Causer and Dibsdale

[2007] FamCA 739

FAMILY COURT OF AUSTRALIA

CAUSER & DIBSDALE [2007] FamCA 739

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Parent suffering mental illness - Family violence
FAMILY LAW - CHILD ABUSE - Emotional abuse

APPLICANT: Ms Causer

RESPONDENT: Mr Dibsdale

INDEPENDENT CHILDREN’S LAWYER: Kim O'Rourke

FILE NUMBER: PAF 1723 of 2004

DATE DELIVERED: 1 July 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: STEVENSON J

HEARING DATE: 18, 20 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Burns

SOLICITOR FOR THE APPLICANT: Avern McIntyre & Co

COUNSEL FOR THE RESPONDENT: Mr McCallum

SOLICITOR FOR THE RESPONDENT: Stuart Percy & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Ms O'Rourke

Orders

I make the following orders:

1. That all existing parenting orders in relation to the child J born in April 1999 (‘[J]’) be discharged.

2. That the mother have sole parental responsibility for the child.

3. That the child live with the mother.

4. That the child spend time with the father as follows:

   4.1from 10:00am until 12:00noon each alternate Saturday, commencing on 28 July 2007

   4.2from 10:00am until 12:00noon on each of the following:

   4.2.1the child’s birthday

   4.2.2the father’s birthday

   4.2.3Fathers Day

   4.2.4Christmas Day

   4.3at such other times as the parties may agree in writing.

5. That the father is restrained from:

   5.1     taking the child to any police station

   5.2causing the child to be spoken to by any police or DoCS officer

   5.3taking the child to a hospital except in the event of a medical emergency or with the consent of the mother

   5.4taking the child to any medical practitioner other than with the consent of the mother

   5.5photographing any bruising on the child

   5.6questioning the child about or otherwise suggesting to the child that his mother and/or Mr H have caused any bruising on his body

   5.7causing the child to be questioned or interviewed by any person about bruising to his body and suggestions that such bruising was caused by his mother and/or Mr H.

6. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

7. That all material produced on subpoena be returned.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1723  of 2004

Ms Causer

Applicant

And

Mr Dibsdale

Respondent

REASONS FOR JUDGMENT

the proceedings and background

1. Mr Dibsdale (48) and Ms Causer (43) are the parents of a little boy:

   J (“[J]”) born in April 1999 and now 8 years old.

   They began a relationship in 1995 and separated in October 2003.  Unfortunately, there has been considerable conflict between the father and mother for most of the period since their separation.

2. The catalyst for these difficulties seems to have been the mother’s relationship with Mr H, which commenced in July 2004.  At the core of these difficulties is a belief on the part of the father that the child has been repeatedly subject to physical abuse by his mother and/or Mr H.

3. The evidence established clearly that this belief lacks factual foundation and is rooted in a psychiatric condition which afflicts the father.  In the opinion of the court-appointed expert, Family Consultant Mr N, the father has developed a paranoid-delusional belief system which revolves around a firm conviction that the child’s mother and her partner subject him to chronic physical abuse.  I will consider the evidence of Mr N, which was of considerable significance, below in these reasons. 

4. It appears that the father made the first of his numerous allegations of physical abuse of the child by his mother and/or Mr H in December 2004.  He has since made further complaints to DoCS, police officers, medical practitioners and hospital staff.  None of these complaints have been substantiated.  Increasingly, however, DoCS and police officers have expressed concerns that the father is subjecting the child to emotional abuse.  He has presented the child for physical examinations and interrogation about bruises to various parts of his body, on repeated occasions.

5. These complaints escalated and, on 1 April 2007, the child was admitted to V Hospital after the father presented him with yet another complaint of “bashing” by his mother and/or Mr H.  The attending medical officer, Dr T, observed “no evidence of physical abuse upon physical examination” of Dr T.  Dr T admitted him to hospital “to defuse the situation prior to re-evaluation by DoCS” (exhibit 6).

6. The parents were able to reach agreement about the child’s time with each of them in the early period following their separation.  They arranged that he would spend time with his father each weekend.  At that time the mother worked on weekends and the father was employed mainly on weekdays.

7. This arrangement continued until July 2004, when an incident occurred after which the father was charged with an assault of the mother.  He was convicted and appealed unsuccessfully to the District Court.  It appears that the father has launched a challenge to these convictions in the Police Integrity Commission.  An ongoing allegation by the father has been that various police officers lack objectivity in investigating his complaints of physical abuse of the child by the mother.  The basis appears to be that she babysits the children of some police officers in her local area.  These complaints are not for determination by me.

8. The father saw the child every alternate weekend until he was convicted of this assault of the mother.  No contact took place between December 2004 and April 2005.  Meanwhile, on 23 December 2004 the father was convicted of an assault upon Mr H, arising from an incident in a supermarket on 10 December 2004.

9. On 31 August 2005 interim orders were made by consent, which provided that the child spend time with his father each weekend from 9:00am on Saturday until 4:00pm on Sunday and for half of all school holidays. This arrangement commenced in about April 2005 and continued until the conclusion of the hearing before me.  Having regard to the worrying evidence which I had heard, on 27 June 2007 I elected to discharge all existing orders for contact.  I made interim orders to the effect that the child spend time with his father for 2 hours each alternate Saturday, pending delivery of my judgment.

THE PROPOSALS OF THE PARTIES

The Applicant, Ms Causer

1. The mother proposed that the child continue to live with her in R and remain at J School.  The mother has part-time jobs as in a school and also at a local hotel.  Understandably, she is keen to take up all work hours which are offered to her.

2. Until the final day of the hearing the mother sought orders that the child spend time with his father from 10:00am until 4:00pm each alternate Saturday and on special occasions.  At that late stage, counsel for the mother submitted a “Minute of Orders Sought” which included: “that the father have no time or communication with the child”.  The mother also sought an order that she have sold parental responsibility for the child.

The Respondent, Mr Dibsdale

1. The proposals of the father changed, as the evidence unfolded.  It was fortunate that the father had the capable, and compassionate, advice and assistance of his solicitor and counsel.  At this point I digress to thank Mr McCallum of counsel, who came into the matter at a very late stage but did all that could possibly have been done for his client, the father.

2. In his Response dated 22 February 2006 the father sought orders that the child live with him and spend supervised time with his mother.  During the Family Report interviews in October 2006 the father maintained his position that the child live full-time with him.  There was also some suggestion from the father of a shared parenting arrangement. 

The Independent Children’s Lawyer

1. The Independent Child’s Lawyer submitted a Minute of Orders, in which it was proposed that the child live with his mother and spend time with his father for two hours once per month, under professional supervision at his expense.  It was proposed that there be an order for sole parental responsibility in favour of the mother.

APPROACH TO THESE PROCEEDINGS

1. The principles which govern the determination of these proceedings are set out in the Family Law Act.  In particular, these principles can be found in Part VII of the Act.

2. In determining whether to make a particular parenting order, the court is required to regard the best interests of the child as the paramount consideration:  section 60CA.  In determining what is in a child’s best interests, the court is required to consider the matters set out in subsections 60CC(2) and 60CC(3).

3. Section 60CC(2) contains 2 ‘primary considerations’ which apply to the determination of what is in a child’s best interests.  The first consideration is the benefit to a child of having a meaningful relationship with both parents.  The second consideration is the need to protect the child from physical or psychological harm resulting from being subjected or exposed to abuse, neglect or family violence.  Section 60CC(3) contains 13 ‘additional considerations’ which are relevant to the determination of what is in a child’s best interests.

4. Section 60CC(4) obliges the court to consider the extent to which each of a child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent.  In addition, this subsection requires the court to consider the extent to which each of the child’s parents has facilitated, or failed to facilitate, the other parent spending time and communicating with the child, as well as participating in decisions about major long-term issues in relation to the child.  It is also necessary that the court consider the extent to which each parent has fulfilled, or failed to fulfil, the obligation to maintain the child.

5. Section 60CG requires that the court ensure that any order is consistent with a family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.  This section empowers the court to impose any safeguards which it considers necessary to achieve this purpose.

6. It is necessary also for the court to have regard to the objects of Part VII of the Act as set out in section 60B(1).  The court must also have regard to the principles underlying those objects, as expressed in section 60B(2).

7. Section 61DA creates an obligation on the court to apply a presumption of equal shared parental responsibility, when making a parenting order.  This  presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in child abuse or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility:  section 61DA(4).

8. It is important to note that the presumption created by section 61DA relates to parental responsibility and not to the amount of time which a child spends with each parent.  The term ‘parental responsibility’ is defined in section 61B as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.

9. If an order provides that 2 or more persons are to share parental responsibility for a child, section 65DAC imposes obligations on those persons as to the way in which decisions as to major long-term issues relating to the child are to be approached.  These decisions are to be made jointly by the persons who share parental responsibility for the child.  Each of these persons is required to consult with the other and make a genuine effort to come to a joint decision.  It is not necessary for a person with whom a child is spending time to consult with a person who has parental responsibility, in relation to issues which are not major long-term issues:  section 65DAE.

10. If a parenting order provides that a child’s parents are to have equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent.  If an order provides that the parents are to have equal shared parental responsibility but the child is not to spend equal time with each of them, the court must consider whether it is in the best interests of the child, and reasonably practicable, for the child to spend substantial and significant time with each parent:  section 65DAA.

11. In deciding whether to proceed to make an order for a child to spend equal time or substantial and significant time with each parent, the court must regard the child’s best interest as the paramount consideration:  section 60CA.  The terms ‘substantial and significant time’ and ‘reasonably practicable’ are defined in subsection 65DAA(3) and (5).

THE PRIMARY CONSIDERATIONS

1. It is apparent that the key problem in this dispute is to balance the benefits to the child of a meaningful, continuing relationship with each of his parents and the need to protect him from his father’s emotional abuse.  It is useful to consider the evidence within the framework of the “additional considerations” before attempting this exercise.

ADDITIONAL CONSIDERATIONS

section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

1. Independent evidence of the child’s views was available from the Family Consultant, Mr N, and Ms Y, who is a senior DoCS officer.  I have no reason whatsoever to doubt the objectivity or professionalism of either Mr N or Ms Y, despite the reservations of the father.

2. Mr N first interviewed the child in October 2006, when he was 7 years old, and reported as follows:

   “With [the child’s] apparent awareness of the court proceedings and of my role he volunteered to me his views on two occasions, firstly when I saw him at his mothers and again when I saw him at my office.  On the first occasion he stated that he would like to visit his father on weekends but to stay overnight only on one night.  On the second occasion he informed me that he wanted to live with his mother and did not really want to visit his father.  This second statement is at odds with his earlier statement to me and his views as reported by [Ms MQ] (Note:  [Mr N] must have been referring her to [Ms MA] who is [the child’s] counsellor).  He was definite in his statement to me that neither his mother nor his father told him what he should say to me.  [The child] expressed disappointment with both his parents that he saw the issues being dealt with at court is causing them to fight.  In his 7 year old vernacular he called them ‘stupid’.”

3. Mr N interviewed the child again in June 2007, when he was 8 years old.  The interview took place at the child’s school and in the absence of both parents.  Mr N gave oral evidence of verbatim statements made by the child to him, as follows:

   ·“He reckons I have been bashed but I haven’t.

   ·I lie because he buys me things.

   ·I could not be brave enough to say ‘no Dad it is not true’.

   ·I have bad dreams when I go home from Dad’s.

   ·Sometimes Dad is good.

   ·I am scared of Dad – sometimes I feel it in my head and my tummy.

   ·I am worried that Dad might hurt me – he yells at me.  

   ·I am not worried that Mum will hurt me.

   ·I do not want to stay overnight with Dad – I want to stay one hour and play cricket.

   ·I am getting into more trouble at school.

   ·I get a lot of bruises from soccer – Dad thinks Mum did it but she didn’t.

   ·[Mr H] has never hurt or belted me.”

4. Mr N assessed that the child has a genuine wish to spend time with his father.  In his view, the child wishes to reduce weekend time and to limit block periods during school holidays with his father.

5. Ms Y interviewed the child on 8 June 2007.  She summarised the views which he expressed to her in these terms:

   ·“he is frightened of being smacked by his father

   ·he is angry with his father with being made to say things about his mother

   ·he does not want to go back to his father’s house

   ·he is sad and scared about going to his father

   ·he said it is not true that his mother hits him – he says it because his dad makes him scared.”

6. Ms Y’s notes of this interview were in evidence (exhibit 1).  She spoke with the child about his relationship with Mr H, whom he described as “good, nice and kind”.  The child said that it was “good having [Mr H] live with me” and denied specifically that Mr H smacks him.  He told her that he is given a treat when he does something good and, if he is naughty, he is sent to his room.  In general, Ms Y’s interview notes suggest that the child conveyed to her sentiments similar to those which he expressed to Mr N.

   section 60CC(3)(b): the nature of the relationship of the child with:

   (i)each of the child’s parents;  and

   (ii)other persons (including any grandparent or other relative of the child);

7. The Family Consultant observed the child interacting with each of his parents and reported as follows:

   “[The child] was observed in the company of both his mother and his father.  He appeared completely at ease with his mother, interacting with an appropriate balance of childhood energy and acceptance of house rules and limits.  At his father’s he initially appeared subdued.  On arrival his father invited him to sit on his knee which he did.  After a short while he appeared more relaxed and began talking about the things he does with his father and he went to show me his motorbike.  Later he spent some time wrestling with his father.”

8. In his oral evidence on 20 June 2007 Mr N described the child’s relationship with his father as “ambivalent”.  He attributed this ambivalence to the pathological aspects of the father’s relationship with the child.  He said that he was concerned that the child is now becoming enmeshed in his father’s belief system.  This concern was shared by the child’s counsellor, Ms MA and the DoCS officer, Ms Y.  I will say more about these issues below when I consider the capacity of the parents to provide for the child’s needs.

9. Mr N described the mother’s home as a “secure base for [the child]”.  It seems clear that he shares an uncomplicated and warm relationship with his mother.  I am satisfied that the child has a warm and appropriate relationship with Mr H, having regard to his statements to Mr N and Ms Y.

   section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

10. In my view the mother is to be commended for her facilitation of an ongoing relationship between the child and his father, despite the plethora of complaints of physical abuse levelled at her and her partner by the father.  It was only at a very late stage that she took the stance that there should be no contact between the child and his father.  The interruption to contact in 2004-2005 came only after the father was convicted of assaulting both the mother and Mr H.

11. I am satisfied that the mother would comply with any orders which I might make for the child to spend time with his father in the future, despite her opposition to that prospect.  I accept her evidence that she would obey orders, even to the extent of taking the child to a supervised contact centre at H.

1. I have real reservations, on the other hand, as to the father’s willingness and ability to foster a continuing relationship between the child and his mother.  He has persisted with allegations of physical abuse against the mother and Mr H, despite repeated investigations which failed to substantiate these complaints.  The mother/son relationship seems to have flourished in spite of this undermining by the father. 

2. I do not suggest that the father was or is maliciously attempting to destroy the child’s relationship with his mother and her partner.  Mr N gave a clear explanation of the psychological processes which embattle the father, over which he obviously has little or no control.

3. In summary, Mr N assessed that the father has a serious lack of trust in the mother, which arises from the acrimonious breakdown of their relationship.  He has seen bruises on the child and formed the belief that he has been physically abused by his mother and/or Mr H.  He has encouraged the child to say that they have hit, kicked, punched and “bashed” him.

4. In the opinion of Mr N, the father suffers from an obsessive pattern of thought which has developed into paranoia or delusional thinking.  The child has become attuned to his father’s expectations and lies to him about being subjected to physical abuse by the mother and Mr H.  Most concerningly, Mr N was of the view that the child is becoming enmeshed in the father’s paranoid belief system, as I have said.

5. Unless and until the father successfully addresses these pathological thought patterns, he is most unlikely to be able to facilitate and encourage the child’s relationship with his mother.  In my view, however, there is some basis for optimism that he has gained some insight into the effect of his behaviour on the child and the need to address his psychological problems.  I will refer below to this evidence.

   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;  or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

6. The orders sought by the mother would bring about a drastic change for the child, in that he would lose all contact with his father.  Of course, he would also be spared the psychological abuse resulting from exposure to his father’s toxic and false beliefs about his mother and Mr H.

7. Although this matter was not canvassed during the hearing, there must be concerns about the artificiality of orders for no contact at all in a small town environment.  It could prove very difficult for the child, and the mother, if he accidentally meets his father in the course of his daily life in the small town of R.  Mr N assessed that he has a genuine wish to spend time with his father, so it would probably be very difficult for all interaction to be avoided in these circumstances.

8. The changes sought by the father, whereby the child would live with him and have supervised time with his mother, or alternatively a shared care arrangement, plainly became unsustainable as the evidence unfolded.  I do not regard it as necessary to consider the likely effect on the child of the implementation of these proposals.

9. If orders are made in accordance with the proposal of the Independent Child’s Lawyer, the child would spend time with his father only under supervision.  Initially they would see each other at a supervised contact centre at H.  It was hoped that a similar centre will commence operation in M in 2008, which would eliminate the need for travel between R and H.  There was also the prospect of supervision in M by staff of the Family Support Service.  Unfortunately, all of these alternatives create difficulty.

10. The father said that it would be almost impossible financially for him to travel to H.  When the prospect of supervision by the M Family Support Service was suggested as an alternative, the father said that he could not afford even to share the cost of $68 per hour and the expense of travel from R.

11. It may be that the father saw problems with all of these proposals because he is not receptive to the prospect of supervised time with the child.  The reality, however, is that travel between R and H would be difficult for both parents.  The driving time is approximately 5 hours each way and the cost of petrol alone would be about $160 per trip.  For these reasons I regard it as unlikely that the child would spend supervised time with his father in H or even M.

    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;

12. I have referred above to the problems of supervised contact either in M or H.  No solution presented itself during the hearing.

section 60CC(3)(f): the capacity of:

(i)each of the child’s parents;  and

(ii)any other person (including any grandparent or other relative of the child);  to provide for the needs of the child, including emotional and intellectual needs;

1. The only issue which arose as to the mother’s capacity to provide for the child’s needs is the possibility that she physically abused the child and/or allowed Mr H to do so.  For reasons which I will now set out, I am satisfied that neither the mother nor Mr H has subjected the child to physical abuse.  Otherwise, I am comfortably satisfied that the mother provides very well for all of the child’s needs. 

2. Ms Y is the casework manager at the Department of Community Services in V.  She has a Bachelor of Arts, majoring in psychology, and has completed two years of a social work degree.  In May 2007 she reviewed the extensive DoCS file in relation to the child and prepared a summary report (exhibit 2).  Numerous documents from the Department of Community Services and the New South Wales Police Service were in evidence.  This material satisfies me that Ms Y’s report is an accurate summary of the involvement of the Department with the child and his parents. 

3. With the benefit of Ms Y’s comprehensive and accurate summary of the involvement of DoCS and the police with the child, it is not necessary that I now record the contents of the numerous notifications, complaints, interviews, medical reports and assessments.  It is sufficient for me to observe that the child’s exposure to these processes must be approaching the level of systems abuse, if that point has not already been reached.

4. It is useful to set out Ms Y’s conclusions under the headings “General Overview” and “Emotional and Psychological Harm to the Child”. 

   “General Overview

   Since 25 July 2004 there have been 39 reports relating to [the child]. The majority of these reports are in relation to allegations from [the child’s] father that [the child] is being abused by his mother and her partner.

   These reports started when the mother commenced Family Law Court action in relation to custody of [the child].

   [The child] has been interviewed on his own by both Police and DoCS and none of the reported allegations has been confirmed.  [The child] has in fact denied that they were caused by his mother or her partner.  [The child] told DoCS officers on 13/2/06 that his mother and her partner do not physically punish him but that his father gives him a hard smack on the bottom if he is naughty.

   [The child] has on several occasions told Police and DoCS that his father has told him to say that he is being hit by his mother’s partner and that it is not true.

   [The child’s] father has presented [the child] regularly to hospital outpatient departments, DoCS, Police and Family Support Services urging the child to tell workers that his mother and her partner are assaulting him.

   On 16/5/07 [the child] left a message on the answering machine of a Family Support Service saying ‘The police have been bashing me and alright making me lie/pause/my mother is bashing me’.  A voice in the background is prompting the child.  This has been reported to [V] Police.”

   Emotional and Psychological Harm to Child

   “Caused by [the child] being caught up in the bitterness between his father and mother over Family Law Court proceedings.

   [The child] being presented by his father to health, police, DoCS, family support services and being told by his father to say that his mother and partner re assaulting him.

   The father’s inability to accept that his actions are harming the child.”

5. I am satisfied that neither the mother nor Mr H have subjected the child to physical abuse.  Principally, there are three reasons why I reach this conclusion.  Firstly, none of the father’s allegations of physical abuse by the mother and/or Mr H have been substantiated after extensive investigation by DoCS and the police.  Secondly, Mr N gave compelling evidence of the psycho-pathology in relation to the mother and Mr H which besets the father.  Thirdly, I found the denials of the mother and Mr H of any physical abuse of the child to be convincing.  I thus find, on the requisite standard, that neither the mother nor Mr H has subjected the child to physical abuse.

6. There is a very real concern that some of the father’s behaviour could be considered irrational, when viewed objectively.  A graphic example was the incident on the evening of 6 April 2007, when police officers attended the home of the father.  A health care worker at E Hospital notified the police after he was contacted by the father, who complained vociferously that the police, DoCS and D Health Service had done nothing to properly investigate his allegations of physical abuse of the child.  It seems that the health care worker was concerned at the father’s emotional state during this call.

7. Police officers attended the father’s home at about 9:00pm but he refused to open the door.  The officers heard running water and became concerned that the father may have harmed himself.  When they forced entry, they found the father in the bathroom dressed only in his underpants and sobbing uncontrollably.  The police formed the view that his condition would not warrant a schedule pursuant to the Mental Health Act.  They called an ambulance and the father was conveyed to R Hospital.

8. When the father was asked about this incident in cross-examination, he said:  “I thought it was [Mr H] coming to kill me”.  Nothing in the evidence suggested any rational basis for such a belief.

9. The core issue, in terms of the father’s capacity to provide for the child’s needs, is whether he appreciates the emotional damage which he has already caused to his son.  A collateral issue is whether he would be receptive to professional assistance, if he has come to understand that he has psychological problems.

10. The father heard the evidence of Mr N and had the opportunity to reflect overnight on the opinions which he expressed.  The father then said:

    “After yesterday yes I can see that I may need more help than my counsellors are giving me.  I can see that I have made mistakes” and “Overnight I have seriously reflected, after sitting up here virtually out of the case and looking back in, now I can see what everyone has been on about.  Everyone has said ‘don’t do it’ but I have never had it explained why – now I can see I had tunnel vision.” and

    “I have tried to put myself in [the child’s] shoes overnight – I did not appreciate what I was doing.  Now I am looking at the full picture.  I can see now that [the child] may not have been telling me the truth.  I can now see that it is detrimental to [the child].  I think further counselling with psychiatric evaluation would help.”

11. The father has previously undertaken counselling with various organisations.  He said that he has seen counsellors at E Hospital and V Hospital.  He saw a Miss S at the O program, which he found to be very beneficial.  He also said that he “got a lot out of the [U] counsellors”.

12. The father had six appointments with psychologists at the U Centre between December 2004 and mid-2005.  A report dated 13 July 2005 made the following assessments and recommendations:

    “[The father] has made some gains throughout the past six sessions.  However he remains preoccupied with his quest to seek justice.  This raises some concern given the effect this has had and is likely to continue on his relationship with his son, as well as the impact this has had on his financial situation.  It is also of some concern that [the father] continues to endorse self-report items which suggests he may be experiencing depression and hopelessness, but he is unable to express this verbally.  [The father] does not present as ready or willing to actively participate in psychological intervention.  However it is likely that he would benefit from intervention at some point in the future.  I have encouraged him to make an appointment with you in the next week for you to conduct step 3 of the mental health process, the review of the mental health plan.”

13. Mr N expressed some optimism that the father may be receptive to professional assistance.  He said that the outcome of these proceedings may influence his willingness to undergo counselling.  He thought that there was “some prospect of productive therapy”.

14. I am inclined to accept that, during the hearing, the father genuinely acquired some appreciation of the disastrous and damaging consequences for the child of his behaviour.  My concern is that he lives in a small town which does not offer the professional resources which he appears to need.  As well, he does not appear to have a personal support group which could encourage him to embark upon and persist with appropriate therapy.

    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;

15. During the hearing the father made a single suggestion that he is of Aboriginal background.  He did not elaborate in any way on the significance of his aboriginality for him.  During final submissions his counsel informed me on instructions that the father’s aboriginality is a matter of significance to him.  I will thus assume that he wishes to acquaint the child with his Aboriginal heritage and culture as he matures.

    section 60CC(3)(j):             any family violence involving the child or a member of the child’s family;

16. There were several serious allegations of violent conduct on the part of the father.  For the most part, he denied that he had subjected the mother and various other members of her family to violence.  There was objective evidence, however, which leaves a real basis for concern that he has a propensity to engage in violent conduct and threatening behaviour.

17. It is not necessary that I recount every allegation of such violence.  Nor is it necessary that I go into the father’s protestations of perjury on the part of the mother, resulting in unfair and improper convictions for assault.

18. The fact is that the father was convicted of an assault on the mother in the Local Court on 30 November 2004.  His All Grounds Appeal to the District Court was unsuccessful and the conviction was confirmed on 14 March 2005.  Two courts thus considered the evidence in the Crown case on separate occasions.  By his own admission, the father pleaded guilty to the charge of assaulting Mr H on 23 December 2004.  His criminal record indicates that he was convicted of a breach of an apprehended violence order on the same date.

19. The conviction for the assault on Mr H arose out of an incident in a supermarket on 10 December 2004.  Apparently the parents had attended a mediation on that date.  After the mediation the father approached Mr H in a supermarket and made various verbal threats to him.  On the same day the father told his former solicitor that he intended to “get [Mr H]” (exhibit 10).  This behaviour was entirely unjustified.

    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;

20. It is to be hoped, for the child’s sake, that there is no further litigation between his parents.  At the same time, it seems most probable that he would benefit from more time with his father if the father can overcome thought patterns of abuse by the mother and Mr H. 

21. It is not for me to express any view as to the likelihood of success of a future application by the father for an extension of time with the child.  It would be reasonable to observe, however, that any such application would be highly likely to be assisted if the father were able to present evidence of assessment and treatment by a psychiatrist and management of his obsessive thought patterns.

22. The father should understand clearly that any orders for him to spend time with the child in the future will be compromised by continued allegations of physical abuse by the mother and Mr H.  If the child is subjected to further notifications, medical examinations and interviews the mother might well bring an application to suspend all such orders.  The evidence before me would suggest that such an application would have very good prospects of success in those circumstances.

THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY

1. The mother sought an order that she have sole parental responsibility for the child, a position which was supported by the Independent Children’s Lawyer.  On behalf of the father, it was conceded that the presumption of equal shared parental responsibility should not apply in this case.

2. In the exercise of my discretion I would have determined that this presumption, created by section 61DA(1), does not apply pursuant to section 65DA(2).  In addition, having regard to the whole of the evidence I am persuaded that it would not be in the child’s best interests for his parents to have equal shared parental responsibility (section 65DA(4)).

3. Consequently, I am not required to consider whether the child should spend equal time with each of his parents or substantial and significant time with his father.  In any event, my options with regard to the child’s time with his father are limited by the evidence of the father’s difficulties and the inaccessibility of facilities for supervision.

CONCLUSION

1. If the necessary resources were available I would conclude that the best outcome for the child would be supervised time with his father.  The Family Consultant made this recommendation after his most recent interviews of the child and his parents.  Mr N said words to the following effect:

   “I think that supervised visits would be the best situation, because [the child] still wants to spend some time with [his father]”.

   When asked for his view if supervision was not available Mr N said:

   “I would reluctantly say probably no contact at least until [the father] produces some psychiatric evidence.”

2. I have referred to the real and substantial difficulties in arranging for the child to spend supervised time with his father.  I do not regard the proposal for supervised time in H as viable or realistic, for reasons to which I have already referred.

3. I gave serious thought to making orders for supervised time at M.  My concern is that the father would not participate in such an arrangement, which would almost certainly result in confusion and disappointment for the child.  I am not persuaded that the father would simply refuse to attend for such supervised visits out of stubbornness or anger at failing to achieve what he wants in these proceedings.  Rather, I am of the view that the protracted litigation has taken a real toll on the father and he simply could not cope with the financial and logistical impositions of such a regime.

1. Ultimately, a decision must be made as to whether the child’s best interests require that he have no time at all with his father or short, unsupervised visits in R.  Certainly, I would not contemplate overnight stays or even full day only periods at this stage.

2. Attempting to balance all the competing considerations to which I have referred, I conclude that the child’s best interests dictate that he needs an ongoing relationship with his father.  At the same time, it is necessary to protect him from the father’s obsessive thought patterns and the consequent investigations of allegations of abuse.  A continuation of very limited unsupervised time for the child with his father is far from an ideal outcome but seems to be the most appropriate result in difficult circumstances.

3. I propose to make final the interim orders which I made at the conclusion of the hearing.  I will continue in final form the majority of the orders which I made that day on the application of the Independent Child’s Lawyer.  These orders impose necessary limitations on the father’s involvement of the child in the factitious allegations of abuse by his mother and Mr H.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              26 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CAUSER & DIBSDALE