CASANO & ANTIPOV
[2015] FamCA 765
•16 September 2015
FAMILY COURT OF AUSTRALIA
| CASANO & ANTIPOV | [2015] FamCA 765 |
| FAMILY LAW – CHILDREN - Interim Parenting – Where the matter adjourned for further final hearing – Best interests of the child – Parental responsibility – Where significant weight attached to considerations of protecting the child from harm and parental capacity – Where previous interim orders discharged – Child live with the mother and spend supervised time with the father. |
| Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61C, 61DA, 65DAC. |
| Deiter & Deiter [2011] FamCAFC 82. |
| APPLICANT: | Mr Casano |
| RESPONDENT: | Ms Antipov |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Rowley |
| FILE NUMBER: | PAC | 3528 | of | 2012 |
| DATE DELIVERED: | 16 September 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 7, 8, 9, 10 and 11 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Greenaway |
| SOLICITOR FOR THE APPLICANT: | Rafton Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Guterres |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW Sydney Central Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Rowley |
Orders, Pending Further Order
All previous parenting orders in relation to B born … are discharged.
The Mother shall have sole parental responsibility for the child B born … 2009.
The child shall live with the Mother.
The Father shall spend time with the child under supervision at the C Contact Centre or such other professional supervision service to which the mother agrees on days and times as agreed or failing agreement at the dates and times nominated by the Centre, being not less than two (2) hours per fortnight and to facilitate such time:
(a) Each party must:
(i)Contact the C Contact Centre or such other service as agreed within seven (7) days to arrange an appointment for assessment for suitability;
(ii)Attend the assessment;
(iii)Comply with any appointment made by the C Contact Centre or such other service;
(iv)Comply with all reasonable rules of the C Contact Centre or such other service;
(v)Comply with all reasonable requests or directions of the staff at the C Contact Centre or such other service.
The Father shall pay the fees nominated by the C Contact Centre or such other service for the provision of its services.
The father shall be restrained from:
(a)Attending at or being within 500 metres of the Mother or the Mother’s partner’s place of residence;
(b)Attending any place of employment of the Mother or the Mother’s partner;
(c)Attending D School, Suburb E.
The father shall be restrained from engaging any person, company or organisation, or permitting any person on his behalf either on a paid or unpaid basis, to undertake any form of surveillance of the mother, Mr F or the child.
The injunctions provided for in in orders 6 and 7 are made for the personal protection of the child and the Mother.
The Father shall be restrained from taking the child to any medical practitioner.
The father shall be restrained from discussing with the child any allegations raised in the proceedings, the proceedings themselves and from questioning him about the Mother or Mr F.
Each party is restrained from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child including on any social media application.
Each party shall do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
The Mother shall ensure that she sends a copy of the child’s school reports, school photos and school newsletters to the Father within 7 days of receiving these documents.
The Father shall return all of the Mother’s personal diaries that he has in his possession to the Mother by proving these diaries to his legal representative within 72 hours of these orders.
Notwithstanding any other order, the father shall be restrained from taking photographs of the child’s genital and/or anal area.
The father is restrained from taking photographs of any other area of the child’s body if the photograph is for the purpose of recording an injury to the child.
Without admissions, the Mother is restrained from allowing the child to have unsupervised time with Mr F.
The Australian Federal Police place the name of the said child B born … 2008 on the Airport Watch List in force at all points of arrival and departure from the Commonwealth of Australia and maintain the child B on the Watch List until further order of the Court.
The Independent Children’s Lawyer is at liberty to send a copy of these orders to D School, Suburb E.
That within 21 days the mother shall file and serve an Amended Response setting out the final orders that she seeks.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Casano & Antipov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3528 of 2012
| Mr Casano |
Applicant
And
| Ms Antipov |
Respondent
REASONS FOR JUDGMENT
On 9 September 2015, in the course of parenting proceedings concerning a six year old little boy, the child, I made orders suspending the child’s time with his father until the evidence of a Chapter 15 expert psychiatrist, Dr G had been heard. I indicated that I would publish my reasons for that order at a later date.
At the completion of five days hearing, including the evidence of Dr G, the matter was adjourned for further hearing on dates to be fixed. Application for new interim orders was made by the mother at the completion of the first five days in relation to the time the father spends with the child. That application was supported in general by the ICL and opposed by the father.
These are the reasons for the suspension of orders on 9 September and for my orders in relation to the interim parenting arrangements pending the further hearing.
Background
Mr Casano (“the father”) who is 43 and of Country H heritage grew up in Australia. He met Ms Antipov (“the mother”) who is 27 and of Country I heritage in Country H in 2008. They commenced a relationship and arrived in Australia to settle in November 2008. At this stage the mother was pregnant. Their only child the child was born in 2009.
After the parents separated in mid-2012, the child, who was then three initially lived with his mother. The father commenced parenting proceedings in the Federal Magistrates Court which were subsequently transferred to this Court.
Although the parties do not agree in relation to appropriate final parenting orders they had been able to reach agreement in relation to interim orders concerning the child’s living arrangements up until the time of the completion of the first part of the hearing.
From April 2013 until the orders were suspended in the course of the proceedings, the arrangement has been that the child spends four nights each week in his mother’s care and three nights per week with his father. The specific arrangements are that the child is collected from school on a Wednesday afternoon by his father, spends Wednesday night in his father’s household and is delivered to school on Thursday by the father. the child is then collected by his father from his mother’s care each Saturday at 5.30pm, spends Saturday and Sunday nights with his father and is then delivered to school on the following Monday morning. He spends the balance of his time with his mother. The arrangements during the school holiday period is that the child spends equal block periods, with each of his parents.
It is essentially the father’s case in these parenting proceedings that there are significant risks to the child’s safety and wellbeing in his mother’s care and for this reason it is in the child’s best interests for him to live primarily with the father and spend defined time with the mother. The father’s application at the commencement of the proceedings was that orders be made for him to have sole parental responsibility for the child and for the child to live with him. The father proposed that the child spend time with the mother each alternate weekend from after school Friday to before school Monday during term time and for half of the school holidays in block periods of a week. The father proposed that the child be enrolled in a new school closer to his residence from 2016 and proposed various restraints including that the mother be restrained from allowing the child to sleep in the same bed as, or be left unsupervised in the presence of her partner, Mr F.
It is the mother’s case that there are significant risks to the child’s psychological and emotional wellbeing in the father’s care. The mother has particular concerns that the father has unnecessarily sought medical attention for the child, which has had a detrimental psychological impact upon the child. She is also concerned about the mental health of the father. It was her proposal at the commencement of the proceedings that the child live with her and spend every third weekend with his father during school time and that she have sole parental responsibility for the child. She proposed that the current arrangements with respect to school holidays should continue.
At the commencement of the proceedings, the Independent Children’s Lawyer had not expressed a view as to which of the parents’ proposed suite of orders was in the child’s best interests.
In the course of the proceedings as a result of the father’s evidence, the mother’s position changed and she sought a suspension of the orders in relation to the father’s time with the child until Dr G’s evidence had been heard. The ICL supported this position and as indicated I made orders suspending that time as sought.
Following Dr G’s cross-examination, the mother sought a change in the orders in relation to the father’s time with the child pending the further hearing of the matter. Essentially it is the mother’s application that the father’s time with the child be significantly curtailed to limited supervised time at a contact centre. The ICL agrees that the mother’s proposed interim orders are in the child’s best interests. The father opposed the initial suspension of orders in relation to his time with the child prior to Dr G’s cross-examination and also opposes the mother’s interim orders pending the resumed hearing. It is the father’s position that it is the child’s best interests for the parenting arrangement to continue as it was prior to the first five days of the hearing.
The evidence prior to adjournment
The father’s case
The father’s lengthy trial affidavit outlines in great detail his concerns about the mother’s care of the child, which date from the time of the child’s birth. The father also alleges that the mother on numerous occasions assaulted him physically and verbally during their relationship.
So far as parenting capacity is concerned, the father’s concerns include that the mother has mental health issues which are unaddressed and impair her parenting and that she is physically and emotionally abusive of the child, which has a detrimental effect upon him. It is also the case, according to the father, that the mother’ s partner, Mr F has physically and sexually abused the child on many occasions since separation and poses an unacceptable risk of harm to the child.
So far as physical and sexual abuse at the hands of the mother and her partner are concerned, the father alleges that from a few months after separation the child has regularly and consistently been presented to him with unexplained injuries.
In the early years following separation the father initially sought medical attention for these “injuries” by presenting the child to various doctors and hospitals. The father says that for many years he has been attempting to draw to the attention of appropriate authorities that the mother is abusive and neglectful and to obtain appropriate medical treatment for his son. The father is of the view that he has been misrepresented and frustrated by various health professionals, the police, the Department of Family and Community Services and the actions of the mother, in having the risks associated with the mother’s care being recognised and in obtaining appropriate treatment and protection for his son.
The father’s concern about the harm and injuries to the child at the hands of the mother and the father’s general preoccupation with the child’s health is considered by the mother as symptomatic of the father’s mental condition and has been a common thread in the proceedings from the outset. It has also been the father’s case for many years that the mother has an un-diagnosed and untreated mental health condition and that the child’s regular injuries whilst in the mothers care is evidence of her lack of parenting capacity, as is her insistence that the child does not need the medical attention that the father feels is appropriate.
Expert evidence
For the purposes of the proceedings a Family Report was prepared by a family consultant, Mr J. The family consultant identified in his initial report of May 2013 that as both parents raised concerns about the other parent’s mental health it would be of assistance to obtain the opinion of an expert psychiatrist. The parties agreed to appoint Dr G, a child, family and adult psychiatrist to prepare a report. Dr G interviewed the parents in September 2013 and prepared a report dated 4 October 2013.
So far as the mental condition of the mother was concerned, Dr G was of the opinion that her presentation was “entirely consistent with her psychologist’s detailed assessment and finding that she had experienced an adjustment disorder with depressed and anxious mood in the context of the parental separation, the ongoing challenging interactions with the father, and current court proceedings.”
Dr G described the father’s presentation as less straight forward and identified in the father “long-standing vulnerabilities”. He expressed the view that the father “lacked insight into the distress under which he placed his son by his persistent behaviour, questioning and allegations.” He said that at no time was the father able to consider his behaviour may have been problematic or a source of harm, despite repeated feedback from the professionals involved. Overall, Dr G was of the view that there was “a strong suggestion that the father had an underlying personality disorder.” He said that the father “held an opinion of himself consistent with narcissistic personality traits, [and is] unable to reflect on any personality vulnerability” and that “paranoid personality traits were evident in his preoccupation about the behaviour of others”. The doctor opined that “at the very least [the father] would be regarded as having narcissistic and paranoid personality traits”. He was also of the view that “if it is held that there is no evidence to support the father’s preoccupation regarding the risk to the child and the mother’s mental illness, he would be regarded as having a delusional disorder.”
The doctor expressed the view in his report that it was possible that the father’s paranoid preoccupations were not delusions, but were overvalued ideas, but felt that this was “inconsistent with [the father’s] final statement that he would never give up and was convinced that his child was at risk, with signs of child sexual abuse, physical abuse, had been strangled by the mother and exposed to emotional abuse given her volatile behaviour”. The doctor was of the view that if it were found that these views are false that this would be regarded as evidence of a fixed belief or delusion.
In the concluding paragraphs of his report the doctor expressed the view that there were numerous concerns regarding the father’s mental state. He said that he had formed the view “that the father’s parenting capacity had been significantly impacted upon by his personality vulnerabilities and probable delusional disorder.” He said “given the father’s view regarding treatment [which he was opposed to] there was no indication that this was amenable to change.” The doctor concluded that it was difficult to predict risk in such circumstances, but said that if it were found that the father was implicated in a home invasion [at the mother’s house] this would be indicative of risk to others.
Initially, as I understand it, the parties did not propose that Dr G would be cross-examined in the proceedings. Rather, it was intended by the parties that the family consultant Mr J would be available for cross-examination.
After the father had been cross-examined for two days, on 9 September 2015 I delivered a short judgement in relation to my view that Dr G was a critical witness who should be made available for cross-examination. Having regard to the opinions expressed by Dr G (referred to above), the father’s evidence that had been given at that stage, and Mr J’s opinion that Dr G’s professional conclusions were outside his area of expertise, I expressed the view that Dr G’s evidence in relation to the father’s mental state and the risk posed by the father was crucial. I expressed the view that Mr J was not and did not purport to be an appropriate substitute expert and I recommended in the strongest terms that the parties and the legal aid commission find a way to fund Dr G’s attendance in the proceedings. I was also of the view that Dr G’s cross-examination should occur within the five days allotted to the matter, even though it was clear that the entire matter would not be completed within those five days. In my view it was important to receive the benefit of Dr G’s evidence prior to any adjournment, especially as interim orders may need to be considered. Mr J’s opinion, albeit untested, was to the effect that regardless of the final findings of the Court, the current parenting arrangement for the child was becoming untenable. the child was reacting negatively to constant changeovers between the adults in conflict and there were concerns about the impact upon the child if the father were to continue to seek to validate his negative opinions of the mother by involving the child in medical examinations.
The father’s evidence which emerged in cross-examination (which was considered by Dr G prior to cross-examination) and which is relevant to this interim application can be summarised as follows:-
· The father has kept diaries from July 2012, when the parents separated, in which he has hand written notes giving very detailed accounts of every occasion that the child has been in his care. The last entry in the diaries kept by the father, which were produced to the Court was 27 August 2015 just prior to the commencement of the hearing.
· The reason the father kept detailed records in his diaries was because a solicitor, the Department of Family and Community Services and a doctor told him to keep records about issues of concern
· The diary entries include records of the manner in which the mother was dressed and how she presented and the way in which the child was dressed on each occasion a changeover of care occurred. There are many notes in relation to issues such as cleanliness and the father said in oral evidence that the child was often “filthy” and that he believes that the child is neglected.
· Whenever the child tells the father [a matter which he regards as significant] the father records the child’s report in his diary immediately as a verbatim record and for that reason, always has the diary at hand. He agreed that it took a lot of time to make these entries.
· The father plans to stop writing in these diaries as he has “had enough of everything in general” and is “tired”. The last entry is that which he made on 27 August 2015.
· Every time the child comes into the father’s care he inspects the child and when he sees scratches or marks he takes a photograph of these “injuries”. In some cases he takes multiple photographs. For example, there was one incident when nine photographs were taken of an injury he said was occasioned to the child’s ankle.
· The father believes everything the child tells him and says the child confides in him.
· The father fears that the child has been sexually assaulted by the mother’s partner, possibly on a number of occasions.
· The father has taken a large number of photographs with his phone or camera of what he believes are injuries on various parts of the child’s body. On two occasions this has included close up photographs of the child’s anus. He has also photographed the inside of the child’s thigh and the child’s penis, which he says he photographed in the toilet at a doctor’s surgery.
I interpose at this stage my view of the photographs. I am of the opinion that many of the photographs show very minor marks or scratches on the child’s skin. In other photographs no mark or bruise is apparent.
·The father has no evidence of the assaults he alleges have been perpetrated by the mother and her partner other than the child’s reports and the photographs which the father says portray injuries.
·The father has shown or given a number of the photographs to various people such as police including doing so in the last two years.
·The father intends to “store” his diaries, the mother’s private diary which he has kept and does not propose giving back to her, all of the affidavits filed and court documents, the judgement in the matter and the photographs he has taken of the child’s injuries. The father expects that the mother will brainwash, coerce and tell lies to the child and he intends showing these “stored” documents to the child when he is older so that the child can make up his own mind about the matter.
·The father, his mother and a friend engaged two private investigators to conduct surveillance and report to the father on the actions of the mother, her partner and the child. This surveillance included watching the mother’s home and reporting upon activities in her home, including sexual activities, covertly recording inside the child’s child care centre and recording the mother on a public street.
·The father said he did not give specific instructions to the private investigators to record activities inside the child care centre, but did complete a document which included details of the centre. The father said he did not have control over the private investigators in their activities and they were just doing their job. The father disagreed that this surveillance amounts to a gross invasion of privacy and said he believed it was necessary for the safety of the child.
·The father believes that many reports made by doctors, health professionals and other professionals to whom he presented the child or made reports about the child’s care, contained inaccuracies, including attributing to him statements which he did not make. He believes that many documents have been “doctored” and he has been misquoted.
·The father estimates that the child may have been seen by up to 20 medical practitioners (including those to which he was taken by his mother).
·The father believes that the reason that the child’s paediatrician has not returned calls to him is likely due to some intervention by the mother.
·The father proposes to continue investigating concerns about the child’s health in particular in relation to a current concern about “disturbed sleep”.
·B’s school reports that he presents as polite, well-mannered and is a delight to teach is in the father’s view entirely as a result of his parenting of the child and no credit for this presentation should be given to the mother.
In the course of giving evidence the father was shown a photograph of the child leaving the mother’s premises with the mother’s partner. The father said that he thought that the picture was “disgusting” and was unable in the witness box to look at it. On numerous occasions the father refused to answer questions, argued with the cross-examiner, described questions as “ridiculous”, questioned the cross-examiner and on a couple of occasions became quite teary and emotionally overcome.
In his affidavit the father describes the various injuries which he observed after the child came into his care after being with his mother. For example, on 2 January 2013 the father alleges that the child had a bite mark on his lower left arm which he believes was made by an adult human. On 5 January 2013 the father says he observed the child having a severely swollen and bruised ankle which he believes may have been the result of a spider bite while in the mother’s care. On 30 January 2013 he says the child complained of having a sore bottom and the father observed that the child’s anus was red and irritated. On each of these occasions and many others set out in his affidavit the father took the child to either his general practitioner or the Royal North Shore Hospital and later the Hospital M. The records of the general practitioner and hospitals indicate that on each occasion that the child has been presented he has been examined and on some occasions various investigations have been carried out but the alleged injuries observed by the father have not been found to be present by the various medical practitioners.
In April 2013, Dr K, the child’s paediatrician, wrote to Dr L of the child protection unit of the Hospital M requesting a full evaluation of the father’s concerns about the child. Dr L wrote the following email to Dr K in response:
This case is extremely well known to this unit. The child has been presented here on several occasions and numerous reports have been made to FaCS with the main concern now being that the father’s behaviour may constitute abuse of the child. Concerns have been expressed about the father’s mental state.
We will not see the child unless requested to do by FaCS.
I hope you understand our reasons for not getting involved.
Dr G’s cross-examination
Dr G was informed of the father’s evidence as set out in paragraph 25 and asked whether there was anything in his report which he wished to amend, qualify or add to in light of that evidence. Dr G said
The detailed evidence that has been put to me on behalf of the father, I would regard as consistent with my view that the father remains preoccupied with issues to do with his child’s safety. If those preoccupations are held to be false, I would regard that to be evidence of paranoid preoccupations and a sign of either overvalued ideas or delusions consistent with a delusional disorder or personality disorder. Certainly, I am very concerned with the father’s ongoing preoccupations with such issues. It would be my view that [the child] has been emotionally abused as a result of the behaviours that have been identified, that particularly in the context of where the father has the child in his care for three nights per week and is exposing [the child] to the recurrent discussions and focus and photographs and his concerns that the child is at risk, abused, neglected in the care of the mother, that if there is not evidence to support that, then that would be regarded as very damaging to [the child’s] emotional and psychological development.
Dr G agreed that the father lacks insight into the stress under which he is placing the child by his behaviour and that the father would be regarded as having narcissistic and paranoid personality traits. The doctor further said that
[a] parent with significant narcissistic preoccupations lacks the capacity for empathy for the child’s experience. They are so preoccupied with their own view of the world that they lack the capacity to consider the child’s experience, particularly when they are preoccupied about a particular experience, and certainly if they have been slighted, if they feel that they haven’t been respected, if they feel that they have been rejected; that is their preoccupation, rather than concern about any impact on the child’s experience. A parent with such attributes lack the capacity to respond appropriately to the child’s emotional and psychological needs, because they are preoccupied with their own concerns. It may be that in that process, the parent is so focussed on their views of what the child needs or the need to protect the child or to behave in a particular manner that they feel that they are doing what is best for the child. However, they lack the capacity to consider the child’s basic needs, if they are inconsistent with that parent’s view, and so a narcissistic parent may inadvertently act in a manner where is – because they are so preoccupied with their own experience, they fail to recognise the experience of the child, and so, in this particular case, it is highly likely that the father does not perceive that his actions would necessarily be distressing, disruptive and abusive of the child’s developmental experience.
Under cross-examination in relation to the April 2013 email in which Dr L said that the child protection unit at Hospital M refused to examine the child, Dr G agreed that that was a drastic step for Dr L to take and thinks that the opinion expressed by Dr L is a significant factor in the assessment of risk [posed by the father].
The doctor confirmed that the delusion held by the father is that the mother is harming the child and said that the concept of a delusional disorder is that:
…generally, the person is functioning normally. However, in this particular area or within a range of normal behaviour, but within this particular area, there’s an absolute preoccupation which is unassailable. It’s a fixed false belief. So it necessarily needs to be a false belief. It needs to be out of keeping with cultural expectations and so it’s not within a cultural belief system about a particular view about such issues and that this is an unshakeable preoccupation and, certainly, the question of whether the child has been placed at risk is a key factor with regard to that.
When asked about ongoing concerns, Dr G recommended that the father’s time with the child be supervised. When asked about the amount of time the father should spend with the child Dr G said:
My opinion with regard to such matters is limited. I have not ever met [the child] and I haven’t seen the nature of the interactions between [the child] and the parents. I do rely upon a Family Court consultant report which is now over two years old. And certainly it would – the amount of time and the nature of the contact arrangements would really depend on the capacity of the father to cease and desist from a range of behaviours and the support that would be available and access to supervision.
Dr G opined that a delusional disorder can be treated but the nature of the disorder is that it is very difficult to treat. He said:
…the first aspect of making it difficult to treat is that the individual concerned will present to everyone that they have been unjustly identified, that there is nothing wrong with them. They have lots of evidence and lots of proof for their views that in this situation, their child is unsafe for a whole range of reasons. And they may well rely on some of the evidence rather than producing the whole evidence base which, of course, if you look at it becomes increasingly concerning because there has been photographs and recurrent presentations and private investigators. And they may well produce part of the story because, of course, that’s – you know, kind of not what they’re there to focus on. So first of all, they won’t identify having a problem. They will identify other people as having the problem. Psychological and counselling interventions will be ineffective because all they will do is seek support for their views, justification for further notification to the authorities. And any supportive comments will be something that will fuel their views. Any challenging comments will be regarded as being either mistaken or a part of a conspiracy or doctors getting together or protective services getting together and supporting each other. And if it is a fixed false belief then therapy of any sort is not going to change the nature of the presentation. What may change the nature of the presentation is antipsychotic medication. Most of the time that is ineffective. However sometimes, antipsychotic medication can reduce the level of anxiety, paranoia, distress, agitation, preoccupation and increase insight. However, it is unlikely that the person concerned will take sufficient quantities of the medication here to recommend a treatment in such circumstances because they would be taking a medication that they regard as being unnecessary, that they know is associated with side effects. And so they would have no motivation for continuing on such medication anyway. If they did so, there could be some improvement in such preoccupations and behaviour.
Dr G was cross-examined by the father’s counsel in relation to treatment that the father had sought from Dr N, a general and forensic psychiatrist from September 2014. In response to general questions regarding the treatment of a delusional disorder, the doctor did not agree that psychological treatment could assist a person in significantly reducing or overcoming this disorder or that cognitive behavioural therapy would be of assistance.
The doctor was asked whether the father’s decision to cease keeping a written record of each of the occasions in which the child was in his care and his statement that on 27 August 2015 he made his last such entry would suggest that his preoccupation that the child would be harmed would be diminished. The doctor said that he assumed that because this suggested change occurred at the time of the court proceedings that that decision was necessarily related to the court proceedings. The doctor was also of the view that while there may have been a change in behaviour there was no evidence that the father had changed his belief and that his understanding of the evidence was that since Dr N’s assessment of the father, the father continued to be preoccupied. He went on to say that:
… if it was the court’s conclusion that there had been a genuine shift in the father’s position that he no longer was concerned that [the child] was at risk in the care of the mother; he was no longer questioning the adequacy of [the child’s] care; if he was no longer making allegations that [the child] had been sexually abused and was at risk of further physical, sexual, psychological abuse in the care of the mother and her partner, I would agree that [it would be a significant matter].
Dr G agreed that Dr N was an appropriate person for the father to have consulted. The doctor was cross-examined about views expressed by Dr N in a letter dated 23 November 2014 to the father’s solicitors which had not been originally relied upon by the father in his evidence but was produced by Dr N under subpoena.
At the date of Dr N’s letter in November 2014 she was aware of Dr G’s assessment and some of the conclusions that he had expressed but had not seen the report itself. Her report was based on observations of the father alone when he attended on five occasions. Dr G was specifically asked about Dr N’s opinion expressed in that letter as follows
I am hopeful that if [Mr Casano] is prepared to continue to attend on a regular basis that his attitudes are amenable to change and that he may develop more insight. I note that he already demonstrated that he is motivated to seek help by his preparedness to make regular appointments
Dr G said that he had reservations in relation to the completeness of Dr N’s statements. When asked about the reservations he said:
Firstly, I’m very respectful of [Dr N’s] experience, her expertise and her work, in particular, in this situation with [Mr Casano]. And I think that there are a lot of important issues that she has raised and addressed in her assessment and treatment of [Mr Casano]. And I note that her report is dated 23 November 2014. And if one then looks as the further documents that have been provided to me, subsequent to that conclusion there are a range of issues in her notes that identify her concerns.
…
Certainly in [Dr N’s] initial report from last year, she indicated that she was optimistic with regard to his capacity to change. Certainly it would be my view on reading the follow up records that her optimism has not been warranted and that there have been – there have remained significant concerns with regard to the father’s mental state, paranoid and narcissistic preoccupations, his inability to change his behaviour and his inability to respond to appropriate guidance, even when the choice of psychiatrist was, as I understand, arranged by his legal representative, even when he was aware that this was in the context of the current court proceedings and that reports were being written for the court on his behalf, and so there, I think, could be no doubt in his mind that [Dr N] was not in cahoots with someone else, but there to provide him with appropriate intervention and guidance, and it would be my conclusion that while I accept [Dr N] disputes the possible diagnosis of delusional disorder, certainly there is much to identify which is consistent with my assessment, consistent with my prognosis, and consistent with a lack of significant change on the father’s behalf.
…
As a consultant psychiatrist providing intervention for this type of problem, I would not regard the frequency of the appointments to, by any means, be regarded as regular appointments, and there has been an appropriate assessment. There has been a recommendation for intervention. The intervention has been provided. The – [Mr Casano] has attended intermittently over the course of the past year. During that past year, there has been a continuation of his preoccupations, and there has been – I do not – there is no reference to how frequently [Dr N] has recommended appointments. I’m not sure of her recommendation with regard to the frequency of appointments. There is no indication that appointments have been made or cancelled, or failure to attend. However, the frequency of the appointments would not be regarded as regular, and certainly there has not, to my mind, been a major change in [Mr Casano’s] mental state and preoccupations and behaviours based on these clinical records.
The interim application
Following Dr G’s evidence the mother made an application for proposed interim orders which would govern the parenting arrangement between 11 September 2015 when the matter was adjourned and the continued hearing which is likely to occur in approximately six months’ time. The mother proposed that all previous parenting orders in relation to the child be discharged, that she have sole parental responsibility for the child, that he live with her and that the father spend time with the child at a supervised contact centre as agreed, or failing agreement at dates and times nominated by the centre, being not less than two hours per fortnight. Various other orders were proposed by the mother but not all were pursued on an interim basis. Some of the proposed orders were consented to by the father.
The focus of the application concerned parental responsibility, and the living and spending time with arrangements referred to above. The Independent Children’s Lawyer supports most of the orders sought by the mother and in particular those concerning parental responsibility and the living and spending time with arrangements with which the application was primarily concerned. The father opposes the living with and spending time with orders and the order relating to parental responsibility order. He proposes that the current parenting arrangements continue.
The law
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].
[1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
Framework for interim applications
Goode & Goode (supra) sets a framework for the conduct of interim proceedings. This involves identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts. In addition to the uncontested facts, in accordance with the decision of SS & AH[2], the Court may have some regard to the matters in dispute. In that case, their Honours said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[2] [2010] FamCAFC 13
The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George and George[3], a decision of the Full Court citing Deiter & Deiter[4].
[3] [2013] FamCAFC 182
[4] [2011] FamCAFC 82
In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In Deiter (supra) the Full Court also said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.
The competing proposals are set out in paragraphs 39 and 40 under the heading ‘The interim application’. The main issue in dispute between the parties is the father’s contention that the mother and her partner are physically and psychologically abusive and neglectful of the child, that the mother is the perpetrator of family violence and that the mother has an untreated mental health condition.
So far as the father’s mental health and parenting capacity is concerned, it is a matter of dispute between the parties that he has a personality disorder that affects his parenting capacity and that he is emotionally and psychologically abusive of the child.
While the mother’s case is untested at this stage I note that there is no evidence in the proceedings that she suffers from any mental health disorder. Although the cross-examination of Dr G was focussed entirely on the father, Dr G had expressed the opinion in his report that the mother’s presentation was entirely consistent with her having experienced an adjustment disorder associated with the parental separation, the ongoing challenging interactions with the father and the current court proceedings.
There is no evidence of the mother’s alleged abuse or neglect other than the child’s alleged complaints to his father about the mother’s care. Despite the extensive surveillance undertaken at the request of the father or on his behalf, there is no evidence from the private investigations of the mother and/or her partner harming the child. Despite the numerous presentations to various doctors and hospitals there is no evidence that the child has suffered any injuries at all and no evidence that he has been harmed by his mother.
The numerous presentations made by the father to health professionals is not a matter in dispute. The mother’s concern that the father’s behaviour may constitute abuse of the child is supported by the email from Dr L of the child protection unit at the Hospital M written in April 2013. Dr G was extensively cross-examined about his position that exposing the child to recurrent discussions, photographs and concerns of being abused and neglected in his mother’s care is damaging and psychologically abusive. The doctor remained firmly of the opinion that the behaviour of the father is very damaging to the child’s developmental experience.
The matters set out in paragraph 25 summarising the father’s evidence and in paragraph 27 and 28 concerning the father presenting the child to health professionals and their response to such presentations will be treated as the uncontested relevant facts for the purposes of this application.
The orders sought by the mother on an interim basis and the father’s proposal that the current arrangement continue is considered by reference to the matters set out in s 60CC of the Act.
Section 60CC considerations
Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3). The primary considerations, which are contained in subsection (2), are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).
As indicated previously it is likely that the duration of the interim order currently being considered will be a matter of months before further hearing dates can be allocated.
The proposal of the mother under the interim orders would result in the child not receiving the benefit of a meaningful relationship with his father during the currency of the orders having regard to the meaning given to the phrase “meaningful relationship” by the Full Court.[5]
[5]The Full Court in McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 has approved the interpretation of the phrase by Brown J in Mazorski & Albright (2007) Fam LR 518 at [26] and has also agreed with the reasoning of Bennett J in G & C [2006] FamCA 994.
However, the Full Court also said in McCall & Clark[6]at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
[6](2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.
There is, albeit untested, evidence contained in Family Report that the child does benefit from having a significant relationship with his father. However, I accept the submission of the ICL that for the period being considered, while there may be some benefit to the child from that relationship, the need to protect the child from psychological harm from being subjected to abuse outweighs the benefit of that meaningful relationship.
The father is also concerned about the impact on the child of being denied a meaningful relationship with him under the mother’s proposed orders. He says that this is particularly concerning given the high level of his involvement in the child’s care since separation, amounting to an almost equal time arrangement. However, it is the father’s own evidence that shortly before the commencement of these proceedings he travelled to Country O for two months and the child spent no time with him. According to the father’s wife the father also travelled to Country O in December 2013 and September 2014. The child did not spend time with his father during these periods.
In my view the need to protect the child from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence is the most significant consideration in this matter.
The issue of psychological harm arising from abuse perpetrated by the father is the matter of greatest concern and arises even on the basis of the father’s version of the events. There is clear evidence from which Dr G did not resile that the father’s preoccupation with a belief that the child is being abused and neglected by the mother and the father’s behaviour related to that preoccupation is very damaging to the child’s emotional and psychological health and places the child in a stressful situation.
Dr G expressed reservations that the very recent statements by the father that he no longer intended making detailed notes and taking photographs indicated a genuine change in the father’s behaviour.
The father’s own evidence under cross-examination was clearly to the effect that he continued to believe that the child was at risk in his mother’s care and that none of the evidence to the contrary had or would change his view. As indicated, in my view, none of the photographs showed anything more than very minor injuries. Records of numerous doctors and hospitals noted that health professionals have not observed the injuries that the father claims are apparent. A range of records produced by numerous agencies are inconsistent with the father’s evidence and in each case the father thinks that the records have been interfered with in some manner.
I accept Dr G’s evidence that the father has a delusional disorder and that his behaviour towards the child in acting upon his delusional belief that the mother has harmed the child is abusive. The doctor was unshaken in his opinion and there is no expert evidence to the contrary. The father’s presentation in giving evidence was consistent with his fixed firm belief about the mother’s abuse.
I am of the view that the current orders providing for the father to have extensive and unsupervised time with the child and virtually equal care of him do not protect the child from psychological harm from being subjected to that abuse. I am of the view that at this stage the orders proposed for supervised time in a contact centre would provide appropriate protection for the child from abuse of this kind.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer only to those which are relevant.
Views expressed by the child
B, who is six, is too young to express a view in relation to his parenting arrangements.
The nature of the relationship of the child with each of his parents, and other significant persons
Although the evidence of the family consultant has not been tested, under cross-examination it appears that the mother does not dispute that the child has a close relationship with his father. Despite the concerning behaviours displayed by the father and issues in relation to his mental health, at the commencement of the hearing the mother still seemed to recognise that the child had a good relationship with him as she proposed for example that the child spend half of the school holidays and every third weekend with his father.
In his second report the family consultant described the child as appearing to be at ease with his father, stepmother and paternal grandmother. Mr J concluded that the child is attached to each of his parents and grandmother but is yet to develop an attachment with his father’s new partner.
Although the father experienced great difficulty in identifying anything positive about the mother under cross-examination and his affidavit is overwhelmingly negative about her, the tenor of his evidence seemed to be that he recognised that the child was attached to the mother.
Participating in decision making, spending time with or communicating with the child
B has been in an almost equal time care arrangement with each of his parents for a number of years. Although there are some disputes about the extent to which each parent has taken unilateral decisions in relation to the child, there is no dispute that each of them has taken the opportunity to participate in decision making about the child and has been highly involved in spending time and communicating with him.
Obligations to maintain the child
In my view this consideration is not a particularly significant one in the context of this interim application. However, it is noted that the mother has taken on the entire responsibility to financially support the child since separation. In 2015 this has included the payment of private school fees.
Likely effect of any change in the child’s circumstances
It is submitted on behalf of the father that given his extensive involvement in the child’s care to date, it is likely that there will be a detrimental impact on the child if he is only to spend time with his father for two hours per fortnight in a contact centre.
The family consultant’s view is that the mother’s proposal [which was then being considered] that the child only spend significant time with his father every third week “would greatly affect the continuity of their relationship”. He opines that “[B] is accustomed to frequent contact with his father and would be expected to miss him should such a drastic change occur”. Although it appears that the child has spent more time separated from his father during the father’s three trips to Country O in recent years, about which the family consultant may not have been aware, I accept that given the high level of the father’s involvement in the child’s care, the child will miss his father if the interim orders are made as sought by the mother.
However, I also accept the submission of the ICL that to some extent the child’s personal circumstances will improve as he will experience some relief from not being exposed to the father’s behaviour associated with his delusions about the mother’s care. Even the family consultant who expresses positive views about the child’s attachment to his father expresses the view that the child “has outgrown the present weekly shared arrangements and seems to be reacting negatively to constant changeovers between adults in conflict.”
Practical difficulty and expense
It is submitted on behalf of the father that the expense associated with supervised time may mean that even the proposal of two hours per fortnight contact may not commence for some time. Enquiries made of various contact centres indicate that the services may not be able to offer a supervised place for a number of months if at all during the expected duration of the orders. However the enquiries also indicate that a place is immediately available at least one of the centres and through a private agency (to which the mother would agree) if the father were to pay full fees for the service.
While there is no specific evidence about the father’s capacity or incapacity to afford such a service, it is submitted on his behalf that he is not in a financial position to afford such a service. Conflicting evidence has been given in the father’s own case about his access to funds. While he is currently unemployed, he has recently taken a lengthy trip to Country O. He also gave oral evidence of a particularly generous friend and his mother paying for various items from time to time including rent and surveillance of the mother. In my view the expense associated with a supervised centre is not an impediment to the father spending time with the child.
Capacity of each parent
Although the father makes many complaints concerning the mother’s parenting capacity, these complaints are based entirely on matters which are in dispute and in respect of which there appears to be no independent evidence to suggest that she is impaired.
Dr G’s evidence, which I accept, is that the father’s narcissistic preoccupations mean that he lacks the capacity for empathy for the child’s experience and lacks the capacity to respond appropriately to the child’s emotional and psychological needs. The doctor said it is highly likely that the father does not perceive that his actions would be distressing, disruptive and abusive of the child’s developmental experience.
The father’s behaviour is also characterised by him putting his own needs to prove his concerns about the mother’s lack of care above the needs of his child. It is concerning that the father describes the process of virtually contemporaneously making notes of conversations with the child and this actually takes up a great deal of time. It is also concerning that the father intrusively photographs the child on many occasions when they are spending time together.
There is no doubt that on occasions the father’s care of the child has been appropriate. In one domain, that is in identifying speech difficulties and appropriately organising speech therapy for the child, I am of the view that the quality of the father’s care was in fact superior to the mother’s. However, other than in the specific case of speech therapy I am of the view that the mother has far greater parenting capacity than the father. Contrary to the father’s assessment, I am of the view that the very complimentary school reports concerning the child’s presentation do reflect well on the mother and her care of the child.
In his observations of the mother and child interaction the family consultant observed good verbal and non-verbal communication, spontaneous physical exchanges and laughter and the mother impressed the family consultant as more objective and child focussed than the father.
The family consultant also expressed the opinion in the Family Report that if the child were to have less frequent contact with the father (and the family consultant was considering a far less drastic reduction in contact than is currently being contemplated) that “such a situation could exacerbate [the father’s] paranoia (if it does exist already), thus affecting his future parenting capacity”.
Maturity, sex, background, including lifestyle, culture and traditions, of the child and of either parent
B is a six year old little boy of Country I parentage on his mother’s side and Country H heritage on his father’s side. He is exposed to the benefit of the culture associated with each of his parents when in their respective care. He will be denied that particular benefit from his father’s heritage if the interim orders are made as sought by the mother. However, as the order under consideration is of a duration of months rather than years I am not of the view that this is a particularly significant factor at this stage.
It is of far greater concern to me that under the parenting arrangement which has been in place for a number of years the child has been exposed to constant changeovers between adults in conflict. In his father’s home the child has been subjected to behaviours associated with his father’s preoccupation and delusional belief that he is being harmed by his mother. A significant amount of time that the child should be enjoying with his father, who undoubtedly has much to offer, has been spent in discussing negative aspects about his mother and her partner, his father documenting and gathering evidence including at times taking intrusive photographs and being presented to a multiplicity of health professionals and being subjected to unnecessary examinations. There is much to be said for the ICL’s submission that the child needs some relief from his current circumstances.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
For the reasons discussed in relation to parental capacity and risk of harm I am of the view that although the father may believe that he has a benign and beneficial attitude towards his child’s experience, he has in fact focussed on himself rather than his child. Further, although he may believe that he has behaved in a responsible manner as a parent in presenting the child to doctors and hospitals I am of the view he has harmed his child and he cannot be regarded as a responsible parent.
Family violence
The father’s conduct in engaging in highly intrusive surveillance falls within the definition of family violence under the Act.[7] In the past an ADVO has been made for the protection of the mother from the father.
[7] Family Law Act 1975 (Cth) s 4AB
Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
…
(c) stalking;
…
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode (supra), the Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.
Under s 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (s 61DA(2)).
For the reasons given, I am satisfied that the father has engaged in abuse of the child and accordingly the presumption does not apply. Further I have no confidence that the parents have any capacity to cooperate or communicate well enough to make joint decisions. The father has no respect for the mother and steadfastly believes that she is abusive. It would not be in the child’s best interests for the parents to jointly exercise parental responsibility for a few months while these orders are in operation.
Conclusion
In considering whether to disrupt the current parenting arrangements in the course of parenting proceedings which are not yet complete I must place significant weight on those matters which are not in dispute.
In applying the “best interest” considerations I am of the view that matters of particular significance are the need to protect the child from psychological harm from being subjected to abuse by his father and the capacity of the father to meet the child’s needs.
While the benefit to the child of having a meaningful relationship with both of his parents is obviously important and there is likely to be some negative effect on the child of separation from his father, these matters are outweighed by the other considerations to which I have referred and the other best interest considerations touched upon in this judgment. For these reasons, I am of the view that the orders proposed by the mother and supported by the ICL with respect to parental responsibility, the child’s living arrangements and the time the child is to spend with his father are in the child’s best interests. Accordingly, I make those orders and the other orders sought by the mother to which the father agrees.
I certify that the preceding ninety seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 September 2015.
Legal Associate:
Date: 16 September 2015
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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Abuse of Process
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