Cotterhill and Cotterhill

[2011] FamCA 41

FAMILY COURT OF AUSTRALIA

COTTERHILL & COTTERHILL [2011] FamCA 41

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT: Mr Cotterhill

RESPONDENT: Ms Cotterhill

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 2824 of 2009

DATE DELIVERED: 27 January 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 27 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge of Counsel

SOLICITOR FOR THE APPLICANT: Baldwin Cartwright Lawyers

FOR THE RESPONDENT: The Respondent appeared in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland,

Brisbane

Orders

1.That the child … born …/05/2003 live with the mother.

2.That the mother have sole parental responsibility in relation to the long term decisions regarding the child.

3.That the father is prohibited from spending time or communicating with the child or attempting to spend time or attempting to communicate with the child whatsoever.

4.Until further order the father and his servants and agents are restrained from taking or sending or attempting to take or send the child … born …/05/2003 from the Commonwealth of Australia. 

5.The marshal and all officers of the Australian Federal Police and the Police forces of the states and territories are requested and authorised to give effect to these orders.

6.The solicitor for the mother must immediately notify the Marshal and the Australian Federal Police family law team at Brisbane of these orders by telephone and must as soon as possible provide a copy of these orders to the Marshal, the Australian Federal Police and the state police.

7.The Court requests that until further order the Australian Federal Police place the name of the child … born …/05/2003 on the airport watch list at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child … born …/05/2003 from Australia . 

8.Until further order the father is restrained from applying for a passport in the name of the child … born …/05/2003.

9.That the father be restrained from contacting the child or mother or from entering or remaining in a place of residence of the mother and child or education provider of the child or any place that the mother and child frequents.

10.The Respondent Father have leave to approach the Registrar for the return of his passport and upon so approaching, the Registrar is empowered to hand the passport to him.

11.That all previous orders be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Cotterhill & Cotterhill is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2824 of 2009

MR COTTERHILL

Applicant

And

MS COTTERHILL

Respondent

REASONS FOR JUDGMENT

1.

This is a very sad case.  Now, it is rare, of course, for me to give judgment ex tempore in matters of custody, since I consider that it matters I should really look into.  I’ve had the opportunity of looking into this in depth, and I have been assisted in particular by two experts, and I refer to them as experts not advisedly;  they are renowned experts in this court, being Mr P, who is a family consultant who has had many years experience in this field, and also

Dr V, who’s a well-known and eminent psychiatrist. 

2.Very briefly, I have to set out the facts.  The parties actually met, I think, in 1996, commenced a relationship in 1998, they married later that year, and it appears that it definitely was not a marriage made in heaven, since it deteriorated almost from exactly the time as it commenced.  There is a dispute over when they separated:  the wife on the one hand says 2002, while the husband on the other hand says 2004.  During the association, the mother gave birth to the child the subject of this dispute, a daughter, in May 2003. 

3.The mother experienced an illness which caused her grave disability;  she suffered a stroke, I think it was, at about 20 weeks pregnancy.  However, she persevered, and the child was delivered naturally.  She subsequently underwent an operation, and it appears as though generally she is in good health.  She has subsequently re-partnered to a Mr L and has had two children to him.  She does suffer, as she said from the witness box – and there is no medical evidence to support this – that she has some damage to her brain which on occasions can cause her difficulty with speech.  She appears also to have some difficulty with her vision, and from the witness box, she told me that she has been advised not do drive but she does so.  The father, the applicant, has made much of that in an endeavour to explain his “alarming” – to use the word of one of the experts – conduct in July and August of last year. 

4.The parties’ post-separation history is dominated by the father’s abduction of the child.  The father, in 2005, because he believed that the child was not being adequately looked after by the mother, absconded with the child for a period of between seven to 11 weeks.  He was subsequently arrested as the result, as I understand, of a recovery order issued from this Court and was charged and was convicted of contempt, and I think, as I am informed from the bar table, no order having been put before me directly, that he was released upon his entering into a bond. 

5.He at that time had an interview with a Mr C, another well-known family consultant, who, upon investigation of the father, noted that the father had assured him that he had made a mistake and that he was not going to abscond again with the child.  What did he do?  He absconded again.  This time he did a better job by remaining hidden and secreted away, I believe in North Queensland, for a period of about nine months, during which time – as appears in Mr P’s report to which I have already referred, which was filed on 12 May 2010 – he, as I said, kept her out of the way and did not believe he was doing other than the best thing for the child.  The first time that he took the child, I think the child, I worked out, was about 16 months, and the second she was somewhat older but not much.  And notwithstanding the age of this child, he, as he says in November, I think, ‘05 interrogated the child to ascertain whether in fact the child wished to see the mother; I refer to paragraph 16 of Mr P’s report. 

6.During the periods the child was absent from the mother, she was unaware where the child was – there were endeavours to seek information orders, there was permission to publish the disappearance of the child in two newspapers, and not once during that time was there any suggestion on the part of the father that he had informed the mother that the child was well and in good health.  He was arrested a second time, and this time his predilection to removing the child and secreting and keeping her out of the way was such that he was found guilty of contempt by Barry J and sent to gaol for 12 months, a not insubstantial sentence.  Thereafter, upon his release in 2008, and from the time of the child being taken away from him in accordance with the recovery order, he has not seen the child save for a very brief period in August of last year. 

7.There have been reports prepared in this case by the experts to which I have hereinbefore referred, that being Dr V and Mr P.  Dr V is of the opinion – and I refer to and, in particular, incorporate in these, my reasons for judgment, the second paragraph on page 16 of his report, which says:

What stands out to me is that from [the husband’s] point of view, nothing has changed since his imprisonment.

I’ll be discussing that briefly a little while later.

In his interview with me and also with Mr [F] –

(who did the original assessment, which has not been put before me) –

he continues to canvass issues with respect to the care of the child which, from his point of view, led to his absconding with the child for a period of nine months.  Despite having spent a year in prison and not seeing his daughter for three years, and without any knowledge as to what has been happening with the child over this period of time, he continues to advocate that he should be the primary carer of the child.  This represents quite serious narcissism. 

8.Mr P is of the same opinion.  He had the opportunity of reading Dr V’s report before he prepared and released his, and that nothing had changed, that everything has to be the father’s way or not at all, and that he endeavours to re-litigate the matters which I’m sure were put before Barry J in the contempt trial as to the reasons “why I did it” and endeavouring to explain why he took the child on a second occasion.  I’m sure that that was investigated in depth and that his Honour, in his normal fashion, would have looked at it very closely.  But he endeavours to do it before Mr P, he endeavours to do it before Dr V, and to an extent, he endeavoured to do it before me because of an affidavit which I granted him leave to file today. 

9.The reason for such leave being sought and having to be sought was, in fact, that I had precluded him from filing any further documents because of continued – and arrogant, as far as I’m concerned – disobeyance of an order of the court wherein he was required to file all necessary documents to support his application, he being the applicant, which he filed on 1 May 2009.  He failed to do so, and I think I gave him extensions at least on one occasion and probably more, and eventually I ordered that he be restrained from filing any further documents.  Now, I understand that he attempted to do so earlier this week;  it was refused at the registry, but I gave him leave to file an affidavit. 

10.Look at the affidavit.  This affidavit, once again, is nothing else but a repeat, in effect, of what took place years ago.  He refers to the assault upon himself by a person with a baseball bat back in August 2004.  All of this matter, I am sure, would have been adequately investigated by Barry J in his coming to the conclusion whether he had any reasonable excuse for his breach, a clear breach of an order of this court, and the fact that he kept the child away from the mother, a very young child, on two occasions for some lengthy periods of time.

11.What do we ascertain – and I have referred to both Dr V’s report and to Mr P’s – we ascertain a person who is a narcissist. Narcissism is a personality disorder, as Dr V said.  It is incapable of being treated, and it manifests itself in many ways, but in particular with a lack of empathy, a lack of understanding of other people’s feelings.  Dr V made it quite clear that this person clearly does not understand that his removal of the child from the mother on two occasions at such tender ages was, in fact, damaging to the child and that would upset the child.  He indicates – see the report of Mr P – that the child was happy as anything and had no worries at all.  He does not understand that his attitude towards the mother is such that she is afeard.  He does not empathise with this fear that she believes that he might abscond again with the child – I refer particularly to the doctrine that was enunciated by – I think it was Jordan J in Frazer & Walker – and Dr V is of the opinion that the mother clearly believes that the child is at risk. 

12.

What other evidence would there be to support the suggestion that, in fact, the child’s welfare would be at risk by being taken from the mother?  In July and August of last year, the father has been seen by the mother, and I think other people, driving around in the vicinity of her house.  She has not at any time disclosed her address to the father, but he has ascertained where she lives somehow or other.  She also refers, and he refers to the fact that for one occasion in August of last year, he followed her car for a period of about

five kilometres.  When the car pulled up in the school car park, he approached the mother and the child with words to the effect:  “Hi [child], I’m your daddy,” or words to that effect, and gave to her some lollies and a letter and/or cards. 

13.He sees nothing wrong with this.  This, to me, whilst I did not say this at the time, concerned me, as it might be evidence of stalking.  But what happened is  Dr V volunteered that he himself was particularly concerned that these – if they were true, as he said – that these actions on the part of the father, driving past the mother’s house on five occasions and approaching the child in the schoolyard smacks very much of stalking, and he, I think, to use his words, was “alarmed” by it. 

14.The father said that it’s understandable that a father would like to see his child.  Dr V conceded, quite properly, that, in fact, the father is keen to see his child but in a proper way and in a way which does not cause concern either to the child or, in this case, particularly to the mother.  He lacks empathy.  It does not seem to get through to him that other people have feelings and he would have to consider whether in fact his actions are such that it would cause the mother, as well as the child, a grave deal of concern.  Both Mr P and Dr V are of the opinion that, taking into consideration the new matters, that their views have hardened considerably towards the father’s claim for the ridiculous suggestion that he should have shared parenting responsibility with the child.  In the first of his applications, he sought fifty-fifty parenting, fifty-fifty time. 

15.There should be a presumption in relation to joint parental responsibility.  Joint parental responsibility can work;  it can work very well.  But when it works, of course, it doesn’t get to court, because the parties agree amongst themselves;  they put the child’s welfare first, not their own.  Once the matter gets to court, I consider it’s highly doubtful whether anybody should have a joint parental responsibility rammed down their throat when they can’t agree on what day of the week it is.  One of the prime requisites of joint parental responsibility is the ability of the parties to put the child’s welfare first, to put them first, to empathise with them, to consider the child and not their own personal ill feelings towards each other.  If I am satisfied that a joint parental responsibility presumption is not in the interests of the child, I can dispense with it.  I’m more than satisfied in this case to say quite clearly, on the uncontested evidence before me, there is no chance that these parties could ever work together to advance the welfare of the child, and consequently I consider the presumption as overturned. 

16.I make it quite clear that I have no hesitation in saying that the mother should be the person solely responsible for the parental care of the child.  She has had the child since birth, save for the periods that she had been taken away from her, and she has worked particularly hard.  She is now in what appears to be a firm relationship with Mr L.  The child has two half-siblings – at least;  I think there is an elder child too, as well – and she has two half-siblings which, on the evidence before me, she gets on well with, and she appears to have a close relationship with Mr L.  It is essential that her future be stable and not be subject to the fear on the part of the mother – and I refer once again to Frazer & Walker – that the child may be abducted from her.

17.What, then, of the matters – next, of course, I have to consider the provision of section 60CC.  I make it quite clear that it is my view, and I think there is authority to support my view, that I do not have to go through each of the subsections of this very lengthy subsection seriatim in order to ensure that my judgment is not criticised.  I am able to look at the matters which I consider under section 60CC are of importance, taking into consideration the ones that I may look at and also looking at the ones which I must look at. 

18.I look at the matters as above:  the meaningful relationship.  It appears to be that I have to decide what is meaningful in this case.  A child’s relationship between the father and the mother is meaningful so long as it is to the best interests of the child, so long as it is an equal or level playing field, so long as the parties put the child’s welfare first and encourage the child;  that will be meaningful.  In this case, I do not believe that any form of contact would – in this case, by the father with the child – encourage a meaningful relationship between both of the child’s parents.  The mother justifiably believes that there is a risk on the part of the father to abscond with the child.  That is supported to an extent by the evidence of Dr V, and I think Dr V said that she – I think he believes she accepts – she believes that there is that risk. 

19.I also have to make such an order that is to take into consideration the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  What is worse for a child than to be abducted from her mother, in this case, or from a parent, in any other case, without notice, without the child knowing where the mother is, without the mother knowing where the child is, in this case?  I don’t believe there could be much worse for a child, particularly one who is – but is certainly young initially;  she may be able to get over that a little bit better, but at two and a half, she has bonded with her mother, and it would be a dreadful thing for her, notwithstanding the father’s protestations to the contrary.

20.I do not know what the relationship of the child is towards her father, since she has not seen her father, save for that one period when he was offering her gifts, for almost five years now, and I’m unable to say what the relationship would be, although I do refer to Mr P’s report wherein at paragraph 34, he sets out that the child, after being asked would she like to see her dad, replied, “Yeah.”  I feel a little concerned that, in fact, it did not appear to the father to be in much moment that he emphasised the fact that notwithstanding the great discord between himself and the mother and the fact that he has absconded on two occasions with the child, has been gaoled for 12 months, that the child still has a photo of him beside her bedside table – see about point 5 in paragraph 34.  That in itself, I think, is very commendatory of the mother that notwithstanding her view of the husband – and let’s face it, it’s not very complimentary in any way at all – at least she still allows the child to remember that she has a father and places the father’s image before her.  I wonder if that happened whilst the child was absent from the mother for the two periods to which I have referred.  I doubt it very much;  there is no evidence to support one way or the other.  Since I’m not going to change the child’s circumstances, I don’t believe that subparagraph is of any assistance to me.

21.I must consider, as is set out in section 60CC(4), I think it is, the full paragraph and take into consideration the extent to which a child’s parents has taken or failed to take the opportunity, etcetera – set out in full that subparagraph.  I must confess that I’m very critical of the father, and I will not say anything further.  I think his attitude towards the child and towards the child’s welfare and future was absolutely appalling.  I still consider that there is some doubt as to whether or no he can divorce his own feelings sufficiently to be able to put the child’s welfare first;  so does Mr P and Dr V.  It is unfortunately a tragic incidence of narcissism and that they do have this lack of empathy, and it is, as Dr V says, incapable of treatment.

22.I must also take into consideration, according to the High Court in MRR v GR, that if I order significant and substantial contact, I must take it in consideration whether it’s reasonably practicable.  I am not going to order very much contact at all in this case.  I am mindful and have been concerned and will express my concern to counsel in relation to the last but one paragraph of Dr V’s report wherein he queries the benefit to the child of having the father as a man of mystery which she could idealise, in that she is aware that he’s around – see the photograph beside the bed – but has nothing to do with him. 

23.In those circumstances, I think it is essential that his memory and existence be kept alive in the child’s mind to enable her, as the mother has quite properly conceded, that when she reaches – the mother said 14 – early adolescence, she may desire to have contact with the father, she would be of an age then to be able to adequately look after herself, and consequently, I think it is essential there be some form of communication by the father to the child, and I will be making an order in accordance with that.  That, as far as I am concerned, would be sufficient, significant and substantial contact in the circumstances of this case. 

RECORDED   :   NOT TRANSCRIBED

24.I have had put before me draft orders by the independent children’s lawyer.  I understand generally the mother is in accordance with such agreement.  I have already raised with Andrew of counsel for the independent children’s lawyer the draft number (3) where the father is restrained from spending time or communicating.  I believe that there should be, as I’ve said, communication by the father with the child and will be ordering that in fact:

ORDERS DELIVERED

25.I say in passing that it appears as though the father has contacts in Sri Lanka, that there is some concern expressed that he may abscond again, and consequently I am persuaded to make the order in relation to the watch –

RECORDED   :   NOT TRANSCRIBED

and the watch list, yes, number (7).

26.Insofar as the restraining order is concerned, which is handwritten number (9), that is necessary.  He has appeared to be unable to divorce himself from this matter, to act responsibly and reasonably, and has been in the vicinity of the child and the mother on occasions when I believe he should not have been, he having no order for contact other than contact as agreed between the parties or ordered by the court – see the order of Barry J, 14 June 2006.

ORDERS DELIVERED

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 27 January 2011.

Associate:     

Date:              8 February 2011