, against the father in respect of a sexual abuse allegation. The father also made allegations of physical neglect of the child by the mother in respect of the food being provided to the child by the mother, which he determined required a hospital admission, instigated by him in a circumstance where the child had constipation. The father was also, in 2007, required to attend for psychiatric assessment and not to be present at changeover. In October 2007, the father again over-held X. In February 2008, her time with her father was required to be supervised by Aiders and Carers for three hours each Monday and each Wednesday. In March 2008, the father’s contact was to be supervised by. Aiders and Carers two hours each fortnight and in the alternating week by either (omitted) Contact Centre or (omitted) Contact Centre for two hours each week. In December 2008, contact was supervised by (omitted) instead of Aiders and Carers, but in March 2009 they reduced their service, in part due to the father’s inappropriate behaviour and in other part due to a lack of funding.
From 30 August 2009 until December 2011, X spent unsupervised and overnight time with her father. The mother stated that during 2010 the child became more clingy and unsettled, and displayed signs of anxiety. In August 2010, the principal of (omitted) Primary School reported that X was distressed about seeing her father, following which her mother obtained a referral to a local psychologist, Ms C. Ms C was recommended by both the principal and the (omitted) Medical Centre which X attended. The mother did not advise the father of this referral, nor the first appointment until after its conclusion. Her evidence is that had she done so, the father would have interfered and stopped the appointment. She believed it was very necessary for X’s emotional well-being at that time to attend. There were a couple of counselling sessions then held, which were terminated on the father’s insistence, as anticipated by the mother.
On 24 November 2011, X was admitted to the Royal Children’s Hospital due to a lung infection. The mother remained bedside at the hospital during the days that the child remained there, and the father spent considerable time there. The father’s inappropriate behaviour on the ward which included speaking harshly or sharply to a nurse, led to a code grey being called requiring the attendance of security staff. As a result, X was further distressed about her father’s presence and behaviour, albeit the reported incident was not in her presence and she heard about it subsequently. Mr G noted that a code grey was a fairly significant alarm, and includes actual violence as well as verbal threat. The Royal Children’s Hospital file was subpoenaed by the Independent Children’s Lawyer, and tendered in evidence before the Court. That file had earlier, and unbeknownst to the other parties and the Court, been accessed by the father pursuant to the Freedom of Information Act 1982 (Cth). The father first obtained the file unredacted, and then made a request of the Royal Children’s Hospital that they omit that part of the file which related to the code grey incident and his behaviour, and provide a further copy of the file to him with that information redacted. That request was contained in a second letter, undisclosed by him. He specifically requested that the Royal Children’s Hospital “omit inappropriate nurse comments not pertaining to the health of the child”. He required the Royal Children’s Hospital to telephone him for details. The father did not give his consent, it being about him, to that information’s disclosure. The father produced in Court and tendered in evidence the redacted version of the Royal Children’s Hospital file, together with his first letter requesting production of the file. That first letter requested information concerning the security incident. He deliberately set about misleading the Court as to the contents of that file. He did not inform the Court of the sequence through which he went to obtain the information and, in particular, his request that the necessary and pivotal information be removed. He claimed, bizarrely, that the mother managed to include the security incident in the notes (I find she did not) and that it was not proper procedure.
He also was, I am satisfied, aware that such document could have been subpoenaed by him, but that it would then be available for inspection by all the parties. He chose to adopt the course he did to ascertain what was on the file and then to seek its removal so as to mislead the Court. It was a deliberate act on his part. Once it became apparent, upon production of the file pursuant to subpoena, as to what he had done, the father’s evidence altered from that given by him the previous day to insist that the hospital had misidentified him as the father of the child, and that the notes really referred to Mr M, the step-father of X, to whom X refers as “daddy”. He claimed the nurses “profusely apologised to him” for their “big mistake”.
This suggestion, given as evidence in the witness box by the father, was farcical and his evidence in respect of the entirety of this matter a complete lie. It was an illustration of what Mr G said the father does, which is to take “scant recognition of the truth”. Mr G noted the accuracy of the daughter’s perception of the father when, at the age of eight and a half years, she said “he lies”.
The inpatient progress notes of 24 to 27 November 2011, clearly identified and distinguished between X’s mother, step-father, biological father and step-mother. The father is referred to as both “Bio-F°” and “F°-Mr Caffell”. There is no confusion evident on the face of the notes nor any misidentification of the various persons referred to. X presented on admission via ambulance with asthma/ pneumonia. Hospital management included the provision to her of oxygen and ventolin, the ventolin initially at two to four hourly intervals as required. The father continued to assert in these proceedings that X had never suffered from asthma and that the giving of ventolin to her by the mother on occasion was a deliberate act, intended to sabotage his relationship with his daughter by her in a negative way associating the taking of ventolin (when with him) with spending time with him. In fact, X did require the assistance of ventolin for a time which continued following her discharge from hospital. She then was medically assessed as having no further need of it.
Whilst X was in hospital and on 26 November 2011, the father became agitated with a nurse. On the day following, he attended at the hospital again. His behaviour, in part, was recorded on that day by Ms T, a nurse on duty. The hospital notes record the following entry:-
“F°-Mr Caffell insisted on speaking with myself and Dr, followed us out of room. Wanted to know if he had “read through” pts history.. A few moments later Mr Caffell and Step-F° - Mr M were noted to be in discussion heading into parent room lounge. As I approached I could hear raised voices. When I rounded the corner Mr Caffell came out of parent lounge, raised his voice to myself, briefly raised his hand to myself and stated “this is your fault. I don’t like you, I don’t like the way you spoke to me in there.” I retreated away and called a “code grey”.”
X subsequently attended with her mother at the Royal Children’s Hospital for a follow-up breathing test on 23 December 2011. Security were again called due to the behaviour of the father who also attended. The father was requested to leave the hospital. He initially declined to do so. X stated to the social worker on duty, Ms E, in respect of her father “I can’t breathe when he’s there. I am frightened of him”.
Mr G set out in his Report of 21 January 2013 a verbatim transcript obtained by him on 17 October 2012 when, with the mother’s permission and X’s agreement, he made an audio recording of his discussion with her about her father. He reflected in evidence that in hindsight perhaps he should also have informed the father of this process adopted by him. That omission did not however have a bearing on what transpired. He noted that X, whose speech and language development he had found to be advanced for her age, and being a child who impressed as being of above average intelligence, conveyed clearly in that audio recording the nature and strength of her negative views and sentiments with respect to her father. He said it was noteworthy that X, on this occasion and at other times, stated that her mother encouraged her to see her father. The verbatim transcript is as set out on page 5 of his report and is as follows:-
“Mr G What time is it now?
X Three o'clock um three ten
Mr G Three ten and do you know what the date is?
X 17110/12
Mr G That's right and the recorder is on and is it OK?
X Yes
Mr G I'll just see if it is recording alright, yes it seems to be recording. Well you were saying things about Mr Caffell and you were saying things so quickly that I couldn't write it down and they were very important things and I really want to hear what you are telling me so what will happen is that when we finish I will get my secretary to type up from the tape what we have been talking about - so is that alright?
X Yes
Mr G OK - so you were telling me about Mr Caffell and people wanted to convince you that he is nice and then what did you say?
X He was nice and do you know and I am trying to say to them that he is not, he lies and sometimes I want to get a microphone every where around the world and get a microphone and go “I don't want to see him, I don't want to do anything I only like you know I don't like anything about him it just makes me ill - you know.
Mr G He makes you feel sick?
X Mmm I just want someone to listen to me - it just um
Mr G And you feel no one is listening?
X No one, no one at all
Mr G Mum?
X Mum because she is the only one and dad will listen but Mr Caffell, Ms S no one else will listen to me I feel like ..
Mr G Ms S would not listen - how do you know that?
X Because she never listens
Mr G How do you mean?
X She never listens to me ever
Mr G What do you try to tell her sometimes?
X I was trying to tell her “Ms S I don't want to see Mr Caffell can you help me and she never helps me, she once said she would but she didn’t.
Mr G Right
X But she never helps me no one helps me only mum
Mr G How much of a worry is that for you?
X Well I get scared that I will have to go back there and I am going to end up back again in hospital and I will have the needle in my hand again (tearful)
Mr G Perhaps it seems a little bit unfair.
X Yeah he gets everything he wants and I am just a little girl begging everyone please help me and he’s like a Lord-(never help her she doesn't mean anything) I feel like a slave and I might be very young but I know I will have to talk because I hate Mr Caffell and I need to talk to someone and if no one listens than they are gonna have to because I do have a voice.
Mr G You want a voice in this?
X Yes I don't want to be someone like I can't speak no one hears me no one listens I want to be heard
Mr G Mum listens and Dad listens
X But never anyone else
Mr G But never anyone else - right?
X OK well my family besides Mr Caffell will stick up for me they won't go “you can't do that” mum will encourage me but she will always stick up for me.
Mr G She encourages you to do what?
X She encourages me to go but she will still stick up for me because she doesn't want me to be upset she doesn't want anything bad (tearful) because she loves me.
Mr G Yes - well X thank you very much for telling me those things and it's OK if I get it typed up by my secretary?
X Yes.”
Mr G elaborated in the witness box on X’s use of the word “slave” in the transcript. He described it as a “powerfully emotive plea for help”. Mr G also noted that on several other occasions in the interview X stated adamantly that she believed her father would never change. He stated on page 7 of his Report dated 21 January 2013:-
“Based on her experiences over many years it is noteworthy that X’s intuitive assessment of her father’s personality permanence is consistent with consultant psychiatrist opinion and my own direct counselling experience with Mr Caffell. It is this belief about her father never changing that further underpins her powerful resistance to seeing him.”
Mr G gave evidence that the mother gave to X “warm encouragement” to consider her father in a favourable light. He said of the mother that he observed “absolutely no signs of the mother attempting to alienate the father at all”. He observed the child’s distress by the mother continuing to observe the spirit of the court orders. Mr G noted and agreed with Mr U’s observation that the ongoing conflict had an adverse impact upon X. Mr G described it as toxic in the child’s psychological development.
When asked about the impact upon the mother of the litigation and its toll upon her, which was clearly observable in the courtroom, her being on occasion upset and tearful, and its effect on the child, Mr G said that he saw it only in passing in his consulting room. He found the mother to be quite a resilient person who had coped with the stress of this litigation far better than many other litigants. However, in his view, the father would continue to persist to return to court because it was part of his personality; that he enjoyed conflict. His history of complaints to the Department of Human Services also went to establish that. He was a querulous person. In his appointments with the father, Mr G noted that in the father’s presentation there were significant instances of grandiosity and numerous indications of paranoid ideation. He noted the father often engaged in obfuscation, discoursing about matters that seemed to have little or no relevance to the central points of the discussion Mr G was endeavouring to have with him.
On the basis of the material that he had read and the father’s presentation to him over the course of their numerous counselling sessions, Mr G concluded that it was reasonable to assume that there had been major difficulties in X’s relationship with her father from the early preschool years, very probably due to his inappropriate behaviour at times when the child was in his care. He noted that the mental health professional opinions regarding the father in themselves provided substantial evidence to support the conclusion that the father’s behaviour towards X had been emotionally abusive of her at times. He also noted that the father refused absolutely to countenance any view that he had behaved inappropriately. He concluded that it was clear the father’s refusal to acknowledge his untoward behaviours made it very likely that his attitudes, beliefs and behaviours would not change in the foreseeable future and that intensive counselling had failed to lead to any change whatsoever in his views regarding his parental management of X.
Mr G was of the view that the likelihood of the father continuing to make applications to this Court was quite substantial. He noted that he spent a considerable amount of time in his sessions with the father inquiring whether he felt any responsibility whatsoever in respect of X’s refusal to see him and noted that the father, on no occasion, showed any insight nor any willingness to consider that he had done anything, even minutely, to contribute to the present scenario.
After each of his sessions with Mr G, the father was, he claimed, attending upon Dr S to effectively “debrief”. Had Dr S actually been regularly seeing the father, which I doubt, and had he positive evidence to put before the Court to counter the reports of Mr G, then the father would have placed such expert opinion in evidence. I do not accept that any such evidence was available to the father. The father neglected to put evidence from his treating psychiatrist before the Court and the Court draws an adverse inference in relation to that matter.
Mr G was of the opinion that the father would not change and that it was insightful of X to reach that same conclusion given her age. He said that people who have very difficult personalities, in some instances have no capacity to develop insight. This could be said of the father. He recommended that there be no time spent with, nor communication had between the father and child. His recommendation was further that such a situation should exist for at least a decade (my emphasis added) until X becomes 18 years of age. He said, tellingly, that this was the:-
“Only time in decades I have made that recommendation.”
He noted the recommendation was in part formed because of the father’s significant mental health problems. Such problems he claimed have a toxic effect on children in their early teenage years, and that X needed to be aged 17 or 18 before she could make her own fresh appraisal of her father.
When questioned about the mother’s proposal that X’s surname be changed, Mr G was informed that the child had been enrolled at school as ‘Caffell’, being her registered birth name, but is known as ‘Falcon’.
Mr G saw manifest advantages to X having the same surname as her mother and Mr M, in particular, given they resided in a small locality like (omitted). He said:-
“I see no detriment and possibly some positive benefit – a sign of being released from the prospect of spending time with her father.”
The mother’s belief is that there will be ongoing litigation at the father’s instigation, which she fears. Whilst she has continued to encourage the child to spend time with the father, which was confirmed on a number of occasions by the child herself in consultation with Mr G, the mother has come, in Mr G’s opinion, to the realisation that the child’s negative views are now firmly fixed and very probably justified, and that neither the father’s behaviour would change and nor would the child’s rejection of him.
The mother impressed Mr G as being authentic in the expression of her views, and displaying self-insight in her ability to express self-doubt. He noted that she felt obliged to continue to provide warm support for X’s compliance with orders and for a regime of her spending time with her father. He said of the father that he himself has little insight into the nature of his personality, and that the proceedings emanate principally from his paranoid ideation. Having given this evidence, Mr G then made observations of the demeanour of the father in the courtroom and noted that the father was entirely unmoved by the assessment he had just heard from an expert as to his personality.
The mother, Mr G concluded, obviously had a close and openly affectionate relationship with X and X clearly had a very strong positive bond and attachment with her mother. Throughout the consultations, the mother displayed anxiety, stress and resentment regarding the family law proceedings (which she felt were initiated largely by the father and would be ongoing) and regarding the direct communications she received from the father. Nevertheless, Mr G noted there were few, if any, signs of hostility and anger directed toward the father. This was also the Court’s observation of the mother throughout the proceedings.
When cross-examined by the father on the question of parental alienation, Mr G indicated that he was well familiar with the literature on that subject. He said as to the three proposals of the father, which the father deemed triggered X’s refusal to see him, being the change in residence arrangements of Mr M’s biological children from week about with each of their parents to the more limited time of each second weekend and holiday time with their father whilst the mother, her husband and X resided in (omitted); the code grey, which was, nonetheless the father claimed, an isolated incident in another part of the hospital in which X was not present; and the relocation to (omitted); had little or no impact at all on X’s decision to have nothing to do with her father. Mr G said, further, that X was very much looking forward to the move (she had not at that time relocated). Her ambivalence about leaving her friends in Melbourne was outweighed by the enjoyment she found in the prospect of residing in (omitted), said Mr G.
Mr G concluded the father has significant mental health problems camouflaged by a very presentable social presence. He said the father has a lack of empathy, a lack of insight and a lack of understanding of child developmental needs, and those matters combined led to his recommendation that there be no contact at all between the child and father. The difficulties in X’s relationship with her father since separation in 2006 involved fluctuating and increasing indications of anxiety and emotional disturbance in X over a number of years. Since about November 2011, her anxiety about spending time with her father, either supervised or unsupervised, had become extreme and children’s contact centre professionals had no success in facilitating changeover. X’s experience of the behavioural manifestations of her father’s problematic personality from age two probably led, in Mr G’s opinion, to increasing ambivalence in her attitude toward him and more recently her extreme anxiety about spending time with him.
Mr U's Report
Mr U is a Regulation 7 Family Consultant. Mr U's Report, dated 27 June 2012, was ordered on 14 February 2012 as this latest round of litigation progressed. Mr U recommended X’s continued residence with her mother, a delay in the mother’s move to Queensland to effectively accommodate the engagement of X in therapy, with a view to her re-engaging with her father, and provision to that therapist of access to all relevant reports. Mr G was, as I have said, one of the professionals proposed by Mr U and was an agreed appointment by all parties.
At the outset, Mr U noted the matter had been extensively litigated, involved numerous professionals, and that it was “readily evident that an enormous amount of financial and emotional resources have been expended on this matter”. He noted that X was at that time spending no time at all with her father and had not done so, in any substantial way, since November 2011. Although he had scheduled an interview to observe X in her father’s presence, this was unsuccessful as X refused to be in the same room as her father. Despite this, the father was seeking orders for X to live with him. He noted the father proposing further counselling for X to help her move from her mother’s primary care to her father’s. The father also proposed, quite extraordinarily, a supervised re-introduction of the child to her mother. The Court notes that the mother has been the child’s primary carer and attachment figure for most of her life, if not all. The father further indicated that he would have the assistance of his very supportive family network which the Court finds, on the evidence before it at trial, would not be available to assist him given his mother is now suffering from dementia and requires care herself, and his sister is now caring for his mother. The father himself has had no communication with his mother for some time. The reason for this was not explained by him.
Some part of Mr U’s report dealt with the issue of the mother relocating the residence of the child to (omitted) Queensland. This is a matter that was agreed to by all the parties on an earlier occasion and orders were made then, and subsequently, to allow for that relocation to occur. In these proceedings, the father takes no issue with it and contrary to the position he put to Mr U, namely that he would not contemplate such a move himself, he gave evidence that he would contemplate a move to (omitted) for himself and his partner, Ms S.
X impressed as a bright, confident and likeable child to Mr U. She referred to her step-father, Mr M, as “Dad” and her biological father as “Mr Caffell”. Mr U noted X was positive about the move to Queensland and said as to her father (at paragraphs 41 and 42 of his Report) that:-
“41. X was aware that her mother planned to move to Queensland. She was positive about such move and stated “I wouldn’t miss Mr Caffell at all…he doesn’t even feel like a real dad. He doesn’t treat me nicely. It’s him that I don’t like. Mum says nice things about him. He says rude things about Mum. Last time I was going to see him, he called me a spoilt little brat. He was lying and saying that Mum don’t encourage me to go. Mum says she knows I don’t want to but says I have to go. Once I got to know him, he’s not nice at all. Ms S (Mr Caffell’s partner) is faking nice then went bosy (sic) on me. He gave me all this junk food, maccas and pizza. (Mr Caffell reported the child enjoyed going ice skating with him.) Ice skating was not fun. I was with the wrong person. I was forced to go. Mum encourages me to see Mr Caffell….thinks its good”.
42. The child was asked what Mr Caffell could do to make it easier for her to see him. “I wouldn’t see him no matter what he did. I want to live a life full of peace…change where we live…go to (omitted) and (Mr M) to be my father. I want it to be like I never met him. If I go there once more, I will get sick of him the sight, hearing and smell of him. I’ll stop breathing. Mr M tells me they know I don’t want to go but that I have to see him. They don’t exactly say it’s a good idea”.”
When considering the father’s proposal that X live with him, Mr U said:-
“47. As for Mr Caffell’s proposal that X be placed in his care, he believes that any negative responses to such a change would be only temporary. He minimises any possible negative impact on her. The child has strongly (and stridently) voiced her opposition to seeing Mr Caffell. She has also been doing so consistently, even when he last saw her. One suspects that, if placed in his care, X could manifest physical resistance and might attempt to leave his care. She is likely to be angry, distressed and ultimately depressed as she accommodates being separated from Mr M, the person primarily responsible for her care. One suspects Mr Caffell underestimates the intense distress the child will manifest. Such a course of action will traumatise an already troubled child. Such a proposal, whilst perhaps tactically motivated, also raises questions about Mr Caffell’s level of insight into X’s needs.”
Mr U concluded that X would need extensive and urgent psychotherapy if she was to have a relationship with the father. Accordingly, Mr G was engaged by the parties. The mother and X remained in Melbourne for a time for that process to be engaged in.
Evidence of Ms M
Ms M is the (omitted) of ((omitted) Children's Contact Centre located in (omitted). She prepared a Report dated 22 May 2012 in respect of X’s attempted handover to her father. That Report was annexed to an Affidavit sworn by her on 31 May 2012 which was in evidence in the proceedings.
There were three occasions where Ms M made arrangements to facilitate the handover of X to her father. None were successful. The first attempt was on 6 April 2012. X refused to leave McDonald’s with her father. Upon sighting him she started to scream and shout for him to leave. Ms M, the child and the father spent approximately one hour together. X had earlier pleaded with her mother not to leave her. As her mother left, X started sobbing and hyperventilating. When her father approached the table she and Ms M were seated at, X screamed out “I’m even scared of you. I told ‘her’ that you hurt me. I don’t even like you. Don’t come near me”.
X also told her father it was his fault she had been sick and that she had not wanted him at the hospital. When her father asked why she had changed from being a happy girl with him in earlier times, X replied that she was just trying to make her father happy and that she had been faking. She said “That’s why I got so sick because I was faking so much”. X refused to go with her father.
On 27 April 2012, a final attempt was made to facilitate the handover of X via an intermediary from her mother to her father. Again it failed. X was adamant not to spend any time with her father. She cried and held on to her mother and appeared to Ms M to be genuinely upset and distressed. She refused to leave and go with her father and grandmother. Ultimately, the issue was not forced further.
Evidence of the father and the mother
The father relied upon affidavits sworn by him on 10 July 2012, 16 July 2012, 6 February 2013 and 10 September 2013. The mother relied upon affidavits sworn by her on 3 February 2012, 20 March 2012, 6 July 2012, 12 July 2012, 29 November 2012, 29 January 2013 and 9 September 2013. The father sought orders that X live with him and spend initially supervised time with her mother. He sought ongoing counselling of the child, mother and he and hence forced ongoing dialogue and physical proximity. The mother sought the orders the Court makes. The Independent Children’s Lawyer sought orders almost identical to the mother, save the Independent Children’s Lawyer suggested that X could leave her registered birth name as ‘Caffell’ with the caveat that for all purposes, informal and formal, including for the issue of a passport and drivers licence, she be known by the surname ‘Falcon’. That was not a practical order to make, and nor would it have the legal effect intended. The Independent Children’s Lawyer also suggested that the father could write to X, with the mother to determine whether the child should receive such correspondence. That would have simply invited, as said by the mother, further litigation and harassing communication with the father as he sought to ascertain whether his correspondence had been passed on; whether it should have been, as determined by him; and whether the child had any response. In addition, it would not achieve the result which Mr G determined in X’s best interests, namely no communication or essentially possibility of communication with her father. Counsel for the Independent Children’s Lawyer did not press these issues.
The father was not a credible witness. Some examples are as follows:-
a)he mislead the Court with respect to the production of the Royal Children’s Hospital file. He contradicted his own evidence and blatantly lied in respect of the entire episode at the hospital;
b)the evidence the father gave about his employment in the last 12 months, which included him being in charge of a $1,000,000 budget in his new start-up business and having a contract with the (omitted) which he did not feel the need to perform personally in respect of this year, was implausible and suggestive of a grandiose and delusional state. He refers to himself as an (omitted) but remains on a Centrelink (New Enterprise Incentive Scheme (NEIS)) program, providing to him the equivalent of an unemployment benefit. He lives in rental accommodation with his de facto spouse, and does not pay child support, a situation which has existed for approximately four years and which will most definitely exist into the future. I do not anticipate that the father will ever pay any amount, by way of child support, for the support of his daughter. There will not even be a minimal social security amount as the Child Support Agency has closed its file; and
c)the father has been a bankrupt for three years, from which he was discharged either 12 months ago or at some earlier time. On his evidence, one could not make a finding as to the precise time. His evidence was that he had numerous trustees during his bankruptcy, none of whose names he could remember. I do not accept that evidence. He claimed that he had sued a former solicitor of the mother and obtained a damages payment against that solicitor which remained confidential. He gave evidence that he had then provided those funds to his trustee in bankruptcy. When asked to produce some corroborating evidence of the provision of such funds, he submitted to the Court that in fact he had not done so, but rather such funds had been expended in the payment of legal costs and a repayment of monies owing to his mother. His evidence in respect of his employment and this matter were simply fabricated and altered in the witness box by him, as he perceived the evidence earlier given by him to be challenged.
I prefer the evidence of the mother in each and every instance where it conflicted with that given by the father. As was said by counsel for the Independent Children’s Lawyer in closing submissions, the father is a “blatant liar, shamelessly so”. By contrast, the Independent Children’s Lawyer submitted that the mother was “truthful and sincere”, and bore no animosity toward the father. She was frustrated by him, but did not exhibit any venom or any anger. The Court concurs in that view.
The mother gave her evidence in a calm, controlled and truthful way. On the occasions when she recalled the oppressive nature of this ongoing litigation, and the father’s harassment of her over many years, and became upset, she recovered quickly and continued to exhibit a polite demeanour toward the father as he, a litigant in person, continued to cross-examine her.
The father gave evidence the mother had moved her place of residence from one end of Victoria to the other. This was not true. The mother and X resided in the former matrimonial home until its sale. The mother then moved to the (omitted) area and the father followed to reside in nearby (omitted). At the end of 2009, the mother obtained Orders from the Court permitting her to enrol X in the (omitted) Primary School, that being where she wished to move as that was the locale of her now husband. She and X took up residence in (omitted) in January 2010 and remained residing in (omitted) until the family’s move to (omitted) in 2013.
The father travelled to (omitted) in March 2013 to ostensibly meet with the principal of X’s school at a local bar, he said. His evidence was that after he had travelled from Melbourne and arrived in (omitted), the principal cancelled their meeting for unexplained reasons, but intimidated it had something to do with the objection by the mother. The father had sent the mother a text in the afternoon of that day, to tell her that he was in the area. The mother was concerned by the father’s close proximity and attended at the school. She did not convey this news to X. She was advised by the principal’s secretary that the principal had no appointment that afternoon. When challenged as to whether the principal of a school would meet with an unknown parent in a local bar, the father gave evidence this was their arrangement, set up so as to avoid him coming into contact with X. The principal had earlier written to the parties indicating that she had no desire or intention to be dragged into their family law dispute. She was very firm in her communication. She did subsequently meet, and later in the year, with the father, on the school grounds and in the company of X’s classroom teacher. I find it implausible that she would have arranged to earlier meet with the father at all in the manner he described, and then cancel such meeting. I conclude the father was yet again, and as to this matter, not a credible witness. He intended to harass the mother by his first visit to (omitted) and achieved that aim.
Since 2006, various methods of communication between the parties has been attempted. Communication books, text messages, letters, mediations and dialogue via intermediaries. The father has been aggressive, intimidatory and harassing of the mother. The mother describes the communication as “appalling and harassing”. The father has persistently and compulsively made various enquires of the mother’s activities and made false claims to various authorities. To a worker at Community West in (omitted) at the end of 2011, he referred to the mother as an “abuser” and noted he had photos he could show her. The Child Support Agency has closed its file so as to avoid any further harassment of the father by the mother and in circumstances where the father pays no child support. The Court system remains the last place where the father can continue to harass, and cause anxiety to the mother. Understandably, the mother wants no communication to be required between the parties. Any communication had by the father with the mother has an undercurrent of harassment of her. It destabilises and upsets the mother, and impacts adversely on her ability to care for X. In the best interests of the child, the father should not communicate with the mother. The communication is really part of the father being a vexatious litigant who has no intention of ceasing his activities.
The mother’s evidence as to X’s surname change as proposed by her, is that X very much wants this to occur. X has refused to use the surname ‘Caffell’ for a number of years and refuses to write such name on any school work. She will not display any award or trophy which displays the name ‘Caffell’. The mother, in her Affidavit sworn 9 September 2013 at paragraph 29, said the following:-
“I have spoken with both Ms C and Mr G with respect to X refusing to use the name Caffell. X identifies herself as X. X associates the name “Caffell” with someone she does not like and to whom she is scared. My Husband has been in X's life since the age of four, although X is aware that Mr Caffell is her biological father, X considers Mr M to be her father in every way. X has chosen to use the name Falcon, prior to my marriage to Mr M and subsequent name change. X considers Mr M's children as her brother’s (sic) and sisters and wants the same surname as them, myself and Mr M. X despises the name ‘Caffell’ and feels “out of place” because she has a different name. Mr M and I have started to try for a new child, we think this would also impact X with respect to her identity within the family.”
I accept the evidence of the mother and Mr G that a name change will benefit X and give her a much desired sense of identity within the family which she resides. The evidence of the mother is consistent with that of Mr G in that both proffer benefits to X in allowing her to change her surname. I find it would be detrimental to X’s well-being to force her to continue to use the surname of her biological father in all the circumstances of this case as set out in these Reasons.
The mother shall be permitted to obtain a passport for the child without the father’s consent. The father’s proposal was that she could obtain a passport, but thereafter needed to seek his consent to any travel proposed. He indicated he would not unreasonably withhold such consent. The difficulty in the formulation of an order in that manner is that on the history, and the evidence given by the father, he will unreasonably withhold his consent. Further, it will give him an occasion to commence a dialogue with the mother, which will be ultimately harassing and result in Court proceedings. There is no evidence before the Court that the mother would ever remove the residence of the child from the Commonwealth of Australia. The mother seeks merely to go on the occasional family holiday with the child and to usual family holiday destinations. The mother, in her Affidavit sworn 9 September 2013 at paragraph 38, said the following:-
“I have always acted in X's best interest and would never put X in harms way. We would like to go on a family vacation, if finances permit for X's birthday in 2014 to (omitted). X would love to go to (omitted), part of which is to visit a friend from her prep class with whom she has kept in contact, her friend moved back to (omitted) in 2010.”
The mother’s evidence is that even providing notification of such travel to the father will result in legal proceedings being issued by him. The father’s response to that is that if he is unreasonable, then those proceedings will simply be dismissed. As he and the mother are now litigants in person, he bears no cost penalty. As he is considerably under-employed, there is no practical difficulty in him attending court. As Mr G said, he enjoys conflict. The father should not be allowed to use the Court system in this way and be oppressive and harassing of the mother. In addition, as the Independent Children’s Lawyer submitted, the mother’s fears that the father may end up in the location to which she has gone to holiday are not unjustified.
The mother, in her Affidavit sworn 3 February 2012 at paragraph 88, said the following:-
“88. From the time X was admitted to hospital until Christmas Day the father had subjected X to the following incidents:-
a. the father engaged in excessive and inappropriate attendance during the period of X's hospitalisation;
b. the father exposed X to high conflict and inappropriate behavior during the period of X's hospitalisation on several occasions;
c. X complained about the father’s “questions” during telephone conversations with her relating to doctors and myself among other things;
d. X complained about the father pressuring her to see him when she did not feel well;
e. X complained about the father wanting her to talk with him when she did not feel well;
f. X complained that the father did not listen to her;
g. X has said that she is scared of her father.
h. the father engaged in harassment towards X by being present at her dance school;
i. the father engaged in harassment towards X by being present at her dance schools end of year concert;
j. the father arriving at X's primary residence without notice (for the purpose of serving documents);
k. the father engaged in harassment towards X by being present at her asthma test at Royal Children’s Hospital on 23 December 2011.
In addition to those points mentioned above, X has also complained about various other matters occurring whilst in the father’s care proceeding X's illness.”
The mother, in her Affidavit sworn 12 July 2012 at paragraph 40, said the following:-
“40. I have done my utmost to protect X from this conflict arising between Mr Caffell and myself;
a. Matters pertaining to Mr Caffell are never discussed in X’s presence
b. That I do not, nor does my partner, question X as to matters pertaining to Mr Caffell.
c. That I have sought to utilise the services of secure and supervised contact centres that;
i. Ensure that Mr Caffell and I do not come into direct contact in X's presence thereby eliminating potential exposure to conflict.
ii. Are independent and child focused and ensure X's well-being and best interests are their first priority
d. That X has not been aware of threats by Mr Caffell to collect X at times neither agreed to or prescribed by Court Orders.
i. That in such circumstances X's school had been notified and X was afforded appropriate supervision.
e. That I have not brought frivolous matters before this Court or matters otherwise addressed by applicable orders, with the understanding that;
i. That proceedings potentially expose X to conflict
ii. To do so creates and maintains conflict between Mr Caffell and myself.”
And further at paragraph 47:-
“47. That I have actively fostered and encouraged a relationship between X and her father over the past six years since separation, using a variety of techniques:
a. Actively seeking assistance with Child Psychologist Ms C, Psychologist in late 2010 and more recently in early June 2012
b. Utilising the suggestions provided by Ms C, Psychologist to assist X with access including writing letters to X in her diary and providing X with a telephone. Both techniques impeded by her father with no reason provided that is true and correct
c. Inviting Mr Caffell and his family to attend X's dance concerts and organising tickets
d. Providing school photos of X and reports to Mr Caffell
e. Encouraging X to make cards and presents for Mr Caffell
f. Providing X with photos of Mr Caffell and his family
g. Discussing holidays that we use to have when with Mr Caffell
h. Talked positively to X about Mr Caffell's music ear as X plays the keyboard and has a really good music ear.
i. Discussed X's cultural background on both sides and have even taught X how to say basic words in (omitted), and encouraged X to speak to her Nonna in (omitted).
j. Always express how lucky X is to have Mr Caffell's long legs, in comparison to my short ones
k. Encouraged X to talk about the positives at Mr Caffell's and would remind X of any fun things she had done
I. Encouraged X to communicate with Mr Caffell about her complaints and feelings whilst in his care”
And further at paragraphs 104 to 108:-
“104. That the applicant has habitually, persistently and without reasonable grounds initiated frivolous and vexatious proceedings.
105. FM Riley cautioned the Applicant and his legal representation against initiating proceedings seeking to use the court as a means of harassment in dismissing the Initiating Application on 12 July 2010. (Neither the Applicant or the Respondent requested reasons on this occasion)
106. The Reasons for Judgement handed down by FM Riley pertaining to the matter of the Initiating Application heard in September 2010 in Paragraph 13 notes; “It seems to me that the father is prone to repeatedly returning to court when there is no proper reason for doing so.”
107. Mr Caffell habitually threatens legal proceedings in attempt to force agreement to his demands.
108. Mr Caffell indicates that he has initiated legal proceedings in attempt to force agreement to his demands by his own admission in Paragraph 17 of his affidavit dated 02 April 2012 “I was hoping that we could return to previous parenting orders, hence the reason why I lodged contravention applications”.”
I accept the evidence of the mother as set out above in paragraphs 63 to 65 of these Reasons. I find the father has acted in the exhausting and various ways described and that the mother has done those positive things to foster the relationship as described. All to no avail.
Given the father’s mental health difficulties, no reasonable nor sensible discussion concerning the child’s health needs can occur between the parties – indeed, concerning any subject. Mr G’s opinion is that the father remains insightless as to the nature of his true mental state and that his condition is untreatable; that he will not change. X has been subjected to the open conflict and ongoing hostility between her parents for so many years. She has not been sheltered from it but has been directly involved in it, being interviewed by many professionals over a period of time. X’s opposition to having a relationship with her father and her hostility to him has, as Mr U said in his family report, been strongly and consistently expressed. He described her behaviour and extreme resistance to seeing her father as “both troubling and deeply concerning”. X telephoned the Kids Helpline in December 2011 and January 2012, distressed and anxious. The reason for her presentation, on the evidence, is the father’s emotional abuse of the child when she was young, and ongoing in the periods of time in which she spent time in his care. Interestingly, Dr E was asked, in approximately 2007, when the child should see her father again and he responded to the effect, “How long is a piece of string?”.
The Family Law Act 1975 (Cth)
Section 61DA of the Act provides that:-
“Presumption of equal shared parental responsibility when making parenting orders
61DA
(1) When making a parenting order in relation to a child, the court must 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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) 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.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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.”
In these proceedings the presumption is clearly rebutted. It is impossible for X to have a meaningful relationship with her father and there is no benefit to her in further attempting such relationship. The father has subjected X to emotional abuse on the evidence before the Court. In addition, the overwhelming weight of the evidence is against the adoption of the presumption and X’s best interest are served by her mother having sole parental responsibility of her.
Section 60CA of the Act requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.”
Section 60CC of the Act provides in part that:-
How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
In these proceedings and on the evidence as set out above, s.60CC(2)(b) of the Act is a proven primary consideration. The Court determines there is a need to protect X from psychological harm when exposed to the emotional abuse perpetrated by the father upon her. The additional considerations addressed below should be read in conjunction with the totality of these Reasons.
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
X has very strong views which are not to spend time or communicate with her father. She is significantly mature.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
X is strongly bonded to her mother, her primary attachment figure. They have a warm and loving relationship as X also has, to a lesser extent, with her step-father, Mr M. She has a problematic and destructive of her well-being, relationship with her biological father.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
X’s strong wishes preclude the father from spending time with her. The mother has supported that relationship beyond a time when X’s best interests were served.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The father steadfastly refuses to support the child financially in any way.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
X will benefit enormously from being relieved of the obligation to further interact with her father.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Not applicable.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother and step-father of X have exhibited comprehensive capacity. The father has no insight and no capacity.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
X is mature for her years and steadfast in her determination. She has suffered emotionally a great deal throughout the travails of this lengthy litigation process. She has been quite desperate, but managed to find a voice.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not applicable.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother has been exceedingly responsible as a parent, encouraging X to see her father, providing financial and emotional support and exhibiting considerable empathy. The father displays almost no capacity to be a responsible parent. His mental health issues preclude this.
(j) any family violence involving the child or a member of the child's family;
Considered in the totality of the evidence as described above.
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There have been orders obtained by the mother (at times ex parte or interim only) in the local courts over the years at times of high stress. They have been but one feature of the many in this litigation.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is essential to do so.
(m) any other fact or circumstance that the court thinks is relevant.
As set out in these Reasons.
The Court shall make Orders on the mother’s application and in the best interests of X.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 25 October 2013
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Jurisdiction
-
Injunction
-
Costs
-
Appeal
-
Procedural Fairness
0
0
4