Daplyn and Ness
[2012] FMCAfam 959
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAPLYN & NESS | [2012] FMCAfam 959 |
| FAMILY LAW – Parenting – 10 year old boy – disrupted care history – removed from Mother at 5 months when Mother detained at [detention centre omitted] Detention Centre – long history of litigation – child in Father’s custody until 4 years of age – Father sought to reinstate his relationship with child after 3 year absence – expert questioned Father’s capacity – child strongly resistant to time with Father – order for no time with Father. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAC Carone & Yantis [2011] FamCA 853 |
| Applicant: | MR DAPLYN |
| Respondent: | MS NESS |
| File Number: | SYC 2459 of 2009 |
| Judgment of: | Sexton FM |
| Hearing dates: | 9, 10 and 11 July 2012 |
| Date of Last Submission: | 11 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2012 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Jackson |
| Solicitors for the Respondent: | Brooks Howick Law |
| Counsel for the Independent Children’s Lawyer | Mr Cook |
| Solicitors for the Independent Children’s Lawyer | Hamish Cumming Family Lawyers |
THE COURT ORDERS THAT:
The Mother have sole parental responsibility for the Child [X] born [in] 2001.
In the exercise of the Mother’s sole parental responsibility, the Mother keep the Father informed by email of any major long term decision she may make in relation to [X], to include such matters as education, health and religion.
[X] live with the Mother.
[X] continue to attend at Unifam for the purpose of individual counselling for any period in which Unifam will facilitate such attendance.
The Mother facilitate [X]’s attendance at Unifam pursuant to Order (4).
The Father be restrained from approaching [X] or from approaching within 100 metres of any school at which [X] attends and from approaching within 100 metres of [X]’s residence noting that this order is made for the personal protection of [X].
Should [X] at any time indicate directly to the Mother or through a third person to the Mother that he would like to communicate with, or spend time with the Father, the Mother do all things necessary to facilitate such communication or time.
The Father keep the Mother informed of a current postal address in order to facilitate Order (7).
The Mother ensure the Principal of [X]’s school and the Director of any out of school care or vacation facility [X] attends holds a sealed copy of these Orders.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Daplyn & Ness is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2459 of 2009
| MR DAPLYN |
Applicant
And
| MS NESS |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting arrangements for the parties’ only child, [X], aged 10 years. There has been a long history of litigation between the parties, from the time [X] was 9 months of age.
The Father believes the Mother has used him and [X] to stay in Australia and that she has mistreated [X]. The Father believes the Mother has made unjustified allegations against him to alienate [X] from him. The Mother believes that the Father reported her whereabouts to the Department of Immigration in 2002 and therefore blames the Father for separating [X] from her at 5 months of age. She alleges that the Father has been abusive and intimidating towards her from the time their relationship began.
The parties therefore have no trust or respect for each other and do not communicate. Despite Court ordered therapeutic intervention for the parties to address and reduce the acrimony between them, there has been no improvement. Neither party believes the situation will ever change. [X] is acutely aware of the high conflict between the parties.
The Father was unrepresented at the hearing, while the Mother and the Independent Children’s Lawyer were represented by counsel.
Background facts
After meeting in 1998, the parties commenced cohabitation in May 2001, and separated 3 months later. [X] was born on [date omitted] 2001.
The Mother is aged 39 years and was born in Russia. The Mother says she fled Russia in 1995, fearing for her life. She arrived in Australia in July 1997 on a false passport. In April 1999, the Mother was detained by the Department of Immigration as a prohibited non-citizen. She applied for a protection visa on the basis that she was a refugee. She was released from detention. Her application was subsequently refused. The Mother unsuccessfully appealed the decision to the Federal Court. She was subsequently again detained by Immigration Officials on 24 May 2002 and her application to the Minister to substitute a more favourable decision was refused on 29 August 2002. The Mother remained in [detention centre omitted] Detention Centre until 20 May 2004 when she was released on a bridging visa.
The Mother now lives with [X] in a two bedroom unit in [M]. She has [qualifications omitted] and is studying for a Diploma in [omitted], although has deferred her course because of these proceedings. [X] attended two schools before starting at [omitted] Public School in February 2011. He is in an advanced Year 5/6 class and enjoys a number of sports.
The Father is aged 51 years and describes himself as a [occupation omitted] since he was a teenager[1]. He has two sons [Y] and [Z], now 18 and 16 years of age, from his previous marriage. [X] had good relationships with his half-brothers as a young boy living with the Father. However, the Father has had no contact with his sons since January 2009 and neither has [X]. The Father is living with “his friend”, Ms C, in rented accommodation in [M]. He is vague about the nature of his relationship with Ms C. In her own family law proceedings in 2011, Ms C states that she and the Father lived together from August 2008 until January 2009 and now “see each other once or twice a week.”[2] The Father’s psychiatrist, Dr R, reports that the Father and Ms C have been living together since November 2011.
[1] At page 4 of Annexure 20 of Father’s affidavit affirmed 21 June 2012 (Dr R’s report)
[2] At paragraph 16 of Carone & Yantis [2011] FamCA 853 per Loughnan J [judgment in evidence by consent]
Short History of Litigation
On 24 May 2002, when the Mother was detained at [detention centre omitted] Detention Centre, [X], then aged 5 months, was placed in the care of the Father.
On 9 September 2002, the Mother filed an application in the Family Court seeking interim and final parenting Orders. She also sought, inter alia, that the Court restrain immigration authorities from removing her from Australia.
On 10 October 2002, his Honour Justice Chisholm made interim Orders that [X] live with the Father and spend time with the Mother on three days each week from 9.00a.m. until 5.00p.m. “unless the Father reasonably believed on medical grounds that [X] was not well enough to have such contact.” His Honour further held that the Court did not have the power to make the restraining Order as sought by the Mother. On 29 July 2003, the Full Court upheld Chisholm J’s order.
On 26 November 2003, the interim Orders made by Chisholm J were varied by Judicial Registrar Loughnan (as he then was) to define the days [X] was to spend time with the Mother at the Detention Centre. Orders were also made for the Father to provide all food and drink for [X] whilst at the Detention Centre.
The matter was listed for final hearing before her Honour Justice Lawrie on 3 May 2004. The final hearing was vacated pending the Mother’s imminent release from [detention centre omitted] Detention Centre, and Orders were made by consent placing [X] on the airport watch list.
On 20 May 2004, the Mother was released from [detention centre omitted] Detention Centre on a Bridging Visa.
In her report dated 26 October 2004, Dr C, psychiatrist and the Court appointed expert, assessed the Father as [X]’s most significant attachment figure. She recommended [X] continue to live with the Father and spend time with the Mother 3 nights each week.
On 9 August 2005, his Honour Justice Rowlands made final Orders by consent (on day 6 of the final hearing) for [X] to live with the Father, and spend time with the Mother (until he commenced school) each Wednesday until Tuesday, and in a week about arrangement once school commenced. An Order was made for the parties to share parental responsibility for [X].
On 12 April 2006, when [X] was 4 years of age, the Father ceased all contact with [X], without warning or explanation. [X] then lived with the Mother and had no contact of any kind with the Father for three years.
On 1 April 2009, the Father arrived at the Mother’s residence, unannounced, and there was a brief encounter between the Father, [X] and the Mother.
In April 2009, the Father initiated these proceedings by way of an Application for Contravention of the August 2005 orders.
In May 2009, this Court gave leave to the Father to make an oral application to vary the August 2005 orders, and the Father then withdrew his Application for Contravention.
In June 2009, the Court directed the parties to attend a Child Dispute Conference. On 31 July 2009, Family Consultant Ms B reported[3] that [X] held a belief that if he were to see the Father he may not continue to see the Mother. She observed a warm interaction between [X] and the Father but recommended visits at a Contact Centre to re-establish contact between them.
[3] Exhibit 5
On 10 August 2009, the Court suspended previous parenting orders, appointed an Independent Children’s Lawyer, made an order for [X] to live with the Mother and for [X] to spend time with the Father for 2 hours each week on a supervised basis at a Contact Centre.
In October 2009, the Court ordered telephone communication to commence between [X] and the Father on one occasion each week, upon [X] having spent two consecutive contact periods with the Father.
On 19 December 2009, the Central West Contact Service allocated 6 x 2 hour sessions for [X] to spend time with the Father, commencing on 19 December 2009 and continuing until 6 February 2010 when the Service would review the arrangements.
In February 2010, upon noting that each party agreed that [X] had experienced considerable distress when in the presence of the Father, the Court ordered a Part 15 Rule 9 expert report, and on an interim basis, suspended previous orders for [X] to spend time with and communicate with the Father. Dr C, psychiatrist, was again appointed and prepared a report for the Court dated August 2010.
On 25 August 2010, the Court noted that the parties, with the assistance of the Independent Children’s Lawyer, were endeavouring to arrange therapy in accordance with Dr C’s recommendations.
On 14 September 2010, the Court ordered the Independent Children’s Lawyer consult Dr C about [X] participating in the Unifam Supporting Children After Separation Programme, and if considered suitable, for the parties to make arrangements to attend for assessment.
On 20 May 2011, the Court noted that the parties were participating in the Keeping Contact programme as recommended by Unifam. The Court was later advised by Unifam that the Father had been assessed as unsuitable for the programme[4].
[4] Exhibit 12
On 25 August 2011, the Court listed the matter for hearing and ordered an updated report from Dr C.
On 20 April 2012, the Father failed to appear.
On 4 May 2012, the Father appeared in person and the hearing dates of July 2012 were confirmed.
Orders sought by each party
In his initiating application, the Father sought orders for [X] to live with him in accordance with the Orders made on 9 August 2005. The Father sought an Order that the Mother keep the Father informed of any medical appointments attended by [X]. The Father sought no orders in relation to parental responsibility.
At the commencement of the hearing, the Father sought a reinstatement of the August 2005 orders in relation to time, or in the alternative, that [X] spend time with him each alternate weekend and for half school holidays. He also sought an order that the Mother provide an authority to enable Dr A, the Father’s General Practitioner, to obtain information about any medical condition suffered by [X] from [X]’s treating practitioner and a restraint against the Mother from taking [X] to see Dr D, Senior Staff Specialist of [omitted] Hospitals, who both [X] and the Mother have consulted since the Mother was in [detention centre omitted] Detention Centre in 2002. After hearing the oral evidence of Dr C at hearing, the Father amended his proposal seeking Orders for [X] to spend time with him every alternate weekend from Friday after school until Monday before school, and half school holiday periods[5]
[5] Exhibit 6
The Mother, supported by the Independent Children’s Lawyer, seeks Orders for the Mother to have sole parental responsibility, for [X] to live with the Mother and spend no time with the Father. In addition, the Independent Children’s Lawyer seeks an Order restraining the Father from approaching [X] or his school, and an order permitting the Father to send [X] gifts for his birthday and Christmas each year, and after an initial 12 month period, to communicate with [X] by letter or card every 3 months. The Independent Children’s Lawyer seeks an Order requiring [X] to continue counselling with Unifam, which the Mother supports.
Current arrangements
[X] is currently living with the Mother and having no time or communication with the Father. This has been the position since 17 February 2010 when all previous Orders concerning [X]’s contact with the Father were suspended.
Issues
The question for determination is whether it is in [X]’s best interests to spend time with, or communicate with the Father and if so, what those arrangements should be.
Expert’s recommendations
Dr C prepared three reports in these proceedings, two in 2004 and the most recent in August 2010. She declined to prepare an updated report in 2012 because of the Father’s conduct. She gave oral evidence at the hearing by telephone.
In August 2010, Dr C said that she was looking for ways [X] could see the Father again as she believed [X] needed to “work through his thoughts and feelings about his father.” She believed [X] would benefit from individual therapy and parent-child therapy (with the Father). She formed the view that, on condition that [X]’s therapist was satisfied that [X] and the Mother were ready for contact to occur, [X] would benefit from limited fortnightly contact with the Father for an afternoon tea or a game in the park. She says the Father needs to prove to [X] that he will be predictable and consistent and return him to the Mother at the prescribed time. Critical to [X] being able to spend time with the Father were firstly, his mother’s support of the contact and her protection of [X] from her anxiety about the Father; and secondly, the Father’s containment of his negativity towards the Mother and his ability to regain [X]’s trust. Dr C said that before any contact could occur, [X] would have to accept the possibility that the Father could be there for him in a safe way. She concluded that if [X] still felt unsafe “after all avenues exhausted” and/or the Father’s behaviours continued to be inappropriate, contact should not be ordered by the Court.
On 25 August 2011, the Court ordered an updated report from Dr C, but that report was not prepared. At hearing, Dr C said she was not willing to prepare an updated report because of the Father’s attitude towards her expressed in a letter to her in early 2011. Whilst Dr C did not keep the letter, her memory was that its contents were “quite unpleasant and jeering” and “disrespectful.” She said that whilst the letter was not threatening, it made her “very reluctant to have any further encounters with Mr Daplyn whereby he could make further allegations that I found unacceptable.”
In cross-examination, Dr C said that the Father’s proposal for time with [X] was “very inappropriate” without significant therapeutic intervention and enough time passing to help [X] to look forward to spending a lot of time with the Father. Dr C said that until and unless [X] can repair his relationship with the Father, contact will not benefit him. In fact, [X] may be so distressed by the contact that his development could be even further compromised.
Legal principles
These proceedings were commenced in 2009. Amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore do not apply. The principles are set out in the Part VII of the Family Law Act 1975 as it was prior to 7 June 2012.
Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must 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 it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
[X]’s care history
[X] was in the Mother’s full time care for the first 5 months of his life. He was then removed suddenly from her care and forcibly weaned, when the Mother was detained at [detention centre omitted] Detention Centre for 2 years[6]. [X] was placed in the care of the Father. During that time, despite Court orders providing for [X] to spend time with the Mother three full days each week at the Centre, [X]’s time with the Mother was irregular, because the Father believed the Mother gave him food which made him ill. There were times when [X] did not see the Mother for several weeks as a result of the Father’s concerns about [X]’s health and alleged ill treatment at the Centre. [X] had a delayed diagnosis of food allergies and intolerances which caused a number of distressing symptoms including vomiting and diarrhoea, urticaria and other skin irritations. The Father claimed that [X] was only ill after he visited the Mother in [detention centre omitted]. However, this was not established in any proceedings. The Father annexes a bundle of medical certificates and medical correspondence to his affidavit to support his decisions not to take [X] to see the Mother and the Father consistently sought to reduce [X]’s time with the Mother there.
[6] Annexure 20 of Father’s affidavit affirmed 21 June 2012 (Dr R’s report)
When the Mother was in [detention centre omitted], Dr D states that [X] was left by the Father in the care of others for a period of 6 months when the Father went overseas. This was not referred to in either party’s affidavit, or in the expert reports, and Dr D was not challenged on this issue in cross examination.[7]
[7] Annexure B to the affidavit of Dr D affirmed on 19 June 2012
By the time the Mother was released from [detention centre omitted], [X]’s allergy to egg and nuts had been identified and both parties were following an appropriate diet for him. In accordance with Court orders, from the time of the Mother’s release in May 2004 until April 2006, [X] lived with the Father and spent 3 nights a week with the Mother.
In April 2006, the Father left [X] in the care of the Mother. For a period of 3 years, from April 2006 until April 2009, [X] did not see or hear from the Father and had no information as to his whereabouts or the reason for his absence. [X] has remained in the full time care of the Mother since then. The Mother reports [X] stabilising after initially struggling with the loss of the Father.
On 1 April 2009, the Father reappeared outside the Mother’s home and saw [X] briefly when the Father spoke to him through the window of the Mother’s car.
Between December 2009 and January 2010, [X] spent time with the Father under supervision at Central West Contact Centre on two occasions, for 1.5 hours on the first time and 2 hours the second time. On the third and fourth occasions at the Centre, [X] so strongly resisted seeing the Father, no contact took place. [X] has spent no time with the Father since then, nor has he had any other form of communication with him.
[X]’s supervised time with the Father
[X] did not see the Father from the time of the Father’s re-appearance in April 2009 until December 2009 when he had his first visit to the Father at the Contact Centre. On the first occasion, [X] showed no concern going into the Centre, but asked the Mother a lot of questions about her time in the Detention Centre after contact concluded. On the second visit, [X] was distressed about being made to go, but the Mother explained that she would be in trouble with the Court if he did not attend. Afterwards, she says [X] was “rebellious and unsettled”. On the third visit, [X] was extremely distressed, would not let the Mother go, and contact did not proceed. On the final occasion at the end of January 2010, the Mother had to “drag him from the unit” as [X] screamed, grabbed the stair rails and pleaded with her not to take him. The Mother says “it was terrible” to witness the level of [X]’s distress. She dragged him to the car, screaming and crying. He would not let go of her neck at the Centre and the supervisor suggested [X] tell the Father he did not want to stay. After 5 minutes, the Mother took him home. The Mother says [X] was receiving telephone calls from the Father (in accordance with Court orders) and she believes [X] was distressed by the Father’s criticism of her.
[X]’s progress in the care of the Mother
[X]’s school reports[8] in 2008 and 2009 disclose satisfactory or higher results in almost all subject areas. [X]’s school reports from the school in which he has been enrolled since the beginning of 2011[9] disclose an average or higher than average “effort” in all subject areas, and a “consistent commitment to learning”. He achieved a credit in the 2011 International Competition and Assessments for Schools in mathematics.[10] I am satisfied that the Mother has shown a commitment to [X]’s academic work. He has a tutor three times a week. In May 2011, his school notes the Mother’s request for [X] to be given work to do when he was to be absent from school for 2-3 days when in hospital.[11]
[8] Exhibits 7 and 9
[9] Exhibit 10
[10] Annexure N of Mother’s affidavit sworn on 19 June 2012
[11] Exhibit 10
The Mother deposes to [X] enjoying a range of sporting activities including tennis, soccer and swimming and to making good friends.
[X]’s emotional health
In August 2010, Dr C observed that [X] was[12]:
[12] At page 13 of Dr C’s report dated 20 August 2010
…an intelligent, healthy eight year old, who historically has an anxious attachment to his mother. His anxieties about losing his mother and her welfare have been reactivated and reinforced by the reappearance of his father into his life. However his anger with his father’s 2006 abandonment of him is also evident.
…
Because of his history of multiple losses, chronic parental discord…disrupted living arrangements and having been cared for by parents with psychiatric difficulties, [X] is at risk for future psychopathology: a mood disorder/substance abuse/antisocial behaviour.
Dr C says that [X] is angry with the Father because of his abandonment of him, and unless his angry feelings are resolved, any attempt to make him see the Father will fail, and make him less likely to revisit the idea in the future.
The Mother reports the Father walking around the area of [X]’s school and to [X] seeing him there in recent months on about 4 occasions from the car. He has seen the Father on the other side of the road from the school gates. The Mother says [X] panicked each time he saw the Father and has since been worried the Father will take him from school, has said “something might happen to me” and was worried the Mother would disappear. [X] asked her recently whether she would get cancer and die and needs repeated reassurance from the Mother that she would not leave him. Having been very settled and happy at school, [X] now does not want to go. Each day, [X] asks the Mother who will be there for him when he finishes school.
Dr C said that if anxiety was impairing [X]’s everyday functioning, as I find it is, then the question of whether he should see the Father needs to be seriously considered. Dr C says that [X] has had “incredible disruption” in his life which still persists, and as a consequence, his development has been compromised for the long term.
Father’s capacity
The Father has a history of psychiatric difficulties outlined in psychiatrist Dr R’s report, and he remains under Dr R’s care. His General Practitioner refers to a diagnosis of an Adjustment Disorder with anxious mood in 2003, a diagnosis of Anxiety in 2005 and Major Depression in 2006 and 2007. Dr R assessed the Father as suffering from an Adjustment Disorder with anxiety and depression when the Father first presented to him in 2007. In June 2012, Dr R assessed the Father as suffering from a mood disorder, primarily presenting as depression[13]. Whether or not his psychiatric conditions impact in any way on the Father’s level of insight or capacity for appropriate decision-making is not directly addressed in the expert evidence.
[13] Annexure 20 of Father’s affidavit affirmed on 21 June 2012 (report of Dr R)
Dr C formed the view that the Father has had a form of depression and that his personality structure is such that he reacts badly when he does not get what he wants. She said a question therefore arises as to whether the Father has the capacity to repair his relationship with [X]. She says that the Father does not stay child focussed. He has put his own needs ahead of [X] with no regard for the effect of his decisions on [X] or for [X]’s suffering. She found the Father’s approach “reflected his style of placing fault on [the Mother] and a failure to understand [X]’s needs.”[14] The Father, she said, operated “from a position of being the hapless victim of others …mistreatment of him.” She says “his functioning is relevant because significant anti-social features in his personality would make [the Father] an unsuitable person to promote as an integral part of [X]’s life.”[15] Dr C says that an issue also arises as to the Father’s capacity to stay committed and available to [X], given his failure to do so in the past, and his failure to do so with his older two children.
[14] At page 14 of Dr C's August 2010 report
[15] Ibid at page 14
I find that the following decisions made by the Father are examples of his poor insight and judgment:
a)Between May 2002 and May 2004, the Father did not prioritise [X]’s need for regular contact with the Mother at [detention centre omitted]. He justified his irregular visits by asserting that the Mother was causing [X] health problems. The Father also said that “he found the visits extremely difficult because he … felt embarrassed and humiliated by statements [the Mother] has made to, or about him” and because he perceived the staff to be “hostile.”[16] I find it likely that the latter was the main reason for [X] being kept away from the Mother so often. [X]’s illnesses are likely to have been the result of his food intolerances, not diagnosed for many months after the Mother’s admission to [detention centre omitted].
b)In April 2006, the Father abandoned [X], having been his primary carer since [X] was a baby. The Father gave [X] no warning or explanation and did not say where he was going, how he could be contacted or when he would return. While the Father claims to have told [X] (on a holiday just prior) that he was leaving him with the Mother because he (the Father) was sick and could not handle the police coming to the door, he left [X] bewildered, confused and distressed. The Father’s only notice of intention was contained in two letters he left in [X]’s school bag at day care, one addressed to the [omitted] Centre (where [X] was attending day care) which read[17]:
Dear Sir,
Re: [X]
As of today’s date I will not be collecting my son [X] from the Centre.
Yours faithfully
Mr Daplyn (father)
And the other addressed to the Mother which read:
I [MR DAPLYN] wish to advise you that I no longer will collect my son [X] from day care.
I relinquish my custody to you.
[16] At paragraph 6 of Exhibit 4
[17] Annexure B to Mother’s affidavit sworn on 9 June 2009
Mr Daplyn
c)The Father gave the Mother no information to assist her to help [X] understand his Father’s sudden absence from his life. Dr C was extremely critical of the Father’s decision to leave [X] in April 2006. She described it as “very poor judgment” and says there is no doubt that [X] will have been left with a residual psychological adverse effect. The Father now says he left [X] because he was severely depressed, but does not explain his reasons for not telling the Mother why he felt the need to give up [X]. He also says he left because [X] was always sick with allergies as a result of the Mother’s and the pre-school’s negligence, and that [X] would only get better if he did not see him. This explanation makes no sense if this was his genuine belief, and if the Father had genuine concern for [X]’s welfare. When asked in cross examination what impact his decision had on [X], the Father conceded that [X] would have suffered separation anxiety, would have felt abandoned, and would be angry with him, yet he had no apparent regard for these outcomes when he made his decision. The Father excused his failure to communicate with [X] at all for a period of 3 years by claiming he did not have [X]’s address, despite the Mother not moving residence in that period, being on the electoral roll and being listed in the white pages. I do not accept the Father was telling the truth.
d)The Father attempted to reclaim his place in [X]’s life on 1 April 2009 without any regard to [X]’s needs. In cross examination, the Father claimed to have received an anonymous call in November 2008 from “a nurse” to tell him [X] had not been well, and needed help. He stated that the Mother’s next door neighbour had called this “nurse” and said the Mother was making [X] scared by claiming the Father was loitering around the unit. The Father then says that he called a paediatrician in [suburb omitted], Dr W, who said that [X] was wetting his bed and having problems sleeping. The Father said he found the Mother’s address through [X]’s school, but could not explain how he knew the school [X] attended. None of this makes sense and I do not accept it as truth.
e)On 1 April 2009, the Mother drove her car into her driveway to be confronted by the Father putting his head into her car window and asking [X] if he knew who he was. According to the Mother’s report to police[18], the Father spoke in a loud aggressive manner to the child and asked whether he wanted to see him. [X] shook his head. The Father then passed a letter through the window into the “face of” the Mother. The Father blamed Ms S, his former solicitor, and his partner for a time, for the way he approached the Mother and [X], without warning, in the presence of his friend Ms C in the Mother’s driveway. The letter[19] referred to the 2005 parenting orders and required the Mother to confirm that [X] would see him on the following Sunday for a full day, the weekend after that for a full two days and after 8 weeks, on a week about basis in accordance with the 2005 orders. The Father’s letter advised that he would seek a recovery order in the Family Court without further notice if the Mother did not comply with his request. A few days later, the Mother found the Father at her home again, unannounced. In light of the trauma suffered already by [X], this profoundly insightless approach taken by the Father to re-introduce himself to [X] after an absence of three years, resulted in the Mother being so terrified of what the Father might do, that she moved with [X] to a refuge and obtained a 2 year Apprehended Violence Order against the Father. I find it extraordinary that the Father expected to resume contact with [X], as though he had never left him, without any thought of how his disappearance or re-appearance might affect [X].
[18] Annexure C to Mother’s affidavit sworn on 19 June 2012
[19] Exhibit 9
f)
The Father initiated contravention proceedings in the Family Law Courts immediately after his reappearance in April 2009, alleging the Mother was in breach of the 2005 orders. The Father took no steps to consult the Mother in a conciliatory way or to consult a health professional or legal practitioner as to how best to achieve the re-establishment of [X]’s relationship with him. Instead the Father made clear that he had no interest in a working relationship with the Mother and presented a raft of complaints about her past actions, including making [X] sick, neglecting his care such that he was sexually abused at the Centre and had his shoulder dislocated as a result of her neglect. None of these allegations have been proved. When, on the recommendation of Dr C, the Court later ordered the parties and [X] to engage in counselling at Unifam, the Father behaved in such a way that Unifam declined to continue providing their services to him.
Ms C deposes to the Father being “disappointed and distressed” by the counselling sessions, feeling “discriminated against and victimised”.[20] She said the Father told the counsellors she should recognise that [X] had been brainwashed by the Mother and dismissed the counsellors’ suggestion that he write [X] a letter of apology for leaving him in 2006, by responding “you must be joking”. The Father’s alleged conduct in counselling is particularly troubling, given the weight Dr C gave to counselling in her report recommendations. Consistent with Dr C’s opinion, it is likely the Father will reject any opinion, professional or otherwise, contrary to his rigidly held view that the Mother has conducted a prolonged and vindictive campaign against him, and has no redeeming features.
g)In November 2009, shortly before his first supervised contact visit with [X], the Father sought an Apprehended Violence Order against the Mother and in January 2010 obtained an interim order against her (it was dismissed with costs some months later). Sometime before the 4th supervised contact visit, the police served the Order on the Mother in front of [X] which exacerbated [X]’s distress at having to see the Father. [X] was crying uncontrollably when he said to the Centre supervisor “Dad sent the police to our house and now my Mum has to go to Court because of him”. [21] It is difficult to understand the Father’s reasoning in filing his complaint at such a sensitive time.
h)At the Father’s first visit on 29 December 2009, the Father demonstrated limited skills in assisting [X] to feel comfortable with him. The Centre supervisor needed to intervene when the Father said he would give [X] a present if he went to the shop with him. [X] told the Father he did not want to go with him because he wanted to “live with his mum” and was observed to be uncomfortable telling the Father he had taken him away when he was small. The Father then showed [X] photos of his older brothers, which included a photo of two children in a bath, of a child standing up covered in bubbles and a child standing naked, which caused [X] obvious discomfort and again required the intervention of the supervisor. At the end of the session, which was ended early because [X] said on 3 occasions that he wanted to leave, the Father held [X] tightly, despite [X]’s obvious reluctance to having physical contact with him. The supervisor notes “session went well however [the Father] did not allow for child to engage or initiate physical contact.”[22]
i)On 7 January 2010, the Mother deposes to the Father ringing [X] while they were in the car. Instead of showing [X] that he supported [X]’s relationship with the Mother (in light of [X]’s comment at the previous visit), the Father told [X] that the Mother had made him sick with the wrong food, that he would soon be living with the Father and he would cook good food for him. Understandably, [X] was then absolutely adamant he did not want to see the Father. The Contact Centre notes confirm the Mother’s evidence about [X]’s extreme distress and refusal to see the Father on the next two contact occasions.[23] Dr C believes that the Father, “either deliberately or unwittingly” said things to [X] on the phone which re-activated [X]’s separation anxiety with the Mother.
j)On 15 January 2010, the Father obtained an interim Apprehended Violence Order against the Mother requiring the Mother to attend Court on 3 February 2010. The Father made a wide range of serious allegations against the Mother, dating back to the commencement of their relationship, when the Father complained the Mother constantly telephoned him, made false allegations to authorities about him, accused him of neglecting [X] and repeatedly threatened him. Again, I find this could not have helped the re-establishment of the Father’s relationship with [X] if this had been the Father’s aim. Notably, the Father’s focus was also on the past in his cross-examination of the Mother at hearing.
k)Within the last 12 months, the Father moved to rental accommodation with Ms C in close proximity to [X]’s school.[24] The Father has not considered that his proximity to [X]’s school would be unsettling for [X], and I do not accept his claim that his move was coincidental. Dr C said the Father’s decision to live close to [X]’s school could well be making [X] anxious, given the history of what has happened to him. She said that school should be a safe haven for [X]. She said if anxiety is impairing [X]’s every day functioning, as I am satisfied it is, then the question of whether he should see the Father is in serious question.
l)The Father has been unable or unwilling to accept responsibility for the present state of his relationship with [X] or for the impact of his conduct on others. He blames the Mother for alienating [X], the Unifam counsellors for their inability to make [X] want to see him, and Dr C and Dr D for their biased and unprofessional approach. On 22 July 2010, the Father wrote to Dr C, and raised his concerns about “this disinterested reaction from everybody in power” when he tried to convince her of what the Mother had done to him[25]. He has told Dr R that the legal system will not help him, despite his efforts to involve himself in [X]’s life.[26] When the Father taped a conversation with [X]’s school principal approximately 6 weeks prior to hearing, resulting in the Principal calling the police, the Father wrote to the Principal alleging he was vindictive and defensive[27]. When asked by Dr C about his contribution to all the problems, the Father said “nothing”.[28] As already noted, Dr C says that the Father casts himself as a “hapless victim”.
[20] Affidavit of Ms C sworn on 12 June 2012
[21] Exhibit 13
[22] Exhibit 13
[23] Exhibit 13
[24] Exhibit 14
[25] Annexure 7 of Father’s affidavit affirmed on 21 June 2012
[26] Annexure 20 of Father’s affidavit affirmed on 21 June 2012
[27] Exhibit 10
[28] At page 11 of Dr C's August 2010 report
Other examples of the Father’s poor judgment and poor insight include:
a)His decision to enter into a relationship with the Mother’s former solicitor in family law proceedings, Ms S, and then retain Ms S to act for him against the Mother in these family law proceedings.
b)His decision in 2007 to pick up a 14 year old boy, unknown to him, in his car in the early hours of the morning. In June 2007, the Father was charged with 7 counts of kidnapping, assault and sexual interference with a minor. After two trials, the charges were eventually dismissed. The Father says a boy stopped him on the street in [location omitted] at 2 a.m. and asked him to take him to buy cigarettes. The Father says the boy claimed to be 16 years of age, and “convinced” the Father to take him to the 711 in [omitted] Street. He says “it was the worst decision of my life” and “I was the boy’s victim.”
c)His involvement with matters concerning Ms C’s child, when living with Ms C in late 2008. The Father gave evidence at a 2011 Family Court hearing concerning the child of Ms C. In December 2008, he and Ms C were living opposite Ms C’s child’s school. The Father erected signs in the front yard of their premises, directly opposite this child’s school, complaining about the school. The sign said “[omitted]”[29]. The Father and Ms C approached parents at pick up time about the issues concerning Ms C’s child, and handed out letters to parents. It was alleged[30] that parents and children at the school were subjected to abuse and harassment by Ms C and the Father, though they denied the allegation. The Father tells this Court that he had to let other parents know what the school was prepared to do. He denies overreacting. On or about 16 December 2008, Ms C had the Father deliver a letter to her child’s school advising that Ms C was “too stoned and drunk to come to the school herself and was a very bad mother.” The Father dictated the letter which was apparently meant to be sarcastic. It was also alleged that the Father made Ms C’s child wear a school shirt that had been written on saying something like “[child’s name] love the school” and “I love my teacher”. The school complained to the Department of Family and Community Services about these incidents.
d)In January 2009, the police attended Ms C’s and the Father’s home to execute a recovery order against Ms C for the return of her child to his father. The child was present at the home, but the Father conceded that he attempted to mislead the police by initially denying the child’s presence there.
e)Reports to the Department of Family and Community Services of 6 and 9 December 2008 related to drug use by Ms C and the Father. It was also alleged they had a telescope on their front veranda, aimed at Ms C’s child’s school. A report of 28 January 2009 had the telescope moved inside the house, pointed at the school, but through a window. The expert in the proceedings assessed Ms C’s relationship with the Father as an example of Ms C’s inability to “choose healthy people to assist her in her life.”[31] The Court determined to require Ms C to be present when the Father [Mr Daplyn] was with her child.[32]
f)His decision to apply for an Apprehended Violence Order against the Mother at the same time as she sought one against him on his sudden reappearance in [X]’s life in April 2009 can only be viewed as provocative in the circumstances. That application was later dismissed
[29] Reference to the Father of Ms C’s son in Carone & Yantis [2011] FamCA 853 per Loughnan J
[30] At paragraph 64 of Carone & Yantis [2011] FamCA 853 per Loughnan J
[31] At paragraph 150 of Carone & Yantis [2011] FamCA 853 per Loughnan J
[32] At paragraph 267 of Carone & Yantis [2011] FamCA 853 per Loughnan J
I find it unlikely that the Father would be willing or able to support [X]’s relationship with the Mother, such that [X] would feel safe in the Father’s care. The Father himself says that [X] will not want to see him while [X] remains in the Mother’s care. The Father demonstrates an inability to modify his negative attitude towards the Mother for the sake of saving his relationship with [X]. Dr C predicts a dire outcome for [X][33] if [X] is left in a situation where he is consistently under pressure.
[33] At page 13 of Dr C's August 2010 report
These findings are significant to my decision.
Mother’s capacity
In his trial affidavit, the Father raises a number of allegations about the Mother’s parental capacity. He says she was addicted to drugs during her pregnancy with [X] and failed to properly care for him as a newborn. The Father alleges that the Mother repeatedly caused [X] to be ill by giving him the wrong foods while inside the Detention Centre and subsequently. He cross-examined the Mother at length on this issue. The Father says [X] was ill “every time” he was returned to him after visits to the Mother. The Father kept [X] away from the Detention Centre for weeks at a time, because the Father believed that [X] was at risk of ill-health in her care and obtained numerous medical reports to support his position. The Father alleges the Mother had [X]’s hair shaven during one visit, that [X] dislocated his shoulder while under her supervision, and that she held [X] hostage for 3 hours “with razor blades in her mouth”.[34] None of these allegations have been made out, as evidence of the Mother’s neglect or capacity. I find that the Father’s focus was very much on the past and particularly on the Mother’s failure to manage [X]’s food allergies. However, since [X] has been in the Mother’s care, I am satisfied that she has sought appropriate medical advice and put appropriate health plans in place. For example, the notes from [X]’s school disclose details of [X]’s allergy to certain foods. In cross-examination, the Mother clearly explained details of the allergies and her management of them.
[34] At paragraphs 19 to 21 of Father’s affidavit affirmed on 21 June 2012
While both Dr D and Dr C assess the Mother as suffering from anxiety, neither questions the Mother’s capacity to parent [X]. In fact, the medical evidence available comments positively on the Mother’s parental ability, both currently and prior to [X] coming into her full time care. In particular:
a)On 30 August 2004, the [omitted] Hospital notes compliment the Mother’s approach to [X], noting her ability to distinguish her needs from [X]’s needs and to present [X]’s life with the Father “in a positive way”; “She presents as confident and capable”; and “appeared to have an attunement with [X]”.[35] On 21 September 2004, the notes disclose the Mother’s awareness of [X]’s love for his Father and his need to be with him saying that “although she desperately wanted to keep him [[X]] with her, she felt she couldn’t overrule his desire to see his dad.” [36]
b)By report dated June 2009[37], Dr D, Senior Staff Specialist in Psychiatry at Prince of Wales and Sydney Children’s Hospitals, who has been seeing the Mother and [X] since 2002, states that the Mother suffers from “post-traumatic stress disorder secondary to her time in [detention centre omitted]…and other traumatic events over her life, and also suffers from a major depression (with features of anxiety) that is in partial remission.” Despite this legacy, Dr D assesses the Mother as a “very competent” parent to [X].
c)Dr C finds Dr D’s assessment of the Mother’s “more than adequate” parenting noteworthy. She says Dr D has observed the Mother with [X] over a long period of time and would well be able to assess the Mother’s parenting. In August 2010, Dr C described the Mother as a “committed parent”[38] who has been caring for [X] appropriately. However, she says there is separation anxiety evident in both the Mother and [X] as a result of the traumatic events in the Mother’s life and her adjustment to those. She is in no doubt that the Mother’s anxiety about [X]’s safety, if he spends time with the Father, will have affected [X]. Contributing to the Mother’s past depression and anxiety is the abuse she perceives she experienced from the Father, including threats to her life. Dr C accepted the “basic integrity of her narrative.”
[35] Exhibit 11
[36] Exhibit 11
[37] Annexure B to affidavit of Dr D affirmed 19 June 2009
[38] At page 13 of Dr C's August 2010 report
Two lay witnesses provided affidavit evidence on behalf of the Mother and Ms H was cross-examined at hearing.
Ms H is a senior Public Guardian and has known the Mother since 2002. She was an advocate for the Mother when she was detained at [detention centre omitted], and separated from [X]. She recalled the Mother’s distress when [X] was removed from her care, and when the Father failed to bring [X] to see her at times arranged. Ms H once visited the Father to try to persuade him to take [X] to visit the Mother more regularly. She also requested a Catholic priest speak to the Father. Ms H has remained in regular contact with the Mother, including visiting and staying at her home in [M]. Ms H has a high regard for the Mother. She speaks highly of the Mother’s commitment to [X] and of her parenting skills. I found Ms H an impressive witness.
Ms P, aged 61 years, has known the Mother and [X] since 2006. She is an experienced school teacher and neighbour and friend to the Mother and [X]. She deposes to the Mother taking special care with [X]’s food because of his food allergies and asthma. She is extremely complimentary about the Mother’s skills as a parent, describing her as “of good character, a positive role model of a hard working frugal mum.”[39]
[39] Affidavit of Ms P sworn on 19 June 2012
The Mother recognised and continues to recognise her own need for counselling and [X]’s need for counselling. She has engaged diligently in the counselling offered to both of them by Unifam and intends to continue to accept their support. She continues to consult Dr D from time to time. She says that counselling has improved her self-confidence and that she has felt supported and reassured by her Unifam counsellor and that [X] has also benefited. I am satisfied the Mother is a competent and caring parent strongly committed to [X]’s welfare.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
If circumstances were very different, it would benefit [X] to have a meaningful relationship with the Father, which is the reason in August 2010, that Dr C carefully considered ways [X]’s relationship with the Father could be re-established. She was clear then, as she was at hearing, that [X] would have to feel safe with the Father before time with him would benefit [X]. As well, the Father would need to be “contained” and protect [X] from his negative attitude towards the Mother.
Since April 2006, when the Father left [X], [X] has seen the Father on very few occasions, most of which have been traumatic for [X]. On only two supervised occasions for less than 2 hours each time, has [X] been willing to remain with the Father. Before his last two sessions at the Contact Centre in early 2010, [X] was so strongly resistant to going to the Father that the Contact Centre staff determined that contact should not proceed. Given the trouble the Mother experienced forcing [X] to attend the Contact Centre nearly 2 years ago, it is unlikely the Mother would be physically capable of getting [X] to the Father unless [X]’s attitude changed. I am not persuaded that [X]’s present relationship with the Father is meaningful.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
“Abuse” was, at the relevant time, narrowly defined in section 4 of the Family Law Act as sexual abuse or an assault of a child which is an offence under the law. The Mother deposed to [X]’s sexualised behaviour during a period he was living with the Father, and held a concern that the Father had interfered with him. The Father deposed to holding a concern that [X] had been sexually abused while under the Mother’s care at [detention centre omitted]. There is some evidence to suggest that concerns about [X] being sexually abused were shared by [omitted] Hospital who referred the matter to the Department of Family and Community Services for investigation.[40] Neither party pressed these concerns at the time of the hearing.
[40] Annexure B to Father’s affidavit affirmed on 21 June 2012
However, a question arises as to whether [X] has been psychologically harmed by exposure to family violence or from neglect.
“Family violence” was defined at section 4 of the Act, (at the relevant time) as conduct, whether actual or threatened that causes the person to reasonably fear for, or to be apprehensive about, his or her personal wellbeing or safety.
The Mother contends that the Father was abusive and violent towards her during their relationship and that his abuse of her continued during her time at [detention centre omitted] and subsequent to her release. The Father denies the allegations.
The police notes disclose[41] that in November 1999 the Mother alleged that the Father assaulted her by pushing her to the chest and dragging her across the floor by the leg, causing serious bruising, which was observed by police. The Mother alleged that the Father put a gun to her head when she was pregnant with [X] and that the Father has threatened to kill her on a number of occasions. On 19 June 2005, the Mother alleges that the Father threatened her, in front of [X], at changeover.[42] On 17 August 2005, a final apprehended violence order was made against the Father for the protection of the Mother, for a period of 2 years. On 1 April 2009, the Mother alleged and reported to police, that the Father was aggressive towards her[43] and she was sufficiently frightened of what the Father might do, she moved from her home with [X] to a refuge until an Apprehended Violence Order was in place for their protection.
[41] Exhibit 8
[42] At page 12 of Exhibit 8
[43] Annexure C of Mother’s affidavit sworn on 19 June 2012
On 11 May 2009, the Mother felt threatened when the Father stared at her, and simulated a gun pointed at her temple with his fingers. The police notes state that the Mother’s fears appeared genuine[44].
[44] Exhibit 8
In his report of June 2009[45], Dr D stated that the Mother believed (and he accepted that her belief was genuine and well-founded) that it was quite likely that the Father could kill her. The Mother described a “violent dynamic” between her and the Father before and after her detention at [detention centre omitted], and an inability to communicate. Dr D referred to a letter on his file from a Mr R dated 15 October 2002 in which Mr R said he had witnessed the Father behaving in a “very abusive” manner towards the Mother in early 2001. Dr D was told the Father once put a gun to the Mother’s head, and threatened to kill the Mother when she was released from detention and the Mother obtained an AVO against him.
[45] Annexure B to affidavit of Dr D affirmed 19 June 2009
I preferred the Mother’s evidence to that of the Father on these issues. I also accept Dr C’s evidence that [X] is acutely aware of the dysfunctional dynamic and conflict between the parties which has adversely affected him. I give some weight to these findings.
ADDITIONAL CONSIDERATIONS
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views.
[X] told Dr C in August 2010 that he did not want to spend any time with the Father. He wants “peace with my Mum, forever and not see [Mr Daplyn].” “I just want to stay with my Mum my whole life.”[46]
Dr C accepts that these words accurately reflect [X]’s view. The Father says he knows [X] does not want to see him, and does not insist he sees him if he does not want to.[47] This statement from the Father causes me to question the bona fides of the Father’s application.[46] Dr C's August 2010 report
[47] On 17 February 2010, the Court notes that each party agreed that [X] had experienced considerable distress when in the presence of the Father and the Court therefore suspended all orders concerning [X]’s time or communication with the Father by consent.
Both Dr C and Dr D say that [X]’s expressed wishes should carry substantial weight in the complex circumstances of this case. Dr C says that time between [X] and the Father cannot benefit [X] unless [X] can accept that it is possible he could spend time with the Father and remain safe. Presently, it is clear that [X] believes strongly that he would be unsafe if he spent time with the Father. I give considerable weight to these findings.
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
According to Dr C, historically, [X] has an anxious attachment to the Mother, and at present, is anxious he will lose his Mother. At interview with Dr C in August 2010, [X] spoke of his Mother in glowing terms. On the basis of Dr C’s assessment, I am satisfied that [X] has a close loving relationship with the Mother, with some elements of anxiety.
In June 2009, Dr D described the relationship between [X] and his Father as “damaged” with currently “no relationship or connection” between them, though his assessment is based on what the Mother and [X] have told him. He has not spoken to the Father. Dr D says that [X] “was highly and enduringly distressed by his Father’s abandonment” and Dr C agrees. As already noted, [X] has only seen the Father on a few occasions since he left [X] with the Mother in April 2006. The most recent of those attempts at contact revealed [X]’s desperate fear of spending any time with the Father, even under supervision and in a protected place. I find that [X]’s relationship with the Father has been seriously damaged and is unlikely to be repaired in the foreseeable future.
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 says she has encouraged [X] to see the Father but that [X] is so frightened of the Father taking him away from her, that she now wants [X] to decide when he feels ready to initiate contact. The Mother believes that the Father might harm [X] without even realising he is doing it. She does not believe the Father can play a positive role in [X]’s life at present.
There is no independent evidence to support the Father’s view that the Mother has tried to alienate [X] from her. On 1 March 2005, Dr A noted[48] that the Mother was not interested in litigation and wanted to “be friends with [the Father]”. The [omitted] Hospital notes disclose the Mother’s good insight into [X]’s need for a relationship with the Father. Dr C did not find the Mother obstructive of [X]’s relationship with the Father. Dr D said that although the Mother fears the Father, she is aware of the importance of [X] having a separate relationship with the Father and does not seek to undermine that relationship. I accept the independent evidence.
[48] Annexure H to Father’s affidavit affirmed on 21 June 2012
The Father has poor regard for the Mother’s parenting ability and has not demonstrated an understanding of the importance of [X]’s relationship with the Mother. He believes the Mother is the sole cause of [X]’s reluctance to see him and even blames her for the breakdown of his relationship with his older two boys. When given a brief opportunity to openly support [X]’s relationship with the Mother in early 2010, the Father chose to speak of the Mother in derogatory terms. I find it unlikely that the Father would support the relationship between [X] and the Mother if [X] were to spend time with him. I give this finding considerable weight.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the children), with whom he or she has been living
Dr C says that [X] does not want to see the Father. He appeared so traumatised by the prospect of being forced to see him in late January 2010 that the Contact Centre cancelled two visits. [X] has suffered loss and abandonment when taken from his Mother as a baby, and when left by his Father in 2006. Dr C finds [X]’s fear of losing his Mother again a genuine and well-founded fear. I am satisfied that [X] would be further traumatised by separation from the Mother.
The practical difficulty and expense of the 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
This factor does not apply.
The capacity of each of the child’s parents and 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
The evidence under this factor has been addressed earlier in these Reasons.
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
The Mother and [X] attend Russian Orthodox Church each Sunday and the Mother deposes to [X] understanding the language and the culture, and to attending the ceremonies with their friends.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I have nothing to add here.
Any family violence involving the child or a member of the child’s family
I have addressed these issues earlier in these Reasons.
Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or, the making of the order was contested by a person
On 9 April 2009, the Mother obtained an ex parte provisional Apprehended Violence Order against the Father for hers and [X]’s protection. On 17 April 2009, a final Apprehended Violence Order was made against the Father, for the protection of the Mother and [X] for a period of 2 years.[49] That order prohibited the Father from approaching within 100 metres of the Mother’s residence or workplace or from contacting the Mother or [X] except via solicitors. That order has expired and there is no current protection order in force.
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 children
[49] Exhibit 9
It would be preferable for these proceedings to be finalised given the length of time the parties have been litigating over [X]’s parenting arrangements. I am satisfied that an order for [X] to spend time with the Father would result in further litigation, given the Father’s limited capacity to parent and [X]’s strong resistance to any contact occurring.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child; and has facilitated, or failed to facilitate, the other parent participating in making decisions about major long-term issues in relation to the child and spending time with the child and communicating with the child; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
I have nothing further to add under this factor.
Parental Responsibility
Section 61DA requires the court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
Given my findings that family violence has occurred in this case, the presumption does not apply. In any event, section 61DA(4) provides that 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, and I am not satisfied such an order would benefit [X].
The parties do not communicate. When the Court ordered the parties to attend Unifam, they were given the opportunity to participate in the Keeping Contact programme, designed to assist high conflict parties. The Mother engaged in the counselling she was offered. The Father engaged initially, but was so dissatisfied with the service offered, that he behaved aggressively and the counsellors terminated their involvement with him. The Father has emphatically stated that he has no interest in improving his relationship with the Mother. I find no prospect of the parties’ working together in the future for [X]’s benefit.
The Mother seeks an order for sole parental responsibility, a position supported by the Independent Children’s Lawyer and by Dr C. The Father does not seek to be involved in major decisions concerning [X] and in the Minute of Order he relies on[50] seeks no orders relating to parental responsibility.
[50] Exhibit 6
Given there is no trust, no respect, and no communication between the parties, it would not be possible for the parties to consult about major decisions concerning [X], and therefore it is against his best interests for an order for equal shared parental responsibility to be made. The Mother will have sole parental responsibility.
Conclusion
The question for determination in this case is whether it is in [X]’s best interests to spend time with, or communicate with, the Father and if so, what those arrangements should be.
As a result of the significant disruptions in his care history, [X]’s development has been compromised and he remains a vulnerable child. [X] is strongly resistant to seeing his Father or to having anything to do with him. The Father has not been predictable or consistently available to [X]. The Father has chosen not to engage in therapy as recommended by Dr C. [X] does not trust what will happen to him if he sees the Father. Dr C says [X] needs to trust in the Father before [X] will manage time with him.
The Father is highly critical of the Mother and places no value on [X]’s relationship with her. The Mother is fearful of the Father.
The Mother supports [X] continuing in counselling. She believes it may be possible for [X] to spend time with the Father when he is more mature.
Dr C says that unless the Father can add value to [X]’s life, “in a way that is psychologically sound”, there should be no order for time. She raises concerns about the Father’s failure to reflect on how his own behaviour has influenced [X]’s attitude to him and about his poor insight into [X]’s needs. She wants the Father to be available to [X], to support [X]’s relationship with the Mother, to contain his negative feelings towards the Mother, and prove his commitment to [X]. In
Dr C’s view, time between [X] and the Father will not benefit [X] unless the parties enjoy a good working alliance, unless the Father always acts appropriately, and unless both [X] and the Father respond well to therapeutic intervention to repair their relationship. None of these conditions are in place. If forced to see the Father in the existing circumstances, Dr C believes [X] will be at risk of further developmental damage. In any event, in a practical sense, as submitted by the Mother’s counsel, it would be impossible for the Mother to make [X] go, given his age and his strong resistance to contact. The Independent Children’s Lawyer’s counsel submits that there should be no order for [X] to spend time with the Father and I agree with him that must be the outcome.
The Independent Children’s Lawyer’s counsel submits however, that orders should provide for the Father to be at liberty to send a card and gift to [X] in the next 12 months for his birthday and Christmas and thereafter, the Father should be permitted to forward letters, cards or gifts to [X] every 3 months. If such an order were made, the Mother agrees to facilitate [X]’s receipt of these items and to assist [X] to have contact with the Father in the future if he chooses to do so.
Dr C was not asked to give her opinion on the Independent Children’s Lawyer’s proposal in this regard. However, Dr C questions the Father’s capacity to sustain his availability to [X] and the further damage likely to be caused to [X] if he were again unavailable. In addition, I find that the Father has demonstrated poor empathy for [X]. In these circumstances, I find there can be no guarantee that the Father’s communications (if he were to write a letter or send a gift) to [X] would help [X]. On the one hand, if the Father’s communications were inappropriate, the likelihood of the reinstatement of [X]’s relationship with the Father in the future is likely to be further diminished, and on the other, if the Father did not communicate at all, [X] is likely to be further confused. The absence of such an order does not prevent the Father from writing to [X] in the future. If he does so, I would urge him to obtain advice from a qualified therapist as to the contents of his communication, before doing so. I have decided not to make any order for the Father’s communication with [X].
Given that [X] is frightened to go to school, and presently needing so much reassurance from the Mother about his safety, I agree with the Independent Children’s Lawyer that the Father should be restrained from approaching [X], [X]’s school or place of residence. I have made orders accordingly.
I am satisfied that the orders set out at the beginning of these Reasons are in the best interests of [X].
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 7 September 2012
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