Carlson & Fluvium
[2012] FamCA 32
•6 February 2012
FAMILY COURT OF AUSTRALIA
| CARLSON & FLUVIUM | [2012] FamCA 32 |
| FAMILY LAW – CHILDREN – where matter has a long and litigious history – where myriad factual issues in contention – not the role of a trial judge to determine every issue of fact or law raised at trial. FAMILY LAW – CHILDREN – credit issues –whether necessary to make findings of credit in parenting matters – where long-standing conflict between the parties –determination of contested facts is necessary to the statutory considerations – where neither party’s evidence is necessarily preferred – where neither party was a frank nor forthright witness. FAMILY LAW – CHILDREN – with whom a child lives – where parents in a highly conflictual and intractable dispute – where the Mother lives in Canada – where the Father lives in Queensland – where neither party contemplates moving from their respective home country – where the Father has been previously deported from Canada following a criminal conviction – where the Father cannot enter Canada without a pardon – where the Mother has the care of her two other children in Canada – where the Mother must also facilitate her oldest child’s time his father – where neither party is in employment – where the finances of both parties are significantly strained – where both parties depend upon social security welfare payments – not reasonably open for either party to relocate. FAMILY LAW – CHILDREN – with whom a child lives – separation of siblings – where the parties have another, younger child, not a subject child of these proceedings – where this second child was born some eight and a half months after separation – where child was born and has thus far been raised in Canada – where the Father has never met his second child – where this Court has previously declined to exercise jurisdiction in relation to this child – where the Mother has actively excluded the Father from his second child’s life – where Mother has demonstrated a complete unwillingness to and inability to facilitate a relationship between the Father and this child. FAMILY LAW – CHILDREN – with whom a child lives – where both parties assessed to have personality vulnerabilities and narcissistic traits – where the Father has a history of suicidality – where Father has a propensity to suffer an Adjustment Disorder – allocation of parental responsibility conditional upon Father undertaking psychotherapy. FAMILY LAW – CHILDREN – family violence – findings of abuse and family violence – presumption of equal shared parental responsibility does not apply – allocation of parental responsibility to reflect Orders that allow the subject child to spend virtually equal time with each parent for the next two years. |
| AMS v AIF (1999) 199 CLR 160 Collu & Rinaldo [2010] FamCAFC 53 Gelley (No 1) (1992) FLC 92-290 Handley and Stagg (2002) FamCA 206. Heath & Hemming (No 2) [2001] FamCA 749 Jurss & Jurss (1976) FLC 90-041 MRR v GR (2010) 240 CLR 461 Sigley & Evor (2011) 44 Fam LR 439 U v U (2002) 211 CLR 238 Wen v Thom [2010] FamCAFC 81 |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Carlson |
| RESPONDENT: | Ms Fluvium |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Leisa Toomey |
| FILE NUMBER: | BRC | 9490 | of | 2008 |
| DATE DELIVERED: | 6 February 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATES: | 3, 4, 5, 6 and 26 October 2011; 17 November 2011; 8 and 21 December 2011; 8 and 19 January 2012. |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ehlers of Counsel |
| SOLICITOR FOR THE APPLICANT: | Richard Gray & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Thiele of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Schultz Toomey O'Brien |
Orders
As a condition of the Father having the benefit of any parenting Order for parental responsibility or for D FLUVIUM-CARLSON born … June 2006 (“D”) to reside with the Father as provided for in these Orders:
(a) The Father is to forthwith make arrangements to commence psychotherapy with a duly qualified psychiatrist to address the following issues:
(i)The Father’s response to the outcome of this litigation as reflected in these Orders and the Reasons for Judgment;
(ii)The Father’s vulnerability to suffer Adjustment Disorder;
(iii)Any features of enmeshment in the Father’s relationship with D; and
(iv)Such other psychiatric or psychological issues of the Father as identified by the treating psychiatrist;
(b) The Father is to authorise such treating psychiatrist to provide such information as to the Father’s therapy as may be required by Dr V (or any substitute of Dr V nominated by the Independent Children’s Lawyer in the event that Dr V is unavailable for whatever reason) for the purposes provided for in these Orders;
(c) The Father is to demonstrate, in the manner prescribed in these Orders, compliance with psychotherapy;
(d) The Father is to submit to further psychiatric examination for medico-legal purposes by Dr V (or any substitute for Dr V nominated by the Independent Children’s Lawyer) no later than 15 May 2012.
The Independent Children’s Lawyer shall provide to the Father such assistance as the Father may reasonable request in identifying an appropriate psychiatrist able to undertake psychotherapy and the Independent Children’s Lawyer is authorised to publish to any prospective psychiatrist any of the documents referred to in Order 3 in seeking to obtain the services of a treating psychiatrist.
For the purpose of these Orders, the Independent Children’s Lawyer is authorised, and requested, to provide to the Father’s treating psychiatrist and Dr V (or his substitute):
(a) Copies of the affidavits and reports of Dr V;
(b) A copy of the transcript of the evidence of Dr V (and it is directed that such transcript be made available by the Court to the Independent Children’s Lawyer);
(c) A copy of these Orders and Reasons for Judgment;
(d) Such other affidavit or other evidence in these proceedings as the Father’s treating psychiatrist or Dr V (or his substitute) may reasonably require;
but the provision of the above documents is no basis for any delay in the Father forthwith meeting the requirements imposed upon him in paragraph 1(a) of these Orders.
The Independent Children’s Lawyer shall make arrangements to facilitate the provision by Dr V (or his substitute) of a report upon the Father to be obtained by the end of May 2012 addressing:
(a) Whether the Father has undertaken psychotherapy and the outcome or progress of such therapy;
(b) Whether there is any identifiable safety issue for the child D returning to reside with the Father on 30 June 2012;
(c) Such other matters as Dr V (or his substitute) considers necessary.
The Independent Children’s Lawyer shall provide a copy of the report of Dr V (or his substitute) to the Father and the Mother as soon as reasonably practicable after it is received by the Independent Children’s Lawyer.
In the event that the report referred to in Order 5 identifies safety issues for D returning to reside with the Father, the parties and the Independent Children’s Lawyer shall each have liberty to apply to list the matter for further consideration.
In the event that no such safety issues are identified, D is to be returned to live with the Father no later than midnight on 30 June 2012, with both parties to be equally responsible for the cost of travel for D and an accompanying adult. The identity of the accompanying adult shall be agreed between the parties or, failing agreement, shall be one of either the Maternal Grandmother, the Mother, the Paternal Grandfather or the Paternal Grandmother.
The Mother will not be deemed in breach of these Orders in respect of any occasion when D is returning from Canada should D’s return to Brisbane be delayed by circumstances outside of her control, including the following non-exhaustive factors:
(a) Weather conditions, including volcanic activity;
(b) Airline strike action; or
(c) Natural disasters.
If the accompanying adult is either of the Mother or the Maternal Grandmother, then D is to be collected from the Arrivals section of the Brisbane International Airport by the Father or the paternal grandparents.
If the accompanying adult is either of the Paternal Grandfather or the Paternal Grandmother, then changeover is to occur at the Toronto International Airport three (3) hours prior to the departure of the flight returning to Brisbane. The Mother is to ensure that the accompanying adult receives D’s Canadian passport at the time D is handed over at the airport.
It is the responsibility of the Father to book the return flight which will leave Canada no earlier than 28 June 2012 and arrive in Brisbane no later than 30 June 2012. The Father is to provide notice in writing to the Mother of the details of the flight and evidence of a pre-purchased plane ticket by which D will travel from Toronto to Brisbane by no later than 1 June 2012.
The costs of travel for D and the accompanying adult are to be borne initially by the Father, with the Mother to reimburse fifty percent of the cost within 45 days of the Father providing her with notice of the purchase of the flights.
During D’s time in Canada during any periods provided for in these Orders, the Father shall communicate with D via web-based communication and for that purpose:
(a) The connection or method of connection of such web-based communication will be such system as required by the Mother provided that such communication is of no lesser quality than the Gmail communications appearing as Exhibits 7 and 9 to these proceedings;
(b) Such communication is to be at 9.00 am (Queensland time) on two (2) occasions per week to be nominated by the Father; and
(c) The Mother is to ensure that D is available to speak to the Father at 9.00 am (Queensland time) on … June 2012 and … June 2013, that being D’s birthday. This communication is to replace one of the two communications due to occur in that week as per Order 13(b) above.
Parental Responsibility
Subject to Order (15) the Father shall have sole parental responsibility for D in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended) provided that each parent shall have, during all such time that D is in their respective care, sole parental responsibility in respect of issues that are not “major long-term issues”.
During 2012 and 2013 and thereafter in respect of periods when D is spending time with the Mother pursuant to these orders the Mother shall have sole parental responsibility in respect of determining D’s education in Canada including which school D attends and in respect of D’s participation in Unicamp or other church-based activities in which the Mother and/or X and/or K participate.
Each parent is to keep the other informed in writing by email, of any decisions made by that parent in the exercise by that parent of parental responsibility for any “major long-term issues”.
Co-Parenting Arrangements
D shall live with the Father.
D shall spend time with and communicate with the Mother as follows:
(a) Until his return to the Father on 30 June 2012 as provided for in paragraphs (7) to (12) of these Orders;
(b) For the period of six (6) months from 1 January 2013 until 30 June 2013, with D being permitted to travel to Canada to live with the Mother for the purpose of such time, with the parties to share equally in the cost of D’s travel for such visit;
(c) From the commencement of the Christmas school holiday period to return three (3) days prior to the commencement of the new school year, commencing in the Christmas holiday period for 2013 and each year thereafter;
(d) If the Mother can fund such visits, for the June-July two (2) week school holiday period in any year from and including 2014 with either D travelling to Canada for that period or the Mother having time with D for such periods in Australia at her election provided that the Mother gives the Father not less than 45 days written notice of her intention to have such time;
During D’s time in Australia during any periods provided for in these Orders, the Mother shall communicate with D via web-based communication and for that purpose:
(a) The connection or method of connection of such web-based communication will be such system as required by the Father provided that such communication is of no lesser quality than the Gmail communications appearing as Exhibits 7 and 9 to these proceedings;
(b) Such communication is to be at 9.00 am (Queensland time) on a maximum of two occasions per week to be nominated by the Mother.
For the purpose of D’s travel from Australia to Canada from 1 January 2013 and his return from Canada to Australia on 30 June 2013 and likewise with respect to such travel for the Christmas school holiday period in 2013:
(a) D is to travel with an accompanying adult the identity of whom is to be agreed between the Father and the Mother or, failing agreement, shall be one of the Father, the Mother, the Paternal Grandfather, the Paternal Grandmother or the Maternal Grandmother;
(b) The provisions in paragraphs (9) to (12) of these Orders with respect to changeover arrangements; booking and notice requirements; and meeting costs of travel apply save only that in this respect those provisions are to be read so as to refer to the year 2013 and with respect to the Christmas school holiday period from the Saturday immediately after the school year ends as the date of commencement until three days prior to the commencement of the next school year as the date of return.
Commencing in 2014 with respect to the Christmas school holiday period travel and each Christmas holiday period thereafter the Father is to be responsible for the booking of D’s return flight and shall give notice to the Mother of the cost of such return travel and upon receiving the Mother’s payment of half of that cost shall be responsible for booking D’s return ticket.
To remove any doubt, the costs of D’s travel to and from Australia and Canada for Christmas holiday periods are to be borne by the parties equally but the costs of any additional travel for mid-year periods as provided for in these Orders are to be met by the Mother.
The Mother is to ensure that at all times when D is spending time with her in Canada that D has no interaction with the Mother’s father, Mr F, on an unsupervised (by the Mother) basis and that on no occasion does D reside overnight in any residence or other accommodation in which Mr F is present.
The Father and the Mother shall do all acts and things reasonably required to cause, as soon as possible, these Orders to be registered in Ontario, Canada pursuant to the Children’s Law Reform Act 1999 (Can) or any other Canadian legislation providing for the registration of foreign Orders and for this purpose:
(a) The parties are authorised to publish to the relevant Canadian court or authorities these Orders and Reasons for Judgment and any other record of these proceedings as the Canadian authorities reasonably require for the purpose of such registration; and
(b) The parties are to share equally in any costs associated with such registration.
Save in respect of the Orders of 17 November 2011 and 8 January 2012 all other parenting Orders be discharged and those Orders (as varied by these Orders) be discharged once their terms have been carried into effect.
Each party including the Independent Children’s Lawyer has liberty to apply in relation to the operation or effect of these Orders.
All other outstanding Applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Carlson & Fluvium is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 9490 of 2008
| Mr Carlson |
Applicant
And
| Ms Fluvium |
Respondent
REASONS FOR JUDGMENT
Introduction
The trial of proceedings for final parenting Orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to D Fluvium-Carlson (“the child”), born in June 2006, proceeded initially over the four days of 3rd to 6th October 2011 (inclusive); with further affidavit and oral evidence being taken from Dr V, the single expert psychiatrist, on 26 October 2011; with further interim hearings on 17 November 2011 and 8 December 2011 prior to 21 December 2011 when, the parties having filed written submissions in the meantime, were afforded the opportunity to make oral submissions.
On 8 January 2012 I granted the Father leave to re-open his case to adduce further evidence and on 19 January 2012 further cross-examination occurred in relation to that evidence.
In the shadow of the geographical distance between the parents for a long time, this matter has a very lengthy and extensive litigious history and thus, for a long time now, the parties have been adversaries in that litigation. Commencing with the institution of Hague Convention proceedings now more than four years ago in November 2007 in the Ontario Superior Court in Canada (which were contested via a hearing on 15 May 2008 and in an appeal determined on 3 October 2008) these parenting proceedings have since been on foot since October 2008.
No purpose would be served in even attempting to detail in any exhaustive way the history, content or circumstances of the plethora of applications (including multiple contempt; multiple contravention and stay of orders applications) that have been filed and dealt with during the lengthy period that these parenting proceedings have been on foot. Suffice to note, as some indication of the extent to which these parents have been immersed in the litigation process that, even before reaching this trial, they had the experience of in excess of 30 appearances or attendances before this Court (or the Federal Magistrates Court from which these proceedings were transferred) in bringing and arguing numerous interim applications, and there were two (2) abortive attempts for the trial to proceed by Orders made by Barry J before this trial eventuated.
In a parenting case such as this, where parents have been protagonists in litigation of one form or another initially in Canada and since in Australia over a period of more than four (4) years since November 2007, in respect of a child who is yet to turn six (6) years of age; and where the consequences of that extensive litigation include a plethora of issues of disputed fact (both in respect of the history of the relationship and the history of the litigation itself) and vehemently expressed views as to conclusions the Court ought draw from the alleged conduct of their former partners littered throughout voluminous material; the initial challenge confronted by the Court is to determine which of those myriad factual issues or conclusions contended for require exposition and resolution in reaching conclusions in the disposition of these proceedings.
Equally, in circumstances where long-held and long-propounded highly negative views of each parent of the other, fuelled by allegation and counter-allegation have been given voice over the lengthy period of this litigation, there is considerable scope for the Court to be distracted from its task of now determining parenting Orders in the child’s best interests. It is simply impossible, plainly unproductive and starkly contrary to the principles for conducting child-related proceedings enunciated in Div 12A of the Act (and the duties and powers therein expressed) for the Court to indulge each and every of the multiple issues and issues within issues that the parties have chosen to raise in one form or another over the course of this litigation.
Neither this Court, nor these proceedings, are a forum for the adjudication of claims of either parent against the other in respect of past or present perceived injustices; nor are parenting Orders to be formulated with any view of redressing perceived injustice or to reward or punish either parent. Parental conduct is relevant only to the extent that it informs the assessment of parenting capacity or otherwise has weight in the determination of parenting Orders in the child’s best interests.
The central task of determining parenting Orders in this child’s best interests is not an exercise in searching for disqualifying factors in either parent. Recognising that each person is unique, inevitably with strengths and weaknesses both as a person and as a parent, the enquiry is essentially to determine parenting Orders that will positively promote the child’s interests in the context of that child’s actual circumstances, including any perceived parenting weakness of either or both of the child’s parents.
Unfortunately, where parties to parenting proceedings advance a litany of highly negative criticisms or propositions about each other (legitimately or otherwise) to advance their own parenting proposal or to diminish the proposal of the other, the focus on the positive aspect of the enquiry may be blurred by the extent to which it is necessary for the Court to expose and resolve those criticisms or propositions.
Moreover, it must be understood that some matters of factual dispute historically, which may have assumed prominence for the parties or either of them then or since, may not be capable of clear or legitimate resolution, whether because of the state of the evidence on those issues which is advanced; or having regard to issues of credit; or otherwise may not in any event be especially relevant now to the disposition of the case.
I make it plain that I have carefully read and re-read and considered all of the written material, exhibits tendered, and oral and video evidence that was before the Court in the trial. What follows reflects my determination, out of the myriad issues of disputed fact between the parties, of those which I consider to be necessary to determine in the overall disposition of this case; or which are representative of a central contention or proposition advanced by either party relevant to the task of the Court.
I do not see any purpose being served in otherwise listing or referring to each and every other issue of disputed fact between the parties.
In Wen v Thom[1] Coleman J by reference to a careful consideration of relevant authorities confirmed that it is not the duty of a trial judge to decide every matter of fact or of law which was or might have been raised in the proceedings.
[1] [2010] FamCAFC 81 at paras [51] to [59].
Chronology
The applicant, Mr Carlson, born in 1974 (“the Father”), now aged 37 years and the respondent, Ms Fluvium, born in 1976 (“the Mother”) now aged 35 years, were involved in a short and tempestuous relationship between meeting in June 2004; commencing cohabitation in the latter part of 2004; and finally separating on 29 October 2007.
That period encompasses a short period of separation in 2006 when the Mother temporarily returned to Canada, her country of origin.
The Mother was, at the time the parties met in Canberra on 9 June 2004, married to one Mr P a European country national who the Mother met in Canada, her country of origin, when she was about 24 (year 2000). They subsequently married and their relationship produced a child, X F-P, born in May 2001 (“X”). X is not a subject of these proceedings.
The Mother, her then husband Mr P and X travelled to Canberra, Australia on a temporary basis in 2003 for Mr P’s employment which was, and continues to be, attached to the European country’s public service. I accept the Mother’s account[2] to the effect that her marriage to Mr P had broken down by the time she met the Father in Canberra in June 2004, albeit that the Mother and Mr P still lived together.
[2] For example as set out in history to Dr V; affidavit filed 3 October 2011 – report page 5.
On 9 June 2004 the Mother and Father met at a bar in Canberra. They consumed alcohol and cocaine together that evening. They went to the Father’s then residence and after the further consumption of ecstasy and cocaine the Father went into convulsions and required urgent medical attention from paramedics who conveyed him to Hospital where he was treated for a drug overdose.
The chaotic and dysfunctional nature of that first evening together did not deter either party from subsequently embarking upon a relationship.
The relationship produced two children, namely the child the subject of these proceedings, D Fluvium-Carlson, born in June 2006 (“D”), and a child who is not the subject of these proceedings, namely K F-G, born in July 2008 (“K”).
I interpolate into the history here that K was born some eight and a half months after the parties finally separated on 29 October 2007 at a time when the Mother had returned to Canada. Whilst the Father had sought to include K as a subject of these proceedings, on 3 February 2010 Barry J ordered, inter alia, that the Court declined to exercise jurisdiction over K. I understand that the Independent Children’s Lawyer appointed in these proceedings supported that outcome, as did the Mother.
Barry J was the Judge in whose docket this matter has been listed from the time of its original transfer from the Federal Magistrates Court until Barry J’s retirement in June 2011.
At paragraph 65 of Reasons for Judgment delivered on 3 August 2010, which are read before me, Barry J records:
65.I note in passing that on an earlier mention of this matter, for reasons given at the time, I declined jurisdiction in relation to an application for orders relating to the child [K]. The child was born in Canada and has never been to Australia. The only basis for jurisdiction was that the Father had become an Australian citizen a short time prior to his birth.
There was no appeal from the Order referred to.
Returning to the history, it appears that by the latter part of 2004 the parties were in a de facto relationship. On about 28 December 2004 the Mother and the Father left Australia for Canada.X remained with his father, Mr P, in Canberra when the parties embarked on this trip.
Soon after arriving in Canada, and specifically in the early hours of the morning of 5 January 2005, the Father was involved in an incident that has loomed large in these proceedings and has continuing consequences. For those reasons, this incident will be dealt with in some detail further in these reasons but suffice to note at this point that as a consequence of a physical confrontation between the Father and one Mr S, the Father was charged with a serious criminal offence or offences; was initially arrested, charged and held in custody for some four (4) weeks pending the grant of bail on conditions; and was ultimately convicted of a serious assaultive criminal offence (assault with a weapon) and sentenced by an Ontario Court. As a result, the Father was deported from Canada to Australia in about July 2005. That conviction precludes the Father from entering Canada unless he secures a pardon from the authorities in Canada.
In January 2005 the Mother travelled to Europe to visit X and to, as she puts it, “work out a plan for custody with his father”. With the assistance of a lawyer the Mother and Mr P arrived at a mutually agreeable plan under which the Mother and Mr P agreed X would stay with Mr P until May 2005 and then would live with the Mother for the following four months. The Mother deposes, and I accept, that the essence of the agreement was that for the future she and Mr P would share equally in X’s care despite the distance involved until X started school and thereafter X would primarily live with the Mother and visit his father as much as possible.[3]
[3] Paragraph 7 of Annexure B to the Affidavit of the Mother filed 3 July 2009.
X did return to the Mother’s care in May 2005. It is the Mother’s case that her relationship with the Father then deteriorated and that she in fact spent some days in a shelter in Canada. Her overall case on this aspect is, in summary, that after episodes of verbal abuse or threats of violence from the Father, such as on this occasion, the Father would acknowledge his behaviour, promise improvement and thereby induce her to return to him. The Father disputes this version.
The Mother’s case is that prior to the Father’s deportation from Canada, and whilst he was on bail, the Father made an attempt on his life in March 2005. The Mother’s case is to the effect that she came home to find the Father hanging in a closet by a wire coat hanger. She asserts that he was purple in colour and unconscious but that she was able to release him and revive him. As this episode is significantly in issue between the parties and is important to other expert evidence before the Court it will be dealt with further specifically below.
As noted it was in July 2005 when the Father was deported from Canada. It is the Father’s case that the relationship remained on foot and uninterrupted other than by geographical distance as the Mother remained in Canada when he was deported. The Mother’s case is that it was not until September 2005, when X returned to his father for some seven months as had been agreed between the Mother and Mr P, that she again accepted overtures from the Father that the relationship should continue.
In about September or October 2005 the Mother returned from Canada to Australia and to the Father and the relationship.
After returning to Canberra, Australia the Mother received medical confirmation that she was pregnant (with D). The parties then moved from Canberra to Melbourne. Again on the Mother’s case she suggests that her pregnancy was an impetus for the parties to “start anew” and she says there was an agreement for the parties to go to counselling, jointly and alone; that the Father would “get a proper job” and that “we were going to be happy”.[4]
[4] Paragraph 11 of Annexure B to the Mother’s affidavit filed 3 July 2009.
There is an issue between the parties as to whether or not the Mother applied in December 2005 for a permanent resident visa to reside in Australia. Because the parties could not return to Canada because the Father had been deported and was not eligible to even seek a pardon as insufficient time had elapsed since his conviction it was necessary for the Mother to secure residency in Australia. Again it is a matter of dispute that on the Mother’s case she suggests that at all times it was intended that the parties would return to live in Canada when they could and the Mother suggests that the Father was well aware that she would not want to raise her children away from Canada. The Mother also raised the feature that living in Canada facilitated, by way of travel time and expense, X’s time with his Father much more readily than it could occur if the Mother was living in Australia.
The Father suggests that the Mother went to New Zealand on the understanding that she would obtain a visa but that she did not in fact apply for a visa. He says that rather than the Mother using funds saved to secure a permanent residency visa the Mother used those funds to return to Canada. The Mother says she did apply but concedes she did not pay the fee for the application and concedes the use of funds as the Father suggests.
In February 2006, at a time when she was then five months pregnant with the child D, the Mother returned to Canada. The Mother suggests that this was at a time when the Father refused to obtain employment and had not followed through with promises to attend counselling. She suggests that she had not seen a doctor or a midwife at the stage of being five months pregnant because “we could not afford it”. She suggests that the Father was isolating her and that the relationship broke down. The Mother deposes that she left Australia with no intention of ever returning. Again, much of this is contested by the Father.
For his part the Father asserts that he had no advance notice of the Mother’s plan to return to Canada and submits that this conduct constituted “severe emotional abuse of the father by the mother”.[5]
[5] Page 6 of Applicant’s Submissions filed 19 December 2011.
It is the Father’s case that by March 2006 the relationship between the parties had resumed and that the Mother was promising to return to Australia as soon as their child was born and she was able to fly. He deposes that he provided financial support to the Mother during her pregnancy.
For her part, the Mother suggests that during March 2006 the Father was pleading with her to “give him another chance”, that is, by returning to Australia and if their difficulties could not be resolved she could return to Canada. The Mother suggests that she urged the Father to apply for a pardon on compassionate grounds to enable him to travel to Canada. She disputes the level of financial support the Father asserts he provided in this period.
It is the Mother’s case that she remained adamant at that point that she would not return from Canada to Australia. By 1 April 2006 X returned to live with the Mother and as Mr P was working in Ottawa for a temporary period X then spent regular weekend time with Mr P.
A significant issue of disputed fact between the parties relates to events which occurred at about Easter 2006. The Father vehemently denies an event of the kind alleged by the Mother. The Mother says that she received a telephone call from the Father in which the Father informed her that he had taken a lot of pills and that he “couldn’t do it anymore”. The Mother deposed that because of her concerns about the Father she contacted his cousin, Mr B to seek assistance for the Father. This episode will be dealt with further below as there is a significant issue as to its occurrence and email communication surrounding it, the authenticity of which the Father disputes.
The Mother suggests that again by reason of the nature of the Father’s approaches to her in the period leading up to the child’s birth; again with promises by the Father of obtaining employment; counselling and the like the Mother gave consideration to resuming the relationship.
As already noted, the child was born in June 2006. The Mother acknowledges that she decided to attempt reconciliation with the Father soon after the child’s birth. On or about 15 July 2006 the Mother returned to Australia with the child and cohabitation between the parties resumed.
Whilst the Mother maintains a case that the problems in their relationship persisted, by April 2007 the Mother obtained part-time employment in Melbourne. The child was then a 10 month old breast-feeding baby. For that employment to be maintained the Father had to take a significant role in the care of the child and of X, then about 5 years old.
It is the Mother’s case, denied by the Father, that throughout this period she was subjected to the Father’s moodiness, verbal abuse and threats. The Mother complains of the Father’s treatment of X; that the Father continued to grow marijuana in their garage and continued to use cocaine. She asserts that the Father’s behaviour became steadily more aggressive and threatening and that there were frequent arguments between them.
In September 2007 X went to a visit with his Father for a month and the Mother suggests that the relationship improved somewhat but the Mother deposes that by mid October 2007, shortly after X returned, the relationship again deteriorated.
The Mother deposes that by mid October 2007 she had finally come to the conclusion that the relationship “was toxic and would never work”.
A significant issue of disputed fact relates to an event the Mother alleges occurred on the day of final separation on 29 October 2007 in which she says she was physically assaulted by the Father. She deposes that she thought the Father was going to kill her that day. The Father has a very different version of this event and disputes any assault or threat of the kind alleged by the Mother. To the contrary, he puts the Mother as the aggressor who assaulted him. This event will be dealt with further in these reasons.
On 29 October 2007 the parties finally separated when the Mother left their then home with X and D.
On 31 October 2007 the Father forwarded an email message to the Mother (which she acknowledges receiving) in which the Father expressed his concerns that she might flee Australia with the child.
Upon separation the Mother, together with X and the child D, initially stayed with one Ms L until early November 2007. During this period the Mother facilitated several unsupervised visits between the Father and the child, who was then about 18 months of age.
There is again a significant dispute between the parties as to whether or not at that time the Mother knew the Father had engaged lawyers and was preparing parenting proceedings to be filed in the Federal Magistrates Court in Melbourne. In summary, it is the Father’s case that the Mother was well aware of this and that she deceived him by an offer of discussion about the matter; and a proposal for the Father to see the child; into holding off on the filing of his application.
After residing in a shelter over the period between about 5 November and 22 November 2007 the Mother returned to Canada with the child without the Father’s knowledge or consent. The Mother deposes that it was events at a Melbourne Court where she had sought an Intervention Order on 20 November 2007, particularly the evidence and submissions the Father advanced at that hearing, that crystallised her decision to leave Australia and she flew out of Melbourne to Canada on 22 November 2007 without any notice to the Father.
On about 30 November 2007 the Father promptly sought to have commenced Hague Convention proceedings seeking the return of the child to Australia. The Mother was pregnant with the child K at the time of her departure from Australia. She denies that she knew this at the time whilst the Father asserts that she must have had knowledge of her pregnancy and that this was an impetus for her departure.
K was not included in the Hague Convention proceedings as he was not born until July 2008 and for a long time the Father was unaware of the pregnancy. In the meantime, on 15 May 2008 there was a contested hearing of those proceedings in the Ontario Superior Court of Justice and on 27 June 2008 Justice Thompson of the Ontario Superior Court of Justice ordered the return of the child to Australia. The Father was not even aware that the Mother was pregnant until soon after the substantive hearing of the Hague proceedings on 15 May 2008, thus first becoming aware of the pregnancy only some seven weeks prior to K’s birth.
The Mother appealed against the order of Justice Thompson and that appeal was ultimately dismissed on 3 October 2008 and the Mother was ordered to pay costs of approximately CAD$35,000.00 from the original proceedings and CAD$8,000.00 in respect of the appeal proceedings. The Mother has not paid those costs.
On 22 October 2008 Federal Magistrate Howard of the Brisbane Registry of the Federal Magistrates Court made orders on an ex parte application of the Father for the Father to have sole parental responsibility for the child; sole residency; and for the child to be placed on the Airport Watch List. The proceedings were instituted in the Brisbane Registry as at the time the Father had returned to reside with his parents consistent with an undertaking and Order made by Justice Thompson in the Hague Convention proceedings resulting from the nature of the allegations the Mother advanced in the Hague Convention proceedings.
On 30 October 2008 the child returned to Australia to the care of his Father and from that time for almost three (3) years until July 2011 his communication with the Mother was by Skype and telephone.
As to K, the Father has never physically met his child. As already noted, the Mother successfully opposed this Court exercising jurisdiction with respect to K.
It was the Father’s position during the substantive trial stage and throughout his cross-examination that he is pursuing steps; or will continue to pursue steps; in Canada with respect to parenting arrangements for K in the future. The Father does not seek to have K live with him, but to have K come to Australia from time to time for visits. However, in final submissions on Thursday 19 January 2012 in the course of hearing further evidence, the Father informed the Court that he would no longer be pursuing any formal steps to seek any orders with respect to the child K.
The Father was born in New Zealand but came to Australia with his parents when he was about six years of age and he has lived in Australia ever since, save for the period in Canada referred to. The Father obtained Australian citizenship in 2007 and proposes to continue living here.
The Mother was born in Ontario, Canada and is thus a Canadian citizen who lived in Canada until coming to Australia with her former husband in 2003. Apart from the periods of living in Australia referred to, the Mother returned to Ontario, Canada at the end of 2007 and has lived there ever since.
For reasons they each respectively advance, as referred to further below, neither parent countenances a future involving relocation from their present respective “home” country, that is, Australia in the case of the Father and Canada in the case of the Mother. Given his parents’ positions on this it is axiomatic that the child will be separated by the time and distance between his parents irrespective of which parent with whom he is living at any time. Likewise, given the financial constraints of the parties currently, opportunities for the child to travel regularly to each parent appear to be limited.
Overview of these Proceedings
Following an order made pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”) the child’s interests in the proceedings have been independently represented by Leisa Toomey, lawyer (“the ICL”). Whilst both parents from time to time during the course of these proceedings have voiced complaints about the ICL, the Court ultimately has been assisted by the evidence gathered by the ICL and the ICL’s involvement, and that of her Counsel Mr Thiele in the trial. More importantly, that involvement has achieved the objective of the child’s interests being independently represented in circumstances where there is intractable conflict between his parents.
I have earlier referred to the feature that even before reaching trial there have been in excess of 30 appearances or attendances before this Court (or the Federal Magistrates Court) in the course of these proceedings, and that there is no purpose served in an attempt to detail the history, content or circumstances of the plethora of applications that have been filed and dealt with during the lengthy period that these proceedings have been on foot.
Moreover, as indicated by the chronology outlined above, and the extent of the litigation, there are myriad issues of disputed fact between the parties. As already noted, I do not propose to outline each and every issue of disputed fact nor to attempt to resolve each such issue by findings, as it is unnecessary to do so in determining these proceedings. Many of those disputed issues of fact relate to events which occurred years ago or are otherwise not especially relevant to the determinations this Court must now make.
I will refer to specific aspects of the history of these proceedings where that is relevant to the determination I am to make and likewise will refer to, and resolve, those disputed issues of fact central to the exercise of determining parenting orders in the child’s best interests.
For much of these proceedings the parties have been directly engaged as self-represented litigants. Whilst the Father was represented by solicitors and Counsel for much of the litigation and most of the trial, he prepared his trial affidavits and other Court material himself and acted for himself from the conclusion of the four (4) days of the trial ending on 6 October 2011. For her part, the Mother has, from a relatively early stage of proceedings, represented herself and she appeared on her own behalf throughout the trial stage.
The child is now only 5 years and 7 months of age and thus his parents have been protagonists and adversaries in litigation of one form or another (in Canada or in Australia) for almost all of his life.
In passing, I note that at paragraph 40 of his affidavit filed 31 August 2011 the Father deposes in relation to the child as follows:
40. While looking through old pictures a year or so back we found an old photo of [the Mother] and I kissing at our friends wedding, he liked this picture very much and I felt it showed him that me and his mum used to care about each other and he is a product of what was once a loving relationship. He has kept this photo in his sock drawer ever since.
Regrettably, it is unsurprising that the child would cling to any evidence that there was a time when the two most important people in the world to him had some positive regard for each other. There is precious little evidence of that to be had and certainly no current evidence. To the contrary, the nature, extent and evolution of this litigation reflects the negative views each parent has of the other.
Given that the child has reached, or soon will reach, an age and stage and level of development where he will be increasingly adept at “reading” his parents, how long will it be, if his parents maintain the path they are on, before the child consigns the photograph to the waste bin as an aberrant representation of his parents? Both parents would do well to heed the message conveyed in the famous quotation of Oscar Wilde as follows:
Children begin by loving their parents; after a time they judge them; rarely, if ever, do they forgive them.
Evidence at Trial and Parties’ Ultimate Proposals
The trial of these proceedings was originally scheduled by Barry J to occur commencing on 16 February 2010. These are proceedings to which Division 12A of the Act applies and as is apparent from the transcript of proceedings on 12 January 2010 read before me, in managing the matter for trial the parties were in no doubt that the Court required affidavits to be filed for any witness upon whom a party intended to rely and for such witnesses to be available for cross-examination. As is also apparent from that transcript Barry J made it plain to the Mother that she would prejudice her case “to an extremely high degree” if she did not attend Australia for the trial.
Barry J made further orders on 10 February 2010 including, inter alia, an order for the Mother to satisfy a technology manager of the Court that her proposal to attend the then forthcoming February 2010 trial of the matter by electronic means was viable.
In the result, due to the Mother’s failure to make arrangements for appropriate video facilities for her appearance at trial by that means, on 16 February 2010 Barry J adjourned the trial to 18 May 2010 with further orders being made in relation to the technology issue.
On 18 May 2010 the Father, supported by the Independent Children’s Lawyer, sought final orders in his favour on an undefended basis, essentially because the Mother yet again did not attend in person for the trial on 18 May 2010 nor had she fulfilled requirements to attend by videolink at her expense. The Mother, attending by telephone, opposed the making of final orders and sought interim orders for the child to spend time with her in Canada on an interim basis. In the result, as reflected in Orders made on 28 May 2010, Barry J did not make final orders and made interim orders for the Mother to be permitted to remove the child from Australia to travel to Canada to spend a temporary period with the Mother in accordance with the terms of those orders.
The Father appealed Barry J’s order permitting the Mother to spend time with the child in Canada and Barry J’s refusal of the Father’s application for a stay of those orders. On 20 July 2010 Barry J ordered the Father to attend to signing of all relevant documents to renew a passport for the child.
On 3 August 2010 Barry J made further orders directed to the Father concerning the child’s passport. I interpolate here that the child has never held an Australian passport and as a citizen of Canada (and New Zealand via the Father) required a Canadian passport. That resulted in a technical deficiency in the original order. It is unnecessary for present purposes to detail the series of applications from each party that followed or the sequence of orders made by Barry J in response to those various applications. Suffice to say that over many months litigation ensued concerning the question of the child travelling to Canada to spend time with the Mother but in the end result the child, despite an order being made to that effect initially on 28 May 2010, did not travel to Canada until July 2011 after many further applications and appearances and Orders made by the Court.
That phase of litigation also included the determination of the Full Court by the Father’s appeal. The Full Court delivered reasons on 29 April 2011. In summary, the Full Court rejected the Father’s contention that Barry J ought to have disqualified himself for bias; rejected the appeal against Barry J’s refusal to stay his interim order for the child to travel to Canada; rejected the Father’s application to adduce further evidence; but found merit in the Father’s contention that the Father had not been given an adequate opportunity to be heard on an order made by Barry J for the Mother to have sole responsibility for the child to allow her to obtain a Canadian passport for the child.
What followed thereafter was a series of interim hearings and Orders made by the Court both to facilitate the child spending time with the Mother in Canada and for her to return with the child for the purposes of a trial of the final proceedings. That culminated in the Orders made by this Court on, respectively, 7 July 2011 and 11 July 2011.
In terms of evidence for this trial, Trial Directions were made by Registrar Stoneham on 29 July 2011 and at a subsequent callover the trial before me was set down. The Trial Directions made on 29 July 2011, in paragraph 3, set out the requirements for each party as to affidavit evidence to be relied upon. I highlight this because neither party was thus in any doubt about the need to file affidavits from any witness upon whose evidence the party sought to rely at trial. The Father’s written submissions, where those submissions refer to witness statements or declarations that were provided for the Hague proceedings (which were also attached to the Father’s affidavits before me), obscure the fact that those witnesses did not file affidavits nor were their versions tested by cross-examination in the proceedings before me.
Whilst, historically, each party had attached to affidavit material statements or declarations or affidavits by others filed in the Hague Convention proceedings, for his part for this trial the Father relied upon his own affidavit and oral evidence; an affidavit of Ms C (who also gave oral evidence in cross-examination); and whilst the Father had initially sought to rely upon an affidavit of Mr N (according to a filed list of documents) at the outset of the trial that affidavit was withdrawn from the Father’s list and Mr N was not relied upon by the Father.
During the trial the Father was asked during cross-examination by Mr Thiele of Counsel for the Independent Children’s Lawyer why he had not obtained an affidavit from his mother, Mrs Carlson, given that events surrounding the child’s travel to Canada and specifically events at the airport in July 2011 assumed some importance, and the paternal grandmother was present at that event. The Father referred to the Trial Directions made by the Registrar which had confined each party to a total of three affidavits or three further witnesses other than the party. In the event, I gave leave to the Father during the trial to belatedly provide an affidavit from the paternal grandmother (there being no objection to that from the Mother or the ICL) and she was cross-examined in the course of the Father’s case at trial.
In relation to the child’s visit to Canada to spend time with the Mother, and specifically in relation to the duration of that visit, an Order was made on 30 June 2011 by the Principal Registrar which included, in paragraph 16, variations and consolidations of previous orders made by Barry J and which included a request to Legal Aid Queensland to arrange through the Independent Children’s Lawyers for the child D to be assessed by a child psychologist in either Ontario or Australia after he had been in the Mother’s care for a period of two weeks. The Order went on to provide that if it appeared that the child was well settled in Canada his return date to Australia be extended.
Pursuant to that Order the Independent Children’s Lawyer retained Mr O, psychologist, as the Regulation 7 Consultant and he provided relevant reports on 22 July 2011, 6 August 2011 and 27 September 2011. Affidavits of Mr O were filed on 16 August 2011 and 27 September 2011 respectively. Essentially as a result of favourable conclusions by Mr O in respect of the child in the Mother’s environment, the child did spend an extended period with the Mother in Canada.
The Father sought to rely upon two reports of one Dr E, a psychologist who was retained solely by the Father as an adversarial expert. The Mother objected to those reports and at the outset of the trial I ruled the reports of Dr E inadmissible on a preliminary basis.
The reasons for that ruling are obvious from the transcript of the exchanges between Mr Ehlers of Counsel for the Father; the Mother; Counsel for the ICL and the Court at the outset of the trial. I also note (in light of what is contained in the Father’s written submissions about witnesses in the Hague proceedings) that those exchanges reflect that the Father was well aware that affidavits from witnesses, and their availability for cross-examination, was essential for the Court to have that evidence before it and neither party could simply attach a witness statement to their own affidavit with the expectation that such evidence was thus before the Court as truth of its content.
In summary, following the Order of 30 June 2011 referred to, pursuant to which the period the child would spend in Canada would be a matter for assessment by Mr O, the Father unilaterally engaged Dr E, a psychologist, to interview the Father and the child and to prepare psychological reports upon the child without any input from the Mother or from the Independent Children’s Lawyer. Clearly enough, the obtaining of such a report in such circumstances was neither in accordance with the Family Law Rules nor with the consent or even notification to either the Mother or Independent Children’s Lawyer. Notably, 4 July 2011 was only a matter of days before the scheduled handover of the child to the maternal grandmother which was to occur on 7 July 2011.
In the course of argument about the admissibility of Dr E’s affidavits and reports Mr Ehlers of Counsel for the Father confirmed that the Father did not seek to rely upon Dr E for expert evidence but rather, it was submitted, that the contents of Dr E’s reports were relevant to the Father’s state of mind and why he acted as he did at the Brisbane International Airport on 9 July 2011 when the child was due to fly out of Australia with the maternal grandmother for a visit with the Mother. It was put that the Father was relying on information in Dr E’s reports and thus it went to the Father’s state of mind and hence his conduct on 9 July 2011.
By way of context, pursuant to Orders of the Court a changeover occurred at the Court’s Counselling Section on 7 July 2011 when the child came into the care of the maternal grandmother for the purpose of their then forthcoming departure to Canada scheduled for two days later. Ms A, a Family Consultant attached to the Court, had facilitated that changeover and provided affidavit evidence as to what occurred at the changeover at Court on 7 July 2011. It was two days later, on 9 July 2011, when the Father and the paternal grandmother attended at the Brisbane International Airport and the child’s departure was thereby disrupted and ultimately did not occur. That resulted in further orders being made by the Court on 11 July 2011. Relevant for present purposes, it was said that the Father’s state of mind on 9 July 2011 was influenced by the content of Dr E’s reports and that they ought be admitted on that basis.
However, as the transcript of argument will reflect, the Father’s Counsel acknowledged that Dr E speculated as to the child’s reaction to the then imminent changeover from his Father’s care into the care of the maternal grandmother on 7 July 2011. The Court had Ms A’s evidence as to what actually occurred on the changeover so that, in the first place, Dr E’s opinion was speculative when the family consultant’s direct evidence was available. Second, and perhaps more importantly, nowhere in the Father’s sworn affidavit evidence for trial did he depose that he was influenced by Dr E’s reports or that the content of those reports went to his state of mind in acting as he did on 9 July 2011. It was on these bases that I refused the Father’s application to admit Dr E’s reports into evidence.
Whilst I refused the Father’s attempt to rely upon the reports of Dr E for the purpose advanced by his Counsel, in the end result Dr E’s reports were tendered into evidence by the ICL for a limited purpose (Exhibit 6) following the Father being extensively cross-examined by Mr Thiele, Counsel for the Independent Children’s Lawyer, on the contents of those reports.
I made it plain then, and reiterate, that I place no reliance upon any opinions expressed by Dr E and that the relevance of his reports is limited to the factual content, other than any opinions expressed by Dr E, to the extent that such content is not otherwise in issue.
Admission of Dr E’s reports for limited purposes is also relevant to an understanding of the discussion of these reports contained in the reports of Dr V, the independent expert psychiatrist who undertook an evaluation of both parties as the single expert appointed for that purpose.
For her part, the Mother sought to rely upon a Family Report prepared by, and the opinions expressed by, Ms T. However, the Mother had made no arrangements for Ms T to be available for cross-examination and in any event her report was somewhat historical having being prepared on 14 August 2009, more than two years prior to the trial. Further the Father had raised significant reservations about the opinions expressed by Ms T and indeed he had caused a disciplinary complaint to be made in respect of Ms T’s involvement. The Father’s affidavit filed on 15 December 2009 sets out the Father’s deposition as to the factual and other inaccuracies in the report the Father identifies, although the Father’s affidavit material otherwise and his submissions make reference to Ms T’s positive observations of the interactions of the Father with the child.
Again, I make it plain that I place no reliance whatsoever upon the opinions contained in Ms T’s report and it is relevant for the limited purpose of providing understanding to Dr V’s commentary in his reports and Ms T’s observations of the Father’s interactions with the child as referred to by the Father. It is fair to say that Dr V is, correctly in my view, critical of the method in which Ms T arrives at some of her conclusions and I reiterate that the sole reliance I place on Ms T’s report is for an understanding of Dr V’s commentary and the Father’s references to her factual observations of interaction; and to the extent that Ms T records statements or admissions by either party, and general history, which is otherwise not in dispute on the evidence before me, to that extent only.
Apart from her own affidavit and oral evidence, the Mother relied upon the evidence of her own mother, Ms G, who provided affidavit evidence and was cross-examined before me.
The Independent Children’s Lawyer caused expert evidence to be provided to the Court from Ms A, who, as noted, observed the changeover of the child on 7 July 2011 from the Father/paternal grandmother to the maternal grandmother for the purpose of the child’s visit to Canada to spend time with the Mother, and who provided a brief observation report attached to her affidavit filed 11 July 2011; Mr O, psychologist, earlier referred to who provided the reports of 22 July 2011, 6 August 2011 and 27 September 2011; and Dr V, earlier referred to.
As earlier noted, Dr V provided an initial psychiatric evaluation report upon each of the parents as set out in his report dated 30 September 2011 attached to his affidavit filed 3 October 2011 and in circumstances further discussed below, Dr V provided a further report dated 11 October 2011 and gave further oral evidence on 26 October 2011.
The Independent Children’s Lawyer also relied upon her own affidavit filed 11 July 2011 in relation to various email exchanges between herself and the parties and the maternal grandmother Ms G relevant to events of 9 July 2011 at the airport already referred to.
The Independent Children’s Lawyer also caused Mr Y, Family Consultant, to provide viva voce evidence to the Court on the first day of trial concerning Mr Y’s observations of the Father, Mother and the child during changeovers of the child on 28 September 2011 and 30 September 2011. Exhibit 4 is a memorandum prepared by Mr Y in relation to those observations.
In the result, of the experts only Mr O and Dr V were required by the parties for cross-examination and, as noted, Mr Y gave viva voce evidence and was cross-examined.
In contrast to their respective positions at the outset of the trial, as reflected in proposed Orders each party then sought, by the conclusion of the trial each party, including the Independent Children’s Lawyer, set out in their written submissions the orders or substance of orders each respectively sought.
The Father’s final orders are set out in detail at the commencement of his written submissions filed 19 December 2011. The essence of those orders is that the child would live with the Father in Australia and have Christmas holiday time with the Mother, with the possibility of mid-year time, “…if the finances are available.” The Father sought an order for the parents to have shared parental responsibility for the child and detailed orders are sought in relation to Skype communication and travel arrangements. The Father’s proposed orders contemplate the Mother coming to Australia in alternate years “with the mind that she enable child contact with the Father and their other child, [K]”. These are the essential features of the orders proposed by the Father with the full detail of the orders sought being as set out in his written submissions as referred to.
For her part, the Mother seeks orders which would have the child live with her in Canada and with the Mother having sole parental responsibility for the child. The Mother seeks an order that in advance of the child spending any time with the Father he attend “a minimum of 12 months of counselling, another psychiatric review and further family reporting by Mr [O]”.
For her part, the Independent Children’s Lawyer supports an order that the child live with the Mother and supports the making of a final order to that effect. The ICL supports the making of an interim order for the child to spend time with the Father after psychiatric review of the Father and further reporting by Mr O “particularly with regard to the Father’s ongoing web-cam communication with the child”. The ICL proposes that until further psychiatric and family reporting has occurred that there be no order for face-to-face time between the child and the Father.
Plainly, on the proposals of both the Mother and the ICL there would need to be, aside from the final orders for the child to live with the Mother, some review of the matter for the purpose of determining future time and communication orders in the light of the further psychiatric and family reporting evidence proposed.
The Court raised with the parents and the ICL at the time of oral submissions on 21 December 2011, subject to the issue of the Father undertaking therapy, the prospect and utility, given the child’s age and early stage of education, of the child spending, at least over the next two years, alternating six month periods with each parent. Subject to counselling of the Father raised by Dr V discussed in further detail below, the Mother’s response to the proposal raised by the Court was, “that would be fair” (notwithstanding the Mother’s written submissions); whilst the Father maintained his position in terms of final orders sought. For her part, the ICL, subject to the counselling issue discussed further below, did not raise any particular issue but could not be taken to have departed from the position maintained in the orders sought by her as summarised in the written submissions filed on behalf of the ICL on 12 December 2011.
In the period in advance of the trial, the child had left Australia in July 2011 to spend time with the Mother in Canada pursuant to Orders earlier referred to which involved the child returning to Australia and the Father’s care shortly before the trial commenced. A significant part of the trial, or at least a substantial part of cross-examination of the Father at trial, centred upon a series of video recordings of the Father’s audio visual communications with the child during the period when the child was with the Mother in Canada. Some of these were produced by the Father in support of his contention that the communication had been unsatisfactory and was disrupted or interfered with by the Mother. The Mother produced such recordings for the purpose of advancing her case surrounding the Father’s personal and parenting functioning.
When initially giving his oral evidence at trial, having completed his first report, Dr V was asked to view these recordings and provide evidence in relation to them. That resulted in Dr V subsequently seeking to provide a further report and further oral evidence upon Dr V’s further reflection upon what he had observed in the videos. That is the reason that after 6 October 2011, when it seemed the evidence was complete, the ICL sought and obtained leave to re-open the case for the further affidavit and report of Dr V and oral evidence being taken from Dr V on 26 October 2011 when he was further cross-examined. It was against that background that further interim hearings occurred in November and December when further orders were made on an interim basis for the child to spend further time with the Mother (Orders of 17 November 2011).
Pursuant to the interim Orders made on 17 November 2011 the child was to be returned via delivery to either the Father or the Paternal Grandfather on or before 9.00 am 17 January 2012 “Toronto time” in Canada. I had anticipated being in a position to deliver these Reasons some time in advance of the Paternal Grandfather travelling to Canada for that purpose but that anticipation proved, in the event, to by unduly optimistic.
The Father sought to re-open his case to adduce further evidence as to the Mother’s non-compliance in some respects, (importantly Christmas Day ordered communication), with the Orders of 17 November 2011. The Father’s Application in a Case to this effect was filed on 4 January 2012 and on 8 January 2012 I gave leave to the Father to re-open his case and set the matter down for 19 January 2012 for further cross-examination on that application when that evidence was taken.
Plainly enough the Court has a discretion to allow a party to re-open the party’s case and to call further evidence at any stage prior to judgment and orders where the overall justice of the case requires that. I permitted the Father’s application on the basis that he was advancing new evidence, given that it was directed to events since 17 November 2011, and that evidence was, in my view, potentially material and receiving it was therefore in the interests of justice. In circumstances where the Mother filed an affidavit in response and was permitted to cross-examine the Father on the contents of his material I saw no prejudice to the Mother by the grant of leave. Where the interests of children are involved, as here, the discretion may be exercised more generously and, in granting the Father’s application, I was mindful of the decisions in Gelley (No 1) (1992) FLC 92-290 and Handley and Stagg (2002) FamCA 206.
For reasons which will become apparent, I also on 8 January 2012 made a further order varying the previous order for the child’s return to Australia from 17 January 2012 pending the delivery of my Orders and these Reasons.
The Father
The Father was born in New Zealand and came to Australia with his parents when he was six years of age and has essentially resided in Australia ever since. The Father currently resides in rented accommodated at H on the Sunshine Coast. His parents Mr Carlson Snr and Mrs Carlson (who are aged in their early sixties) reside at W on the Sunshine Coast. The paternal grandmother gave affidavit and oral evidence in the trial.
The Father has for the past several years relied on social security in the form of a parenting allowance for his financial support. I note that commencing at paragraph 94 of his affidavit filed 31 August 2011 the Father sets out some particulars as to his financial position.
Aside from caring for the child since 30 October 2008 when the child was returned from Canada pursuant to Hague Convention proceedings the Father has not worked in any employment save for some temporary employment more recently during periods when the child has been with the Mother in Canada, as already referred to, pursuant to Orders made by this Court.
As already noted, for the purpose of the trial Dr Frank V, psychiatrist, was appointed the single expert witness to undertake psychiatric evaluation of the Father and the Mother. Those evaluations occurred in September 2011. Dr V’s initial report is attached to his affidavit filed 3 October 2011. The ICL arranged for a further affidavit of Dr V to be filed on 18 October 2011 providing a further report of Dr V dated 11 October 2011 after Dr V had further considered the video evidence of the Father’s communications with the child during the period the child was in Canada between July and September 2011.
Taken from the first report prepared by Dr V the Father provided a history including that during his late teens and early twenties the Father did not speak to his parents “for years”. He also gave a history of “physical punishment” from his father Mr Carlson Snr resulting in “black eyes and bruises”.
This aspect was expanded upon by the Father during his oral evidence at trial and there can be little doubt that on the evidence as a whole including the Father’s own oral account at trial that he was victimised by his own father in the form of repeated episodes of physical abuse, including being punched in the face with sufficient force to produce black eyes and facial bruising, whilst he was growing up, at least from early adolescence.
The Father reported to Dr V that, “…he has managed to discuss these issues with his father,” and I infer that the Father was relating to Dr V some resolution of such issues. The Father reported to Dr V that he is close to his mother. His evidence before me was in similar terms.
The Father has an older sister, Ms BT, who resides at a suburb north of Brisbane. Ms BT has her own family and two children, Jacob and Brittany. The Father reported to Dr V having a good relationship with Ms BT and seeing her “often” and reported to Dr V that he sees his parents two to three times per week.
According to the history the Father gave to Dr V the Father attended school until the early part of Year 12 and that he then left school because he wanted to earn money. He then worked initially as a truck driver and did a variety of jobs before taking up an apprenticeship as a chef at the age of 21.
The Father reported to Dr V that prior to October 2007 (the parties separated in October 2007) he occasionally took ecstasy, cocaine and marijuana but decided to, and did, give up taking drugs. He reported to Dr V drinking two or three drinks four days a month on average and that he does not drink excessively and does not use marijuana.
The Father deposes similarly in paragraphs 210 to 212 of his affidavit filed 31 August 2011.[6]
[6] “mdma” in paragraph 212 is an abbreviation of methylenedioxymethamphetamine, commonly known as ecstasy.
In 1998 the Father was involved in an incident at a bar which the Father describes at paragraph 205(o) of his affidavit filed 31 August 2011 as involving a man striking him and he retaliating. The Father there deposes that no one was injured and that it was some three years later that he discovered there was a warrant for his arrest in respect of this incident. The Father deposes that he was given a $250 fine when the Court dealt with the matter and states the belief that no conviction was recorded. It follows that the Father either pleaded guilty to an offence or was found guilty for a fine to be imposed. It may be inferred that the level of the fine reflects the conclusion of the sentencing Court that the conduct was not particularly serious.
In his first report Dr V assessed the Father, relying on the Father’s own account of his life history, functioning and mental state, that it was likely that the Father has personality vulnerabilities. In support of that opinion Dr V noted in particular the Father’s relationship history difficulties in sustaining long term relationships and a history of indulgence in illegal drugs, in particular cocaine. Dr V also noted the impulsive nature of the development of the relationship between the Father and Mother.
Dr V thought that the Father’s personality vulnerabilities could be labelled as obsessional traits with perhaps a need for control and difficulty tolerating uncertainty. Dr V also noted narcissistic traits in the Father.
Dr V expanded upon his opinions in his subsequent report and in his oral evidence and I will deal further with Dr V’s evidence overall further in these reasons. I accept the evidence of Dr V.
It may be a reflection of the obsessional traits in the Father’s personality as assessed by Dr V, whose assessments I accept, and perhaps also a reflection of the Father’s narcissistic traits, that the Father presents to the Court as an individual who appeared obsessed with this litigation and keen to portray the Mother as villainous and himself as a victim.
Aside from caring for the child, the Father has not undertaken any employment using his qualification in hospitality or any other form of employment in the years since about 2007, other than recent temporary periods referred to. Apart from devoting himself to this litigation, given the freedom to him allowed by the fact the child commenced his preparatory year of school in 2011, it is striking that rather than pursuing employment the Father has instead taken the option of devoting himself to writing a book about his experiences “from 2004 and 2008”.
At paragraph 102 of his affidavit filed 31 August 2011, the Father deposes that since the child began school in January 2011 he has been “very busy” writing a book about his life experiences from 2004 to 2008. The Father suggests he was asked to write this book “by several interested parties” (who are not named) and suggests he has a publisher and editor overseas awaiting the first draft. The Father deposes that he has completed 22 chapters of the book and refers to the experience as, “…very challenging but rewarding and I’ve learned some very important new skills.”
Of course, the Father may prove me wrong about the prospects of his book. He may produce a bestseller or at least a remunerative return for his effort. However, knowing as I do from the evidence the subject matter of the theme of the Father’s book, I hold considerable doubts.
More particularly, and more relevantly for present purposes, I wonder to what extent (if at all) the Father’s narcissistic traits have allowed him to reflect upon the potential impact upon the children D and K of publication of such a book? Whilst the actual content of the book was not the subject of cross-examination of the Father before me nor was any of the draft placed in evidence one does not require much in the way of powers of intuition to conclude that it is more likely than not that the Father will portray himself as the victim of the Mother and her conduct in any treatise by him of his life between 2004 and 2008.
Given the constrained financial circumstances the Father finds himself in as he deposes to in his affidavit it appears a curious choice, and in my view one reflective of the personality vulnerabilities referred to by Dr V in the Father, that rather than improving his financial circumstances and those for the child, this is the path taken by the Father.
As to the future, aside from his plan to complete his book and have it published the Father proposes (in paragraph 103 his affidavit) to a potential online business using his culinary skills.
At paragraph 106 the Father deposes to the potential for alternative remunerative options including returning to work in hospitality or alternatively to take over his parents’ business, “…in a few years time when they retire.” I understand from the Father’s history to Dr V that his parents’ business involves selling hospitality industry supplies and manufacturing.
The Mother
As already noted, the Mother was born in Canada and is now 35 years of age. She currently resides in SO described as a small city some two hours north of Toronto in Ontario, Canada.
Like the Father, the Mother is dependent upon social security welfare payments for her support.
Both of the Mother’s parents are still alive although they separated some time in 1999. The maternal grandmother provided affidavit and oral evidence at trial.
The Mother reported to Dr V a currently very close relationship with her own mother although reported that there were times in her teens when it was “not so good”. The Mother reported that the maternal grandmother is very supportive and helpful to her.
As for her own father, the Mother reported to Dr V that when she was a teenager her father touched her inappropriately. She believes she was over 12 years old at the time but recalls at least four occasions when her father, “…touched (her) breasts and once down there.” She reported to Dr V that she did not tell her own mother at the time of these events but was unable to say why. She expressed to Dr V the view that when she later told her mother this may have contributed to the break up of her parents’ relationship.
The Mother has a younger brother, J, currently aged about 14 who lives with the maternal grandmother who is aged 53 years. The maternal grandmother and J live some 20 minutes away from the Mother. The maternal grandmother is employed as a health professional. The maternal grandmother provided affidavit and oral evidence at trial.
At the time of the interview with Dr V the Mother expressed uncertainty as to her own father’s current whereabouts. She described him living between an uncle and an ex-girlfriend. She described seeing her father around Christmas and maybe twice a year and described her relationship with her father as “problematic” and that it is certainly “not close”.
The Mother reported to Dr V that her own mother sent her to counselling when she was 16 years of age to help her deal with the sexual abuse issues. The Mother expressed to Dr V that whilst her father has acknowledged that he sexually abused her and had been inappropriate she does not believe that he has dealt with the issues himself.
The Mother has a sister aged 30 who lives in Alberta, Canada and the Mother described to Dr V a very good relationship with her sister. As noted the Mother has a brother J who is aged 14.
The Mother completed high school in Canada and described herself to Dr V as academically above average. She reported wanting to be a psychologist after leaving school but took up a hospitality course which she did for one year. Subsequently she worked in the hospitality industry.
The Mother met Mr P in Canada when the Mother was aged 24 years and they subsequently married and were in a relationship together for some four years. The Mother reported that she came to Australia with her husband in 2003.
Notwithstanding the above, my acceptance of Dr V’s opinions leads to the further conclusion that the Father ought undertake psychotherapy to address the issues raised by Dr V, and there needs to be recognition by the Father that the element of “enmeshment” present in his relationship with the child must likewise be addressed as that has the potential, particularly when the child is old enough to start making decisions for himself, to act otherwise or make decisions otherwise than the Father would propose.
Much of the foregoing discussion of the evidence and my findings in relation to the evidence is relevant to the considerations, both primary considerations and additional considerations, set out in s 60CC of the Act.
Despite my criticisms of both parents, it is plain on the evidence as a whole that they both have much to offer the child. The parents present as very different to each other, both in terms of their personal capacities as well as in their approach as parents. It seems clear that the Mother has a more relaxed approach to life in general than the Father and similarly, her approach to parenting is less regimented or controlled than appears to be that of the Father. However, I note in respect of Dr V’s evidence that the contribution of two parents to, as it were, balance each other out, can be a positive influence. It is instructive that in the Family Report prepared by Mr O, psychologist, dated 27 September 2011, Mr O records very positive observations (made subsequent to the webcam communications discussed) of the child with each of the Father; the paternal grandparents; and with the Mother. I note in particular the following:
2.5 There was an easy interaction between father and son. I observed the two of them smiling at each other and occasionally laughing. All interactions were reciprocal. [The child] made appropriate eye contact with his father and engaged with him verbally throughout the play session.
2.6 [The father] appeared to thoroughly enjoy playing with his son. He used guided instruction, showing him how to bowl the ball towards the pins, and giving him pointers. The two of them took turns easily. …
2.10 [The child] appeared to have no concerns about being physically close to his father. At all times, he appeared happy and comfortable. …
2.12 The overall impression was of a father and son who enjoyed their time together and who enjoy engaging in hands-on activities together. It was clear that there was a secure attachment between father and son.
Likewise with respect to Mr O’s observations of the child with the Mother, he recorded, amongst other things:
…
4.5 [The child] was very enthusiastic in his interactions with his mother and chatted with her throughout the entirety of the play session.
4.6 At one point, he pretended to ring up, using an old-fashioned telephone, and showed his mother how to use it. Pretending to have a conversation, he said, “Hello Dad. What’s up?” His mother smiled as he did so. …
4.8 [The child] easily accepted physical affection from his mother.
4.9 I observed a child who seemed happy and enthusiastic in the company of his mother. [The mother] was at all times encouraging and tolerant, assisting [the child] where needed. Eye contact between the two of them remained normal throughout.
Notably in respect of his interview with the child, Mr O recorded:
5.9 Then, on a different sheet of paper, I asked [the child] if he could draw a face on one side of the page to show me how he was feeling now he was back in Australia. [The child] drew a happy face, with a smile. I then asked him to draw another face, on the other side of the page, to show me how he was feeling when he was in Canada. He again drew a smiling, happy face. I then asked him how the faces looked, and he said, “Happy.” I followed this up by saying to him, “So you were feeling happy in Canada and now that you’re home, you’re feeling happy here too?” He nodded in agreement. …
5.16 Probing further with a direct question, I asked [the child] if he had missed his Dad when he was away. He responded, “Yes.” I then put a direct question to him as to whether he was missing his Mum now that he was back. Again, he responded, “Yes,” and added, “Missed Dad and missing Mum.”
Mr O also records throughout his report very positive responses from the child with respect to his interactions with both X and K. In that respect, the second answer to the “three wishes” question Mr O put to the child produced the response:
Having a dog that he would call “Bingo”. I asked him who would play with the dog with him and he responded, “[X] and probably [K].”
At paragraph 5.20, Mr O recorded the following:
In order to gain a sense of whether [the child] has developed any greater sense of belonging in either his father’s or his mother’s homes, I asked him if he had one or two homes. He said that he has a home here and a home in Canada. I then asked him when home he spends more time in and he responded, “My home in Australia.” He then spontaneously stated that he does not remember which home he likes more.
Notably, notwithstanding the video evidence earlier referred to, the child told Mr O (para 5.22) that he experienced no problems talking to either parent via Skype when he is at either home.
Mr O provides, as one of his conclusions:
6.2 I observed that [the child] appears to have positive relationships with his father, paternal grandparents, and with his mother. From my observations, he was most enthusiastic when playing with his mother. However, this is not to say that the quality of his relationship with his mother is any better than the relationship that he has with his father. [The child] and his father appeared to particularly enjoy being active with one another. He was more inclined to participate in imaginative play with his mother and with his grandparents.
Mr O formed a “strong” suspicion that the child did not wish to be favouring either parent. He records the child being reluctant to differentiate in any way with respect to his two parents’ households. Mr O noted that any negative comments the child made with respect to K being annoying were said with good grace and with a smile on his face, and Mr O concluded that his comments about the time he spent with X suggested a satisfying sibling relationship between D and X.
In relation to the first of the primary considerations (s 60CC(2)(a)), it is clear that the child will benefit from having a meaningful relationship with both of his parents. Undoubtedly, the child has a meaningful relationship with the Father, but the present risk or unhealthy aspect of that relationship is what Dr V refers to as the Father’s enmeshment with the child.
As to s 60CC(2)(b), plainly enough, on the evidence of Dr V which I have accepted, the mere possibility, not probability, flagged by Dr V that the Father may, because of his propensity to suffer Adjustment Disorder, react to any determination by the Court of parenting Orders, the need to protect the child from harm is a consideration. I reiterate that Dr V stressed that it was not probable or likely that the Father would act to harm the child, but the raising by him of this, even as a possibility, produces the need for that consideration. That consideration was the fundamental reason for my extending the child’s time with the Mother and postponed the return date originally provided for in my Orders of 17 November 2011.
On the Father’s history, my findings include the positive findings that the Father has successfully turned his life around with respect to his previous use and abuse of illicit drugs, but also on my findings life stressors have produced in the Father the response of attempts at suicide or threatening to so do, relevant to this consideration.
The matter raised by the Father relevant to this primary consideration is any involvement of the Mother’s own father, Mr F, with the child, given his history of perpetrating sexual abuse upon the Mother when the Mother was about twelve years of age. Whilst I accept the genuineness of the Mother’s evidence that she would never allow any of her children to be in the sole care of Mr F, nor would she stay with children overnight in any residence in which Mr F was present, my acceptance of that evidence combined with the making of an Order in terms that injuncts the Mother from bringing the child into contact with Mr F on a one-on-one basis addresses any need to protect the child from any harm from that source.
Plainly, the child has not reached an age or level of maturity where any views he expresses permit the attachment of significant weight to his views, but the assessment of Mr O, and indeed the input of other experts referred to, makes it clear that the child views very positively both of his parents (s 60CC(3)(a)).
Section 60CC(3)(b) requires consideration of the nature of the relationship of the child with each of his parents and other persons, including any grandparent or other relative of the child.
It seems to me that highly relevant to this consideration is the nature of the child’s relationship with his siblings, X and K. I have referred to the references made by Mr O in his report to that. I have referred to the importance Dr V attaches to sibling relationships.
History has dictated that D on the one hand, and X and K on the other, have been living in separate households for a considerable period and in respect of D, he appears to be happy and adjusted in the circumstance where he lives with the Father, just as he seems happy to be in Canada with the Mother. However, it is plain that D has a good relationship with X and enjoys being with him. The complaints he makes about K are the usual complaints a child of five would have about a brother two years younger, but in the medium to longer term, it is reasonable to conclude that a sibling relationship and the experience of growing up with siblings may be increasingly important to D. Many authorities of this Court reflect the assumption that children will benefit from sibling relationships, and reflects the Court’s reluctance to separate siblings unless this appears, in all the circumstances, to be in their interests.[23]
[23] For example, Bennett (1990) FLC 92-191 (FC); Bauman (1981) FLC 91-077.
The Father’s affidavit evidence historically has many references to the Father’s recognition of the benefit for both D and K to have the experience of growing up together, albeit that that was in the context of the Father then agitating for Orders with respect to K and were predicated on that basis. Nevertheless, the Father himself has referred to the feature that there is only two years separating the ages of D and K, and there is acceptance on his evidence in these respects of the proposition that D’s sibling relationships are indeed important.
As matters currently stand, the only way in which D will have the experience of growing up with his brothers will be if he is living in the primary care of the Mother.
Against that, because of the Mother’s attitude with respect to K, even if D is living with the Mother, Orders for D to visit his father in Australia will not result in D and K being together for those periods. K continues to have a different surname to D, and despite assurances from the Mother from time to time that she would rectify this, that remains the position. One has to wonder what will eventually be the response of D and K to the circumstance that their respective relationships with both parents are entirely different.
By D living with the Father, it will achieve for the child the benefit of his continuing relationship, which is obviously very good, with the paternal grandparents and other extended family members on the paternal side. Conversely, it is likewise apparent that the child has a good relationship with the maternal grandmother and if he primarily lives with the Mother, he will have the benefit of relationships with his maternal relatives and extended family, including his 14 year old uncle J.
I have already dealt at some length with the consideration of the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. Allied with that consideration are the considerations expressed in subsections 60CC(4) and (4A). I am satisfied that within the constraints earlier referred to, the Father has demonstrated his capacity, over the three years prior to July 2011, to encourage a close and continuing relationship between the child and his mother. Conversely, having regard to the position with K, the Mother has demonstrated complete unwillingness or ability to facilitate and encourage any relationship between the Father and K, let alone a close and continuing one.
I have already dealt, at some length, with the evidence concerning the web-based communication between the Mother and the child over the period since the child’s return to Australia in late 2008 and July 2011. In summary, that evidence reflects the Father’s diligent approach to ensuring that the child is available for all scheduled communication times whilst, for a variety of reasons, the Mother has not always availed herself of those opportunities, sometimes for significant periods. The Mother has the demands of other children, and she presents as more flexible with respect to strict observance of scheduled arrangements. In that context, I am troubled as to what may occur if it is the Mother who is charged with long-term responsibility for ensuring that the child has communication with the Father.
Put another way, despite the plainly negative views the Father has of the Mother, it would seem he cannot be criticised for putting his views into effect by limiting or in any way sabotaging the Mother’s communication with the child over the lengthy period referred to. Conversely, whilst the Mother also has highly negative views of the Father, to some extent she is untested (outside the more recent periods when the child has spent time with her in Canada) in terms of long-term compliance with requirements to facilitate communication. Even with respect to the interim Order of 17 November 2011, the Mother failed to adhere to the terms of that Order for the child to have Christmas Day communication with the Father. Whilst I accept that the Mother thought that what was intended was Christmas Day in Canada, and I accept she was genuine in her apology to the Father about this; and I accept that she facilitated non-ordered communication with the paternal grandparents, it is concerning that there was nevertheless that failure given the precise terms of the Order that the Mother only needed to check.
The likely effect upon the child of changes in his circumstances (s 60CC(3)(d)) is a significant consideration in this case. Notwithstanding the tyranny of distance, the child, starting from a very young age of eighteen months, has been able to maintain his relationship with the Mother whilst in the Father’s care (against the background of this highly conflictual litigation); and has, in the Father’s primary care, attained age-appropriate milestones and indeed presents as a happy and articulate (for his age) child.
The observations of Mr O and his interview with the child provide confidence that the child would adjust to living primarily with the Mother, albeit that that would carry with it a significant difference in the nature of his relationship with the Father and his paternal grandparents. More fundamentally, it would plainly not be in the child’s best interests if the Father decompensates psychologically in response to such a decision affecting, in whatever way it might, the Father’s capacity to maintain involvement in the child’s life, whether in the shorter or longer term, that has been the child’s experience.
Another aspect of the Mother being untested is her capacity to care for not only X and K, but also D. Despite the voluminous material before the Court in these proceedings, there is a dearth of evidence to be found concerning the Mother’s household and parenting of X and K. For example, X is now ten years of age and school reports or other like information with respect to X may have provided evidence for a conclusion to the effect that X is thriving in the Mother’s primary care. There is no such evidence. The Mother’s evidence at trial shows that her financial capacity is limited. She receives monthly payments of social welfare of about $1,000.00 per month. She has no savings. She appears, from her evidence, to be at the limit of her financial capacity, and she gave evidence that a collection agency is pursuing her for substantial debts. Whilst the Mother gave evidence of seeking assistance from family members to assist her with funding flights with respect to the child, I am very concerned that if the child is primarily living with the Mother, the Mother may point to lack of financial capacity as a reason for her not being able to contribute to or fund any travel costs for the child to make visits to the Father, and to thus not comply with orders. Moreover, as I have already observed, in the absence of clear evidence from the Mother as to parenting matters (and no Family Report focussing upon the Mother’s household or circumstances is in evidence), there are obvious concerns about the Mother’s capacity if the child becomes a primary member of her household along with X and K.
I have, in this discussion, already touched upon, if not dealt with, subsection s 60CC(3)(e) concerning the practical difficulty and expense. I reiterate that it is an important consideration that the Mother’s financial difficulties may ultimately, or even in the short term, substantially affect the child’s right to maintain personal relations and direct contact with the Father.
In relation to the Father, I am confident on his evidence that he will pursue employment so as to improve his financial circumstances. It was clear that the Father did take up employment opportunities during more recent periods, and I expect if the Father sees the sense of putting the writing of his book aside and no longer focuses to the extent which he historically has on this litigation, there are reasonable prospects of him enhancing his personal financial circumstances.
The practical difficulties of the child travelling between Australia and Canada are obvious. The evidence before me establishes that it is unlikely that the child can (or should) travel unaccompanied until he is about eight years of age. The cost of a single return airfare is somewhere between $1,500.00 and $2,000.00, depending on the ability to secure advance purchases or take up special offers and the like. That means in the period before the child turns 8, a significant cost of travel has to be found.
Whilst the Mother asserted in evidence before me, as referred to, that she will seek the assistance of family to contribute to these costs, there is no persuasive evidence that she has put before the Court that her requests for such assistance are likely to be met. Clearly, to facilitate the more recent visits that have taken place, the Mother has been motivated to ensure that her contributions to travel can be met. In the absence of evidence of the kind suggested, I have significant concerns that the Mother, perhaps even despite the best of intentions, may find herself unable to make any contribution to ongoing travel costs.
In comparison, the Father has ensured his contributions for travel costs have been made, and in circumstances where he undertakes steady employment, he is likely to enhance his capacity to meet the practical difficulty referred to. The foregoing is relevant to consideration of each parent’s capacity to meet the child’s needs. I am satisfied that the Mother has the capacity to meet the child’s physical needs within her financial constraints, and that she has the capacity to meet his intellectual and emotional needs subject to her attitude to the Father and any influence over time that reflects what has been her attitude with respect to K’s relationship with the Father.
The single most significant factor affecting the Father’s capacity to meet the child’s intellectual and emotional needs lies in whether, using the language of Dr V, the Father’s narcissistic traits preclude him from having insight or gaining understanding into the fact that his relationship with the child has the unhealthy aspect of enmeshment.
There is nothing to add with respect to subsection (g) of s 60CC(3). I have already dealt with subsection (i).
As to subsections (j) and (k), I have made findings of family violence within the meaning of those subsections as that term is defined in s 4 of the Act. I have already dealt with the need to protect the child from harm.
Balancing Considerations
Earlier in these reasons, I identified what I saw to be the central issues in this case. I address them as follows.
(a) the personal and parenting functioning of each parent
It follows from the Court’s acceptance of the evidence of Dr V; and the findings in relation to the Father’s history; that there must be significant concerns about the personal functioning of the Father.
In particular, the propensity for him to suffer an Adjustment Disorder, not necessarily because of anything to do with these proceedings or with respect to the child, but as a matter of the usual stressors of life.
It is notable that the Father’s suicide attempts and threats at suicide and relationship difficulties occurred in the context of his history of drug use and abuse. I am satisfied that the Father has resolved his drug issues. Nevertheless, it is plain that the Father needs to accept and redress continuing difficulties in his personal functioning and that he ought undergo the psychotherapy suggested by Dr V. I also noted that Dr V’s oral evidence included the feature that the Father’s narcissistic traits may limit his capacity to have insight into his propensity to have an enmeshed relationship with the child.
With respect to the Mother, there are seemingly less concerns with her personal functioning, although Dr V also recommended that she undertake psychotherapy. I accept the submissions of the ICL to the effect that the Mother showed a capacity to conduct herself well in her own conduct of the trial and in her approach to cross-examination of witnesses, even on difficult issues. For the reasons already discussed, my fundamental concerns with the Mother lie with her parenting functioning, having regard to the absence of evidence to demonstrate it clearly with respect to X and K in the Mother’s home environment, but more particularly related to the Mother’s demonstrated attitude with respect to K’s relationship with the Father.
(b) The parties’ capacities to act in the child’s best interests
The Father’s capacity to act in the child’s best interests lies in his care and support of the child for the lengthy period that the child has been in his care and his support also of the relationship between the child and the Mother. There are, of course, as discussed, many limitations in the Father and many examples to be seen as to a lack of capacity to act in the child’s best interests which do not bear repeating.
As to the Mother, I reiterate that the fundamental concern is that the Mother’s negative attitudes, given vent in her approach to K’s lack of relationship with the Father, may likewise dictate in the medium to longer term, her approach with respect to the child.
(c) The attitudes of the parents to co-parenting
There is very little evidence of this capacity historically, and I suspect it would be naïve to assume that the conclusion of these proceedings is likely to produce any different approach in the future. Account of that needs to be taken in the Orders which are framed. I have already dealt with the issues earlier identified in (d), (e) and (f).
It will be readily apparent that there are many competing considerations or factors in tension with each other in arriving at conclusions with respect to the child’s best interests.
In the end, I reach the conclusion that on the fundamental question of the extent to which the parent having primary care of the child will facilitate a meaningful and close relationship of the child with the other parent, this is likely to be best achieved if the child lives with the Father. This is on the proviso that conditions are imposed upon the Father that require him to address the deficits identified by Dr V in particular, and provided the Father achieves an outcome which that therapy would be designed to achieve. The child’s overall best interests lie, subject to what follows, in his continuing to live primarily with the Father.
Central to my conclusion in this respect is that despite everything else, the Mother’s relationship with the child endured their physical separation from when the child was eighteen months old at the time of his return to Australia and all of the evidence I have earlier referred to as my reservations of the Mother being willing or able to ensure that occurs in the future if the child was living primarily with her.
I am also satisfied that the child’s best interest would be served by having opportunities to experience the Mother’s household and in particular to develop further his relationships with his brothers, particularly over the next couple of years whilst educational issues do not loom so large for him. By this I mean that if the child continues his present circumstances of living with the Mother until mid-this year, this will achieve that objective and allow the Father in the meantime the opportunity to address the concerns raised.
Likewise, for next year, the child spending a further six month period with the Mother would be, in my view, in his best interests. I am mindful of the costs of travel and also the presently limited capacity of both of the parents to fund that travel. After two years, the child will be approaching the age of eight years when he will be able to travel unaccompanied.
I do not ignore the ramifications for the child of his early school education in these circumstances. I acknowledge the disruptions that this will cause to the child’s education where he is attending for six months at a time with two schools with completely different educational systems.
However, there are also potential positives in that in the Mother’s environment, he will experience a French immersion school and different cultural settings to those here. That in itself has some educational qualities to commend it.
Experience of the Mother’s home environment for the child should include involvement in important parts of the Mother’s life such as Unicamp and like church-based activities in which the Mother has long been involved. The Father’s historical objection to such involvement appears to be solely driven by his requirement for control and that should not stand in the way of the child enjoying shared experiences with his Mother and brothers in the activities entailed.
s 61DA and s 65DAA
Given my findings as to abuse and family violence the presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for the child does not apply. Moreover, given the high level of conflict between the parties and the need to protect the child from such conflict as far as possible in his best interests I am satisfied that even if the presumption applied it ought be rebutted by the evidence referred to that it would not be in the child’s best interests for his parents to have equal shared parental responsibility for him.
I propose to reflect in my Orders an allocation of parental responsibility that reflects the feature that for the next two years the child will be spending, more or less, equal time with each parent.
In the longer term, the geographical distance between the parties will confine the opportunities for the child to spend time with the Mother to the long Christmas holiday period and, if the Mother is able to achieve it, a mid-year period.
Whilst s 65DAA does not apply in circumstances where the parenting order I propose does not provide for equal shared parental responsibility for the child in any event, in the longer term, it is not reasonably practicable for there to be an Order for equal time having regard to the child’s educational needs and substantial and significant time can only be achieved by reference to holiday periods.
Overview of Orders
In circumstances where the Orders I propose to make contemplate continuing involvement, at least for some time, by the ICL it is important that I address the Father’s submissions to the effect that the ICL has demonstrated bias towards the Father.
Whilst I have reached fundamentally different conclusions to those of the ICL as to parenting orders in the child’s best interest I make it plain that this in no way, shape or form endorses or reflects any suggestion that the ICL was or is biased against the Father. This is an extraordinarily difficult case with an extraordinarily complex history. It has long been recognised that within the wide discretion the Court has to make parenting orders there is no single “right” answer. Plainly, the ICL’s ultimate proposals as compared with my conclusions are informed by differing approaches to some of the evidence and differing approaches to the emphasis to be placed on that evidence.
Rather than bias, there is an abundance of evidence to confirm the conclusion that the ICL has laboured for a long time in this matter under extraordinarily difficult circumstances given the level of conflict between the parties and their consequent propensity to act in less than balanced ways from time to time. Particularly in the case of the Father the demands placed upon the ICL have been extraordinary. The example of the Father purporting to report child abuse and demanding the ICL to take action over the scooter incident earlier referred to is but one of the litany of examples that might be given. In all the circumstances, the ICL is deserving of commendation rather than the condemnation the Father has asserted. Similar observations can be made with respect of the Mother’s similar approach at an earlier stage of the proceedings when the ICL was supporting final orders in favour of the Father. I extend these comments to include Mr Thiele of Counsel who appeared for the ICL at trial. As I have already observed, the involvement of the ICL and Mr Thiele achieved the objective of the child’s interests been represented and in circumstances of the difficulties of this case and the intractable conflict between the child’s parents that indeed did serve the child’s best interests.
Both the proposed orders of the Mother and of the ICL contemplated some interim orders which would necessarily involve further hearing or hearings in this Court and further determination. Whilst it will be seen from the Orders I propose to make that this is a possibility if the Father fails to successfully comply with the conditions imposed upon him to undertake psychotherapy if he does in fact succeed in that endeavour then there will be no requirement for there to be any further hearing and determination.
In my view, it is the child’s best interests for this litigation to come to an end. It has driven much of the parental conflict. Section 60CC(3)(l) obliges the Court to consider 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 and that ought be achieved if possible in the child’s best interests.
The Orders are framed as a condition on the basis that whilst the Court does not have jurisdiction to make a “stand alone” order for a parent to undertake psychotherapy there is jurisdiction to impose that requirement as a condition of a parenting order.
More generally, the need for the condition follows from the evidence of Dr V. I reiterate, that Dr V emphasised that the matters he raised in this respect were a possibility only, not something which Dr V saw as either likely or probable. Moreover, it can be inferred from Dr V’s evidence that the prospects of an adverse reaction in the Father would be greater if the outcome of this litigation was that the child would be primarily living with the Mother in the long term and in the event that is not the outcome. Nevertheless, in circumstances where Dr V has identified other reasons for the Father to undertake psychotherapy I have concluded that it is in the child’s best interests that this occur. Subsection (m) of s 60CC(3) obliges the Court to consider any other fact or circumstance that the court thinks is relevant and plainly this is so with respect to this aspect. Whilst, with respect to the Mother, Dr V also recommended a similar period of psychotherapy but this was not to address any possible safety issue for the child and I therefore do not impose a like condition. This is not to suggest that the Court has any different view to that of Dr V. The Mother ought undertake the therapy Dr V recommends.
By allowing the child to remain with the Mother in Canada for the first six months of the year it achieves the objective of the Father having the opportunity to undertake psychotherapy and, more particularly, for his reaction to the outcome of this litigation to be gauged and reported upon. If that assessment identifies no relevant safety risk to the child, then the child will return mid year as provided for in the Orders. If the assessment is otherwise, there is provision for further application to the Court in those circumstances.
The other liberty to apply provision relates to the registration of these Orders in Canada. As outlined above, I have found that these Orders are capable of registration pursuant to the relevant Canadian legislation. However, there may be some machinery matters or additional matters that need to be addressed for that registration to be effected and it is on that basis that liberty to apply is given, if needed.
Whilst the Mother gave evidence before me, which I accept, that she would not allow the child to be exposed to Mr F on an unsupervised basis I consider that it is in the child’s best interests for an injunction to that effect to be imposed as that will hopefully remove one of the sources of conflict between the parties.
Whilst the parties agitated some costs issues to some extent before me, in the case of the Mother the $1500 or similar amount that it was asserted was lost due to the delay in the maternal grandmother’s travel to Canada in July and in the case of the Father the more recent cost of the Court delaying the child’s return from Canada pursuant to the Orders of 17 November 2011. In the result, I am not minded to make any specific orders about these matters. For the future, my Orders reflect that the parties should share in the cost of the child’s travel both for the next two years and Christmas vacations thereafter but the Mother ought be responsible for the cost of any additional mid-year holiday period she proposes. I have allowed for the child spending the whole of the Christmas holiday vacation with the Mother and allied with the web-based communications and taking into account the six month periods of the next two years that will facilitate the maintenance of the child’s relationship with the Mother. However, if she can afford to travel to Australia for a mid-year period in any year or can afford to have the child travel to her for such a period then that should occur but I can consider it reasonable to make the Mother solely responsible for that costs in circumstances where she is not otherwise contributing or likely to contribute to the child’s support.
Because of the somewhat complex machinery provisions in the Orders I have included a provision for liberty to apply more generally.
I order in accordance with the Orders set out at the commencement of these reasons.
I certify that the preceding five hundred and fifty-four (554) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 6 February 2012.
Associate:
Date: 6 February 2012
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