CHOAT & GRENDEL
[2019] FamCA 32
•31 January 2019
FAMILY COURT OF AUSTRALIA
| CHOAT & GRENDEL | [2019] FamCA 32 |
| FAMILY LAW – CHILDREN – Parenting – Final Orders – Where the child of the parties who is nearly 13 has not seen her father since October 2014 nor communicated with him since 2016 and was adamant that she did not wish to see him – Where the father alleged the child had been alienated from him and sought that the child be moved to live with him – Where it was in the child’s best interests to make an order in favour of the mother for sole parental responsibility and that the child live with her and an order that the child spend no face to face time with nor communicate with the father except in the limited circumstances provided for in the orders. |
| Family Law Act 1975 (Cth) |
| Jillet & Sullivan [2017] FamCA 573 Lawson & Lynch [2018] FamCA 358 Mohr & Sanders [2017] FamCA 310 Ralton & Ralton [2016] FCCA 1832 Rice & Asplund (1979) FLR 90-725 |
| APPLICANT: | Mr Choat |
| RESPONDENT: | Ms Grendel |
| INDEPENDENT CHILDREN’S LAWYER: | Ark Law |
| FILE NUMBER: | SYC | 2065 | of | 2010 |
| DATE DELIVERED: | 31 January 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 6 - 10 August 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Ms Saw |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Braine |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ark Law |
Orders
All previous parenting orders for the child X, born … 2006, ("the child") are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
Except as otherwise provided for in these orders, the child shall spend no face to face time with, nor communicate with, the father including by telephone, email or via social media, unless the child expressly requests to spend such time or communicate with the father.
The father is permitted to send letters, cards and gifts to the child for the child’s birthday and/or Christmas by sending such letters and gifts to the mother's postal address and upon receipt, the mother will ensure that such letters and gifts are provided to the child subject to the mother being able to inspect them before providing them to the child.
If requested by the mother, the father is to do all such acts and things necessary to cause, issue and maintain a current passport for the child to be held by the mother at all times.
The paternal grandmother is permitted to forward to the child, cards, letters and gifts for the child's birthday and/or for Christmas, subject to the mother being able to view such cards and letters prior to them being provided to the child.
The paternal grandmother may spend time with the child proximate to D Town once each school holiday period for a period of 2 hours, subject to the child's wishes to see the paternal grandmother, with such time being supervised at the discretion of the mother.
In the event that the paternal grandmother spends time with the child as provided for in order 8, she is prohibited from discussing with the child, the paternal grandfather, paternal step-grandfather or the father or the wish that any of these persons may have to spend time with the child.
The mother shall provide an authority to the school for the school to provide directly to the father copies of the child's school reports and school photographs (at the father’s expense) and direct the school to provide such reports and photographs to him promptly after they issue.
The mother shall provide promptly to the father a copy of the results of the child's participation in music exams that the child may from time to time undertake.
The mother keep the father informed as soon as reasonably practicable of any serious medical procedure or operations to be undertaken by the child prior to those operations or procedures being undertaken except in the case of an emergency with the mother in such circumstances to inform the father as soon as is reasonably practicable.
In the event of any serious illness or accident concerning the child, the mother shall inform the father as soon as is reasonably practicable.
The mother will ensure that the child is referred to and attends counselling upon a clinical psychologist in the D Town area as recommended by the Independent Children's Lawyer and ensure that the child continues to attend such counselling for as long as it is recommended by the counsellor.
Copies of the family consultant’s report and a copy of these reasons for judgment may be provided to the psychologist referred to in order 14 prior to the commencement of the counselling.
Neither party shall denigrate the other to or in the presence of the child and shall use their best efforts to prevent any other person from doing so.
Neither party shall discuss or permit discussion with the child, any aspect of these proceedings (except for the effect of the terms of these Orders insofar as the Orders affect the child).
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Choat & Grendel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2065 of 2010
| Mr Choat |
Applicant
And
| Ms Grendel |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The best interests of X (“the child”) are the focus of these parenting proceedings. She is a very intelligent, mature and assertive child who is nearly 13 years of age; has not seen her father since October 2014; has not communicated with him since 9 February 2016 and is adamant that she does not wish to see him.
The father’s case is that the mother has alienated the child from him and that it is in the child’s best interests to immediately move the child from D Town to live with him in Tasmania. The father submits that it is only by the making of this order that there is any chance that the child will have a meaningful relationship with him and be protected from the continuing risk of psychological damage in the mother’s household. The father implicitly argues that these considerations outweigh any weight to be placed upon the child’s expressed views or the opinion of the family consultant.
The reasons for the views expressed by the child are multi-factorial. In October 2014, the father left for almost two years to pursue business opportunities in South East Asia. The mother submits that this departure was a major contributor to the child’s rejection of the father and denies that she sought to alienate the child from him or the paternal family.
APPLICATIONS
The mother, in her proposed minute of order (Exhibit 24), sought that:
1. All previous parenting orders including the parenting orders of 13 January 2013 be discharged;
2. The mother have sole parental responsibility for the child;
3. The child live with the mother;
4. The parents are to do all acts and things necessary to authorise any school attended by the child to provide to the father copies of the child’s school reports; and
5. The mother is to provide the father with a residential or PO Box address to which the father may send the child letters, cards and gifts.
The father’s proposed minute of order consisted of nine pages and sought over 50 orders (Exhibit 3). In essence, the father sought that the child live with him in Hobart and there be a period of one month where the child spends no time or has no communication with the mother. After this period, the father sought that:
1. The parties have equal shared parental responsibility;
2. The mother spend time with the child six weeks per year for the first three years and half of all school holiday thereafter, and a weekend in the middle of each school term;
3. The mother telephone the child each Sunday between 6:30 pm and 7:30 pm and after six months, the child telephone the mother each Wednesday between 6:30 pm and 7:30 pm;
4. After a period of two years the mother may communicate with the child over Skype and visit the child in Hobart; and
5. The child be able to “fly any airline approved to transport passengers”.
The orders sought by the Independent Children’s Lawyer, are contained in her latest proposed minute of order and are set out in Schedule 3.
DOCUMENTS RELIED UPON
The material relied upon by the father is set out in Schedule 1. The father sought to rely upon a considerable amount of material including 6 affidavits which contained numerous and lengthy journal articles and papers which were mostly relevant to the father’s allegation in respect of parental alienation. This material was initially objected to by the mother and Independent Children’s Lawyer on a number of bases including hearsay, relevance and opinion. The material was admitted provisionally as to relevance, with the father being instructed at the commencement of proceedings that he needed to draw the court’s attention to the evidence he wished to rely upon and demonstrate the relevance of that material and why it should be given probative weight.
The material relied upon by the mother is set out in Schedule 2.
The parties also relied upon the following expert evidence:
1. Family Report of Ms C (“the Family Report”) dated 21 June 2018;
2. Family Report of Mr E dated 14 November 2012; and
3. Child Inclusive Conference Memorandum (“the Child Memo”) of Ms C dated 25 January 2017.
DETAILED CHRONOLOGY
The father was born in 1970.
The mother was born in 1975.
The parties commenced cohabitation in 2000 and married in 2004. The mother says that throughout the relationship the father criticised and verbally denigrated her. The father denies these allegations.
From September 2005 until November 2007, the parties resided in Country G. The mother says that the father was financially controlling during this time. The father denies this allegation.
In October 2005, the mother says that the paternal grandfather touched her inappropriately under the guise of feeling the unborn child move inside of her. The paternal grandfather denies this allegation.
In 2006, the parties’ daughter, X was born and is currently aged 12.
In 2006, the father had taken a photograph of the mother and the child in the shower and emailed it to the maternal grandfather without the mother’s consent. The father denies sending the photo intentionally, stating that he had inadvertently placed the photo with many others on a file sharing platform by mistake.
On 20 November 2007, the parties separated. The mother returned to Australia and resided in F Town. The father says that he only became aware of the mother’s intention not to return to Country G upon the mother’s arrival in Australia.
In December 2007, the father returned to Australia. The father resided with the mother on her couch for a few weeks until he rented an apartment.
In early 2008, the parties entered into parenting arrangements. It was an agreed condition of those arrangements that the father’s father (“the paternal grandfather”) not care for the child. The father asserts that the paternal grandfather was not and is not a risk to the child.
From 15 October 2011, the mother says that she began receiving abusive messages on her mobile from random phone numbers. The father denies sending any abusive messages to the mother or causing others to do so on his behalf.
On 24 October 2011, the mother’s managing partner received an abusive email purportedly from the mother which included a number of sexual slurs and allegations. The email was sent from .... Another email was sent allegedly from the mother’s practice group leader making various further sexual allegations. The father denies sending any abusive emails about the mother or to the mother or causing others to do so on his behalf.
On 8 March 2012 and 30 May 2012, the mother attended Suburb H Police Station to report further abusive emails and text messages.
In 2012, the father married Ms J.
On 10 January 2013, when the child was nearly seven, final parenting orders were made by consent. The mother and child relocated to D Town and the father spent alternate weekends with the child. The mother says the father has not made contributions to the child’s expenses pursuant to these orders.
On 27 October 2014, the father relocated to South East Asia. The father says that he called the child every Sunday except for a handful of occasions. The mother says that the communication was sporadic and left the child, who was then eight, with a sense of abandonment.
In April 2015, the mother and child visited the paternal grandmother and paternal step-grandfather in Tasmania. The mother says that during this trip the paternal step-grandfather hugged her and groped her breast.
On 13 October 2015, the mother was alerted to an online dating profile set up in her name with a topless photo of her taken whilst the parties were together. The father denies any involvement in the creation of the profile.
On 9 February 2016, the father says that the mother terminated all contact between himself and the child. The mother says that the child blocked the father’s number on her phone.
On 3 March 2016, the child was diagnosed with ADHD.
On 16 March 2016, the mother received a letter that the child had written with the help of her counsellor which included a statement by the child “I do not want anything to do with my Dad”.
In June 2016, the father says that he sent a message to the mother offering a transfer of $30,000 of superannuation in lieu of past and future reimbursements of child support.
On 27 July 2016, the father filed a Contempt Application in the Federal Circuit Court of Australia.
On 1 September 2016, the father commenced living with his mother and step-grandfather in Tasmania. The father had separated from his second wife Ms J.
On 8 November 2016, the father was given leave to withdraw his contempt application and was ordered to pay the mother’s costs of $4,411. These costs remain unpaid.
In January 2017, the parties and the child attended the family consultant, Ms C, who completed the Child Memo. Ms C also interviewed the parties and the child on 22 May 2018 for the Family Report dated 21 June 2018.
On 10 August 2018, during the final hearing, consent orders were made which provided for the mother to receive $10,000 from a withdrawal the father said he could make from his superannuation by way of settlement of arrears of monies he owed the mother (including the order he pay the mother’s costs of 8 November 2016 as mentioned above). In addition, a superannuation splitting order was also made pursuant to s 79A(1A) of the Family Law Act 1975 (Cth) (“the Act”) in favour of the mother with a base amount in the sum of $20,000.
SIGNIFICANT CHANGE IN CIRCUMSTANCES
Final parenting orders were made by consent on 10 January 2013. Both the parties and the Independent Children's Lawyer now seek that those orders change. Although the father raised Rice & Asplund (1979) FLR 90-725 in his Minute of Proposed Order (Exhibit 3), in final submissions he agreed there had been substantial and significant changes in the child’s circumstances since the 2013 orders were made. I agree and it is proper to revisit those orders.
FINANCIALLY COERCIVE AND CONTROLLING FAMILY VIOLENCE
The mother alleges that from September 2005 and November 2007, whilst the parties were in Country G, the father was financially controlling of her. The father denies this allegation.
During this time, the father was the sole breadwinner and was receiving an income of $3,000 AUD per month. That money was placed into a joint account which the father asserted could be accessed by both the parties. Counsel for the mother put to the father, that whilst the mother had access to that account, she could not spend that money freely or without his permission. The father agreed that the parties had a budget but emphasised that the mother had free access to the account.
In addition, the father asserted that the mother also had access to an amount of $23,000, which was money received as a gift from the paternal grandmother and which had been placed in an account in the mother’s name. The father denied that there were any restrictions placed on the mother in relation to those funds and pointed to her subsequent use of those monies for the purpose of re-establishing herself in Australia as evidence of that.
Looking at the totality of the mother’s evidence, I am unable to make any findings that the father behaved in a financially coercive manner during the parties’ time in Country G.
THE COUNTRY G INCIDENTS
The mother alleges that in October 2005, whilst she was pregnant with the child, the paternal grandfather asked her if he could feel the baby kicking and then slid his hand lower down to her pubic area. The paternal grandfather agreed that he had on one occasion asked the mother whether he could feel the foetus kicking, but denies that he at any stage lowered his hand to the mother’s pubic region. He gave evidence that this event occurred in the presence of the extended family and that the mother took his hand and guided it to the spot that the foetus was kicking.
The mother also alleges that, on a later occasion, whilst she was breastfeeding the child in an office at the paternal grandfather’s home, the paternal grandfather entered the room and leered at her breasts. The paternal grandfather does say that he once accidentally entered his office whilst the mother was breastfeeding, but that this did not occur intentionally and he had immediately exited the room.
The mother further says that when she visited the paternal grandfather he often behaved as if he was clumsy and frequently brushed her breasts. The paternal grandfather denies that at any stage he intentionally brushed or groped the mother’s breasts.
The paternal grandfather gave evidence by electronic means and was not actively cross examined on these incidences. He confirmed that, at an earlier time, he had been estranged from the father for between five and seven years. The father says this estrangement was caused by the paternal grandfather’s drinking problem which was confirmed by the mother. The paternal grandfather denied having a drinking problem and explained that the reason for the estrangement was that “I believe my son, like all good husbands at the time, was protecting his wife and listening to her story.” Counsel for the mother did not explore the meaning behind this comment. I accept the father’s evidence that his father did have a drinking problem which raises concerns about the paternal grandfather’s credibility.
The mother was taken to a statement by the family consultant in the Child Memo. The entry is as follows:
[The child] is also aware of [the mother’s] allegations of sexual assault by [the father’s] father and step-father. She said “I’m afraid of my grandfather on my father’s side because he did something to my mother, which made her feel uncomfortable. I asked her what happened and she told me”.
The mother conceded that it was wrong and not appropriate to have disclosed to the child the paternal grandfather’s sexual abuse allegations as she was 10 at the time and “wasn’t old enough to understand”. However, in cross examination she explained that she would have never had said anything to the child except for the following:
I was so distressed. I was so overwhelmed. [The paternal grandfather] molested me when I was pregnant with [the child]. I never said anything to [the child] about it for all her childhood. And I would never have said anything to [the child] about it. Except that we are driving along and [the child] says she got a text message from her father to say that he was going to [South East Asia] to live with his father. Orders were made in 2013 that permitted [the child] to travel to [South East Asia] to spend time with her father. When those orders were made I didn’t know that [the father] had reconciled with his father, and I did not know that his father was in [South East Asia]. And in late 2014, when [the father] rang and told me he was moving overseas and he had reconciled with his father, I was really scared that I was going to have to send [the child] to [South East Asia]. When [the father] told me he was going, he didn’t say he was going to [South East Asia]. He said he was going to [Asia]. But I thought “oh shit, he is going to Asia, his father is there”. And from then, late 2014, when he left I was scared every day that [the father] was going to ring and say “send [the child] to [South East Asia] because we are going to have a holiday with my dad”. And then in early 2016 when that message finally came, I was distraught. I was like this. Driving in the car with [the child] and I was crying and I was shaking and she wanted to know why. And I did try and deflect her and I did try and say to her that your father and I agreed that you wouldn’t see your grandfather. “But why?” “Because he is a bad man.” “But why is he a bad man?” I told her something that she wasn’t old enough to understand, but I was distraught and I was trying to protect her and I would have never had said it except that [the father] put me in the position where she was at risk from him.
I accept the mother’s evidence about the circumstances in which she disclosed to the child the sexual abuse allegations against the paternal grandfather.
The allegations are serious and the evidence does not meet the standard set in s 140(2)(c) of the Evidence Act 1995 (Cth) (“the Evidence Act”) and I am unable to find that the abuse alleged by the mother occurred. I do find, however, that the mother has a genuine belief that the paternal grandfather sexually assaulted her when she was pregnant with the child and harassed her on a number of subsequent occasions.
ALLEGED BREACH OF 2013 ORDERS
The father asserted that the mother had breached the 2013 orders by failing to allow the child to visit him in South East Asia after he moved there in October 2014 and failing to facilitate contact with himself and the child.
As indicated, the mother asserts that she was sexually interfered with by the paternal grandfather whilst she was pregnant with the child. At the time the mother entered into the orders in 2013, the father was estranged from the paternal grandfather and I accept the father had declared to the mother that he would never see his father again. As discussed above, it was only after 2013 that the mother had become aware that the father had reconciled with the paternal grandfather and was living in one of the two homes owned by him there. The mother did not and still does not want the child to come into contact with the paternal grandfather.
In these circumstances, I place no great weight on any alleged breach by the mother by not sending the child to South East Asia.
The father also asserts that the mother breached orders in relation to his electronic communication with the child. As I discuss below, I prefer the mother’s evidence that the father’s communication after he left Australia was spasmodic and left the child with a sense of abandonment.
CYBER ABUSE
The mother alleges that she has been a victim of a number of incidences of cyber abuse perpetrated by the father. On 24 October 2011, the following email was received by the mother’s manager at work purportedly from the mother’s email address:
[Mr K]
It’s time I let you know that I suffer from bipolar disorder and that my mother has been institutionalised at least 6 times in her life. She’s also a slut which is why I have a number of siblings from many many different fathers. Sadly, I have come close to it myself a number of times and do have problems with sex addiction and the inability to control my temper. There are a number of times that I wanted to tell you that you’re a total cockhead and piss off to [Company L] or back to [Company M]. So I’m going to take the opportunity now, you’re a complete WANKER.
Sincerely
[Ms Grendel].
Upon receipt of the email, the mother’s manager contacted the IT department at the company. It was determined that the email had been “spoofed” to look like it was sent by the mother, but in fact, had been sent from the address …. The manager did not inform the mother of the email until 29 February 2012, when a further spoofed email was sent from the same IP address. The second email was addressed to the general firm and appeared to be sent from another of the company’s partners. It again contained defamatory references to the maternal grandmother’s “psychotic tendencies” as well as stating that the mother was only employed because “she sucked cock reasonably well and wasn’t bad in bed”.
In addition, the mother says she had received numerous abusive text messages to her personal and work numbers. On 15 October 2011, she received a message with an international dialling code from Country G, which stated “You have the sex appeal of a dirty toilet. Thinking of you naked makes me want to puke”. The mother also received further messages which read “You’re getting fat and need to visit Jenny Craig” and “You are living proof that even a turd can be polished”. The mother says that she deleted the messages and blocked the numbers believing them to be hoaxes.
It was only when the mother was made aware of the spoofed emails, that she says, she realised it was more than a hoax and that she was a victim of targeted abuse. When she subsequently received the text “Want 2 puke thinking of [Mr L] marrying a slag bogan like u. Hope u r sterilized” on 24 May 2012, she went and showed the message to the police and made an official statement.
Following separation, the mother says that she would on regular intervals receive lengthy and critical emails from the father and be constantly harassed by him on the telephone. Counsel for the mother tendered over a thousand emails that were exchanged between the parties post separation. The court was taken to two emails in particular that were sent by the father in mid-2010 which counsel for the mother submitted are in similar terms to the “spoofed” emails and text messages received by the mother. Parts of the emails include:
[The child] is starting to demonstrate some disturbing patterns of behaviour that appear in your family tree… Given the similarity between [the child’s] emerging behaviour, your mother’s behaviour and your behaviour, are you concerned that [the child] may be acquiring a family trait. I understand that this is a delicate issue. Have you been exhibiting extreme responses with [the child] privately that [the child] may be modelling herself on? Is there some other way that family traits are passed through generations? The similarity of the behaviour seems uncanny.
….
It is my understanding that your mother was diagnosed with bipolar and engaged in verbal abuse (which can be clinically defined) throughout her life that resulted in a number of failed marriages and eight children each with varying issues that include suicidal tendencies and drug abuse.
Counsel for the mother argued that the court should find that it was clearly the father who perpetrated this cyber abuse, not only because of the similarity between the content of the spoofed emails and the emails sent from the father, but because of the private nature of that information. In cross examination, the mother said that very few people knew of the intimate details of her family history and the only person who knew about this sensitive information and would be willing to use that information to harm her was the father. She also added that the email address of “…” is another link to the father as he has child support arrears. It seems that the website associated with this email address provides a cyber-abuse facility which cannot be traced back to the perpetrator.
Counsel for the mother also argued that the thousands of emails sent from the father to the mother post separation also constituted a form of cyber harassment or abuse due to both their quantum and contents. The father denied that the emails were abusive in any way, and argued that they contain “businesslike” language and were for the purpose of organising care arrangements for the child and the parties’ negotiations. The mother said, that whilst some pages contain emails which fall into the category as described by the father, the civility of those emails was highly dependent upon what was going on at the time and that periods of conflict would result in highly accusatory, highly dictatorial and highly inflammatory communication (including those that were mentioned above). I find that whilst some of the emails exchanges are inflammatory, the majority are as the father described.
Furthermore, the mother asserts that the father harassed her in circumstances where, during a period after separation when he had the ability to communicate with the child by email and telephone directly, he instead would contact the mother. The mother had requested that the father not contact her directly. The father accepted that that request had been made and accepted that he had not complied with that request.
On 13 October 2015, the mother says she first became aware of a dating profile in her name that had been set up using her email address and password. The profile was titled “MILF looking for kinky fun” and contained a topless nude photograph of the mother which referenced that the mother was “open for anything” and “also not afraid of a bit of anal!”
The father agreed that he had taken the topless photo of the mother which was used on the profile. The father indicated that he had taken the photograph with his phone; downloaded the image onto his computer and that he still had the photograph on his hard drive from subsequent transfers of the data from successive computers owned over the years. He does not remember ever providing a copy of that photograph to the mother but he suspects he must have at some point. He initially claimed that this photo was of sentimental value to both he and the mother as it was of the moment they had done a pregnancy test and had become aware that the mother was pregnant with the child. On the last day in final submissions, the father conceded that this photo was not of that event. The father further conceded that he had helped set up the mother’s email account which had been used to create the profile and that he knew the mother’s password to that account. He did, however, deny hacking into the mother’s account, claiming that the security features available on Gmail would have informed the mother if he attempted to enter her emails.
The father denies sending the spoofed emails and texts or setting up the profile and implies that the mother had done so herself in order to make a police statement and gain an advantage in legal proceedings.
Subpoenaed material from the owners of the website (Exhibit 21) show that the profile was registered on 17 September 2015; that it was last visited and modified on this date; had one “visit count” and that the profile was hidden on 14 October 2015. The father suggested that given the number of visits recorded to it and the short period of time the profile had been last accessed, that a conclusion could be reached that that one view was the mother accessing the profile for the purposes of making a police report. The father conceded, however, that someone from the website was required to interpret the material as it was unclear whether that one “visit count” excluded access from members of the website. Without independent expert assistance, I am unable to put any weight on this document.
The mother was questioned as to the circumstances around the child discovering that the mother had been bullied online. The mother was again taken to the Child Memo which stated:
[The child] is aware of [the mother’s] allegations of cyber bullying by [the father]. When asked how she knew this, [the child] said “I don’t remember how I found out. She [the mother] hasn’t told me her opinion. She just told me some facts and why it’s happened, but sometimes I ask her things and she says I can’t tell you.”
The mother said that when she discovered the website profile she was extremely distressed. She had little sleep, was unable to leave her bed and could not take the child to school. The child continually asked the mother what was going on, and the mother said that she eventually told her that she had been bullied online. The mother denied telling the child the details, but when the child asked whether it was the father that had bullied her, the mother said yes. The mother says that the child had asked her how she knew that it was the father and the mother had then told her that it was because the photograph which was used was a photograph only the father had. The mother denies describing the details of the photograph or the profile to the child and I accept that is so.
The Independent Children's Lawyer submitted to the court, and I accept, that the mother’s distress was very genuine. The Independent Children's Lawyer further submitted that if the court was to accept that the cyber abuse had in fact been perpetrated by the father that would be extremely humiliating and very concerning behaviour on the part of the father.
I accept counsel for the mother’s submissions that it is inherently unlikely that the mother would send such information to persons who were her supervisors in her workplace or expose herself to the humiliation of the website profile in order to gain some advantage in the proceedings. Having heard the mother’s evidence about the circumstances in which she discovered the posting of this photograph, I easily dismiss the father’s suggestion that the mother may have posted this photograph herself.
The father also cross examined the maternal uncle suggesting to him that given his expertise in the computer industry it could have been him who had set up the spoofed emails and posted the photograph of the mother online. The maternal uncle denied that he had been involved in such activities and I accept his evidence about that.
The father made the submission that because there were only two emails and three text messages that, as a group of documents, they could not constitute cyber bullying. I am unable to accept that submission. The content and nature of the emails and texts need to be taken into account. The offensiveness of the emails and texts rather than their quantity is the important measure.
The father had the skill, motive and opportunity to carry out what happened to the mother and was the only person in possession of the photo which was used. On balance, and having regard to s 140(2)(c) of the Evidence Act, I am satisfied that the mother was the victim of cyber abuse by the father. I find that the mother has a genuine belief that the father is responsible for all the cyber abuse perpetrated against her and has a reasonable basis for that belief.
THE HOBART INCIDENT
The mother makes sexual abuse allegations against the paternal step-grandfather. On 10 April 2015, the paternal grandmother and the paternal step-grandfather were farewelling the mother, the child, the mother’s husband and the mother’s husband’s parents after a visit to Tasmania. The mother alleges that as they were leaving, she and the paternal step-grandfather were momentarily separated from the others and as he was hugging her goodbye he pressed his left hand to her right breast and pressed it firmly on the right side and front of her breast.
The paternal step-grandfather denies that he sexually assaulted the mother and explained that whilst he had given the mother a “bear hug” he did not raise his hand to touch the mother’s breast or notice that the mother was uncomfortable in any way. In addition, he said that the mother was wearing a big winter coat as it was cold at the time, implying that she would have been unable to feel anything through the coat. The paternal step-grandfather gave evidence by telephone so my ability to assess his evidence was somewhat restricted. The paternal grandmother gave evidence in person about this incident, and whilst she does not remember witnessing the paternal step-grandfather and the mother hug, she also did not notice any distress from the mother.
The mother’s current husband gave detailed evidence of this incident which I accept. He says that as everyone was getting ready to leave he went to the bathroom and upon his return found the mother visibly distressed. The mother’s husband’s parents live in Tasmania, and as they were driving him, the child and the mother back to their home, he observed tears rolling down the mother’s face. He says that he had asked the mother whether she was ok and she told him that they would talk about it later. It was only when he and the mother returned to D Town did she inform him that whilst he was in the bathroom she had been assaulted by the paternal step-grandfather.
I accept the mother’s current husband’s evidence which is corroborative of the mother’s version of events. Again, the allegation is serious and the provisions of s 140(2)(c) of the Evidence Act apply. I am unable to make a finding that what the mother says happened is true. There is the possibility that whatever happened was accidental but not perceived as such by the mother. Nonetheless, I find the mother has a genuine belief that the paternal step-grandfather intentionally sexually assaulted her in the way she describes even though I am unable to make a finding one way or the other about whether that belief is reasonably held.
THE MENTAL STATUS OF THE PARTIES
The family consultant opined that it would have been useful at the final hearing for the court to have the advantage of a psychiatrist or experienced clinical psychologist with higher credentials to offer an opinion in relation to the mental status of both the parties. I do not have that advantage. At earlier case management events, prior to the final phase of the hearing, I canvassed with the parties the feasibility of obtaining a Chapter 15 expert report. Originally, an expert was proposed and I made an order to that effect. As I understood it, that order could not be complied with because of funding difficulties and I have dealt with this matter on a final basis with the expert evidence that I have.
The father alleges that the mother may have a borderline personality disorder. The family consultant indicates that the mother’s therapist, Ms B, is not of that view. The father cross examined the mother on Ms B’s counselling notes including that on a number of occasions the therapist talked to the mother about not having various “catastrophic” thoughts or the “triggering of historical thinking”. The father focused upon the word “catastrophic” as something that would point to supporting a finding that the mother overreacts to events. The father also took the court to the therapist notes which read “has a plan re court proceedings” submitting that he believed that “the mother genuinely has, what is as described in these notes and genuinely believes that this is all a catastrophe. In that context, I think that she would pursue a revision of court orders because she genuinely believes, unreasonably held, but genuinely believes that [the child] is at risk”. Nothing in the evidence or notes of the mother’s treating therapist leads me to find that either the mother is predisposed to taking a catastrophic view of what has happened to her or has any serious problems with her mental health.
The mother believes that the father has a narcissistic personality disorder. The father was self-represented during the final hearing. During this time, he made a number of grandiose claims including that he had been to law school for ten years (later telling the court that it was for only two years); that his work over the past four years, whilst not generating any income, demonstrated his “high capacity for complex work”; that this work involved building economic plans for countries and this had had the support of a number of Country N senators but was not implemented by the Country N Prime Minister and that he was a part of an exclusive, invite only “think tank” website which only consisted of “highly intelligent people”. As further discussed below, the father also initially proposed that the author of some writings about parental alienation would meet the child at Hobart airport after an order had been made moving the child from the mother to live with him. That proposal was a mirage. I am comfortable in concluding that the father has a personality which allows him to have grandiose thoughts.
In Exhibit 19, the father foreshadowed an oral application that I recuse myself from further hearing the matter on the basis it would be reasonable to conclude “that the Judge is either biased or incompetent”. No such application for disqualification was made. The threat and others contained in Exhibit 19 are demonstrative of an aspect of the father’s personality which I conclude is the source of much of the negative feelings that the mother feels towards the father.
Notwithstanding the above, there is insufficient evidence before the court to make any precise or detailed finding about the mental status of the father.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII of the Act 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
The principles underlying those objects (unless contrary to a child’s best interests) 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 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 the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.
STATUTORY CONSIDERATIONS
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))
The child currently has the benefit of a meaningful relationship with her mother. Whilst it would be beneficial for the child to have a meaningful relationship with her father, as discussed elsewhere, given her strongly held views, it would be traumatic for her.
The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))
I am unable to find that the child would be subjected to abuse, neglect or family violence if she was with her father but there is otherwise a need to protect the child from psychological harm to which the child would be exposed if she was to live with or spend time with her father.
Additional considerations
The child’s expressed views
The family consultant saw the child for the purposes of the interviews for the Child Memo in January 2017 and for the interviews for the Family Report in May 2018. In both interviews, the child expressed strong and consistent views that she had no interest in seeing her father. The family consultant opined that given the child’s level of maturity her views should be given significant weight.
The family consultant warned that if the child’s wishes were not reflected in the orders made by the court, this could cause substantial damage to the child’s self-esteem.
The father relies upon the child’s 2015 counselling records where the child expressed that she missed her father. When put to her in cross examination, the mother agreed that at that time the child had told her on more than one occasion, that she had missed her father and would ask when the father was coming back. The mother could not point to a precise period, but stated that the longer the father was away, the less frequent the child would say that she missed the father, until after a certain period of time, she stopped saying it at all.
The father’s last contact with the child was on 9 February 2016, when the mother says, the child blocked the father’s number from her phone. According to the mother, this occurred when the child walked in on the end of a telephone conversation between the mother and the husband’s second wife. This was the first contact the mother had had with the husband’s second wife in over a year. The mother had received an email from the father informing her that he and his wife were getting a divorce and that she had a life threatening brain lesion which was seriously affecting her behaviour and “a risk to yourself and others”. Upon calling the second wife to see if she was alright, the mother found that her life was not in danger and that there had only been some type of benign lesion which had been operated on successfully. The mother says she explained the situation to the child when the child had asked why she had called the second wife. As a result of this, the mother asserts, that the child said to her:
That’s one thing you can’t lie about. You can’t say someone has a brain tumour when they don’t. It’s like saying someone is dying when they’re not. I never want to speak to him again. He lies all the time. He’s Darth Vadar.
The father holds the belief that it was the mother who influenced the child in blocking his number and alleges that the child’s views are a result of parental alienation. It was initially the father’s case that the child’s current attitude toward him had little to do with him leaving Australia or any behaviour on his part. The father said that before contact ceased he had a meaningful and loving relationship with the child and that a number of emails between himself and the child, and between the paternal grandmother and the child, show that there was a positive electronic communication up until the contact ceased.
The father claims that it was the mother’s numerous disclosures to the child that were acts of alienation which caused the child to reject him and the paternal family. As discussed above, the family consultant was critical of the mother for sharing with the child information about her belief that she was sexually abused and the cyber abuse allegations. The family consultant opined that the nature of the information that the child was provided by the mother would be a significant burden for the child. The mother has accepted that she did make some disclosures to the child that were inappropriate.
The father also submits that the strong alignment with the mother of the child’s school, the counselling services, the mother’s husband and the mother’s brother, has created a community of people who are encouraging the child’s rejection of the father and the “false narrative” of abuse.
The father put to the family consultant his reading of [71] of the Family Report. Paragraph [71] was in the following terms:
[The child] said that she does not have a “problem” with the paternal grandmother, nor is she necessarily longing to spend time with her. When asked about her view of spending time with her grandfather’s [sic], [the child] appeared to be uncomfortable and commented, “Mum’s told you the story”. She said that she did not wish to spend time with [paternal step-grandfather] or [the paternal grandfather], because they may harm her. [The child] said that she did not wish to discuss [paternal step-grandfather] or [the paternal grandfather] further with the Family Consultant, “because it’s not my story.”
The father drew from this paragraph that maybe the child had not bought into the mother’s story. This interpretation does not have regard for the words “because they may harm her”. The child obviously had adopted the mother’s story and has formed the view that these two men are a risk to her.
The mother denied that she influenced the child’s views of the father, and described a number of incidences, which she says, contributed to the child’s ultimate attitude. On 16 March 2016, the mother received a letter that the child had written to a number of her teachers with the help of her counsellor which read:
[Teachers]
I do not want anything to do with my Dad [the father] as it distresses me to [sic] much so that I have to go home. Please if he rings, calls, texts or anything like that I would prefer if I was not notified.
Thank you for understanding.
[The child]
Please DO NOT pass on this message to him I would prefer if he did not know about this letter.
Thank you
The mother asserted that the child felt a sense of abandonment when the father left for Asia in October 2014. In the Family Report, the child says that at the time of his departure the father had told her that he was going on holiday for two weeks, but “ended up staying for two years.” The father denied that he told the child that he was only going for two weeks and asserted that he had told her that he was going overseas for “many years”. The father also denied the suggestion that he had told the mother that he was leaving for only “six weeks to two months.” He did, however, ultimately concede that he being overseas for almost two years was a significant contributing factor to the ultimate breakdown of his relationship with the child.
The child also informed the family consultant that the father had “broke a promise” when he failed to return her personal belongings following his separation with his second wife. The father conceded that he had not behaved appropriately in respect of the issues of the child’s toys and belongings, as he knew that they had been sold by his second wife, but did not tell the child as he did not know how to break the news to her. The father added that he still has some of the child’s toys of sentimental value, which she could have if “she is still concerned.” This does not explain why he did not return the child’s sentimental toys initially.
In addition, the child believes that during the father’s time in Asia he did not send her any gifts or presents, and it was the paternal grandmother who would sign off on cards in the father’s name. She told the family consultant that “the birthday present thing” was very important to her and that the father only now remembers her birthday “because of the Family Court.” In the Child Memo the family consultant records:
When asked to describe her relationship with [the father], [the child] said, “I really don’t want to talk about him. He lies. He never even gave me a birthday or Christmas present until this year or wrote me a card.”
The father denied that it was the paternal grandmother that had sent the child gifts whilst he was in Asia.
The family consultant also records in the Child Memo that the child explained that she used to spend every alternate weekend with the father prior to his relocation to Asia. According to the child, “when I was with Dad and [the father’s second wife], she was always the one who played with me and Dad was always on his computer”. This report by the child in January 2017 is consistent with the father’s description of him being enthusiastically engaged in his own project centred on the development of a website. Whilst the father asserted that he had a “lot of great family time” I find that that was not the child’s perception.
Counsel for the mother also put to the father that the content that he had posted on his website could potentially be hurtful to the child. The father denied that the posts were intended to be harmful but agreed that he had posted on his website attractive information about the accommodation in South East Asia and information about what activities were available for someone the child’s age to participate in. Counsel for the mother suggested to the father that the nature of the postings may have added to the child’s distress as it might appear that the father was “on holidays” and enjoying his time without her. The father denied that that was his intention and stated that his aim at posting the material was to show a “menu of options” of how he would spend time with the child. The father asserted, and I accept, that he was trying to extend an invitation at that point in time.
The family consultant opined that there could be a myriad of reasons why the child has rejected the father. In addition to the above, the family consultant cited that in high conflict situations like this one, a child will often form “black and white” thinking in order to align with one parent and avoid the highly volatile situation. The family consultant also added that a more highly qualified professional was necessary to provide a definitive opinion as to the root of the cause of the child’s views.
In addition, the family consultant opined that a failed attempt at reunification between the child and the father at this time may well have a negative impact upon the chances of the child seeking her father out once she reaches early adulthood. The father put to the family consultant that, if the child has a black and white view now, why would there be any hope that that might change in early adulthood. The family consultant responded by saying that at this point in the child’s life she has been through a lot of turmoil and she needs respite from it. It is that respite, the giving of time and the further maturing of the child that is the source of hope. The family consultant confirmed to the father that it was possible that the child was involved in a self-survival strategy which may be the primary driver of her absolute negative views of him at this time.
Relevant to this point, the mother’s current husband, during cross examination by the father, indicated that if the child wanted to see the father anytime in the future, he would help facilitate her wishes. However, he also said, in response to a question asked by the father, that the child “is a very intelligent forthright young lady but she is adamant and I can’t see her right now engaging with you”.
I accept the Independent Children's Lawyer’s submission that the father has little empathy and understanding of his contribution towards the multi-factional issue of why the child has rejected him. The Independent Children's Lawyer also submitted that the father does not seem to accept that in whole, or in part, that he is responsible for the child not wanting to see him.
What is clear, is that that child wants the litigation to end and that she does not wish to spend any time with the father. The child’s current views are very black and white. The family consultant has recommended that time should only be facilitated in accordance with the child’s wishes and warns that any forced contact now will only jeopardise any future hope in the child reaching out independently to the father. In the medium or long term, I accept that this is so. I also accept the opinion of the family consultant that any order that the child live with her father in Tasmania would be considered by the child as “unforgivable” and that making any order that forced the child onto a plane to Tasmania would be emotionally and psychologically traumatic for the child. I find that any order which was made that did not reflect the child’s views would extensively damage the child’s self-esteem.
Relationships of the children with the parents and other persons (s 60CC(3)(b))
The family consultant accepted that the child’s current community, including the members of her household, people in authority at her school and her therapist all are quite aligned with the mother’s narrative (the family consultant did not accept the father’s categorisation as “gripped in a vicelike belief around these allegations”). The father seemed to accept from me that any therapist would simply take the narrative provided by their patient and work with that. They don’t necessarily form a belief that the allegations are true.
In response to questions asked by the father of the family consultant about his allegations of parental alienation and the literature he sought to rely upon, the family consultant opined that alienation was a very contentious part of social science and that no one view was universally accepted. The family consultant accepted that there were long-term consequences in the child not having face to face time or communication with the father as she grew through her adolescence. She said, however, the risks to the child were mitigated by the fact that in this case the child had formed a strong bond with the mother’s current husband.
I formed a positive impression of the mother’s current husband. The mother’s current husband runs a faculty for children with disabilities within D Town School. The mother mentioned that this role allows him to finish work between 2:15 pm to 2:30 pm from which I infer means he is available when the child is home from school. He gave evidence of the positive relationship he has with the child and their shared interest in music. He has observed the mother endure considerable stress as a result of these proceedings and has attempted to provide support for her. He has observed the mother lose sleep. As mentioned above, he told the court that he is happy to facilitate, when he is able, any arrangement for the child to see her father or the parental grandmother should the mother otherwise approve. The mother’s current husband has a positive attitude towards the paternal grandmother, confirming that she had regularly sent gifts and cards to the child. The father, in final submissions, said he had no problem working with the mother’s current husband to facilitate this.
The mother’s brother held the father in very low regard. When pressed by the father as to his attitude about him, the mother’s brother said that he believed that the father was manipulative, deceitful and borderline sociopathic. The overall impression of the mother’s brother’s evidence is that he despises the father. This plays into the father’s submission that there is a group of people around the mother who support the notion that the child shouldn’t have anything to do with the father.
The father acknowledged it was probable that the child had developed a strong group of friends in the period of in excess of five years that she had been attending her current school. He acknowledged that the order that he sought would substantially severe those friendships although he said that the damage caused by that happening could be mitigated by the use of social media, Skype and allowing the child to go back to D Town for half of all school holidays.
The paternal grandmother loves the child. The paternal grandmother, whilst a well-meaning and caring woman, has a blind spot in regard to her son and a naivety in relation to his proposals. The paternal grandmother was insightful enough to acknowledge the damage that had been done by the father leaving Australia for two years and not seeing the child in that period. She did, however, make comments such as “who started this though”. It was clear that she didn’t believe that her son was at fault in relation to the current parenting arrangements.
The paternal grandfather asserted that he had 12 granddaughters and he “knew how they worked”. The attitudes of the mother and the child towards him make any relationship between the child and the paternal grandfather out of the question at this time.
The extent to which each of the child’s parents has taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the children (s 60CC(3)(c))
For reasons already explained, the father has not participated in the life of the child for a significant time.
Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))
The father indicated that his current total level of debt was in the approximate sum of $500,000. Of that, he said that he owed the ATO approximately $132,000. The father described himself as an aspiring bankrupt.
There is $31,400 in the father’s superannuation account. The father has indicated that he believes that it is possible for him to remove $10,000 from his superannuation fund and provide it to the mother in part payment of the current debt that is outstanding to the mother. In addition, the father agrees to a reopening of the property settlement order pursuant to s 79A(1A) of the Act so that an amount of $20,000 is moved from the father’s superannuation fund to a fund nominated by the mother by way of a superannuation splitting order. During the hearing, orders were made to that effect on 10 August 2018.
The father asserted that he had a high capacity for complex work and had worked very hard over the last four years in developing his online product. He said, however, that he hasn’t received a dollar of income from any of that work.
The father’s current Centrelink benefit is $312. On the question of how he would support the child if orders were made that the child come to live with him, the father asserted that when the pensions received by his mother and step-father are taken into account, the disposable income in his household is in the sum of $2,000 per month. In addition, the paternal grandfather in South East Asia has significant disposable income and substantial assets and gave evidence that he is willing to underwrite the father (to at least the agreed extent of $10,000 for each of the next two years).
The father, when answering questions about the circumstances in which he has received Centrelink payments over an extended period of time, said that since January 2018 he has received an exemption from the job search requirement associated with receiving Centrelink payments. He said he received this exemption on compassionate grounds due to the fulltime commitment that the preparation of his case required. Prior to that time, when the father was required to make 20 applications a month for jobs in order to get Centrelink payments, the father indicated that he had fulfilled that requirement but not in any way that would have seriously meant that he was likely to obtain any employment.
The father is a highly intelligent man. I have no doubt he has marketable skills. He could obtain employment if he chose to do so.
The mother works from 9 am to 5 pm in a permanent position. Her hours are fixed in order to ensure her work/life balance and to maximise her ability to be available for the child.
The child has a scholarship which is in the form of a 50 per cent discount on the private school fees to go to D Town Grammar.
Likely effect of any change in the children’s circumstances (s 60CC(3)(d))
The family consultant observed that the child has a very close and loving relationship with the mother and the mother’s current husband and commented on the importance of the child’s friendship networks during this stage of adolescents. As discussed above, the family consultant opined that if an order was made forcing the child to abandon these attachments and live with her father in Tasmania, the child would consider this “unforgivable” and the experience would be emotionally and psychologically traumatic for her.
The father didn’t underplay the enormous difficulties that might arise in the short term for the child to relocate and the damage it might cause to her psychologically. It was his case, however, that what he saw as short term pain needed to be traded off against what he saw to be the long term advantages for the child in re-establishing a relationship with him. Both the father and the paternal grandmother suggested that one solution, if the child wouldn’t get on a plane, would be to put her into a car and drive her to Hobart. It is not immediately apparent to me as to how that would be a solution to the agreed psychological distress that the child would feel. The paternal grandmother significantly underplayed the likely difficulties that would arise if an order transferring the child’s ordinary residence to Hobart was made.
The father, during the course of the hearing, contacted Dr O and obtained an appointment for the child to see her in her rooms at the end of August and another appointment for her to see her colleague, Ms P, at another time. Dr O is a clinical psychologist who has published papers on parental alienation which the father had sought to rely on in these proceedings. As mentioned above, the father said if the court thought it was appropriate, he would attempt to have Dr O meet the child at the airport upon their arrival in Hobart. It was only at the end of the final hearing that it became apparent that Dr O was currently unavailable to see the child. The father submitted that if orders were made for the child to live with him, he would find an alternative, but equally suitable, therapist for the child.
Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))
The mother indicated that their family finances are somewhat strained at the moment (I infer partly as a result of these proceedings). She has had an exemption from the school in terms of fee arrears. She is currently $5,000 in arrears in school fees but the consent order arrangement that the parties have entered into will, in all likelihood, eliminate that debt.
In the event that the child lived in Tasmania with the father and was to regularly return to D Town, there would be a financial impost. No specific evidence was led quantifying that annual cost or explaining how it would be paid. Each party currently asserts they have limited financial resources.
The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60cc(3)(i))
The family consultant opined that it would be a very challenging experience psychologically for the mother if the child was ordered to spend time with the father and further opined that the stability of the mother may well be compromised if those orders were made.
The mother was asked whether or not she would facilitate the child’s time with the father in the event that the child at some future time expressed a desire to do so. The mother said that she would not be able to facilitate such time herself but if the child wanted to see her father she would have her current husband assist to ensure that that happened.
The father, understandably, has little knowledge of the child’s current interests. He is generally aware, as a result of these proceedings, that the child is on a scholarship; is a talented singer and plays musical instruments. The father indicated that he has contacts that would enable him to obtain a free piano and he has the capacity to pay for music lessons.
The father made the point of emphasising to the court that he currently has on his own website a statement that the child’s mother is an “exceptional mother”.
When the child was two, a paediatrician, with the support of at least one school teacher, suggested that the child maybe borderline ADHD. Notwithstanding this, the father believes that when the diagnosis was confirmed in March 2016, that it was because of information that the child had been given about him rather than being a genuine diagnosis. The father conceded that his theory was not supported by any medical evidence at all. In fact, the evidence before me is that once the child was prescribed medication for ADHD her symptoms substantially improved. There is no merit whatsoever in the father’s suggestion that the child’s diagnosis of ADHD is linked to the mother poisoning the child’s mind against him.
It is the father’s continuing proposal that he wants an order for the child to immediately be placed to live with him. The father, in final submissions, stated “I am absolutely certain of what [the child] needs and I have psychologist, I have a home, permanent, she has her room, a [dog]. I am ready.” The family consultant opined that the orders that the father proposed for the child’s relocation to Hobart showed a significant lack of insight as to the effect that those orders might have upon the child. The father struggled with answering questions about how he would handle the likely reaction of the child to such an order.
The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))
The child has a scholarship and is doing very well academically. This is to be contrasted with the child’s behaviour as reported in counselling notes in 2010 when she was six years of age and very much an out of control and problem child.
The family consultant spoke to the child’s Deputy Principal and teacher. Her teacher, whose class she had been in for grades five and six, reported that since the child had commenced taking medication for ADHD her symptoms had dramatically improved and that the child was “one of her favourite students”. The mother referred to the fact that the child’s most recent school report shows excellent achievement. She scored A levels in six different subjects.
The family consultant opined that an additional factor that was relevant to the improvement in the child’s behaviour was the fact that for the last four years the child has not been exposed to significant parental conflict.
If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))
Not relevant.
Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))
The court was taken to a part of the Child Memo which stated “Both parents advised that there were no incidents of family violence during their relationship…” The mother confirmed that she had told the family consultant when being interviewed that she hadn’t been the victim of any physical violence or threats of physical violence and she understood that to be what the family consultant was asking.
The family consultant gave oral evidence that sometimes people aren’t across a lot of the family violence symptoms and subsequent conversations give them a realisation that behaviour falls within that definition. The mother does not allege that the father was physically violent to her. I accept the mother’s explanation of the statement she made to the family consultant and that she may not have understood that that question extended to cyber abuse or allegations of a coercive and controlling behaviour by the father.
I have found that the mother has been the subject of cyber abuse by the father and that constitutes family violence.
Likelihood of order leading to further proceedings (s 60CC(3)(l))
It is likely that if any order was made that was sought by the father new applications would be made to the court arising from those orders.
I accept the Independent Children's Lawyer’s submission that it is in the child’s best interest to have this litigation end so far as that is possible.
Any other relevant fact or circumstance (s 60CC(3)(m))
The mother also alleges, and I accept, that the father was coercive and controlling when she unilaterally relocated to D Town with the child. The mother asserts that the father commenced proceedings to bring her back to Sydney even though, unbeknown to her, he already intended to move to Asia, and that she had to spend $80,000 on legal fees because he wanted to “control my life”. The father behaving in this way is consistent with other behaviours of the father described elsewhere in the reasons. Consent orders were subsequently made permitting the mother and the child to relocate.
Given that I have not made an order for equal shared parental responsibility, s 65DAA is not enlivened.
CONCLUSIONS ABOUT THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY AND BEST INTERESTS
As indicated, the mother has been the subject to family violence at the hands of the father. Accordingly, there is no presumption of equal shared parental responsibility (s 61DA(2) of the Act). In any event, given the history of the intense parental conflict it would not be in the child’s best interest to make an order for equal shared parental responsibility as sought by the father and I find that it is not appropriate to do so. Accordingly, there is no mandatory requirement to consider the provisions of s 65DAA of the Act.
The father, at different stages during the hearing, fluctuated in terms of the intensity in which he presented his case. In final submissions, he apologised for being overzealous in his pursuit and explained that on occasions he adopted the same intensity as a mergers and acquisitions executive. During final submissions, the father said he was passive on the stand but that he now wanted me to be left in no doubt that he believed it was in the child’s best interests to be moved to live with him immediately.
In support, the father brought to the court’s attention a number of cases including Jillet & Sullivan [2017] FamCA 573, Mohr & Sanders [2017] FamCA 310, Ralton & Ralton [2016] FCCA 1832 and Lawson & Lynch [2018] FamCA 358 as a basis of orders that change the live with parent. Each of those cases substantially turn on their own facts. A good example of that is one case that the father emphasised, Jillett & Sullivan. In order to demonstrate how different that case is to the facts of the current, I only need to quote the opening few sentences which were in the following terms:
The wife has been diagnosed by a very senior and experienced Child and Family Psychiatrist, appointed by the court, with a Delusional Disorder which involves the wife having a bizarre set of beliefs about the risk of sexual abuse which is posed by the husband and members of his family. The wife has induced in the parties’ son, aged 10, a Delusional Disorder so that he shares bizarre beliefs about the risk of sexual abuse posed by his father and members of his father’s family. The parties’ daughter, aged 13 this month, probably also has a similar induced Delusional Disorder.
In these proceedings, there is no suggestion that the mother has been diagnosed with any serious mental disorder as found in the above case.
The father also sought an order that once the child was relocated to Hobart with him that there be an appropriate period of “restoration” which would be provided by Dr O. Despite discussing with the father on previous occasions about putting Dr O on affidavit so that she could be tested on her ability to change the child’s strongly expressed views, this did not occur and it later became apparent that Dr O would not be available to see the child for some time, if at all.
The child has totally rejected the father. This could be the result of:
a)A deliberate alienation by the mother;
b)Behaviour by the mother that has alienated the child from the father but is not behaviour that the mother has consciously embarked upon;
c)The child being in the middle of extreme parental conflict; or
d)The child’s lived experience with her father including the child being told by her father that he would be back within two weeks but then not returning from overseas for over two years and the examples expressed by the child of the father not keeping his promises to her.
I find that the mother has not deliberately set out to alienate the father from the child. The child’s current attitudes are a result of a combination of the child’s lived experience with the father and the mother’s behaviour.
In addition, there has been a high level of conflict between the parties. The child has been caught in that since a very early age. The child has expressed the strong view that she wants the litigation to end and that she doesn’t want to be interviewed any further by anybody connected with the court process. The child’s reality is that she is living in the mother’s household. She has formed a strong relationship with the mother’s new husband and it is not surprising that the child has, in what has been a historical environment of high conflict between her parents, chosen to side with the parent with whom she is primarily attached and with whom she lives.
I find it is in the child’s best interests that she live with the mother and spend no time with, nor regularly communicate with, the father.
OTHER PROPOSED ORDERS
The family consultant recommended that it would be useful to order that the child see a clinical psychologist to help her manage the grief and trauma that might flow from an order that she not spend any time with the father. The family consultant indicated that if that order was made it would be best if an independent therapist with some experience in the dynamics of family breakdowns provided the therapy rather than a school counsellor. The mother saw value in adopting the family consultant’s recommendation that she should obtain an appropriate referral for the child to go to counselling to deal with the fallout of this litigation. I shall make an order that the child attend a clinical psychologist.
The mother was asked whether or not she would facilitate a relationship between the child and the paternal grandmother. The mother had positive attitudes towards the paternal grandmother, however, she was fearful that (particularly given some of the negatives things that the paternal grandmother said in oral evidence during the proceedings) the paternal grandmother may attempt to influence the child and pressure the child into seeing the father. It was suggested to the mother that the potential for that happening could be controlled by arranging for the child to see her paternal grandmother in a supervised context (in the D Town area). The mother was receptive to that proposal as long as psychological supports were put in place for the child and that any meetings between the paternal grandmother and the child not involve the paternal step-grandfather. The paternal grandmother consented to orders being made in those terms and indicated on her oath in the witness box that if orders permitted her to spend time with the child she would not discuss with the child her son, her husband, or the paternal grandfather.
The mother had no difficulty at all with the paternal grandmother sending gifts and cards for Christmas and birthdays and was appreciative of the jumper the paternal grandmother had knitted for the child and sent with the other gifts and card. The child had happily worn that jumper. The mother also remembered another previous present being a purse which the paternal grandmother had sent which the child used on a regular basis.
The mother was happy for the father to send presents, gifts and cards subject to the mother’s current husband vetting them. I find it is proper to place that responsibility in the hands of the mother. She was also happy for the father to have access to school reports and school photographs as long as he obtained them directly from the school.
The mother was asked whether or not she would be prepared to share information about the child’s health with the father. The mother said it was dependent on the categories of information and that she would not be prepared to share with the father anything to do with the child’s diagnosis of ADHD (on the basis that the father did not accept that diagnosis and believed the treatment unnecessary) or anything to do with any health problems that the child experienced associated with hormone levels or gynaecological problems. The mother was then asked whether or not she would provide information to the father if, for example, the child was seriously hurt and hospitalised. She indicated that she would arrange for her husband to inform the father in those circumstances.
The mother made the point that although she had agreed to the above, she would still need to be sure that any arrangements that were made, even if the child was seeking it, would be arrangements that would keep the child safe and that also would keep herself safe from future psychological trauma.
I intend to make a series of consequential orders which are generally consistent with those sought by the Independent Children's Lawyer and which I have concluded are proper and in the child’s best interests.
FATHER’S APPLICATION FOR LEAVE TO CALL THE INDEPENDENT CHILDREN'S LAWYER AS A WITNESS IN HIS CASE
On 8 August 2018 (the third last day of the hearing), the father made an application for leave to call the Independent Children's Lawyer as a witness. I dismissed that application and reserved my reasons which I now provide.
Counsel for the Independent Children's Lawyer indicated that the father’s application was opposed. There had been prior discussion in the court room that had made the father aware of the provisions of s 68LA(6) and (7) of the Act. The first subsection provides that the Independent Children's Lawyer is not under any obligation to disclose to the court and cannot be required to disclose to the court, any information that the child communicates to the Independent Children's Lawyer and subsection (7) provides that the Independent Children's Lawyer may disclose to the court any information that the child communicates to the Independent Children's Lawyer if the Independent Children's Lawyer considers the disclosure to be in the best interests of the child. Counsel for the Independent Children's Lawyer made it clear to the court that the Independent Children's Lawyer did not intend to disclose to the court any information that the child had communicated to the Independent Children's Lawyer.
The father’s application for leave proceeded on the basis that the father did not intend to attempt to adduce any evidence from the Independent Children's Lawyer about communications the Independent Children's Lawyer had had with the child.
The father was asked to prepare during the lunchtime adjournment a written dot point summary of the topics about which he wished to ask the Independent Children's Lawyer questions.
He indicated to the court that those topics were:
a)The mother’s unwillingness to follow the orders of the court;
b)The interference with the child as a witness and what happened to the presents and Easter eggs he sent to the Independent Children's Lawyer;
c)An allegation made by the Independent Children's Lawyer that he had sent a clock capable of surveillance as one of the child’s birthday gifts;
d)Whether the Independent Children's Lawyer met with the child and the nature of the interactions between the Independent Children's Lawyer and the child;
e)The father’s belief that the Independent Children's Lawyer has directed or collaborated with the mother to undermine the court’s orders and delay subpoenas; and
f)That the Independent Children's Lawyer’s view should be accorded a weighting of zero.
It appeared that the father’s principal concern arose around the circumstances in which a notation that I had made on 7 February 2018 had been implemented. That notation was in the following terms:
10.On the basis that Mr Cohen who is appearing as agent for the Independent Children's Lawyer today says he cannot object to it, the father is able to send a birthday present and birthday card to the Independent Children's Lawyer who will vet both the present and birthday card and forward same to the mother to give to the child if the Independent Children's Lawyer thinks that is appropriate.
Exhibit 17 contains photos of birthday presents the father forwarded to the Independent Children's Lawyer together with a birthday card. The father asserts that those items were sent in early 2018 (which was the child’s 12th birthday). That is, the items did not arrive in time for the Independent Children's Lawyer to provide them to the child prior to her birthday.
The father subsequently sent an email to the Independent Children's Lawyer, without copying it to the mother, enclosing a letter to the Independent Children's Lawyer of 122 pages. The Independent Children's Lawyer replied on the same day indicating that the letter was not in accordance with previous requests the Independent Children's Lawyer had made in respect of communications to her.
The same email also indicated that the Independent Children's Lawyer had made arrangements to see the child to allow her to see her presents and to allow her to indicate to her directly if she wished to receive them. She also expressed concern that one of the presents, which was a clock, may have the capacity to collect data.
I inferred that the father wished to ask questions of the Independent Children's Lawyer about why the terms of the notation were not literally complied with; why there had been an apparent delay of nearly two months in implementing the intention referred to in the notation and why the Independent Children's Lawyer might have had some reservations about a clock (there was some uncertainty about what the Independent Children's Lawyer was referring to when referring to “a clock”).
Referring to the interview of the child on 22 May 2018, the family consultant recorded at [72] of the Family Report that:
[The child] said that “the birthday present thing” is very important to her. She indicated that she was insulted by [the father] because “he must think I’m naïve”. [The child] disparaged that [the father] “only now remembers” her birthday. She added, “No, he [the father] doesn’t. It’s only because of Family Court.”
That information provided by the family consultant indicates that as at 22 May 2018, the child was well aware of the presents and card that the father had sent to her via the Independent Children's Lawyer. The family consultant sets out the child’s expressed views about receiving those gifts, namely, given the child’s lived experiences in relation to what she had previously perceived she had received from her father, she believed that what the father was now doing was only remembering her birthday in the context of these current proceedings.
I was of the view that I had before me sufficient evidence to understand enough about what had happened. Any attempt by the father to adduce evidence from the Independent Children's Lawyer in more detail about surrounding circumstances (which could not include any detail about communications that the Independent Children's Lawyer had had with the child) would be of questionable relevance. If relevant at all, then the provisions of s 135(c) of the Evidence Act applied, namely, that the probative value of any such evidence was substantially outweighed by the danger that the evidence might cause or result in an undue waste of time.
In addition to that, the father had in a previous case management event and during the hearing, indicated that it was his intention after these proceedings had concluded, to file an application that the Independent Children's Lawyer be charged with contempt. He had prepared such an application and an affidavit in support of that application. The 122 pages that the father sent to the Independent Children's Lawyer on 5 April 2018 (which now form part of Exhibit 17) were included in the affidavit in support of the contempt application. Exhibit 19 is an email that the father sent to the Independent Children's Lawyer and to the mother on 26 July 2018. In that document the father indicates, “I will lodge the contempt application against [the Independent Children's Lawyer] shortly”. Having foreshadowed what he intended to do, the leave he was seeking was quite problematic as the areas in which he sought to ask the Independent Children's Lawyer questions were at least, in part, connected to charges of contempt that he indicated that he intended to make against the Independent Children's Lawyer in the future.
For these reasons, I dismissed the father’s application for leave to call the Independent Children's Lawyer to give evidence.
I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 31 January 2019.
Associate:
Date: 31 January 2019
SCHEDULE 1
The following material was relied upon by the father:
Affidavit of Mr Choat filed 27 July 2016;
Affidavit of Mr Choat filed 24 October 2016;
Affidavit of Mr Choat filed 4 November 2016;
Affidavit of Mr Choat filed 26 April 2017;
Affidavit of Mr Choat filed 5 July 2017;
Affidavit of Mr Choat filed 11 October 2017
Affidavit of Mr Q Choat filed 10 July 2018;
Affidavit of Ms R filed 11 July 2018; and
Affidavit of Mr S filed 11 July 2018.
SCHEDULE 2
The following material was relied upon by the mother:
Amended Response filed 21 April 2017;
Amended Application in a Case filed 11 July 2017;
Affidavit of Ms Grendel filed 20 July 2018;
Affidavit of Ms Grendel filed 7 February 2018;
Affidavit of Ms Grendel filed 14 July 2017;
Affidavit of Ms Grendel filed 24 February 2017;
Affidavit of Mr T filed 21 April 2017; and
Affidavit of Mr L Grendel filed July 2018.
SCHEDULE 3
The following are orders sought by the Independent Children’s Lawyer in her latest proposed minute of order
All previous parent orders for the child X born … 2006 ("the child") are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
Except as otherwise provided for in these orders ,the child shall spend no time with the father, including face to face time, telephone, email or via social media, unless the child expressly requests to spend such time with the father .
That the father is permitted to send letters, cards and gifts to the child by sending such letters and gifts to the mother's postal address and upon receipt, the mother will ensure that such letters and gifts are provided to the child subject to the mother being able to inspect them before providing them to the child.
Both parents are to do all acts and things necessary to cause, issue and maintain a current passport for the child to be held by the mother at all times.
The paternal grandmother is permitted to forward to the child, cards, letters and gifts for the child's birthday and/or for Christmas, subject to the mother being able to view such cards and letters prior to being provided to the child.
That the paternal grandmother may spent time with the child proximate to D Town once each school holiday period for a period of 2 hours, subject to the child's wishes to see the paternal grandmother, with such time being supervised at the discretion of the mother.
In the event that the paternal grandmother spends time with the child as provided for in order 8, she is prohibited from discussing with the child, the paternal grandfather, paternal step grandfather or the father or the wish that any of these persons may have to spend time with the child.
That the mother shall provide an authority to the school for the school to provide directly to the father copies of the child's school reports and direct the school to provide such reports to him promptly after they issue.
That the mother shall provide promptly to the father a copy of the results of the child's participation in music exams that the child may from time to time undertake.
That the mother keep the father informed as soon as reasonably practicable of any serious medical procedure or operations to be undertaken by the child prior to those operations or procedures being undertaken except in the case of an emergency with the mother in such circumstances to inform the father as soon as is reasonably practicable.
In the event of any serious illness or accident concerning the child, the mother shall inform the father as soon as is reasonably practicable.
That the mother will ensure that the child is referred to and attends counselling upon a clinical psychologist in the D Town area as recommended by the Independent Children's Lawyer and ensure that the child continues to attend such counselling for as long as it is recommended by the counsellor.
Copies of the family consultant report may be provided to the counsellor referred to in order 14 prior to the commencement of the counselling.
Neither party shall denigrate the other to or in the presence of the child and shall use their best efforts to prevent any other person from doing so.
Neither party shall discuss or permit discussion with the child, any aspect of these proceedings (except for the effect of the terms of these Orders insofar as the Orders affect the child).
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Key Legal Topics
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Family Law
Legal Concepts
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Procedural Fairness
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Remedies
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Jurisdiction
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