Cody and Trinh
[2007] FamCA 1013
•4 September 2007
FAMILY COURT OF AUSTRALIA
| CODY & TRINH | [2007] FamCA 1013 |
| CHILDREN - Best interests – Allegations of abuse – equal shared time order sought. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Cody |
| RESPONDENT: | Ms Trinh |
| FILE NUMBER: | SYF | 4622 | of | 2005 |
| ORDERS MADE: | 6 June 2007 |
| DATE DELIVERED: | 4 September 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Le Poer Trench |
| HEARING DATE: | 26, 27, 28 and 29 March 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hausman |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Maurice |
Orders
The parties have equal shared parental responsibility for the children of the marriage:
·… born … October 2002 and
·… born … March 2005 (“the children”).
That the children live with the father as follows:
Both children
2.1Until the first weekend of the first school term of the 2008 school year each Saturday or Sunday (Sunday if not otherwise agreed) from 10.00 am until 5.00 pm
The older child
2.2In addition to the above and as from 1 October 2007 and until first weekend in the first school term in 2008:
a.from after day care, pre-school or school on each Tuesday during non school holiday periods until the commencement of day care, pre-school or school the next day
b.from 4.00 pm each Tuesday until 9.00 am each Wednesday during any time when the older child is not attending day care, pre-school or school because of a holiday period.
2.3From the first weekend in the 1st school term of 2008 until the end of the 2nd school term 2008:
a.each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday
b.from after day care, pre-school or school on each Tuesday until the commencement of day care, pre-school or school on Wednesday
c.for four consecutive nights during the school holidays at the end of the 1st and 2nd term of 2008. The nights to be nominated by the father unless the parties otherwise agree.
2.4From the first day of term 3 in the 2008 school year and during school term time until the first day of term 3 in the 2009 school year in a 2 week cycle:
a.in week 1 from the conclusion of pre-school or school on Friday until the commencement of pre-school or school the following Monday (or Tuesday if a long weekend)
b.in week 2 from after pre-school or school on Wednesday until the commencement of pre-school or school on Thursday.
c.for one week during the school holidays at the end of school terms 1 and 2 of 2009
d.for two blocks of one week separated by at least one week during the school holidays at the end of term 4 in 2008.
2.5From the first day of term 3 of the 2009 school year:
a.during school term, each alternate week from 5.00 pm on Sunday until 5.00 pm on the following Sunday
b.half of all school holiday periods as agreed between the parties.
The younger child
2.6.As and from 1 October 2007 and until the first weekend in the 1st term of the 2008 school year:
a.in addition to the time provided for in order 2 hereof, each Tuesday evening from 4.00 p.m. until 6.00 p.m.
2.7From the first weekend in the 1st term of the 2008 school year until the commencement of the 3rd school term 2008:
a.each alternate weekend from 9.00 am to 5.00 pm on Saturday and from 9.00 am until 5.00 pm on Sunday
b.from after day care, pre-school or school on each Tuesday until the commencement of day care, pre-school or school the next day. During such times as the younger child does not attend at day care, pre-school or school because it is not open then she is to spend from 9.00 am each Tuesday until 9.00 am the next morning with her father.
2.8From the commencement of 3rd school term in 2008 until the end of the 1st term in 2009:
a.each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday
b.each Wednesday from after day care, pre-school or school until the commencement of day care, pre-school or school the next morning. During such times as the younger child does not attend at day care, pre-school or school because it is not open then she is to spend from 9.00 am each Wednesday until 9.00 am the next morning with her father.
2.9From the end of the 1st term of the 2009 school year until the end of the 1st term in the 2010 school year:
a.in week 1 from the conclusion of pre-school or school on Friday until the commencement of pre-school or school the following Monday (or Tuesday if a long weekend)
b.in week 2 from after pre-school or school on each Wednesday until the commencement of pre-school or school the next day
c.for one week during the school holidays at the end of school terms 2nd and 3rd term of 2009
d.for two blocks of one week separated by at least one week during the school holidays at the end of term 4 in 2009.
2.10From the end of 1st term in the 2010 school year:
a.during school term, each alternate week from 5.00 pm on Sunday until 5.00 pm on the following Sunday
b.half of all school holiday periods as agreed between the parties.
For the purposes of these orders, if either or both of the children are not attending daycare, pre-school or school then the child or children shall be collected from the mother’s home at the commencement of the father’s time with the children and returned to her home at the conclusion of the father’s time with the children.
The children shall live with the father on the weekend on which Father’s Day falls, notwithstanding any other orders.
The children shall live with the mother on the weekend on which Mother’s Day falls, notwithstanding any other orders.
The parties shall share time with the children on Christmas Day by agreement.
The children shall live with the mother at all other times.
The father be and is hereby restrained from consuming alcohol and/or any non-prescription drugs during periods the children are living with him and for at least twelve hours prior to the commencement of his periods of time with the children.
During the operation of order 10 hereof and subject to the requirement of urgent medical assistance, the mother be and is hereby restrained from taking the children or either of them to any professional person(s) for the purposes of any assessment in relation to any allegation of sexual abuse or the risk of sexual abuse by the father without first consulting with the Family Consultant appointed by these orders to supervise the orders under section 65L.
Pursuant to section 65L the appointment of a Family Consultant be ordered to supervise the orders made herein for a period of two years from the date hereof AND THE COURT REQUESTED:
(a)a short report be prepared at the conclusion of that period of time
(b)the Family Consultant appointed to supervise the Court orders meet with the parties as soon as possible to introduce him/herself to the parties and explain the function of the supervisor.
The parties:
a.attend upon such counsellor as may be recommended by Dr W concerning the management of any sexualized behaviour by the children or either of them and generalized protective behaviours and
b.attend upon the counsellor for as many sessions as the said counsellor considers appropriate.
The appointment of the Independent Children’s Lawyer is to continue until the conclusion of the duties required by order 13 hereof.
The Independent Children’s Lawyer is to assist the parties with the implementation of order 11 hereof by obtaining from Dr W the name or names of counsellors recommended by Dr W and providing details of those names to the parties and to the Family Consultant appointed under order 10 hereof.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Le Poer Trench delivered this day will for all publication and reporting purposes be known as Cody & Trinh.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 4622 of 2005
| Mr Cody |
Applicant
And
| Ms Trinh |
Respondent
REASONS FOR JUDGMENT
Introduction
The older child born in October 2002 and the younger child born in March 2005 are the children of the father and the mother. Their parents have different cultural backgrounds which in itself has probably added to the difficulties in their relationship and which ultimately caused the relationship to break down. It does however offer the children a wonderful opportunity to grow up experiencing two quite different cultures and the approach of each to raising children.
The parents are both dedicated to the future well being of their children however they have different ideas as to how the children should live with them.
In hearing the case I heard evidence about matters of concern the mother had with the parenting style of the father and her concerns about certain aspects of his lifestyle. These concerns had made it impossible for the parties to reach agreement about the future care of their children.
The Issues
The issues in the case included an assessment of whether there is an unacceptable risk of harm to the children in the care of the father.
The case also involves an assessment of the father’s capacity to care for the children for extended periods of time or on an equal shared time basis with the mother.
Background Facts
The mother was born in May 1965 and is 42 years of age. The father was born in November 1972 and is 34 years of age.
The parties met in about 1998 and commenced to reside together in February 2000. They were married in January 2002.
Separation occurred in June 2004 and again in December 2004.
The parties youngest child was born after the parties separated.
The proceedings in this court commenced in December 2005.
The mother was born in South-East Asia and came to Australia in 1981. She became an Australian citizen in 1986.
Following the final separation the children have resided with the mother and she lived initially at A and then early in 2007 moved to an address at E.
At the time the parties met the mother was a student in the final stages of a bachelor of arts degree. She was working as a communications consultant.
In her affidavit material the mother made various allegations against the father. The first of these allegations can be summarised as the father being controlling of the mother through denying her money to be able to meet her reasonable needs for clothing and basic comforts for life.
The mother also alleges that the father has been physically violent and mentally abusive to her. She alleged that the father drove motor vehicles whilst he was intoxicated with alcohol. She alleged that he had an anger management problem.
The mother claimed the father had been verbally abusive to her. In paragraph 28 of her affidavit the mother alleged that on a date in 2003 the applicant father became violent and grabbed the older child from her. This she said occurred at a time when there appeared to be an argument between the parties about the father's friend, Mr K. She said that the father then held the older child above his head so that she could not reach her and then screamed at the mother words to the effect of "look at you, look at you, you're fucking hysterical".
In paragraph 29 of her affidavit the mother says in April 2003 the father chased her from the back of the house to the front of the house.
The mother alleged that in 2003 the father grabbed hold of her arm and the older child’s arm during the course of an argument and caused bruising to both.
The mother complained that the father took too many videos and photographs of the older child. She thought the father was excessive in his photography.
The father's friend Mr K was a person who worried the mother. She claimed that he had acted in inappropriate ways towards her. She said that in June 2003 Mr K had undressed in front of her in the L house. She claimed that on various occasions Mr K had opened her bedroom door suddenly while she was breast feeding the older child and that he only had a towel wrapped around his waist. She said Mr K jumped onto the bed and sat close to the older child and herself.
The mother raised concerns about requests made of her by the father prior to their marriage in December 2001. The mother says the father asked her to participate in a game with himself and his friend Mr K at Mr K’s house in B. The game involved the mother being naked and rubbing herself against Mr K and the father. The mother said she refused to engage in this game but she did observe Mr K, the father, and Mr K’s partner Ms M engaging in the game.
The mother described behaviour of the father at about the date of separation which was overbearing, threatening and intimidating. She said in paragraph 36 of her affidavit "the violence I experienced during the relationship mostly took the form of words he used towards me, even in the presence of the children, which humiliated and intimidated me."
The mother says that following the separation in June 2004 she rented a property at A. She said the father visited three or four times a week. She claimed that about every two or three weeks the father became violent both verbally and physically towards her. The mother claimed that on a number of occasions the father pushed her. She claimed that she had asked the father at least twenty times to leave her property at A.
On an occasion in 2005, described in paragraph 38 of the mother's affidavit, in the middle of an argument the mother concedes that she hit the father's head with her hand. In response to this the father pushed her and screamed at her "don't you fucking hit me." The mother claimed that she lost her balance and grabbed the applicant father who then said "don't you fucking try to strangle me." He then pushed the mother's hand off him.
In December 2005 the mother left the A property and moved into a refuge. She said that action was necessary because of the father's abuse. In paragraph 45 of her affidavit the mother said that after the marriage she observed the father drank heavily (referring to alcohol) and took drugs including ecstasy tablets and “hash”. She said the father drank at dinner time. From about 2000 to 2004 she observed the father consume alcohol, on average, twelve cans of beer, two to three bottles of red wine each day. She said that the father drank very heavily when the older child was about one month old and it continued until she was between six and eighteen months of age. The mother alleged the father had at least one period of license disqualification for driving a motor vehicle whilst over the prescribed concentration of alcohol. The mother alleged the father drove his motor car at a time when both she and the children were in the car and at a time when he was affected by alcohol.
The mother says that during the relationship she observed the father smoke “hash” each night.
The mother says that during the cohabitation the father played very little role in the care of the children. She said he worked very long hours and was frequently absent from the house until the early hours of the morning.
She described an incident which occurred shortly after the parties’ separation in June 2004. She sets out details of this incident in paragraph 71 (it appears on the bottom of page 25). I herein incorporate the passage at the bottom of page 25 and the top of page 26. I incorporate this passage because it appears to me to give some insight and assistance into the quandary of trying to determine where the truth might lie between the mother's version of relevant facts and the father's version of relevant facts:
“71. …The applicant father then gave [the older child] to me, and [the older child] sat on my lap and stopped crying immediately. A woman whom I did not know came to me and [the older child], and we had a conversation in words to the effect of:
She said: “It’s not good for your child.”
I said: “It’s none of your business.”
She said: “I know it’s none of my business, but it’s not good for your child.”
I said: “Fuck off, it’s none of your business. Leave me alone.”
She said: “You fucken done harm to your child.”
I then stood up because I was very scared and I did not know what to do. I moved back, and I used my foot to push the woman away from me because she was leaning over me and [the older child] was in my arms. The woman then slapped with the back of her hand. I then hit her back with my hand. I was shocked and angry, and I said to the applicant father words to the effect of:
“[…], look what you’ve done.”
I then left with [the older child].”
In paragraph 80 of her affidavit the mother describes an incident which illustrates lack of attention by the father to the care of [the older child] which could have been very dangerous.
Until the interim orders were made in the court in December 2005 the time the father spent with the children was arranged between the parties.
The orders in December 2005 provided for the father to spend time with the children in the presence of a supervisor or at the C Contact Centre. The initial named supervisor was a friend of the parties.
On 14 February 2006 further orders were made for the father to have unsupervised time with the children.
The orders were changed again on 8 August 2006. Those orders provided for the father to have unsupervised time with the children at a public place.
At paragraph 105 of the mother's affidavit she inserts a heading as follows, "Inappropriate behaviour of the applicant father." From that point to the end of the affidavit the mother outlines behaviour of the children and the father which is of concern to the mother.
The mother records that shortly after the birth of the older child the father said the older child had a "beautiful vagina." The mother recites a number of conversations she said took place following the birth of the older child up until the time she was about 18 months of age. These conversations were about the father “asking [the older child] to marry him”. She also observed statements made by the father such as "God you're so beautiful."
The mother raised as a concern the fact that the father when the older child was three or four weeks of age, began to kiss her and to sniff her breath. He then described her breath as "oh God, mountain air." The mother said that she observed the father kissing the older child and she said "touched her in a way which was sexual in nature." This is set out in paragraph 109 and from my observation of what the mother says in that paragraph I would not immediately jump to the conclusion that the father's actions were sexual in nature.
In paragraph 110 of her affidavit the mother refers to a conversation where the father asked the mother to allow the older child to suck on his nipples. He then spoke of a film a friend was making featuring men breast feeding. The mother says the father said "I want [the older child] to participate in the film. Maybe she can suck on my nipples tonight as a practise." The mother did not agree with this proposal.
In paragraph 111 the mother describes behaviour when the older child was a month old where the father would kiss the older child on her lower stomach and smell her vagina. Apparently when describing the vagina the father is alleged to have said "it's so beautiful. It has a special chubby look." She says that when the older child was six months of age she asked the father not to continue that behaviour which apparently he accepted although he said "okay I'll kiss her in her sleep then."
In paragraph 112 the mother describes the father holding the older child by the hips and moving his pelvis in a thrusting movement towards her. At the same time he said "tweezer." The mother says this was a name which the father called the mother whilst indulging in sexual intercourse. She said at the time of this action the father appeared to have an erect penis.
This incident was described by the mother to Dr W who refers to it in his evidence which I will deal with later in these reasons.
The mother says that on one occasion when the older child was twenty months of age the father took some photographs of her without clothes on. The photographs did not include her face and were taken from behind her. She said the photographs showed buttocks and vagina. The mother asked the father could she see the photographs which he showed her and which apparently were on a digital camera because she asked him to delete them which he did at her request.
She claims that when the older child was twenty months of age she observed the father allow and/or invite the child to suck on his breasts.
The mother claims that when the older child was around two years of age and for eight months thereafter she observed the father sucking on the child's nipples.
The mother claims that on one occasion when the older child was 28 months of age she heard the older child cry out and she asked the older child what had happened and the older child said "daddy kicked me in the leg."
The mother complains that the father from time to time screamed at the older child. This apparently was part of his method of disciplining her.
The mother claims that the father watched the older child urinating on the back steps of their residence. The implication is that there was some unnatural aspect of this observance. She further complains that the father showed the older child his penis while he was urinating. Again the implication is that this was inappropriate.
The mother complains that the father was inappropriately nude in the presence of the older child and showed her his penis. She complains about him showering with the older child.
The mother says that in about 2004 the father played a game with the older child where they both ran around the house naked. The mother said this game drew attention to the older child’s vagina.
The mother says that during the cohabitation she observed the father play a game with the older child called "the mummy game" which later became the "darling game". In this game the mother said the father pretended to be a baby while the older child pretended to be the mother. The applicant father sucked the older child’s nipples while the older child cuddled him and hugged his head and calmed him with words to the effect of "mummy loves you, you'll be all right." This paragraph was particularly the subject of cross‑examination and I will refer to it later.
The mother also alleged that as part of a game the father would pretend to cry and be upset and the older child would lift her top and the father would suck on her nipples.
Following the birth of the younger child the mother again says the father made comments about the shape of that child’s vagina.
In paragraph 144 the mother says on 16 February 2006 the older child came to her while she was lying on the lounge at her property in A and climbed on top of her. She said "you be daddy". The mother said "okay." The mother then said the older child began to simulate intercourse by thrusting her pelvis against the mother's and at the same time said words to the effect of "daddy, daddy". She says a few days later she observed the older child pinch her nipples and at the same time say "I have the same boobies as daddy."
Some short time thereafter the mother said that the older child ran her hand across the mother's vagina and at the same time said "I like to see you wee."
The mother reported these incidents to the Department of Community Services.
There are many more incidents described by the mother in her affidavit however I have focused on the ones which appear to be direct allegations against the father. The mother describes many other actions by the older child and either directly alleges or infers that the father has encouraged the older child to engage in inappropriate behaviours.
An affidavit was signed by Ms P. She worked in the child care establishment where the older child attended. At the mother's request she kept a note of each occasion she saw the older child put her hands inside her pants at the time that she was getting ready to sleep. Ms P described this action as masturbation.
Dr W provided two reports for the court. The first was dated 12 May 2006; the second dated 8 March 2007.
In his first report the following matters are of particular note:
“The mother alleges that the father has behaved inappropriately towards the children which she interprets as possibly a prelude to sexual abuse or at least that he condones inappropriate boundaries, that he has a history of intoxication, and that he has been emotionally and verbally abusive of her. The father denies any inappropriate sexual behaviour and alleges that the incidents referred to by the mother are either fanciful or have been completely misinterpreted, he denies allegations of emotional and verbal abuse of the mother, and he alleges that she is controlling in her nature and that cultural differences have led to misunderstandings over parenting and finally that she either has a mental illness or is seeking to alienate the children from him.”
The mother told Dr W that she had a falling out with her family who now live in Australia. She told him that her family are critical of her western ways and have become more critical of her since she has married the father. All her other siblings (six) have married people of the same nationality. The mother told Dr W that the father used to smoke marijuana every day and would also consume a lot of beer and wine.
The mother told Dr W that she felt the father's friends Mr K and his partner Ms M from B had played a critical role in the breakdown of their relationship. She alleged Mr K had made quite a lot of money manufacturing illicit drugs in Adelaide before moving to B and developing a large property.
The mother described her concerns about Ms M to Dr W.
The following paragraph is contained in Dr W’s report:
“She had also asked her husband why [Ms M] seemed to be so violently psychologically possessed by [the older child] and wondered whether there was some plan or something else. She said that he just got angry at these questions. I asked her whether perhaps he simply thought that she was wrong. She indicated that she did not believe that, but she does think that [Mr K] and [Ms M] have some kind of hold over [the father] or that he is dependent on them in some way.”
In relation to the final separation Dr W sets out the following:
“… She had even worried that her husband was intending to hand [the older child] over to [Mr K] and [Ms M]. When I pressed her on this, she seems to no longer hold the view that this was true. She said in the end she walked out because she was scared of him. She said that there was a brief attempt at reconciliation later in 2005.”
Dr W said that the mother denied using either drugs or alcohol. On pages six and seven of his report Dr W set out a conversation with the mother about her allegations of concern about the father's behaviour towards the children:
“I asked [the mother] about the sexual risk that she perceives to the children. She said that she finds it a very difficult subject to talk about, particularly the most recent (March 2006) concerns. She said that thinking about it makes her sick. She said that she feels she does not misread [the father’s] sexual intentions towards [the older child], but she does find it hard to believe.
She indicated that she had not initially thought that some of her observations were primarily sexual and had hoped that they were just one off things, but that she has become increasingly concerned as the incidents have accumulated. She indicated that one of the first observations occurred when [the older child] was about nine or ten months and she found her husband staring at [the older child’s] vagina when [the older child] was lying on the bed. He was standing and making some movements towards her (from some distance away) which she interpreted to be thrusting. She said that he would also kiss her on the vagina. She was adamant that this was actually on the vaginal lips and was not simply blowing bubbles on her baby’s stomach. She said that he also was sniffing around her vagina, which he referred to as a Vietnamese kiss. She said that she tried to dissuade him from doing things like this because [the older child] was starting to get old enough to understand what was happening.
She said that he also enjoyed showing his penis to [the older child] and would let her watch him when he was going to the toilet and also would describe what he was doing. She felt that he was so familiar about these things with [the older child] that [the older child] could easily be drawn into similar inappropriate behaviours by a paedophile. She also referred to him playing with [the older child] when they were both naked and seeming to stare at her in a way which she thought was excessive. He used to like giving her lingering kisses on the lips.
She said that he used to watch the girls weeing, particularly [the younger child], and would say that he could be in trouble if anyone saw him doing that.
She said that she found that she could not react to any of this behaviour because if she did her husband would laugh at her or get angry. She said he seemed to try to turn everything into a joke.
I asked her at what point she had started to see these things as more sinister. She said that in February 2006 [the older child] said to her that she wanted to play a game with her mother which involved [the older child] being the daddy. She said [the older child] climbed up on her and lay on her with her (genital) area on her mother’s stomach and was looking into her mother’s eyes intently and thrusting on her in a way which reminded her of her husband during sexual activity. She said that she felt very sick and upset and tried to calm herself down. She saw that she could not deny it any more.”
Dr W reports on his observation of the children with each parent. In the first paragraph under this heading the following appears:
“I first saw the children with their mother when she provided background history, including history of the children’s development. At the first mention of [the father], [the older child] interjected to declare “I am very excited to see Daddy”. Shortly after, [the older child] interjected again when there was some mention of where she and her mother lived to declare that “my Daddy lives in [H]”. [The mother] also made a number of references to the father. On every occasion she was very positive about him in front of the children.”
He otherwise said that the mother was warm and responsive with the children and she was able to share her attention between them and seemed very child focused.
Under the heading “Examination” Dr W reported as follows:
“[The mother] was very co-operative with the assessment process. She was quite anxious and tended to provide extremely detailed accounts and also to be rather over-inclusive in her thinking, in the form of having some difficulty keeping to a clear train of thought because of digressions into fairly peripheral areas or areas of excessive detail.
I asked about psychotic phenomenon such as delusions and hallucinations but these were denied. However it appeared to me that [the mother] at the least has a set of overvalued ideas about [the father’s] friends [Mr K] and [Ms M], as well as other overvalued ideas about the motivation of other people including in some respects her husband. It did not seem to me however that these were in the form of fully formed delusions.”
When Dr W met with the father he spoke to him about the broad allegations made by the mother. It is fair to say that the father denied most of these and had counter‑allegations about the mother's disposition and changed personality following the birth of the older child. The father described the mother as suspicious and seeing "harm and threat everywhere." This was particularly so in relation to the father's friends Mr K and Ms M. The father told Dr W that he had been convicted of two drink driving offences, one at the age of 18 and the other at the age of 28. He indicated that he had lost his licence for about six months.
In relation to his alcohol consumption the father told Dr W that he only drank about three nights a week and on those occasions he might have a bottle of wine or as many as six bottles of beer. He said that he had smoked marijuana up until the time he left B.
In answer to a direct question about the mother's allegations of sexual abuse the father categorically denied any inappropriate behaviour. The father spoke about the game of allowing the child to pretend she was suckling. However the father said he did not bare his nipples or turn this into a realistic activity. He claimed that the mother was always present when this occurred. The father specifically denied he had ever kissed the child on the vagina. He conceded that he had blown bubbles around her umbilicus.
Dr W’s description of the time the children spent with their father was very positive. In relation to Dr W’s examination of the father he said that the father seemed a settled, thoughtful man "he provided a clear and coherent account. I observed no evidence of mental illness or personality disorder".
In relation to the older child, Dr W reported "she is a very verbal child with an excellent vocabulary for her age. She seemed alert and inquisitive."
Under the heading Conclusions and Recommendations Dr W says "despite substantially reduced contact, both children seemed to have been able to have sustained a quite secure attachment to him (the father)." Dr W said this was surprising in relation to the younger child ... "in my view the maintenance of his relationship (with [the younger child]) has probably been because of the strength of the relationship in the first place and also because [the older child] accompanies her to the contact and probably also talks about her father in the meantime.". ... "both children seem to have strong, secure attachments to both their parents."
In relation to the effect upon the children of separation from a parent Dr W says "if contact remains subsequently reduced (with their father) their attachment will alienate and [the older child] in particular will pine a great deal for her father."
Dr W said that neither child was old enough to express wishes however he said "[The older child] was clearly very keen to see her father and she did not seem to hold any fear of him at all".
Under the heading "Parents attitude towards responsibilities and duties of parenthood" Dr W says "however in my view there is a concern over the mother's evolving beliefs about the risk of sexual abuse by the father. These are not vexatious or malicious beliefs in my view but are genuinely held. Nevertheless if exercised without basis, they will ultimately have a profound negative effect on the father's relationship with the children."
Under the heading "emotional state of each parent" Dr W says:
"[The mother] was quite a discursive historian who seemed to me to be over inclusive in her thinking in the sense that she makes connections between events which I think at times were fanciful ... I formed the view that it was probable that some, although not necessarily all, aspects of her complaints about the husband's behaviour towards her also are over valued ideas. Finally, the same is probably true of her concerns about sexual abuse. ... while she thought that it was unlikely that behaviour had occurred yet which would be objectively judged as sexually abusive, I felt the observations themselves would not ordinarily lead to her conclusions.
At this point her thinking and behaviour probably does not meet the criteria for any diagnosable mental illness, however, it is the type of behaviour which can evolve into either a psychotic illness such as Schizophrenia or Paranoid Psychosis or into a more entrenched Paranoid Personality Disorder."
After describing some aspects of the mother's thinking Dr W says:
"Thinking such as this can lead to a gradual restriction in children's range of experiences including essential developmental experiences such as attendance at school, progressive isolation of the family and also a gradual assumption by the children of an unreasonable and irrational sense of endangerment in the community."
Further Dr W deals with the allegations of the mother in respect of the father's excessive alcohol consumption. Inspect of this he says "I formed the view that this was probably a matter that he needs to deal with himself but not that it was a matter which seriously jeopardises his parenting abilities." In that opinion Dr W was of the view that the father had a single drink driving conviction which was not in fact the evidence before the court.
In relation to the allegation of the husband being controlling and aggressive and also the allegations of the father that the mother had a very volatile personality Dr W had difficulty concluding a view about same. He said if other materials provided to the court enables the court to form the view:
“that the father's nature closely resembles the mother's allegations and also that the mother is by nature a quiet person whose mental functioning is perhaps rather better than I have suggested, then the practical ramifications of this may be that he is unsuited to a shared parenting arrangement and that a more traditional arrangement may be more appropriate provided there is not an unacceptable risk of sexual abuse."
Dr W then referred to the incident which both parents described where the mother had involved herself in a physical altercation with a stranger whilst out with the father and the children. In relation to this incident Dr W says:
"The existence of this incident in my view probably tips the balance more in favour of the father's account of their respective natures than does it support the mother's account. In addition, I would note that people who have the degree of suspiciousness that the mother has are also inclined to what may often seem to be quite uncharacteristically aggressive outbursts if they feel trapped and afraid."
Under the heading "The need to protect the children from any form of physical, emotional or sexual abuse or neglect" Dr W concludes:
"Based on the material available to me, and bearing in mind that I formed the view that the mother has a frame of mind which predisposes her to misunderstanding the motives and behaviour of others, I do not feel that there was an unacceptable risk of sexual abuse by the father."
In relation to the parties’ proposals Dr W reports:
"The father essentially is seeking orders which would progress as the children approach school age into a shared care arrangement. The schedule that he sets out seems to me to be appropriate under the circumstances and in my view provided there was no resistance from the mother, the children would probably adjust to this change in routine quite well."
Dr W prepared an update report which was dated 8 March 2007.
In this report the mother told Dr W that she still had concerns about the father's behaviour towards the children and "she indicated that her concern is that [the father] does not have an appropriate sense of personal boundaries, and she worries where this might lead."
Dr W said:
"She also spoke to me about several of the instances that she had referred to when I first saw her, including an incident in which she said when [the older child] was very young the father had thrust his erect penis towards her and that she had seen copying of this behaviour by [the older child] more recently. She was adamant that these behaviours by the father were sexually intended and that she has not confused them with innocent or normal behaviours.”
In the report Dr W refers to the mother seeing Dr J. The mother told Dr W that she had commenced seeing Dr J after reading his report. She had seen Dr J as frequently as twice a week and was still seeing her regularly.
In relation to the observations of the children on this occasion Dr W advised as follows:
“[The older child] drew a picture of two men holding hands which she said were myself and her father. When her mother mentioned her father, [the older child] became quiet and assumed a rather wide-eyed expression. When I indicated that [the father] had arrived in the waiting area, [the older child] immediately became quite clingy with her mother and was climbing over her and up towards her shoulders.
I would contrast this with last year when she referred several times to wanting to see her father and did not seem to show even the briefest avoidance about him, although she was a bit attention seeking with her mother.
However when their father collected them, both girls seemed very excited and they happily separated from their mother to go with him for about an hour.
I later asked [the mother] what she told the children about coming to the appointment. She told them that they were coming to see Dr [W] and that they might be asked some questions and they were going to see their father.”
When the father was seen he advised Dr W that the mother had changed her address and not informed him of that until after the fact. She was at the time of the interview living at E. The father told Dr W that at the end of visits the older child tends to be clinging and does not want to separate from him.
The father told Dr W that his drinking pattern had not changed in the last ten months or so. He said that he had not used any drugs since they had last met.
Dr W reported:
"[The father] was quite physically affectionate with the girls. He often cuddled them and touched them, but not in a way which seemed any more than appropriately affectionate. He was also very verbal with them. He played quite an imaginative game with them about a hungry tiger."
In interview with the mother Dr W reports that the mother felt the older child is developing well "but she said she is still worried about her (sexualised behaviour)".
The mother told Dr W that after the last visit with their father the older child had been saying goodbye to some children at preschool and kissed one on the lips in a very passionate way. She demanded a similar kiss from another girl. The mother reported that she told the older child that only her mother and father could hug and kiss her and that others do not do that.
The mother told Dr W:
‘that [the older child] seems very focused on her vagina. She has said things like “I want to eat your (vagina)”, when her mother was lying on the couch reading and the two girls were playing nearby. On another occasion [the older child] said “I want to eat my (vagina)” in a public shopping area."
There were some other examples of the older child’s behaviour provided by the mother.
The father did not report any inappropriate behaviour at all of the older child whilst she was in his care. Under the heading "Conclusions and recommendations" Dr W notes:
"… I also note that within these parameters, the relationship that I observed between [the older child] and her father was one which was mutually demonstrative but not obviously eroticised. I did not observe eroticised elements on the first occasion I saw them either.
...
Overall however I formed the view that [the older child] is a child who is extremely enthusiastic in her demonstrations of affections, but I did not observe any evidence that this arises in an inappropriate way from [the father], although he has certainly appeared to be more physically demonstrative than many fathers, but not in an obviously inappropriate way."
In relation to the parties' ability and willingness to facilitate and encourage continuing relationships between the children and the other parent Dr W says:
"… Although she [the mother] has complied with orders for the children to spend unsupervised time with their father, I am concerned that she would find more extensive and particularly overnight orders very anxiety provoking, and that this might lead to her having difficulty providing the children in a consistently appropriate manner."
In relation to the father Dr W says:
"… Indeed as I have indicated elsewhere he [the father] appears to demonstrate an array of responsive and empathic parenting abilities which go beyond that provided by many men."
Dr W said:
"My concerns about the conclusions that [the mother] draws from her observations of [the older child’s] current behaviour and the way that she links this to her observations and interpretations of [the father’s] behaviour during the relationship and shortly afterwards, have not been affected by this assessment. Her conclusions and concerns remain unshaken. Similarly my thoughts about whether or not this represents a form of thought disorder which has mental health implications also remain unchanged. I would emphasize however that I saw no clear indications of progressions by [the mother] into clearly diagnosable mental illness."
The father gave oral evidence. He was asked about his purchases of liquor. He said he usually purchased liquor with keycard or visacard and occasionally with cash. Most of his purchases were in N at hotels and bottle shops and also one in H. The liquor purchased by him was not necessarily for his own consumption.
The father acknowledged that he had taken ecstasy tablets and he said he told Dr W about this. He said that he had taken ecstasy tablets on about ten occasions and some of the occasions were with the mother who participated in the use of the drug. He said that on one occasion only in September or October 2000 he had taken heroin. He said he had been with a friend of his and he had a very bad reaction to the drug.
The father was asked about his communication with the mother. He said the communication was amicable and handovers were problem free.
The father was asked about his drinking habits and he said he consumes alcohol three to four days a week. He would normally have three stubbies of beer and sometimes he has more. Sometimes he has a bottle of wine. He conceded that when he has been stressed he has used more alcohol. The last time he used greater quantities of alcohol due to stress was before Christmas 2006. The father said that he would be prepared to undertake not to drink when the children are with him. He said he was not addicted to alcohol. The father said that his use of heroin and ecstasy all occurred prior to the marriage. He said he had not taken those drugs since the marriage.
The father was asked about violence in the marriage. He said there was no physical violence either way during the marriage. He conceded that he had shouted at the mother. He said during a period of reconciliation for three months this occurred and it has not occurred since.
A series of allegations were put to the father which can be summarised as the mother’s allegation of the father’s controlling behaviour. He denied those allegations. He denied deliberately showing his penis to the older child and saying “this is my penis”. He conceded he had urinated in front of the older child. He denied kissing the older child on the lower belly or vagina. He provided an alternative explanation for his alleged comment about the younger child’s vagina not being as pretty as the older child’s. He denied the incident alleged by the mother where she claimed he was making a thrusting motion towards the older child while the older child was naked. He denied at that time he had an erect penis.
He denied sucking the older child’s nipples and claimed that the mother’s description was a distortion of what in fact happened. He said that when the younger child was born it was hard for the older child. So we developed a game which was called the ‘mummy game’. I would say ‘mummy your baby is hungry’. There were times when I held the older child like a baby.
When asked what he could do to allay the mother’s fears he said he proposed not to drink when the children were with him. He also proposed that he would not be naked in the presence of the children. He said he would welcome frequent screening.
The father conceded that he grew up in B and there he had consumed cannabis. He said there were times during his twenties when he used that drug. The last time he used cannabis was in either 1999 or 2000 he thought.
The father conceded that he had been charged on two occasions with PCA..
It was put to the father that the mother took ecstasy on two occasions and he said yes.
The father agreed that during the relationship with the mother she raised concerns about his friends Ms M and Mr K. He agreed that she was worried that Mr K wanted to sexually assault her. The father said as a result of that he supported his wife and he cut off contact from his friends. At a later time Ms M died.
The father conceded that the mother did not have a keycard to his bank account until he went to Fiji in 2004. He said that prior to that time she would ask for money.
The father said that the mother had asked him not to kiss the children on the lips. She had also asked him not to walk in the house naked. He said he respected that and complied with her wishes. The father conceded that he told the mother that someone in film school wanted to make a documentary film about men breast feeding. He said he had been in a class where there was a “pitching session”. He denied that he asked the mother to practise male breast feeding. He denied that he had the older child suck on his nipples. He denied that he sucked on the older child’s nipples.
It was put to the father that when the older child was little he “sniffed” her vagina. He said no. He said he sniffed her the Vietnamese way. He said the Vietnamese have a way of sniffing. He said we both sniffed her all over.
The father conceded that he showered and bathed with the older child.
The mother gave oral evidence. The mother conceded that she was concerned about Mr K and his contact with her children. She said she had no concern about other friends of the father. She said that she would be concerned about the father taking the children to certain of his relatives’ homes.
In relation to the time the children should spend with their father the mother said the children are young and she didn’t think the father had changed much. She said at least for the moment and until they are bigger the current arrangement should prevail.
The mother conceded that when the father called her on the phone he has been pleasant. The mother said she left the marriage because of the violence and abuse in the marriage. She said towards the end the father acted like she was crazy. She said she was very alarmed.
The mother conceded the children were excited to see their father when they spend time with him.
She was asked if an order was to be made for the children to have time overnight with their father what would she suggest as the best time. She said if overnight is going to take place it should take place during the week as there is less chance of him using drugs and alcohol. She said on the weekend he does his socialising and that’s where the drugs and alcohol are. She said two or three nights in a row would be too long. It should be one night only. She said the thought of the children on overnight time with their father makes her unable to think.
The mother said that she was hoping to go back to work. She would like to upgrade her qualifications and she said when the younger child is two she will start to undertake an upgrade of her degree. When the younger child is at school she will go to full time work.
The mother was asked what she anticipated the younger child’s reaction would be to overnight time with her father. She said “I think she would be anxious. They are not used to the father’s household. I think he might not feed them, he might not attend to their needs and they might have to wait around a lot.”
The mother was critical of the father building up the older child’s expectations in particular in relation to the building of a doll house.
The mother claimed that there was a court order made on 21 December 2005 that the father not attend the children’s school. This proved to be incorrect. The mother agreed that communication between the parents has improved over the last twelve months but she said it was still problematic.
She was asked about an occasion which she says Mr K was naked in her presence. She reaffirmed this took place. She agreed she had never told the father about it. The first time she told him about it was after the separation. The mother conceded that during arguments both she and the father shouted at each other.
Although the mother complained about the father sniffing the older child’s body, her vagina and her breath she acknowledged that she had done this herself albeit for the purpose of ascertaining what the father was talking about.
The mother was asked about her affidavit where she alleged that the father called her “Tweezer” when having sexual intercourse with her. In cross-examination she admitted that was not the case. She admitted that the father’s sister called her “Tweezer”.
She was asked about her allegations that the father had made thrusting motions towards the older child as she lay naked on the bed. Under close cross-examination she said there was only one thrusting motion and that it appeared to her that the father may have had an erection because he was in his underpants and kneeling on the bed.
The mother was asked about other allegations she made in respect of “sexualised behaviour” between the father and the older child. She had raised concerns about the father touching the children’s lips. She said “if I touch my lips with my finger it provokes a certain sexual energy. I thought he was provoking sexual energy. It is sexual behaviour.”
Having made allegations that the father allowed the older child to suck his nipple the mother under close cross-examination conceded that she didn’t ever see that. What she saw was a game of pretend sucking. This was entirely consistent with the evidence of the father. The mother conceded that she had told Dr W that the older child was permitted to suck the father’s nipples. This was in the face of her agreement that such a statement was untrue.
Again in relation to the mother’s allegations that the father had sucked on the older child’s nipples she conceded that he did not actually suck on the nipples but it was a pretend suck and was part of a game. The mother conceded in her affidavit she did not mention anything about a game. It was put to the mother the father had not deliberately shown his penis to the older child. She insisted that he had and that he had held his testicles at the same time. She also claimed that the father had smiled in a sexual way at the older child.
The mother conceded that she had not raised any of her concerns about the father interacting with the children in an inappropriate way prior to their separation. This is notwithstanding that she had confidential time with her family doctor and with others such as a social worker.
In relation to the mother’s allegation of physical violence in the marriage she claimed that the father had been violent to her on at least two occasions. On one occasion she had been bruised on her arm and this was about July 2003. She said he had pushed her. There was another occasion when the door slammed on her toes. This was about two months later. She conceded that was an accident. That then appears to be the totality of the evidence which fulfils the mother’s description that she was living in a violent domestic relationship.
The mother was taken to the statement attached to the Apprehended Violence Order sought on her behalf in December 2005. Part of the statement was read to her and says “Victim states that although [the father] has never actually threatened her”. The mother said in her oral evidence that he had threatened her on many occasions. She said that she had not told the police that the father had been physically violent to her because she did not remember and she was stressed. She conceded that she had not raised with the police any concerns about sexual actions between the father and the children.
It was put to the mother that the father had filed an application in the Family Court shortly before she applied for her AVO. She claimed that she was not aware of the filing in the Family Court.
It was put to the mother that the first time the father became aware of her concern in respect of his actions with the children was in response to his application filed in the Family Court. She conceded that that could be possible. She did not remember directly discussing the matter with him.
The mother disclosed that she had taken the older child to see Dr R in relation to her sexualised behaviour. She had been to see Dr R after she read Dr W’s first report.
The mother conceded that in March 2007 Dr M had told her that the older child’s masturbating could be within the spectrum of normal behaviour.
The mother conceded that in December 2005 she told Dr H that she was going to the police to take out an AVO because “the father has been into sex in all forms.”
The mother conceded that when she went to the police in the presence of a support person in December 2005 to take out the AVO she did not tell the police that the father was alcohol dependent and takes heroin.
Notwithstanding the mother’s protestations that she was controlled by the father and that he did not provide her with money or allow her to leave the house she conceded that she had the use of the family car after October 2002. She also conceded that she gave $10,000 to her sister to look after before she went to Fiji. She further conceded that her description that the father consumed twelve cans of beer and two to three bottles of wine each day was not true. She said it varied.
The mother was asked about her statement that the father used hashish every night. She was asked when she last saw the father use hashish and she said around Christmas time in either 2000 or 2001. I noted at the time she gave this evidence that her evidence was very garbled. She also said at the same time “Yes and I remembered last night he took cocaine as well.” Needless to say there was no mention of the father ever taking cocaine in either of the mother’s affidavits. Nor was there any mention of the father taking cocaine when the mother saw Dr W.
The mother conceded that she left the children in the care of the father. She was asked why she would do that if he was drunk and was affected by hashish. She said that whenever he took hashish and he drank he appeared normal.
In relation to the sexualised behaviour that she observed in the older child she conceded that since November 2005 the father had never been in the presence of the children unsupervised.
Dr W gave oral evidence. He was shown Exhibit ICL4 which is a proposal by the children’s representative for the children to spend time with their father. He said it was age appropriate and he thought that the timetable would work.
In relation to the mother taking the older child to see Dr R, Dr W thought it showed the level of the mother’s anxiety.
Dr W was asked what the mother might do to assist her with an order from the court that moved to a shared equal time. He said that she has already seen somebody (Dr J). She could take advantage of that contact. If the parenting orders went to shared equal care she would have a sense of loss and grief which could lead to further anxiety.
Dr W was asked about the incident where the mother says that the father was squatting on the bed in his underpants and thrusted at the older child. Dr W said if he is squatting on the bed then the genitals are forced to the front and become more obvious. Also if he’s balancing on the bed it’s difficult to maintain balance and there could have been some movement. He said the mother didn’t consider this as a possibility. Dr W was taken to the father’s history of alcohol use, the allegations of the mother about drug use and the fact that on one occasion the father fell over and broke an ankle which could have been related to alcohol abuse. He was asked whether this history including two DUI offences was a matter of concern. He said it is a history of concern. If it is all in the past then that is one thing. If all the events occurred in the last two years then it would be a problem.
Dr W was taken to the Department of Community Services file and to a particular entry by an officer who said it was possible the father was involved in grooming behaviour with the children. Dr W said it would have to be conceded it is possible.
Credit
Each of the parents gave their evidence in a straight forward and apparently honest manner. There was nothing about the manner in which the parties gave their evidence or the content of the evidence which led me to suspect either was being deliberately untruthful.
In assessing the totality of the evidence of the mother I conclude that she has a very suspicious view of the world at large and of the father in particular. The weight which I have been able to give to her evidence is tempered by the evidence of Dr W about the mother’s mental health. His conclusion, as best I can summarise it, is that the mother has viewed many of the father’s interactions with the children and herself in the most sinister and negative light. He says that in his opinion this is an abnormality of thinking on her part and that a reasonable and balanced view of the father’s interaction with the children would not lead the mother to the concerns she holds about danger to the children from their father.
The consequence of the above statement is that I find I am distrustful of some of the mother’s evidence and I have found it necessary to rely more on the father’s version of relevant facts than the mother’s.
I also find that the mother has exaggerated some of her evidence. I suspect this may have something to do with the fact that English is a second language for the mother. I have referred to examples of this exaggeration/misreporting in the summary of evidence appearing in these reasons. This has also led me to have less confidence in the accuracy of the mother’s evidence and to prefer the evidence of the father in many areas.
Relevant Law
The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
Issues
The issues between the parties largely related to whether the father posed an unacceptable risk to the children if he were to have unsupervised time with them or if he has overnight time with them. There is also an issue about the impact upon the mother’s ability to effectively parent the children if unsupervised time for the children with their father is ordered by the Court.
Section 60CC Considerations
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
It is clear that the children have a good and close relationship with each of the parents. I find, if there be any issue about this, that the mother has been the primary caregiver to the children during their life thus far.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This consideration has been the matter of greatest concern to the mother during the course of the trial. For reasons set out in these reasons I conclude that the children will not be exposed to abuse, neglect or family violence in either household. There is however a caution which must be referred to here and that relates to the mother’s concern about the father harming the children and in particular sexually abusing them. Dr W has opined that a balanced view of the father’s interaction with the children as described by the mother would not lead to a conclusion that the father is likely to sexually abuse them. There is a concern that if the mother is to question the children about their time with their father, searching out evidence of sexual abuse, it is likely that she will misinterpret the children’s statements and conclude the father has abused them. Where this happens and there is clear evidence that the children have not been abused, the behaviour of the mother is abusive in itself.
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Dr W says that the children are really too young to be able to give weight to their statements which might be seen as wishes or views. It is clear however on each party’s evidence that the children look forward to seeing their father. The older child has requested to spend more time with her father.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
It seems common ground that the children relate well to each parent. To the extent that it is necessary I find that the children have a good and close relationship with each parent.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The mother has been willing and able to facilitate a continuing relationship between the children and the father on her terms. The terms included supervised day time contact only. In the course of her evidence I did not ever understand that she was seeking to destroy the relationship between the children and their father. I understand that she has an overprotective relationship with the children and because of that holds a range of fears for their welfare in certain circumstances. One of those circumstances is unsupervised time with their father.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The evidence supports a conclusion that the children will cope well with an expanding regime of time to spend with their father. There is a concern that the mother may not cope as well. The mother, however is now receiving assistance from Dr J and that should be a good support for her as the time the children spend with their father expands and the removal of supervision occurs.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties live reasonably close to each other. The father proposes to rent premises closer to where the mother is now residing.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
In the broad sense each of the parties has the capacity to provide for the children’s needs as defined in this consideration. The mother however, is the subject of some concerns articulated in the report of Dr W. At this time it does not seem that the mother’s personality has adversely impacted upon the children, however, Dr W has clearly indicated that it may do so depending upon the progress of the mother’s mental health. The Court is alive to the possibility that circumstances may develop in relation to the mother’s health which could adversely impact upon her capacity to provide for the needs of the children.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Both children are female infant children. Their parents have different cultural backgrounds. They must be seen to benefit by having instruction from each parent about those cultural differences.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable to this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Quite a bit has already been said by me in these reasons on this consideration. On the father’s side the responsibilities of parenthood should see him reducing his alcohol intake not only when the children are with him but overall and at all times. Excess use of alcohol has well known disadvantages to a person’s physical and mental health. It is not in the children’s interests that their father be adversely effected by the impact of excessive use of alcohol. The use of illegal drugs is just that, illegal. If the father were to be apprehended and convicted of a drug related offence there is a real chance it could stigmatise his children. Further if the children come to know that their father sanctions the use of recreational illegal drugs then it significantly raises the prospect that the children themselves may indulge in the use of such drugs as they grow.
On the mother’s side it is important that she continues to attend upon her psychiatrist to ensure her mental health stays as stable as it can be. Children can be stigmatised and substantially affected by having a parent who suffers from poor mental health.
(j)any family violence involving the child or a member of the child’s family
The evidence about Family Violence in this case is contradictory. The mother claimed she had been the victim of domestic violence and yet gave evidence that there had been no physical violence in the relationship. At another stage she said she had been pushed by the father on one occasion. The father denies physical violence against the mother however he alleges she has been violent to him. The father said that when the parties argued there was shouting from each.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no family violence order. The mother requested a family violence order when she was staying at a refuge towards the end of 2005. This was after the father had issued his application in relation to the children. I am unclear as to whether the mother knew of the father’s application in this Court at the time she requested an interim AVO. In any event no final order was made. The mother said she decided to rely on protective orders made in this Court.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I have concluded that it is in the best interests of the children to make final orders in this case.
(m)any other fact or circumstance that the court thinks is relevant
There is the final question as to whether there is an unacceptable risk of abuse to the children if they have unsupervised or overnight time with their father.
I have reached the conclusion that the children would not be placed in a situation of unacceptable risk by being with their father more frequently than they presently experience and in circumstances where they have the opportunity to spend unsupervised overnight time with their father. I have relied heavily on the evidence of Dr W in reaching this conclusion. The Independent Children’s Lawyer submits that there is no such risk. I refer to the submissions of the Independent Children’s Lawyer and accept those submissions in their entirety on this point. I am also convinced from the mother’s own evidence that she has misinterpreted the risk for her daughters and she has exaggerated some of her evidence about the events which she says led her to have a concern that the children may be abused by the father in the future. There is no other fact or circumstance to refer to at this place.
Section 60CC(4) & (4A)
I have said a number of things in these reasons which touch on the matters to be considered here and I adopt those findings, determinations and comments in relation to this heading. I find the parties have been able to make decisions in relation to the major long term issues for their children.
To the extent that it is necessary to refer to conduct which has been restrictive of a parent spending time with or communicating with one or more of the children I have referred to it in my reasons.
Balancing of all considerations under Section 60CC and the defined issues
Balancing all of the section 60CC matters it appears to me that the children should have unsupervised and overnight time with their father.
Section 61DA
This section requires the Court to apply a presumption unless the presumption should be rebutted by the circumstances referred to in the section.
The Independent Children’s Lawyer submitted that the presumption should apply and the order be made for the parties to have equal shared parental responsibility. The father supported that order being made.
The mother opposed the presumption applying. The basis of the opposition appears to be largely connected with the allegations of violence made by the mother against the father and also that it would be inappropriate for the father (a potential child abuser at the very least) to be given any parental responsibility for the children.
I conclude that it is appropriate for the presumption to apply. I have found that the children are not at any unacceptable risk of harm at the hands of their father. To the extent that it is necessary I find that the father has not abused the children. I do not accept the father has engaged in “grooming behaviour” with the children.
The parties’ level of communication is good enough for them to manage communication about the children. The children need to have each parent engaging in appropriate decision making about important aspects of their future. I will make an order for equal shared parental responsibility.
Section 65DAA
As I will make an order for equal shared parental responsibility I am required to consider making an order for equal shared time for the children with their parents.
I conclude on this matter that there should be equal shared time for the children with their parents however there should be an introduction over a reasonably lengthy period of time. This will give the mother an opportunity to grow in confidence in the safety of the children as the time they spend with their father expands. I propose that by the beginning of the third school term of 2009 the older child should be spending equal time with each of the parents and that the same should be the case with the younger child from the beginning of the 2010 school year.
Equal shared time was submitted against by the mother. It was supported by the Independent Children’s Lawyer. It was urged by the father. Dr W thought the children should be able to spend equal time with each parent.
The Orders to be made
Apart from moving to an equal shared time regime with each parent there should be orders for the children to spend Mother’s Day with their mother and Father’s Day with their father. The children should also share their time with their parents in an equitable manner on Christmas Day.
The father gave his undertaking not to consume alcohol during the time the children are in his care. An order should be made to prevent his alcohol use at those times. The father says he does not use non prescribed drugs. An injunction against him to prevent this practice would assist the children in that it would probably assist the mother.
The mother in the lead up to the hearing took the older child to see a specialist child and family psychiatrist Dr R. Part of the reason appeared to be an investigation of whether the older child had been abused by her father. The mother has also made a complaint to the Department of Community Services about the older child and the possibility of abuse.
Given that the evidence does not sustain a concern that the father has sexually abused the older child there is a concern I have that the older child may in fact be abused by the process of investigation. At the urging of the Independent Children’s Lawyer and with the mother’s consent I propose to adjunct the mother from taking either of the children for further investigation of allegations of abuse without first consulting with a Family Consultant at this Court.
I propose to make an order under section 65L in order to assist the parties with the implementation of the Court orders.
The parties have agreed to attend upon counselling with the children. I propose to make an order as recommended by Dr W.
With the consent of the Independent Children’s Lawyer I propose to extend the appointment.
I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 4 September 2007
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Injunction
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Remedies
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