CASTYN & CHESNEY
[2019] FCCA 3045
•24 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CASTYN & CHESNEY | [2019] FCCA 3045 |
| Catchwords: FAMILY LAW – Final hearing – parenting application – whether the child’s mental health is compromised by time or communication with father – whether the mother has undermined the child’s relationship with the father. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CC, 61DA, 65D, 65DAB, 68B |
| Cases cited: Champness & Hanson [2009] FamCAFC 96 |
| Applicant: | MR CASTYN |
| Respondent: | MS CHESNEY |
| File Number: | SYC 4967 of 2011 |
| Judgment of: | Judge M Neville |
| Hearing dates: | 9, 10 September and 2 October 2019 |
| Date of Last Submission: | 2 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Winfield |
| Solicitors for the Applicant: | Vince Margiotta Law Practice |
| Counsel for the Respondent: | Mr Givney |
| Solicitors for the Respondent: | Anthony Ziade & Associates |
| Counsel for the Independent Children's Lawyer: | Ms Beck |
| Solicitors for the Independent Children's Lawyer: | Shedden & Associates |
THE COURT ORDERS, ON A FINAL BASIS, THAT:
All previous parenting Orders be discharged.
The mother have sole parental responsibility for the child X born on … 2002 (“X”).
X live with the mother.
The mother must inform the father as soon as reasonably practicable of any medical emergency for X.
The mother shall inform the father (by email or text message) at least fourteen (14) days before engaging in any surgery or serious medical treatment for X to undergo, other than emergency treatment.
The mother is authorised to remove X born … 2002 from the Commonwealth of Australia on any occasion she deems appropriate.
Subject to Order 9(b) herein, the father may communicate directly with X's school, and the mother shall authorise the school to communicate with the father so that the school may provide to him, at his request and expense, copies of X's school reports, and school photographs.
The parties are restrained from denigrating the other in the presence or hearing X, or discussing these proceedings with X, or allowing any other person to do so.
Pursuant to section 68B of the Family Law Act 1975 the father is injuncted and restrained from
(a)communicating with the mother or X in any way whatsoever;' and
(b)approaching the mother or X's home, school, place of work or any places of extracurricular activity they may attend from time to time.
The mother shall provide a copy of these Orders to X's school & any treating medical or allied health practitioner that X may attend or consult with from time to time.
The Independent Children's Lawyer shall meet with X to explain the Final Orders to her and thereafter be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Castyn & Chesney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4967 of 2011
| MR CASTYN |
Applicant
And
| MS CHESNEY |
Respondent
REASONS FOR JUDGMENT
Introduction
X (born … 2002) is presently aged 17 years. Her parents, Mr Castyn (the Applicant Father) and Ms Chesney (the Respondent Mother) are in dispute as to what time – if any – X should spend with the Father for the next 12 months.
The Father seeks orders that X spend time with him:
a)Each alternate Saturday overnight to Sunday;
b)Each alternate Sunday from 10am – 6pm; and
c)Every Wednesday from 5pm – 7pm during school terms and from 5pm – 8pm during school holiday periods.
The Mother and the Independent Children's Lawyer (“ICL") seek orders that the Father be restrained from communicating with or spending time with X and the Mother, and that he be restrained from approaching them, their home or the places they may attend from time to time for extracurricular activities.
Background
X is the child of Mr Castyn and Ms Chesney. X’s parents commenced their relationship in … 1996, were married on … 1998 and separated on 1 December 2009.
X has an older brother, Mr O, born … 1998. He is now aged 20 years.
X has had some health issues from an early age. She has diagnoses of epilepsy in early childhood, borderline intellectual functioning, Autism Spectrum Disorder and Major Depression with Psychosis. The diagnosis of Major Depression with Psychosis was made in September 2016 and thereafter X was diagnosed with Bipolar Affective Disorder.
Following separation, X lived with her Mother and – by agreement between the parents – spent daytime time with Father, usually each Sunday.
The Father commenced these proceedings on 28 August 2015.
On 9 March 2016, interim parenting orders were made by consent providing, in broad terms, that X spend time with the Father each Wednesday from 5:00pm – 8:00pm and each Sunday from 10:30am – 5:30pm.
Family Consultant Ms C prepared a family report on 28 September 2016.
On 11 November 2016, further interim parenting orders were made including that X spend time with the Father on 18 November 2016 and that otherwise, the interim orders of 9 March 2016 recommence on 20 November 2016 and continue thereafter. The orders provided for the Father to take X from school to attend an appointment with Dr D on 25 November 2016. The Court noted the Father was engaged in an anger management course. The Father undertook to the Court that he would not discuss the Court proceedings, or the content of the Family Report with X, that he would not show X a copy of any part or the whole of the report and that he would not discuss the parental conflict in the presence or hearing of X.
On 2 March 2018, further interim parenting orders were made requiring the Father to enrol and attend upon Relationships Australia for counselling as recommended in the family report and that the Father consult with X’s health care providers in relation to health issues.
Following an incident that occurred in March 2018, on 1 May 2018 the Court made orders suspending X’s time with her Father.
Following a further incident in June 2018, on 13 August 2018, the Court made orders restraining the Father form communicating with the Mother or X in any way whatsoever, and restraining the Father from approaching the mother or child’s home, school, place of work or any places of extracurricular activity that she may attend from time to time.
On 3 December 2018, the Court made orders that X’s school principal receive a copy of the orders of 1 May 2018 and noted that the school principal was to inform X’s teachers of the extent of the orders and the fact that there was to be no time between X and the Father.
The matter was listed for final hearing on 9 and 10 September 2019 and submissions were heard on 2 October 2019.
The orders sought by the parties
By Initiating Application filed 28 August 2015 and as amended by a minute of proposed order the father seeks final parenting orders as follows:
a)All previous parenting orders be discharged.
b)The Mother be granted sole parental responsibility for the child X born … 2002 provided that the Mother consult with the Father prior to making significant decisions concerning X.
c)The Father seeks fortnightly overnight time and every Wednesday afternoon with X together with school holiday time and special occasion time.
d)The Father further seeks to travel overseas with X
The Respondent mother in her Response filed 12 November 2015 and as amended by a minute of proposed order, seeks her own final parenting orders as follows:
a)All previous Parenting Orders be discharged.
b)The Mother be granted sole parental responsibility for the child X born … 2002.
c)Pursuant to section 68B of the Family Law Act 1975 the Father is injuncted and restrained from communicating with the mother or child in any way whatsoever and is injuncted and restrained from approaching the mother or child’s home, school, place of work or any places of extracurricular activity they may attend from time to time.
d)The Independent Child’s Lawyer shall forthwith deliver to the Mother X’s passport.
e)The Airport Watch List Order be discharged.
The Independent Children’s Lawyer seeks the following orders:
a)That all previous parenting Orders be discharged.
b)That the mother have sole parental responsibility for the child.
c)That X live with the mother.
d)That the mother must inform the father as soon as reasonably practicable of any medical emergency for X.
e)That the mother shall inform the father (by email or text message) at least fourteen (14) days before engaging in any surgery or serious medical treatment for X to undergo, other than emergency treatment.
f)The mother is authorised to remove X born … 2002 from the Commonwealth of Australia on any occasion she deems appropriate.
g)Subject to Order 9(b) herein, the father may communicate directly with X's school, and the mother shall authorise the school to communicate with the father so that the school may provide to him, at his request and expense, copies of X's school reports, and school photographs.
h)The parties are restrained from denigrating the other in the presence or hearing X, or discussing these proceedings with X, or allowing any other person to do so.
i)Pursuant to section 68B of the Family Law Act 1975 the father is injuncted and restrained from
i)communicating with the mother or X in any way whatsoever;' and
ii)approaching the mother or X's home, school, place of work or any places of extra curricular activity they may attend from time to time.
j)That the mother shall provide a copy of these Orders to X's school & any treating medical or allied health practitioner that X may attend or consult with from time to time.
k)That each of the parties shall pay equally the costs of the ICL, less any contribution previously paid, (if any), to Legal Aid NSW.
l)That the ICL shall meet with X to explain the Final Orders to her and thereafter be discharged.
Principles to be applied and procedure to be followed
Section 65D(1) of the Family Law Act 1975 (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act.
Section 61DA of the Act requires the Court to apply a presumption before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility) that it is in the best interests of a child for a child’s parents to have “equal shared parental responsibility” for the child.
Section 65DAB of the Act requires the Court to have regard to any parenting plans entered into between the parties. This is not relevant on the facts of this case.
The presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act). The presumption may, otherwise, be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his/her parents to have such equal, shared parental responsibility (s.61DA(4) of the Act).
In the present case, no party contends for an order for equal shared parental responsibility and each party seeks an order that the Mother hold sole parental responsibility for X.
In determining what parenting orders ought to be made in relation to a child, the best interests of the child are paramount.
The best interests of a child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows (relevantly):
“(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
Material relied upon
The father relied on:
a)His Initiating Application filed 28 August 2015;
b)His affidavit sworn and filed on 31 August 2019;
c)Affidavit of Dr D sworn and filed on 13 November 2018;
d)Affidavit of Dr E sworn 27 July 2019 and filed on 5 August 2019;
e)Affidavit of Mr F sworn 29 November 2018 and filed on 30 November 2018;
f)Affidavit of Ms G sworn 16 November 2018;
g)Affidavit of Ms A sworn 16 November 2018;
h)Affidavit of Mr B sworn 15 November 2018.
The mother relied on:
a)Her Response filed 12 November 2015;
b)Her Affidavit sworn 13 November 2018;
c)Her Affidavit sworn 5 September 2018;
d)Affidavit of Dr D affirmed 14 November 2018;
e)Affidavit of Dr D affirmed 19 August 2019.
The following documents were tendered into evidence as follows:
Exhibit No
Document
Date
Tendered by
A
Easter 2019 card from father to X
9.09.19
The mother
B
Family Report of Family Consultant Ms H
10.09.19
Court
C
Card sent by the father to X on 8/09/2019
2.10.19
The mother
D
Documents produced on subpoena by Dr D marked with yellow tabs
2.10.19
The father
Issues
The essential issues in dispute the subject of determination are:
a)Whether or not an order should be made for X to spend time with the Father
b)Whether or not there should be a restraint on the Father communicating with the Mother or X and approaching the Mother or X’s home, school, place of work or any places they may attend from time to time for extracurricular activities
The Evidence
X’s special needs
X is a young woman with special needs in relation to her intellectual functioning and her mental health.
The Court had evidence from Dr D. Dr D is a child and adolescent family psychiatrist and has treated X since 28 September 2016.
Dr D prepared 2 reports for the purposes of the parenting proceedings, the first on 8 October 2018 and the second on 19 July 2019.
Those reports indicate:
a)X presented to Dr D in September 2016 with suicidal ideation, depressed mood and command auditory hallucinations. Dr D made a diagnosis of Major Depression with Psychosis and commenced X on antipsychotic medication.
b)Given X’s complicated history of epilepsy in early childhood, borderline intellectual functioning and diagnosis of Autism Spectrum Disorder, Dr D sought further psychiatric opinion from Dr J at K Hospital. Dr J diagnosed X with Bipolar Affective Disorder.
c)X received supportive psychotherapy from Ms L, psychologist and from a social worker at K Hospital. She has also seen Ms M psychologist for help controlling the voices in her head.
d)X is very suggestible and is very vulnerable to interpersonal pressure.
e)In 2018, Dr D considered X required prompting with self-care.
f)In 2019, X develop new symptoms of lip smacking movements at times, of which she is unaware and vertigo leading her to fall. She has been referred to a neuropsychiatrist for opinion.
g)In 2019, X continued to have “soft” auditory hallucinations telling her, at times, to hurt herself with a knife.
h)As at 9 July 2019, Dr D considered that X remained unwell.
The Father’s Evidence
The Father seeks orders that X spend time with his each Wednesday afternoon, and in each fortnight on Saturday overnight to Sunday in week 1 and on Sunday during the daytime in week 2.
The Father’s first language is Country P, although he is able to speak some English. He had an Country P interpreter available to him, although he chose to answer some questions in English. At such times, I formed the view that the Father was, at times, not properly understanding the question he was being asked and I required the Father to utilise the assistance of the interpreter for his evidence.
When giving evidence, he was, at times, unresponsive to the questions he was asked by counsel for the Mother and some of his answers appeared tangential to the questions that were being asked, particularly in regards to his evidence about his understanding of Autism Spectrum Disorder and Bipolar Disorder; his attendance at the Mother’s home in March 2018; and in relation to his contact with X in January and February 2019. In assessing his evidence, I have considered the difficulties experienced by witnesses whose first languages are languages other than English, and I have considered the difficulty of giving evidence through an interpreter. Nonetheless, I approach the Father’s evidence with some degree of caution. I formed the view that the Father was minimising his role in the events occurring at the Mother’s home in March 2018 and his contact with X in January and February 2019 and insofar as his evidence is inconsistent with the Mother’s on these issues, I prefer the evidence of the Mother.
Background Matters
The Father is a Country P man, and English is not his first language. He gave oral evidence with the assistance of an Country P interpreter.
He presently lives in the same accommodation that he was living in at the time of the family report interviews – that is, a studio apartment in Suburb Q. The apartment has one bedroom, apparently without any separation from the rest of the living space, and he has the option of using a fold out couch.
X’s special needs
In his affidavit evidence, he says that he accepts that X has a history of severe infantile spasms, global developmental delay and Autism Spectrum Disorder. He does not specifically reference any diagnosis of Major Depressive with psychosis or of Bipolar Affective Disorder.
In his oral evidence, he said that the first time he became aware of X’s diagnosis of Bipolar Affective Disorder was when he read it in Dr D’ report filed in these proceedings. In his evidence, he was unable to identify why X sees Dr D and he gave evidence that he did not understand what the term “bipolar disorder” means. He accepted that X hears voices telling her to harm herself. He gave evidence he had not been to a doctor to find out how he could help a child with bipolar affective disorder. He was aware that X takes anti-depressant medication. He did not indicate any awareness that X takes or has ever taken anti-psychotic medication.
In relation to X’s diagnosis of Autism Spectrum Disorder, he agreed that at the time he attended upon the family consultant, he was unaware about autism. He gave evidence that he had made no inquiries about the term, although he had done some reading and one of X’s therapists – Ms R - had advised him that he should engage with X by sitting low in the chair, asking X where she wanted to go and not forcing her to do anything. He said that he tries to encourage X by telling her she is beautiful.
In relation to X’s special needs, he gives evidence that the Mother did not keep him informed of such matters.
Parenting arrangements during the relationship and following separation
The Father gives evidence that during the course of the marriage, the Mother was the children’s primary carer and that he worked full-time and assisted the Mother with the children’s care whenever he could. Following separation, X continued to spend time with him one day each weekend, even after Mr O stopped attending. She spent regular time with him until March 2018, when their relationship broke down.
X’s access to the Family Report
The Father agreed that shortly after the release of the family report in September 2016, he showed the first page of the report to X and then put it away, but that X subsequently got the report out whilst the Father was attending to other things at home and started to read it. He then took the report away from her.
Events leading to the breakdown of the relationship with X
In his evidence, the Father said that toward the end of 2017, X started to message him making complaints about the Mother. She sent him a message on 1 December 2017 saying that she was scared as the Mother was not making dinner for her and Mr O, that the Mother went to bed and when she woke up, she hit Mr O and yelled at him and locked him out of the house. Further messages were sent to him by X indicating that she was scared of the Mother, that the Mother had taken her phone charger and that X did not want to attend an upcoming planned trip to Country P with her Mother. The Father gives evidence he tried to reassure and comfort X at these times.
In his oral evidence, the Father agreed that on 14 March 2018, two days after the parties had been in Court, X was spending time with him. He was angry with the Mother after the Court event on 12 March 2018 and expressed that anger to X. He agreed that on that occasion, he raised his voice, told X that she had betrayed him, slammed a door, told X to “fuck off” and said to her “good luck with your shit mother”. Following that incident, the Mother declined to make X available for time with the Father and the Father accepted that he had sent 20 messages to X on 16 March 2018, 4 messages on 17 March 2018, 19 messages on 18 March 2019 and “a lot” of messages on 23 March 2018, although he could not remember the number.
He attended at the Mother’s home on 18 March 2018 and the Police were called on that occasion by the Mother. He contends that he attended to see X and that the Police told him that if he wanted to speak with her, he could call her. He telephoned X from outside the house, and X was apparently resistant to seeing him. The Father gives evidence that it sounded as though X was checking her answers with the Mother.
On 19 March 2018, he called X and apologised to her for the events of 14 March 2018. He gives evidence that X said to him “I still love you, I want to spend time with you but now I don’t know what we’re doing”.
There were further exchanges of messages and emails between X and the Father until 11 April 2018, when X stopped responding the Father’s messages or answering his calls.
Contact after the orders of 1 May 2018
The Father gave evidence that after the orders of 1 May 2018 suspending his time with X, he bumped into her on the street near Suburb S shopping centre on 5 May 2018. He called out to her as she was walking her dog and they had a conversation for about an hour.
On 11 June 2018, he saw X walking the dog at Suburb N and stopped to speak to her. He gives evidence that she told him that she wanted to see him again, “like before”. The Mother’s cousin took X’s arm and pulled her away. The Mother then contacted Police who spoke to the Father. One of the officers warned the Father “if you do it again, I will have to arrest you”.
Contact after the orders of 13 August 2018
On 13 August 2018, the Court made orders restraining the Father from contacting X or the Mother.
On 15 August 2018, X apparently sent an email to the Father indicating that the Mother had been treating her badly for the past few month, and asking the Father not to say anything about the email. She expressed that she was sad that she was not allowed to see the Father, that she was scared of the Mother, and that when she told the Mother she wanted to see the Father, the Mother said to her “you can go and commit suicide together and that would be a beautiful thing”. There is no evidence that the Father took any step to bring this email to the Mother’s attention or to anyone else’s attention.
There were further messages exchanged between them on 16 August 2018.
On 17 August 2018, the Father received an email from “V” – an internet friend of X’s. That email expresses that X misses the Father and wants to see him and that the Mother was not allowing contact to occur with the Father. The email said that X “doesn’t feel safe in her house and wants to be with you”.
Since August 2018, the Father has seen X on 2 occasions. On 27 January 2019 whilst she was walking the dog in the park. He gave evidence that he waved to acknowledge her but then left the park. On 28 July 2019, whilst driving in Suburb S, he again saw X in the park. He rolled down the car window and said to her “Darling, I’m just driving now and I’m going”.
The Father also accepts that he sent a card to X at Easter 2019 which read:
Hi Darling, how are you? I hope you are good. I miss you a lot. Still I hope see you soon again. I don’t know what going on. I love you my beautiful daughter, very very much. (I) struggle to believe you don’t call me. Please don’t have somebody to change your mind about your Daddy. Really really I miss you and I think you still love me. Happy Easter my gorgeous. Give me a sign get it this envelope.
On 2 October 2019 when the matter was listed for submissions, the Father, through his counsel, conceded that he sent a card to X on 9 September 2019 (after he had been cross examined) which read:
Dear X, I miss miss miss miss you a lot my lovely angel. How are you? What you doing? I don't see you one year and a half. Are ok are you happy, hopefully see you soon. I love you much and I worry too.
Therapeutic assistance
The Father gives evidence that he attended for 4 sessions of psychological assistance with Dr E. He said that she made suggestions as to how he could manage his anxiety and stress and he discussed with her his wish to spend more time with X. In cross-examination, he said that he saw Dr E because his solicitor suggested he do so, and that he does not consider he needs any further therapy.
He also gives evidence that he commenced the Relationships Australia Taking Responsibility Course, but that it was suggested to him that he would be better suited to the Parenting After Separation course and he completed that course on 17 May 2018.
The Mother’s Evidence
The Mother seeks orders restraining the Father from contacting her or X, spending time with X and otherwise approaching the home or places that they may attend, including school.
The Mother gave evidence in a forthright and clear manner. Whilst at times she sought to provide answers that strayed beyond the scope of the questions asked of her by counsel for the Father, when this was pointed out to her, she focused her attention on the questions that were asked of her and gave responsive answers.
The Mother made reasonable and appropriate concessions especially in relation to the events of late 2017 and early 2018 in relation to a suggestion that she had screamed at Mr O or X and pushed Mr O out the door. She impressed as reliable and as a witness of truth.
Background
The Mother works as a public servant at the Employer T in Suburb U. She works full time, Monday to Friday.
X’s special needs
The Mother gives evidence that notwithstanding X’s special needs, X is progressing well at school. She excels at languages, she is in a neurotypical class and has friends who are not on the Autism Spectrum.
X still requires a lot of support and prompting to attend to her day to day routines and personal care. The Mother maintains a whiteboard system setting out X’s routines for her.
X currently attends tutoring on Monday evenings, attends a physiologist on Wednesday evenings, a social worker at K Hospital on Fridays after school, sees a psychologist alternate Wednesdays to assist with the voices that she hears, sees an occupational therapist on alternate Tuesdays and sees Dr D every 3 – 4 weeks and Ms L monthly.
The Mother gives evidence that X suffers depressive episodes on an average of once or twice a week and at such times her inner voice tells her to harm herself.
Since December 2018, X has had an uncontrollable lip pouting movement, occurring on average 3 – 4 times per week and lasting for about 5 minutes.
X’s access to the Family Report
The Mother gives evidence that on 27 October 2016, one of X’s friends reached out to her and sent a message saying “I though you would like to know, X has been silent and moody and I think she is upset or worried about something”.
When the Mother collected X from school she raised the message with X. X said to her “I’m really worried about the Court…Dad made me read the report. He said I have done everything wrong. I should’ve talked badly about you. He is upset that I didn’t. He said that I should’ve sat away from you to make it seem that I don’t like you.”
The Mother sought support for X from her psychiatrist as a result and then sent a message to the Father and his solicitor informing them of the above matters and expressing that she thought it was not in X’s interest to spend time with the Father until the matter is next in Court.
Difficulties in the Mother’s relationship with X in late 2017
The Mother gives evidence that during the 2017 – 2018 holidays that her relationship with X was at rock bottom. She was unable to get X to communicate with her, she would storm off into her room if they disagreed and X would not have anything to do with her.
During cross-examination, the Mother agreed that tensions were running high, and that there was an occasion where she was distressed, she was screaming and crying. The issue apparently involved Mr O. The Mother gave evidence that she did not hit Mr O, but that she did push him out the door.
The events of March 2018
The Mother gives evidence that on 14 March 2018, she arrived home and heard a loud wailing. She found X slumped on the floor sobbing. X told her “Dad drove me home early. He dumped me on the front and told me to fuck off….The whole time I was with Dad tonight, he kept screaming at me. He said I betrayed him and did not love him anymore. I made him look bad to the judge. He said I had got him into trouble. He kept screaming at me so much my head hurt. It is still hurting…When I was with Dad he kept throwing and banging things on the table and kicking the doors and screaming at me all the time saying I had said everything bad about him. He kept talking about the court. I was so scared. I started to cry. Dad then asked me why I was crying. He kept screaming and slamming things on the table. I don’t know what happened. I don’t know why he dropped me off early. He was angry the whole time. He even told me to fuck off….He said good luck with your shit mother”.
Following that event, the Mother gives evidence she had trouble getting X to school.
On 18 March 2018, the Father then arrived at the home. The Mother gives evidence he was aggressively pounding on the door demanding to see X. She called the Police.
X told the Mother she was scared. The Mother then contacted the Police who attended, spoke with the Father and suggested to the Mother that she facilitate telephone communication between X and the Father. The Mother did so.
X’s reaction to the Father’s contact after the orders of 1 May 2018
The Mother gives evidence that on 5 May 2018, X came home and said to her that she had seen the Father at the park, and that he had said to her “Your mother is lying. She wants to take you away from me. Your mother is bad… Dad asked why I wasn’t’ answering his phone calls or messages. I wanted to run away from him but couldn’t move because I was scared dad would get angry. I wanted the conversation to end but didn’t know how to stop it…”
After this incident, X then told the Mother that the voices in her head have become stronger and that X wanted to kill herself.
In relation to the incident that occurred at Suburb N on 11 June 2018, the Mother gives evidence that X sent a text message saying “MUM I JUST SAW DAD IN THE CAR AND I THINK HE SAW ME”.
The Mother attended Suburb N. She looked for X and was eventually informed by her cousins that X had been located. The Mother approached police officers who drove with her to the location at which X had been found.
The Mother contends that X told her that the Father had talked with her about Court at the park, saying he needed her help and asking her to write to the court to say she wanted to spend time with him.
Since that incident, X has been reluctant to walk the dog alone and was nervous in public settings.
Events after 13 August 2018
The Mother gives evidence that in August 2018, X was in contact with a friend named “V” over the internet. X became caught up in the friendship, and eventually felt very pressured by it. The Mother intervened to restrict X’s access to her mobile telephone.
It seems that the Mother was unaware of the Father’s messages with X around this time until she read the Father’s affidavit material.
The Mother gives evidence that after the events of June 2018, it took a lot of encouragement to get X to take the dog out for a walk. Whilst it was suggested to the Mother in cross-examination that if X was as traumatised by the events of June 2018 as the Mother contended, that she would not encourage X to go back to the same park, the Mother gave evidence that she encouraged X to do so in order for X to confront her fears and learn that she could do so.
In relation to the contact between X and the Father in January 2019, the Mother gives evidence that X sent her a message saying that she would never take the dog for a walk again because the Father found her again.
The Mother gives evidence that on 6 February 2019, whilst driving in Suburb W, X saw the Father standing near his car. She started to panic and lowered herself in the front seat. The Mother contends that the Father glared at them on that occasion.
Dr E
Dr E is a psychologist the Father attended for 4 sessions in the period from December 2018 to January 2019.
She prepared a report for the purposes of the Court proceedings. She diagnosed the Father with adjustment disorder with symptoms of anxiety and depression triggered by his inability to access his daughter. She has provided treatment to the Father including providing strategies to address his symptoms and manage his current situation, including psycho-education and advice, understanding the impact of his stress, understanding the impact of his anxiety and depression symptoms, relaxation training, problem solving and basic cognitive behavioural approaches to self-monitor and manage his stress and frustration.
She expressed the opinion that he understands his daughter’s disability and is aware of its social and academic impact upon her life.
Dr E gave evidence in the proceedings. During cross-examination, she gave evidence that she had provided psycho-education to the Father about Bipolar Disorder and Autism Spectrum Disorder. She also gave evidence that she considered the Father would benefit from further therapy.
I was concerned from the content of both her report and her oral evidence that she had strayed into the territory of becoming an advocate for the Father. In her report, she expressed that she was confident that the Father was suitable to spend time with X and that she was satisfied that he was able to provide a safe environment around X’s needs and disability. Whilst I understand that Dr E had had access to reports concerning X’s mental health diagnosis, I found this an extraordinary comment to make in circumstances where Dr E has not met or assessed X. Further she recommended that orders made for the Father to spend time with X would offer the best possible prognosis for management of the Father’s current condition of adjustment disorder, with symptoms of stress, anxiety and depressed mood. During the course of cross-examination by the ICL, her evidence indicated that she had accepted, at face value, the Father’s version of events. For example, she expressed the view that it was clear that everything indicates that the Mother has undermined the Father’s relationship with X and that the only problem here was that X was forced to choose between 2 parents when she should be having the benefit of each.
Accordingly, I have placed limited weight on the evidence of Dr E.
Dr D
Dr D is X’s treating psychiatrist. Her assessment of X’s diagnoses have been outlined earlier in these reasons.
In the course of giving oral evidence, Dr D said that given X’s special needs, she is not the most accurate reporter of matters. She considers this X’s accuracy in giving an account of events is compromised when her understanding of situations is not good, or when she is fearful.
It was suggested to her by counsel for the Father that she had taken an account of matters from the Mother and that she relied on information provided to her by the Mother. Dr D readily conceded that this was so.
It was also suggested to her that X’s propensity to please people meant that it was possible that when X herself gave a history or an account of events that she was saying things that the Mother wanted to hear. Dr D again conceded that this was possible.
Dr D gave evidence that X has told her that she wants to see the Father but that she sometimes changes her mind about this. She maintained the opinion expressed in her report of 9 July 2019 that X presently does not wish to see the Father until she feels well enough to be able to negotiate with him.
She was invited by counsel for the ICL to consider whether there was benefit in pursuing some form of relationship repair between X and the Father to repair the relationship. Whilst she accepted there may be benefit to that, she considered that it was X’s best interests that she wait until after she completes Year 12 to engage in any such process and she also considered that waiting until X is 18 years old is consistent with X’s view that she would like to be better able to negotiate with the Father.
Whilst it was submitted for the Father that the evidence of Dr D was “unconvincing” I did not form that view. I found Dr D to be a reliable witness. She had a clear understanding of X, she was able to consider the limitations of information provided to her by X and she was able to see that there is benefit to X in having relationship with the Father. I accept and place weight on the evidence of Dr D.
The Family Consultant
The family consultant’s report (which is Exhibit “B”) was based on the material provided by the parties as set out in her report and the interviews she conducted with each of the parents and with X.
Her report was dated 28 September 2016 and was three years old at the time of final hearing. Accordingly, I approached its content with some caution given the passage of time since it had been prepared.
In her report, the family consultant described X (then aged 13 years 11 months) as a charming, friendly and engaging young girl. She identified that it was apparent that socially and emotionally, X functioned at least several years below her chronological age.
She observed interactions between X and each of the Mother and the Father. In relation to her observations of X with the Father, the family report writer observed them to play a game in silence, but as time went by and the competition became fiercer, X seemed to relax and engage with the Father more comfortably, and by the end of the session, she was laughing and chatting easily with the Father.
In relation to her observations of X with the Mother, the family report writer observed them to have a gentle, warm and affectionate relationship. She noted that the Mother was much more alert to X’s practical needs and welfare than a parent would usually be in relation to a child of X’s age, and that X responded to her as a much younger child would, in terms of dependency and obedience.
The family consultant considered that whilst – at the time of the report – X was at an age where her views would carry determinative weight that her mild intellectual disability and her autism rendered her far more vulnerable than 14 year olds who do not have those conditions. She considered that X’s special needs must be taken into account when determining what orders are in her best interests. The family report writer formed the view that the Father appeared to be in denial about X’s disability and that he “seemed quite flummoxed” when asked to identify any particular challenges she might face as a result of her disabilities.
At the time of her report, the family consultant expressed concerns about the Father’s proposal for overnight time. Those concerns were that:
a)Given X’s age and stage of development, she is likely to require a higher degree of privacy than the Father’s accommodation allowed for;
b)X’s special needs mean that she requires closer supervision and parental support that other 14 year old girls, for example in attending to her personal hygiene, or undertaking activities that would require a higher level of scrutiny or supervision; and
c)X’s comments about her relationship with the Father (including that she modifies her behaviour to keep the peace and that the Father sometimes speaks about the Mother in negative terms or that she notices his anger toward the Mother) support the Mother’s contentions about the Father’s low frustration tolerance and aggressive behaviour.
The family consultant set out two things the Father needed to attend to if he wished to pursue the possibility of spending overnight time with X:
a)To acquire more suitable accommodation with at least one separate bedroom where a door can be shut for privacy; and
b)Attend upon a counsellor at Relationships Australia or similar who can assist him to identify alternative ways of responding to stress and frustration in the co-parenting relationship other than through verbal insults.
She made the following recommendations in her report:
a)That the parties equally share parental responsibility for the child.
b)That X live with the mother.
c)That X spend time with her father as per the interim consent orders made in March 2016 and the orders be final.
d)That the father attend upon Relationships Australia for counselling to address the issues raised in the Family Report and that a copy of the report be released to the nominated counsellor to assist them in their work with the father.
The family consultant gave evidence in the proceedings. She confirmed that she had read the additional documents that the parties had filed for the hearing.
Her oral evidence was to the following effect:
a)Given X’s special needs, the Court would remain cautious about accepting her views as determinative of the parenting arrangements. X is a young person who lacks the capacity to navigate complex levels of parental behaviour. She feels things very deeply but does not have the skills to process her feelings.
b)X clearly loves her father and misses her father, however, it would appear she was fearful of him at the time she prepared her report and on the basis of the parties’ material, those feelings continue. There has apparently been a breakdown in the relationship between X and her Father, and whilst an order that there be no time such an order for the period of 12 months (until X attains 18 years of age) is “neither here nor there” in circumstances where there has been no time between them for the past 18 months.
c)“Recognition contact” – that is, on 3 – 4 occasions each year was not recommended. Whilst there may be benefit in considering family therapy so that there can be movement toward healing the relationship, this is not an urgent matter, and can wait until X turns 18 years of age and has finished school without having an adverse impact upon X.
d)She considered that X has been clear and consistent in expressing a wish to spend time with the Father, but that caution must be exercised in relation to X’s views and wishes given her special needs and her felt anxiety about the Father’s past behaviour toward her.
e)She observed the recommendations she had made in her report that it would be extremely upsetting for X if the Father seeks to blame or castigate X for being honest and upfront with the consultant. She considered it was unfortunate that the Father had showed the family report to X and that the events of March 2018 unfolded as they did.
f)In terms of an assessment of X’s capacity to cope with time with the Father, and X’s functioning, she deferred to Dr D’s opinion.
Primary Considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which 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.
In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration in paragraph 2(b). See s.60CC(2A) of the Act.
The Full Court of the Family Court of Australia considered the meaning of the term “meaningful relationship” in Sigley & Evor [2011] FamCAFC 22 and:
a)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski & Albright [2007] FamCA 520; per Brown J and McCall & Clark [2009] FamCAFC 92 per the Full Court); and
b)concluded that the preferred interpretation of s.60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”); and
c)noted that s.60CC(3)(b) of the Act requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, its examination of the evidence as to the nature of the child’s relationships at the date of hearing (“the present relationship approach”) may also be relevant; and
d)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship, (M & S [2006] FamCA 1408 per Dessau J; Godfrey & Sanders [2007] FamCA 102 per Kay J and Champness & Hanson [2009] FamCAFC 96 per the Full Court); and
e)concluded that a “meaningful relationship” is a legal construct, not a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship.
The following terms “abuse” (see s.4) and “family violence” (see s.4AB(1)) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
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.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
The Court notes the examples set out in s.4AB(2) of the Act provide a non-exhaustive list. The explanatory memorandum (at 17) referrable to the introduction of the relevant provision provided that: “Behaviour that fits within the general characterisation set out in the definition will be captured. …The definition encompasses patterns of family violence and single violent events”.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence (see s.4AB(3)). The Act provides in s.4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
Turning then to consideration of the benefit to X of having a meaningful relationship with both of the child's parents, the evidence satisfies me that X loves her Father and wants relationship with him.
There is no dispute between the parents that X would like to spend time with the Father. There is evidence before the Court that X has reached out to the Father seeking to make contact with him, expressing sadness that she was “not allowed” to see him when orders were made suspending their time and communication.
As the ICL submitted, however, this is a case where the benefit to X of having a meaningful relationship with the Father must be carefully weighed against the need to protect X from physical or psychological harm from being exposed to abuse, neglect or family violence.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I consider that there is a need to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
It is not controversial that in 2010, the Father was convicted of 4 counts of assault on X’s brother Mr O. Whilst the parties are in dispute as to precisely what occurred in relation to those assaults, they at least agree that the incidents that gave rise to the charge matters and convictions occurred during the course of a family dinner where X was present.
X is reported to have told the family consultant that “[the Father] has a bit of a short temper. So I have to make sure that I don’t make him angry. I just ask how he is and how his week was. It’s a bit like I can’t really be myself, not like I can when I am with Mum. If I had overnight time, it would be good but I would be scared about having fights with Dad”.
I consider this statement to be indicative of X feeling that she needs to take steps to act in a self-protective capacity when engaging with the Father.
Set against this context, on 14 March 2018, the Father who was angry with the Mother, expressed that anger to X. He told her to “fuck off” and accused her of betraying him. He accepted that he slammed a door and that he raised his voice.
He engaged in this behaviour notwithstanding that he had had the benefit of the family report in which the family consultant cautioned “it would be highly unfortunate and extremely upsetting for X if Mr Castyn seeks in any way to blame or castigate X for being honest and upfront with the report writer…X does harbour doubts and anxieties, and her fears are valid and realistic ones…”.
The Mother gives evidence that X was distressed and frightened after this event. I accept her evidence on that point. She was unshaken on the issue under cross examination. I note it is consistent with email communication sent by X to her father on 6 August 2018 in which X says “In the past, when you were talking about the court and how I betrayed you, that made me feel really upset. I hope you are understanding how I’m feeling. I want to make sure that if we do see each other again, you don’t put me through that pressure and stress again. I hope you do know that I do enjoy spending time with you, however, when you make me feel bad, I don’t enjoy it as much. In the past you and mum have been fighting a lot and going to court and I feel like I’m caught in the middle. I don’t like the way you talk bad about mum in front of me and it hurts me”.
I consider that the Father’s behaviour on that occasion was likely to have frightened and distressed X.
On 18 March 2018, the Father attended at the family home to see X. Whilst the Father denies the Mother’s contention that he was pounding aggressively on the door, I prefer the Mother’s account to the Father’s on this issue. During cross-examination on this issue, the Mother was unshaken on her account of the events of that day and X’s reaction to those events. Whilst the Father contends that he was not angry, it does not appear to me to be consistent with his evidence that he was angry on 14 March 2019, that he sent a large volume of text messages to X in the days following that event and I consider it likely that he attended the Mother’s home on that occasion in an agitated frame of mind, having been unable to contact X.
The events of that day as described by the Mother indicate that X was frightened and distressed by the Father’s behaviour.
I consider that X’s special needs render her more vulnerable to such events that a 17 year old who does not have her special needs. As was observed by the family consultant, X is a young person who lacks the capacity to navigate complex levels of parental behaviour. She feels things very deeply but does not have the skills to process her feelings. I consider that the events of March 2018 are likely to have been frightening for X and that she lacks the skills to process her feelings, thereby exacerbating the fear and stress she experienced.
Whilst the Father has expressed to X that he is sorry for those events, it appears that he does not have insight into the role that this played in the breakdown of his relationship with X. Throughout the course of the hearing and in submissions put on his behalf, he contended that it was the Mother who undermined his relationship with X through a lack of positive encouragement and support. His evidence did not reveal that he considered that his behaviour had anything to do with the breakdown in the relationship.
It appears that the Father has not engaged in an anger management program that would assist him to develop insight into his behaviour. The family consultant made a recommendation that he attend counselling to assist him in identifying alternative ways of responding to stress and frustration in the co-parenting relationship other than through verbal insults. It appears that he did not avail himself of this opportunity until he saw Dr E in December 2018. Even then it was his evidence that he saw her on the advice of his solicitor and, notwithstanding that she considered he would benefit from further therapy, he did not think he needed it.
Additional Considerations
The Court must have regard to each of the “additional considerations” under s.60CC(3) of the Act separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In R & R: Children’s Wishes [2000] FamCA 43, the Full Court of the Family Court of Australia said:
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests".
As discussed, X has expressed in writing and to the family consultant that she misses her Father and would like to spend time with him. Insofar as she expressed to the family consultant that she would like to spend overnight time, it was a view expressed 3 years ago now, and it came with a caveat in relation to her concerns about the Father’s anger.
Dr D and the family consultant both considered that X’s views should be approached with some degree of caution notwithstanding her age.
X’s special needs give rise to her finding it difficult to withstand pressure she feels from the Father during time and communication with him. As was observed in Dr D’s report of 9 July 2019, X said she wanted to be well enough to be able to negotiate with him about his requests to see her more.
It was submitted for the Father that the evidence of Dr D was “unconvincing” and that it was clear that the Mother has conversations with X’s treating doctor, psychologist, counsellor and social worker. I do not accept that submission. I found Dr D to respond clearly and openly to questions about information provided to her by the Mother and information provided by X herself. Insofar as Dr D obtained some history form the Mother, I do not consider this unusual having regard to X’s special needs and her Autism diagnosis. Dr D was also clear that whilst she obtained information from the Mother, that she also attended on X without the Mother being present.
Having regard to X’s various diagnoses I accept that she has a wish to spend time with her Father and to pursue relationship with him, however, that view must be tempered by the difficulty she experiences negotiating the pressure she feels from him.
Section 60CC(3)(b): the nature of the relationship of the child with: (i) each of the child's parents; and (ii) and other persons (including any grandparent or other relative of the child)
I find that the Mother has been X’s primary carer for most if not all of X’s life. She is attuned to X’s needs and the evidence indicates that she has been dedicated to ensuring that X has every support and opportunity to meet her full potential.
The Father submits that whilst X lives with the Mother, she makes complaint about her relationship with her Mother to him and to the ICL. It is not clear what the purpose of this submission is, other than to distract from the relationship between X and the Father.
There is no dispute that X loves her Father. I consider, however, that X experiences pressure from the Father in terms of trying to cope with his request to spend more time with him and that she has anxieties in relation to his capacity to regulate his temper around her and that she has anxieties in relation to comments he makes about the Mother to her.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
It does not appear controversial that the Mother has done the lion’s share of the work involved in making decisions about major long-term issues for X. The Father does not seek to exercise parental responsibility for X and is content for the Mother to exercise that role.
The Father has sought to spend time with and communicate with X. He has pursued orders for time with X and communication with X and he has sought to have communication with her, even when there were orders in place restraining him from doing so.
Insofar as the Father seeks overnight time with X, the family consultant made a clear recommendation 3 years ago that if the Father wished to spend overnight time with X that he would need to obtain alternative accommodation so as to ensure she is provided with privacy – at a minimum, with a door that can be shut. As at the date of final hearing, the Father remains living in the same studio apartment he lived in at the time of the report. He gave evidence that the ICL suggested to him that placing a curtain across the space to create a partition would be sufficient. Even if that is true, he gives no evidence of having undertaken any preparation for X to commence spending overnight time.
Section 60CC(3)(ca): the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
There was no evidence before the Court on this issue and it was not a matter that had any traction in the present proceedings.
Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; (ii) or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
X has not spent time with the Father for approximately 18 months. The orders proposed by the Mother will not see any change in these circumstances.
The Mother gives evidence and I accept that X is going well at school. She is achieving academically and she has a group of friends. She has life goals she is working towards. This is remarkable in circumstances where X continues to struggle with her intellectual functioning and mental and emotional health.
The orders sought by the Father would see X resume time with him including overnight time. Given X’s anxieties about her Father’s temper, her experiences of his anger in March 2018, I consider that the resumption of time and especially overnight time has the potential to destabilise X’s already vulnerable mental health. Any compromise to her mental health at this stage could potentially disrupt her current good functioning.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a matter that had any traction in the present proceedings.
Section 60CC(3)(f): the capacity of: (i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
In this case, there are real concerns as to the Father’s capacity to understand X’s special needs. In interview with the family consultant, he informed her that he did not consider that X had a disability and that “there is nothing wrong with her”.
In his oral evidence, he struggled to explain his understanding of the nature and effect of Autism Spectrum Disorder and Bipolar Affective Disorder. This sat curiously with Dr E’s evidence that she had provided psychoeducation to the Father in relation to these conditions and that he had demonstrated to her that he had an understanding of the concepts she had explained to him.
Whilst the Father now apparently accepts that X has some special needs, I find that he only has a rudimentary understanding of the special needs X has.
Notwithstanding the recommendations of the family consultant in her report about the importance of not blaming or castigating X for being honest, the Father chose to show X the family report, and he chose to express his anger toward the Mother to X, accusing X, amongst other matters of “betraying” him. I find that the Father has no insight into the impact of his behaviours on X and that he has no capacity to accept the recommendations given to him in relation to his interactions with X. On those occasions, his own needs and his own anger took precedence over X’s needs and she suffered distress as a consequence.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
There are no other matters relevant to the Court’s determination with respect to this factor.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
There are no matters relevant to the Court’s determination with respect to this factor.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
As noted above, the Father has been unable to regulate his behaviour in accordance with the recommendations of the family consultant so as to prioritise X’s needs over his own.
One of the matters that has caused me concern is that X complains that the Father has said negative things to her about the Mother.
During cross examination, the Father conceded that he had called the Mother various derogatory names in 2015. He gave evidence that he continued to hold those views about the Mother today. The comments that he made were, on occasion, said in front of X however, the Father considered that X would not have understood them as they were said in Country P language and X does not speak Country P.
The Father did not hide his dislike for the Mother in evidence. Given his difficulty prioritising X’s needs over his own feelings of anger and frustration, I expect that he would find it difficult to shield X from his negative attitude to the Mother.
It was submitted for the Father that the Mother had undermined his relationship with X, that she spoke in negative terms about the Father to X and that she bore responsibility for the breakdown in their relationship. I do not find that this is the case. The evidence indicates that the Mother has attempted to facilitate a relationship between X and the Father. The family consultant considered that at the time she prepared her report, she did not observe any unreasonable behaviours or attitudes on her part in relation to X's relationship with the Father. She considered that the Mother wanted then and apparently still does now for X the relationship between X and the Father to be safe and positive.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
As noted earlier in these reasons, the Father has been convicted of assault upon X’s brother Mr O.
The Father has called the Mother derogatory names which he conceded under cross-examination. He made no apology for having called the Mother such derogatory names and gave evidence that he continued to hold negative views of the Mother. I consider that the nature of those matters falls within the definition of repeated derogatory taunts within the definition of family violence.
Section 60CC(3)(k): if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order;(iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter.
There is no family violence order in place. The AVO that was made for Mr O’s protection against the Father in 2010. Nine years have now elapsed since the making of that order and I do not consider that any inferences can be drawn from the order.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Given X’s special needs and given the stress that she has experienced from these proceedings as evidenced in her comments to the family consultant and in her email communication with the Father, I consider that it is important that the orders of the Court shield X from further litigation.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant.
I do not consider that there is any other fact or circumstance relevant to this matter.
Conclusion
I consider that there is an unacceptable risk of harm that arises to X if she is to spend time with the Father, by virtue of her intellectual and mental health vulnerabilities and by virtue of the Father’s inability to regulate his emotions around X. This is particularly important over the next 12 months as X prepares to complete her Higher School Certificate Studies. This is an important time in X’s life and will set the course for her future direction in life. I consider that she should have the opportunity to complete her studies without being at risk of her mental health being compromised by distressing events such as she experienced with the Father throughout 2018 and early 2019.
I consider that whilst X loves the Father and wants a relationship with him, the need to protect X from exposure to the Father’s temper and the need to protect her from exposure to the Father’s negativity toward the Mother outweighs the benefit to X of spending time with the Father. This is particularly so, given that any orders made by the Court today will only be in force for a period of about 12 months, at which time X will be 18 years of age and will be able to make her own decisions about spending time with and communicating with the Father.
Given that the Father has been unable to comply with Court orders that he not approach or communicate with X (including the sending of a card to X in contravention of that order after he had been cross-examined) and given that he was unable to restrain himself from showing a copy of the family report to X, I consider that the risk to X cannot be ameliorated by orders that would restrain or otherwise regulate the Father’s behaviour around X.
Accordingly, having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the orders the subject of the ICL’s proposal are, otherwise, in the best interests of the child and accordingly, the Court will so order.
I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Judge M Neville
Date: 24 October 2019
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Procedural Fairness
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