Dale and Dodds

[2008] FamCA 1192

FAMILY COURT OF AUSTRALIA

DALE & DODDS [2008] FamCA 1192

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

APPLICANT: Ms Dale

RESPONDENT: Mr Dodds

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYC 1068 of 2007

DATE DELIVERED: 5 December 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 1, 2, 3 & 4 December 2008

REPRESENTATION

FOR THE APPLICANT: The Applicant appeared on her own behalf

COUNSEL FOR THE RESPONDENT: Mr Thornburgh

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Holmes of Slade Manwaring Solicitors

Orders

1. All parenting orders previously made in these proceedings be and are hereby discharged.

2. The father have the sole parental responsibility for the child … born … September 2001 (“the child”).

3. The child live with the father.

4. The child spend time with and communicate with the mother at such times and in such circumstances as the parties may agree in writing and in the absence of agreement as follows:

   (a)for up to 4 hours each fortnight under the supervision of Relationships Australia if the mother is either living in Brisbane or if she gives written notice to the father that she is nevertheless able to and will so attend Relationships Australia on a fortnightly basis; or

   (b)otherwise monthly for 4 hours under the supervision of Relationships Australia in Brisbane; and

   (c)by telephone for up to 20 minutes on Sundays, Tuesdays and Thursdays of each week.

5. The father do all acts and things necessary to cause the mother to be informed in a timely manner of all significant life events for the child including her health, her education and her residential arrangements.

6. Each party be and is hereby restrained from initiating any application in any court in the Commonwealth of Australia seeking parenting orders in relation to the child without first seeking leave of this Court such injunction to operate for a period of 3 years from today’s date.

7. The Independent Children’s Lawyer be discharged.

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC1068 of 2007

MS DODDS

Applicant

And

MR DALE
Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Dale for orders in relation to a child of her relationship with the respondent, Mr Dodds, the child being a daughter who was born in September 2001.

2. I must say in passing that this is a matter which I consider should be decided urgently and as a result thereof I am giving this judgment in effect ex tempore.  Perhaps as a result of that it may not be the prettiest creation in the world but I am sure that the parties want to have the matter determined as speedily as possible for the child’s sake.

3. The brief chronology is that the father, the respondent, was born in England.  He came to Australia.  The applicant, the mother, was born in Australia in October 1975.  They commenced cohabitation in or about the year 1999 and were married on or about April 2001.  The child was born, as I indicated, in September 2001.  Perhaps I could say that this marriage was not a marriage that was made in heaven.  There have been a great deal of difficulties between the parties and it is not for me to indicate with whom the fault more probably lies.  It may be suggested that in fact they were totally opposite personalities and that they could never get together and decide anything which would remain in existence for any length of time.

4. The parties finally separated in or about the month of November 2002.  There had been a considerable number of comings and goings and attempts at reconciliation, all of which failed. 

5. The father had little or no contact with the child for a period of about five months.  Thereafter orders were made.  I am not going to dignify the plethora of applications and counter-applications by investigating them in any depth other than to refer to exhibit 16 which is a printout of the number of applications and appearances before this Court which, as far as I am concerned, is appalling.  I do not believe how these parties could at any time be able to settle down and consider the welfare of the child without this spectre of an application looming over either or both of their heads at the same time.

6. Amazingly, on most of the applications, that upon appearance, consent orders were made but regrettably the consent orders were never complied with or if they were complied with they were complied with not totally and strictly as is the primary complaint of the applicant.

7. I refer to the order of 22 June 2005.  In that order an extensive order was made, in depth and far-reaching.  It was a consent order.  That consent order was more a consent order in the statement rather than in the compliance with it.  Immediately thereafter there are allegations and counter-allegations of failing to comply, of breaches, in particular the mother indicates that the father was deliberately misleading the Court, that he was contemptuous of the Court, that he did not comply strictly with the orders.

8. I refer in particular to two of the complaints of the mother: one, that the father, it is clear, was to have introductory contact or if I might use that word, to the child before overnight contact took place.  This took place.  Then there was to be some overnight contact.  The father rang the mother on frequent occasions from the date of the order to have the child taken back because she was distressed.  The mother complains bitterly of this, saying that the father was not considering the orders of the Court and that he should not have brought the child back and this shows his complete and utter disregard and contempt for the Court. 

9. I would have thought that if the father had not brought the child back when she was complaining about missing her mother, the mother would have complained.  Obviously the mother complains because he brought the child back and she says that is breach of the order.

10. Difficulties were found by the father in having contact in accordance with the orders and the classic case and this is on or about 11 November, the mother ascertained, as a result of an SMS or email sent to her by the father, that he had taken the child to a medical centre, a walk-in medical centre, for the purposes of having her examined in relation to a suspected urinary tract infection.  Evidence was given that there had been complaints made by the child not only to the father but to the kindergarten at which she was attending at that time and the mother was incensed about this. 

11. As a direct result of this she went to the kindergarten the following day, removed the child from the kindergarten and indicated through her solicitors the father would have no further contact with the child, supervised, or in any way whatsoever.  She says this, once again, is a blatant disregard of the orders of the Court because the order says, and I refer to O 12 which says - that is the order to which I have immediately hereinbefore referred:

    "That each party shall and hereby is restrained from taking the child to any medical practitioner, psychologist, social scientist, counsellor or other professional adviser without prior consultation with and written consent of the other party other than in the event of medical emergency."

12. She says this shows complete contumacious contempt and disregard for the orders of the Court and as a direct result of that as well as other matters of which she complains, which as far as I am concerned have no force or effect whatsoever, she removed the child from the kindergarten which she cannot do without written consent to the other side too, if my memory serves me correctly.  See 13, and she did not get written consent for that.  She removed the child.

13. Thereafter, all hell broke loose.  Orders were made.  Eventually the mother was tried to be brought to Court before Moore J.  That failed because Moore J, as it appears from the transcript, exhibit 7, before a Judicial Registrar was unavailable and eventually I think the order was made in accordance with O 6, a consent order of 22 June which says:

    "That in the event that the mother does not provide the child to the father in accordance with O 2(2) of these orders then the father shall have the sole residence of the said child and the mother's residence periods pursuant to these orders shall be suspended.  Provided that the mother's residence period pursuant to O 2(2) shall not be suspended due to non-compliance caused by delay or unforseen circumstances."

14. She was represented by legal advisers and counsel, at the hearing before Johnson JR and he ordered that the mother's residence be suspended and that the child be placed in the possession of the father.

15. The mother complains bitterly about this order.  I refer to, once again, the consent order of 22 June 2005 for two reasons.  One, it is alleged by the mother prior to that date that the father was guilty of sexual abuse or inappropriate sexual conduct towards the child.  She complains bitterly of that and it is set out in her very full affidavit.  Notwithstanding her grave concern about the child's wellbeing, she consented to the orders to which I have hereinbefore referred.

16. I would have thought that if a mother would have had concern, as she said she had, for the physical safety of her child, for the sexual safety of her child, she would never have consented to those orders.  She was asked on several occasions whether she agreed with the orders and she said "yes" she did, "save for one" and that was O 6, the self-destructive order, as it happened in this case.

17. She indicated on more than one occasion, not only in questions posed by me to her but also by counsel Mr Thornburgh for the father, that she agreed with the other orders but not with O 6 and it was 6, of course, which brought the downfall of herself as far as she is concerned and wherein she lost possession of the child; but did she lose possession of the child? 

18. On the date that the recovery order was made.  Immediately after her being informed of the transfer of possession of the child and a recovery order was subsequently sought and made, she absconded from the east coast of Australia and went to Western Australia, to Perth.  She secreted herself and the child and kept the child out of the way for a period of between 16 to 17 months.  She gets quite incensed when someone refers to it being 18 months.

19. The child was recovered by way of the Federal Police in or about the month of April 2007 and evidence is put before me by the father as to the very distressing altercation which took place at the airport. He also describes that the child was known as Y.  The mother concedes that that is a nickname of her’s but that her name was Y, that she was dressed in boys clothing and that her hair had been changed a different colour.

20. The grandmother carried on, as I consider from the only evidence which is before me about that, in a most appalling manner, indicating to the child that daddy had caused mummy to be gaoled or words to that effect and "come to me, run away" and it was a disaster.  The child was extremely distressed as I would have thought any child would be.

21. This child was kept away from the father for a period of between 16 to 17 months.  The mother had entered into a relationship with a Mr E whom I have seen.  Mr E is the father of a child by the name who was around about 7 years of age.  During that time that she was with Mr E which was virtually for the whole period as I understand, she never once mentioned the father's name, the father of the subject child.  She did not discuss it, as she said, because that was not a matter for him.  He did not discuss it because he had his own child. 

22. I think that is absolutely appalling, that this child, for 16 months at least, was put in the position of not having a father and as far as I am concerned, not knowing where her father is or was, whether she was, in fact affeared that he had abandoned her, I don't know but it is quite clear from the reports that have been put before me, in particular I refer to a Dr P’s report, see exhibit 14, see par 288 where he said:

    "[The mother] has demonstrated a total disregard for the emotional needs of [the child] as they relate to [the father].  Without putting words into [the mother’s] mouth, I think it is reasonable to accept that she would say that she was protecting [the child] from an abusive and inappropriate man."

23. That is her case; that was her case as at 20 June 2005 because she says that was the conduct of the father at that time, he actually consented.  He goes on further to say:

    "Her inability" - 299 - "her inability to think about the repercussions for the child of living a secret, fugitive life is also a disregard for her emotional development."

24. The father went so far as to get a publication order.  She, the mother, concedes that she saw him begging, in effect, or asking for the return of the child on the TV but did nothing.  Dr P goes on further to say, at 301:

    "It is troubling that [the child] has required significant dental work including an anaesthetic which appears to be a reflection of her time in Perth although may have also been contributed to in her time before Perth."

    If she required urgent dental work to five teeth, this child was, in 2007, what, 5 years of age; it clearly, to me, appears as though her dental health was totally ignored and overlooked by the mother, perhaps for the obvious reason that she may have been, if she went to a dentist, she may easily have been tracked down; particularly if she attempted to use any form of medical benefits.

25. He goes on further to say - I mean, this could go on for ages - he goes on further to say, at 311, he is referring to the separation of the child from the father:

    "This separation, i.e. the separation up until April 2007, from [the father] has left [the child] anxious and apprehensive about further separation and loss of [the father]." 

26. I refer to Ms D who gave evidence that in fact now - and I incorporate in these my reasons, her report which is August of this year - Ms D indicates that the child has some resentment towards the mother as a result of being separated from her father and also she has fear, as has been referred to not only by Dr P but Dr T, more of whom anon.  She has fear that it may happen again.  She wishes to see her mother but so long as she will not be removed from her father in a manner in which she has been previously.

27. I must say in passing that I do not believe there is any evidence, any evidence at all, which convinces me that the mother's removal of the child was in the best interests of the child but rather, I am more satisfied that it was in the best interests of the mother. 

28. I refer to par 319 of Dr P’s report wherein he says:

    "[the mother’s] behaviour in taking [the child] to Perth can be seen as an expression of self-absorbed or narcissistic way of understanding the world and relating to the world within a borderline personality function."

29. She has denied that she has been diagnosed as a borderline personality disorder.  She has it.  I am quite satisfied on that, not only on this evidence of Dr P, but of Dr T and in particular too, to a previous report wherein a provisional diagnosis had been made of borderline personality disorder.  She is selfish, self-centred.  She sees anything only in her own way.  She cannot, for one moment, understand or believe that the child has said anything contrary to her.  Whenever the child is alleged to have said something critical of the father, that is true.  When she says anything that may be taken as critical of the mother, the mother says she was either misunderstood, misquoted or it was a fib.

30. These allegations of abuse which surfaced again very briefly, prior to her absconding to Western Australia, have no truth in them at all on the evidence before me.  She has frequently, not only herself but other people have complained bitterly to the respective professional bodies, concerning these allegations.  None of the allegations have been substantiated. 

31. I refer to the large pink folder, family services I think it is, exhibit 3 or 2 and 3, the pink slips.  But I refer, in particular, to a heading called "department history" which appears to be p 6 of 39 where, under that heading, it sets out the various complaints and not all of them, but it sets them out from 18 October '05 to 9 April '08 and in two of them - or in one of them in particular, the one on 18 October '05 - remember that is just before she absconded - the note is "CP" and reads:

    "Sexual harm by father, substantiated by mother for emotional harm."

    She was at that time found to be emotionally harming her child. She not only was found then, her actions for the next six months were appalling, absolutely appalling.  How can she possibly say that she was doing this for the best interests of her child where she refuses the child right to have any contact with her father?  I cannot for the life of me understand it.

32. Dr T, to whom I have referred, was concerned, this is on 20 June 2005, exhibited but it has not got an exhibit number on it, wherein he says, under the subheading "opinion" on p 9:

    "As reported in the previous assessment" - he having done one in '05 - "[the child] appeared to have a close, loving relationship with [the mother].  She also appeared to be developing well in her care and had a strong attachment to [the mother].  [The mother] appears to have continued to have bitter feelings towards [the father] and she has continued to find it difficult to contain her anger about him.  In my previous report I was concerned that [the mother] was rather histrionic and had exaggerated her fears about abuse.  I did raise serious concerns in my previous report that if [the mother] continued to attempt to undermine the relationship between [the child] and [the father] then one should seriously consider her parenting capacity in being able to put the child's needs ahead of her own grief and anger.  In fact [the mother] stands against it.  [The father] has strengthened and she now believes that [the child] has been sexually abused.  She relocated to Sydney."

33. Might I say further that not only does she believe that she was sexually abused then, she still believes that she is sexually abused and she also believes that the father is coercing the child.  There is no evidence upon which I could determine that.

34. There is another part, which was very prophetic, in Dr T’s report, wherein he was affeared that the mother may abscond and move to another State.  His prophecy was found to be correct as she did so some five months later and by the way as a direct result of her absconding, as I have said, she was arrested, pleaded guilty to charges of contempt of Court, and was sentenced to six months' gaol.  It was suspended after three months upon her entering into a bond to be of good behaviour for a period of two years.

35. During this time that she was in gaol she was, in fact, pregnant and gave birth to a child in February 2008, shortly subsequent to her being released from gaol.  She is pregnant again and expects to be delivered of a child comparatively soon.  These are children of Mr E. 

36. I have seen Mr E.  Mr E is a man of some, I think, 27, 28 years of age.  When in employment he earns a considerable amount of money, as he said, some $3500 per week.  It staggers me that he showed little or no interest in the child, in ascertaining whether the child had a father alive or where the father was or whether the child was having any contact. 

1. I think that the whole conduct of the mother is reprehensible in the extreme, selfish, self-centred, and her view that the husband should have the child removed from his possession because he has failed to comply with the orders of the Court is staggering in the extreme because she seeks that, in the originating application in this case, she seeks an order that the child be placed in her possession and that the father have no face-to-face contact with the child.  In other words, she wants to go back to Perth where she is now residing in more ways than one; she wants to exclude the father, whose rights she is affecting is the child's, not the father's.  She wants to exclude the father from the child's life.  I will not allow that one jot.

2. It is now incumbent upon me, as I am directed by the politicians, to consider those matters in relation to joint parenting and also those matters under s 60CC.  I make it quite clear that as far as the presumption of joint parenting or shared parenting is concerned that this is a case which clearly it has been dismissed.  The welfare of the child requires that there be only one person to advance her welfare in the future.

3. I was impressed by the father; he is a man of short temper, I know that.  He is virtually blind as a result of an accident in one eye and symptomatic blindness in the other.  He has done what I consider to be a very good job.  He has offered to the mother a peace stick in relation to contact, if I might use that word again, between the mother and the child.  As it fell from me during argument, it quite staggers me that in fact the father did not seek an order similar to the one which the mother sought, that is, no face-to-face contact but he has.  He recognises that the welfare of the child requires and deserves that she has contact with her mother. 

4. Regrettably, I believe that the mother is a good mother but she just cannot see what damage she has done to the child and I recommend to her that she particularly re-reads Dr T’s, Dr P’s and Ms D’s reports again, and thoroughly. 

5. Now first of all, s 60CC(2)(a) is a very important provision that I have to take into consideration, the benefit to the child of having a meaningful relationship with both her parents.  Well, that is one thing the mother did not take into consideration when she absconded to Western Australia.  The father does take that into consideration and offers, as much as he possibly can, he, residing in Brisbane and she residing in Western Australia, what he believes to be a fair and reasonable form of contact, if I might use that word again, or spending time with, the mother by the child.

6. The mother's attitude and conduct not only as far as I am concerned has not changed but perhaps, if anything, has got worse.  She recognises that she would not do it again, as she said.  She has suffered gaol, but there is no question of remorse.  There is no acknowledgement that in fact this secreting and hiding the child for a period of 18 months, 16 to 18 months, in any way could affect her emotional development. 

7. It has, and it will, in all probability, although she appears, with the assistance of Ms H who is the present partner of the father, to be developing very well.  She has difficulty reading.  It appears that her weight is not a problem, notwithstanding what the mother says.  She has difficulty reading and I feel particularly sorry for the child.  So I am quite satisfied that the only way there would be any meaningful relationship between the parties would be if the child remains in the father's possession. 

8. Secondly, (2)(b), to protect the child from physical of psychological harm.  Need I say more than that the mother who shows no remorse for having removed the child from eastern Australia to Western Australia, would not in any way be able to protect the child from physical of particularly psychological harm.  She has already been found, as far as I am concerned, by the experts, to - and also by the Department of Family Services - to be guilty of emotional abuse.

9. There are statements made by the child as to her preference in relation to spending time with or living with and she is a young child, but it is quite clear, particularly from Ms D’s evidence that in fact she wishes to remain with her father now but that she does wish to have contact with her mother and as I have said, I am satisfied the father will promote that.

10. I do not have to go through each of s 60CC matters in detail.  I emphasise that my concern is the failure of the mother to protect the child from physical or psychological harm but I cannot in future be satisfied because of her dedicated stance against the father that, in fact, she would promote any form of meaningful relationship with the father if the child was in her possession.

11. There will be difficulties because the mother is resident in Perth.  She does not wish to move from there.  That is understandable.  The father is resident in Australia, he having recently purchased a home worth in excess of some $500,000 and is living with, as I said, Ms H.

12. Perhaps I should touch on s 60CC(4) which refers to the Court considering the extent to which each of the child's parents has fulfilled or failed to fulfil his or her responsibilities of a parent.  The mother has failed miserably.  I do not believe that the father has.  He has endeavoured, over a period of many years, over enormous cost and expense to himself, I think it fell from him he had expended something like $300,000 in attempting to get some form of meaningful relationship with his child, meaningful spending time with, and has failed miserably.

13. I have no hesitation, for the reasons that I have pronounced hereinbefore, in saying that the child's welfare will be better advanced by remaining with the father and I order accordingly.

14. The next question is the orders that I should make.  I have had placed before me minutes of proposed order by the independent children's lawyer and I consider that they, in all the circumstances, are proper, save that I would not be making an order in relation to the question of costs. 

15. There is the further matter, I have referred to exhibit 16 which sets out the enormous number of applications which have come before this Court.  That must stop.  This child does not deserve to have her parents running back and forth to Court at the drop of a hat.  Taking into consideration those matters, I am going to order, pursuant to s 118, in accordance with O 5, to support O 5 as propounded by the independent children's lawyer.

    RECORDED NOT TRANSCRIBED

16. I will discharge the independent children's lawyer.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:     

Date:              19 January 2009