Darcy and Cameroon (No 9)
[2010] FamCA 1102
•6 December 2010
FAMILY COURT OF AUSTRALIA
| DARCY & CAMEROON (NO. 9) | [2010] FamCA 1102 |
| FAMILY LAW – CHILDREN – BEST INTERESTS – Child 12½ years – Litigation concerning her spanning nearly 10 years – Meaningful relationship with parents – Child afraid of father harming her – Whether unacceptable risk of father harming child inconclusive on the evidence – Difficulty of assessing benefit to child of relationship with father if child genuinely afraid of father – Mother holds genuine belief of risk of harm to child in father’s care – Mother has unresolved childhood issues – Expert evidence that mother’s unresolved childhood issues “spill over to and contaminate the child and her development” –– Father departed for overseas “for a while” or “indefinitely” 2 weeks prior to trial – Father not at trial nor represented – Procedural fairness observed – Mother’s case proceeded on undefended basis – Order made for mother to have sole parental responsibility but with provisos concerning any proposed relocation by mother of child and other matters – Order made for child to live with mother conditioned upon mother attending Mental Health Services for cognitive behavioural therapy or other therapy and arranging for child to attend at Child & Adolescent Mental Health Services for assessment whether child has obsessive compulsive disorder and for support therapy – In relation to child spending time with father several matters considered – Lengthy history of litigation – Failure of prior final orders – Strong need to make order least likely to lead to further proceedings – In all of the circumstances no specific order made for child to spend time with or communicate with father however orders made for mother to use best endeavours to facilitate such – Orders relating to child spending time with paternal grandfather and/or paternal grandmother in Scotland – Father’s case by response considered but dismissed – Independent children’s lawyer not discharged for 12 months to assist mother in relation to her and child’s attendance at MHS and CAMHS respectively and notify Director-General, Department of Families SA if mother or child not attending – Observations made that as utility of Court proceedings now exhausted the matter in the future is a welfare matter for the Director-General – Other orders made as to specific matters |
| Family Law Act 1975 (Cth) s60B, 60CA, s60CC, s65DA, s65DAA |
| A & A (1998) FLC 92-800 Aldridge & Keaton [2009] FamCAFC 229 Bookhurst & Bookhurst [2010] FamCAFC 26 F & F [2005] FamCA 534 G & C [2006] FamCA 994 Jacks & Samson [2008] FamCAFC 173 McCall & Clark (2009) FLC 93-405 Marsden & Winch [2009] FamCAFC 152 Mazorski & Albright [2007] 37 FamLR 518 Miller & Harrington (2008) FLC 98-383 Rice and Asplund (1979) FLC 90-725 Russell & Close [1993] FamCA 62 |
| APPLICANT: | Ms Darcy |
| RESPONDENT: | Mr Cameroon |
| FILE NUMBER: | ADC | 928 | of | 2007 |
| DATE DELIVERED: | 6 December 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 4, 5, 8, 9, 10 and 11 November 2010 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Boehm |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | J Richard Croft |
Orders
IT IS ORDERED
Parental responsibility
The mother have sole parental responsibility for the child T born … July 1998 (the child) for the major long-term issues including her education both current and future, religious and cultural upbringing, health and changes to her living arrangements that may make it significantly more difficult for the child to spend time with the father provided that:
a.the mother must not relocate the child from Adelaide without first giving the father 3 months written notice of such intention, the notice to include the place to which the mother wishes to relocate the child and the reasons for such proposal, to enable the father, if he wishes, to make application to the Court for an order that such not occur
b.in relation to any serious health decisions concerning the child the mother must use her best endeavours to consult with the father before a decision be made and
c.the mother must keep the child enrolled at C School for her primary education years and S School for her secondary education years.
Child’s living arrangements
The child live with the mother on the following conditions (the conditions):
a.the mother no later than 2 weeks from the date of these orders take all necessary steps to attend at the Mental Health Service (Port Adelaide) (MHSPA) for the purpose of assessment and cognitive behavioural therapy or other therapy in relation to the matters raised in the report by Mr F, psychologist, 13 August 2010 concerning the mother and the transcript of his evidence 10 November 2010
b.the mother no later than 2 weeks from the date of these orders take all necessary steps for the child to attend Child & Adolescent Mental Health Services (CAMHS) at its Western District office at Port Adelaide for:
i)assessment and therapy of whether the child has or is at risk of developing obsessive compulsive disorder and
ii)other psychological therapy and/or support
with specific regard to Mr F’s transcript of evidence concerning the child 10 November 2010
c.the mother must attend all appointments arranged for her by MHSPA unless genuinely prevented from doing so in which case she is to provide written reason to MHSPA for each and any missed appointment
d.the mother must ensure that the child attends all appointments arranged for her by CAMHS unless genuinely prevented from doing so in which case the mother is to provide written reason to CAMHS for each and any missed appointment
e.the mother must follow all reasonable directions given to her by MHSPA as part of any program of assessment and/or therapy and her attendance at MHSPA continue until she receives a written discharge by MHSPA certifying that no further therapy is required or necessary
f.the mother must follow all reasonable directions given to her by CAMHS as part of any program of assessment and/or therapy for the child and ensure the child’s attendance at CAMHS continue until the mother receives a written discharge by CAMHS certifying that no further therapy for the child is required or necessary
g.the mother must keep the independent children’s lawyer advised of her residential address and notify the independent children’s lawyer in writing within 24 hours of any change.
The treating practitioners of the mother at MHSPA and of the child at CAMHS are at liberty to confer with each other if considered appropriate in relation to the progress of and best interests of the child.
The independent children’s lawyer as soon as possible provide to MHSPA, CAMHS and the Director-General, Department of Families SA copies of the following:
a.these orders and accompanying reasons for judgment
b.report Mr F 13 August 2010 concerning the mother
c.report Mr F 13 August 2010 concerning the father
d.transcript of evidence Mr F 10 November 2010
e.the 5 family reports by Dr A.
The independent children’s lawyer may seek in writing from and be provided in writing by MHSPA and CAMHS information as to the dates and times of attendance by the mother and the child at scheduled appointments and of any scheduled appointments not attended or cancelled.
The independent children’s lawyer may, if he considers appropriate, report to the Director-General, Department of Families SA if the mother should breach any of the conditions.
Child’s time with father
There be no specific orders for the child to spend time with the father, however:
a.If the child expresses to the mother a desire to see or spend time with the father, the mother must use her best endeavours to facilitate that
b.If the father seeks to see or spend time with the child the mother must use her best endeavours to facilitate that
c.The child may also spend time with the father in Scotland if pursuant to order 9 the child should travel to Scotland.
Child’s telephone and other communication with father
The father may send the child letters cards and gifts and may telephone the child on special occasions and otherwise at reasonable intervals provided that he must not refer to any Court proceedings or any conflict with the mother.
Overseas travel
The child may travel to Scotland to visit and stay with the paternal grandfather and/or the paternal grandmother during school holiday periods, and during such times spend time with the father, provided that:
a.the paternal grandfather and/or the paternal grandmother have sent a written proposal to the mother including the proposed dates of travel, proposed handover dates times and arrangements and proposed other arrangements including whether it is likely the child will see or spend time with the father
b.upon the mother’s written approval of the arrangements she is provided by the paternal grandfather and/or paternal grandmother with prepaid return economy air tickets for herself and the child (it being intended that the mother accompany the child during all air travel).
Parties’ ability to make other arrangements in writing
Despite these orders, the parties may make other arrangements in relation to the child spending time with each of them, provided that such other arrangements are agreed in writing.
Parties’ communication
All written communications between the parties concerning the child be by email or text message and not contain any subject matter other than as may relate directly to the child and the carrying out of these orders.
To facilitate such written communication the parties as soon as possible provide each other with an email address and/or SMS text message service number and give written communication of any change of such within 24 hours of any change.
Information
The parties must notify each other as soon as practicable of any serious accident or injury concerning the child.
The parties must notify each other of the names and addresses of any treating medical or health practitioner the child attends and any hospital the child attends and authorise such to provide to the other at his/her request and expense any information or reports concerning the child provided that this order is sufficient authorisation to do so.
The parties must authorise the child’s school to provide each other at his/her request and expense information concerning the child, copies of school reports concerning the child and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.
Attendance at the child’s school
The parties may attend any school or extra curricular activities usually attended by parents such as parent teacher interviews, concerts, sports days and the like.
Non denigration
The parties must not make any derogatory statements about each other or any members of the other’s family or permit other persons to do so in the presence or hearing of the child.
Adult issues
The parties must not discuss adult issues with or in the presence or hearing of the child and use their best endeavours to ensure that other persons do not do so.
Further specific restraints
The father must not when the child is in his care:
a.physically discipline the child
b.use cannabis or be under the influence of cannabis (meaning, having had cannabis proximately before the child coming into his care)
c.use alcohol or be under the influence of alcohol (meaning, having had alcohol proximately before the child coming into his care).
The mother must not when the child is in her care:
a.discuss with her or within her hearing any allegations of abuse of the child by the father
b.take the child to any consultations interviews assessments or examinations with any psychologist psychiatrist therapist counsellor or social worker other than as provided for in order 2
c.take the child for any consultations interviews assessments or examinations by any medical practitioner concerning any allegations of abuse by the child of the father without written authorisation of an officer of the Department of Families SA.
Custody of passport
The child’s passport is to be held by the mother.
The father must, as soon as possible, give the child’s Australian passport to the independent children’s lawyer, either personally or by post, to enable the mother to collect it from the independent children’s lawyer.
All other orders discharged
All other orders concerning the child are discharged.
All other applications dismissed
All other applications concerning the child are dismissed.
Independent children’s lawyer
The independent children’s lawyer not be discharged for 12 months.
Liberty to apply
The parties and the independent children’s lawyer have liberty to apply by arrangement directly with the Associate if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification.
NOTATION:
The Director-General, Department of Families SA respectfully is referred to the reasons for judgment and in particular paragraphs 191 - 198.
IT IS NOTED that publication of this judgment under the pseudonym Darcy & Cameroon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: ADC 928 of 2007
| MS DARCY |
Applicant
And
| MR CAMEROON |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings concern T born in July 1998 (the child), now 12½ years. Her parents are Ms Darcy (the mother) and Mr Cameroon (the father).
T has a half sibling K Darcy, 25 years, who has a young child OB, nearly 1 year. K lives in Melbourne with her TB and OB.
At the time of the trial, the child T was living with the mother in Adelaide and had done so since 20 October 2010.
The child’s father on that date in effect put the child into the mother’s care. He told Mr D, the school principal of C School, the child’s school, that he was departing for overseas that date “for a while” or “indefinitely” and authorised the school to allow the mother to collect the child on that day.
This is the third trial in a series of proceedings concerning t between 2001 and 2010, spanning nearly 10 years of her life. After the first trial, Dawe J on 17 March 2004 ordered that the child live with the mother, spend time with the father and other orders. After the second trial, Le Poer Trench J on 20 April 2006 ordered that the child live with each of the parties on the week about shared care basis and other orders.
The mother commenced the current proceedings on 11 May 2007, a little over a year after the most recent final orders. In her application she sought final orders that she have sole parental responsibility for the child, and that the child live with her and spend time with the father as may be agreed between the parties. Subsequently, by her then solicitors, the mother provided a substitute set of proposed orders dated 9 September 2009 (annexure A to the mother’s affidavit filed 3 November 2009) seeking that the mother have sole parental responsibility for the child, that she live with her, spend specified time with the father and other orders, including that she have permission to relocate the child to either Melbourne or Darwin. At the trial however the mother stated that several of those orders she no longer seeks. In essence, at the trial the mother sought orders that she have sole parental responsibility for the child, the child live with her and spend time with the father as the child wishes and other orders.
On 4 November 2010, the first day of the trial, the father’s name was called three times in the Court precinct. He did not appear and was not represented. On that date I determined that I was satisfied that the father had notice of the proceedings and voluntarily had left Australia indefinitely, and further determined that in those circumstances it was appropriate that I proceed in relation to the mother’s application on the undefended basis and to dismiss the father’s claim made by his response filed 4 September 2007 (amended 12 February 2010) and draft proposed orders filed 28 August 2009 that there be a final order that the child live with him, that he have sole parental responsibility for her and other orders. See transcript 4 November 2010, and my reasons for proceeding in that way, incorporated into the transcript of that date. I should add that there was other evidence that the father had told the child he would be overseas for six weeks or three weeks or six days. That is not of consequence. The fact is he voluntarily absented himself from the trial.
Background
The reasons for judgment given by Dawe J on 17 March 2004 set out in detail the background matters concerning the parties and the child up until that date.
Le Poer Trench J, I am told, apparently gave reasons for judgment in relation to the final orders he made on 20 April 2006, however the reasons were not transcribed.
The circumstance of the father’s absence and that I have heard the mother’s case on the undefended basis has effect that I need not set out in detail all of the events which have occurred concerning the parties and the child since the date of Le Poer Trench J’s orders. I would refer however generally to the helpful chronology dated 2 November 2010 provided by Mr Boehm of Counsel, for the independent children’s lawyer, of time the child has spent with each party (ex 8, third sheet).
As shown in ex 8, the week about shared care ordered by Le Poer Trench J lasted for nearly 2 years, until 29 February 2008. On that date, Burr J made an interim order that the child live with the father and spend supervised time with the mother. Despite this, the child spent no time with the mother for 10 months, and then supervised time at a contact centre commencing in late 2008. On 7 November 2008, Burr J made a further interim order for the child to spend time with the mother, unsupervised, from 10.00am until 5.00pm on alternate Saturdays, and 10.00am until 5.00pm on the intervening Sundays which by further interim order made on 18 December 2008 was extended on a graduating basis to alternate weekend time. There were subsequently several other variations, some of which are shown in ex 8, such that for the almost 2 years between 16 February 2009 and the third trial in November 2010, no fewer than 15 substantive interim orders were made, as well, it would appear, as about 13 procedural orders (that is, about 28 orders in all during that period).
The result is that the current interim order in place is that the child live with the father. However, as I have explained, as at the time of the trial the child was living with the mother and had done so since 20 October 2010 when the father departed for overseas.
It is relevant to mention that between the first and second trials the mother served a period of imprisonment for contravention. This is detailed in the reasons for judgment of Dawe J, 3 November 2004, pars 1-8, and summarised succinctly also in a chronology filed by the father’s former solicitors (undated), at p4.
After the second trial, on 24 July 2007 the father punched the mother in the stomach at the Hospital when the child was about to undergo an anaesthetic. He pleaded guilty to aggravated assault. No conviction was recorded. He was released on a $100 good behaviour bond for 12 months with conditions. See the mother’s affidavit filed 5 November 2010, book of annexures, annexure AE (father’s criminal record) and annexure B (Magistrate’s sentencing remarks 24 September 2009). In the sentencing remarks, the learned Magistrate observed that the punches were not sufficient to knock the mother to the ground and did not have much force. The mother sought criminal compensation from the father and in that regard was examined by a Dr BL, psychiatrist: ex 1. The compensation claim was settled recently, apparently in October 2010.
The child has reported recent violence by the father directly to her, in particular, by way of seemingly on some two or more occasions pressing his hands over her mouth to stop her crying, while holding her from behind with an arm around her waist; and as recently as a visit to Scotland in December 2009 forcing her to eat a gingerbread man which apparently she did not wish to eat and covering her mouth with his hands.
Whilst it is not necessary that I make specific findings in relation to these matters described by the child, nor appropriate, in the father’s absence, that I do so, it is certainly the case, as will be seen, that she appears to be very much afraid of the father and has expressed that she does not wish to see him or spend time with him.
Notices of Child Abuse or Family Violence
Since the second trial, the mother has filed three Notices of Child Abuse or Family Violence, namely on 11 May 2007, 20 October 2008 and 2 December 2009, to which I would refer without setting out. Indeed, the allegations are too voluminous to set out. They contain a combination of specific allegations, general allegations, comment and secondary conclusion and are characterised by much cross-referencing to the mother’s affidavit material filed from time to time since 11 May 2007.
In the father’s absence, there is no opportunity to test his version of the events surrounding the many allegations. Whilst, as I have said, it is not necessary for me to make specific findings, and in the father’s absence inappropriate that I do so, later I will make observations.
Principles relevant to parenting orders
Children’s best interests paramount
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underlying objects
Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, 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;
·and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·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).
Determining what is in a child’s best interests
Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.
Parental responsibility
Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.
Equal time/substantial and significant time
Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.
Prior parenting plans
Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.
Other provisions
The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.
Weight
Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.
Russell & Close principles
As will be seen, a question arose during the trial whether the mother has a genuine belief that the father has harmed the child, and in the future will harm her, with any significant effect on her capacity to parent the child and so impinge on her best interests. It is convenient thus to refer to the relevant principles concerning this aspect of the matter.
A & A (1998) FLC 92-800 continues to be the leading authority as to this issue, as set out by the Full Court at [3.27]-[3.29]:
3.27It is only in cases where the trial judge reaches a conclusion that objectively there was no unacceptable risk that that Judge would need turn to the separate question of the wife’s belief in the occurrence of the events in question as a separate matter, as the judgment of the Full Court in Russell and Close (25 June, 1993, unreported but frequently referred to in this area) demonstrated: see also, for example, Re Andrew (1996) FLC 92-692, which has some similarities with this case.
3.28If the wife had such a belief, it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held. The reason for that, as explained in Russell and Close and in cases which have followed that since, is that if the wife genuinely holds that belief that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interests of the children contact should continue and/or whether it should be supervised to allay those apprehensions.
3.29It appears to us that his Honour’s approaches confused these two aspects. The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance. The approach of his Honour of determining whether the wife had a genuine and objectively valid belief in the events giving rise to her concerns is to confuse these two separate issues. The result is, in our view, that his Honour’s approach was erroneous.
As the first of those paragraphs makes clear, it is only in cases where the trial judge reaches a conclusion that objectively there is no unacceptable risk that he or she would need to turn to the separate question of a belief in the occurrence of the events in question, as a separate matter.
In Russell & Close [1993] FamCA 62 the Full Court at [35] and [38] said:
35.The trial Judge, as we have said, made a specific finding of fact that it was unsafe for the husband to have overnight access at present, as the wife would use such occasions to make more allegations against him. She also concluded that it would not be to the children's benefit to run the risk of subjecting them to "a hysterical and deliberate pattern of behaviour" by the wife in relation to such further allegations, which would cause "further scenes to which overnight access would lend fuel".
36.Counsel for the husband contended that there was no evidence before her Honour to support either of those conclusions. He submitted that there was no evidence of any hysterical behaviour by the wife outside the court, and no evidence that the children had been affected adversely to date by any statements or actions of the wife. He submitted that it was a "quantum leap" for her Honour to move from the wife's admitted hysterical comportment in the courtroom (during cross-examination about her raising of the sexual abuse allegations) to a conclusion that she would behave hysterically outside the court-room, on or in relation to access occasions, if the husband were granted overnight access, and that such hysteria would impact adversely upon the children's welfare.
37.Her Honour had the unique advantage of hearing and observing the behaviour and demeanour of the wife in the courtroom during the proceedings, and particularly whilst she was under cross-examination. That advantage is of even more significance in this case than it is in most appeals because a copy of the transcript of the proceedings before her Honour was not included in the Appeal Book. We do know, from passages in her Honour's judgment, that the wife at times behaved quite uncontrollably and inappropriately during the hearing. For example, at p 10 of the Appeal Book her Honour refers to the fact that the wife "several times became excessively antagonistic and from the witness box became verbally aggressive towards the husband to the extent of interrupting the hearing". Similarly, at pp 26-27 her Honour recorded that "the wife at times also very obviously became tearful when she seemed not to want to answer a question directly", and that "at other times in evidence her tears seemed to be more those of anger and she became very hysterical and aggressive in her words, manner and gesture in court, mainly towards the husband, but occasionally towards his counsel". At p 33, her Honour referred to the fact that the children "have to live with a mother who can be extremely hysterical and with a step-father who appeared on his evidence to be antagonistic and also uncharitable towards the husband".
38.Judges are entitled, and are frequently called upon, to draw inferences as to the likely future behaviour of a party to proceedings from that party's past behaviour, as revealed by evidence in those proceedings. There is no difference, in principle, between behaviour of a party as revealed by evidence in the proceedings and behaviour of that party as revealed to the court directly in the course of the proceedings. No doubt when considering whether the behaviour of a party in court during the hearing of proceedings is a reliable guide to likely future behaviour by that party out of court, a judge will take into account the context in which the former behaviour occurred, and make due allowance for the fact that the surroundings and atmosphere of the courtroom are novel and perhaps stressful for the party and quite different from the context in which the party normally functions. Nevertheless, we are of the opinion that it is open to a trial judge to draw inferences as to a party's likely future conduct in another context from the conduct which that party has displayed in the courtroom during the hearing of the proceedings. That is what her Honour did in this case, and we are unable to conclude that, in doing so, she erred in any way. (emphasis added)
Despite the observations highlighted, several Full Court decisions since Russell & Close have referred to the need for expert evidence in relation to the second limb as described in par 3.29 in A & A, that is, whether a parties’ belief will impact on his/her capacity to parent a child and so impinge on the child’s best interests. See, for example, F & F [2005] FamCA 534 at [65]; Aldridge & Keaton [2009] FamCAFC 229 at [143]:
143. The evidence before the Chief Federal Magistrate did not disclose this case to be one which fell to be determined having regard to the principles discussed in Russell & Close (unreported, Family Court of Australia Full Court, 25 June 1993) and A & A (1998) FLC 92-800. There was no expert evidence that the mother’s parenting would be so compromised that she would be unable to effectively parent the child.
The evidence
The mother relied on evidence by herself, K Darcy (her daughter), Ms OW (friend), Ms E (friend), Ms S (former girlfriend of the father), Mr D (school principal, C School), Ms YG (principal consultant, Catholic Education Office, South Australia), Ms W (school chaplain, C School), Ms M (curriculum coordinator, C School), Mr AI (social worker, supervisor Department of Families SA), Police Officer RO (SA Police), Detective MI (SA Police), and Reverend Father MA (Catholic Priest). The mother relied also on two affidavits of the independent children’s lawyer annexing various documents.
Although the mother’s case proceeded on the undefended basis, such that pursuant to Rule 16.07(2) (which applies to the “first day”), but which by implication extends to Rule 16.09 (“continuation”) and Rule 16.10 (“final stage”), I was entitled to proceed on the basis of the mother’s and the independent children’s lawyer’s evidence, it is appropriate, as this is a parenting case, that I have regard also to the father’s material. Thus I have had regard to the father’s response and amended response to which I have referred earlier, his trial affidavit filed 22 March 2010 and draft proposed orders filed 28 August 2009.
The independent children’s lawyer relied upon reports by Mr F, clinical psychologist, in relation to the mother and the father, each dated 13 August 2010, and five family reports by Dr A, social worker and the family consultant engaged in the matter dated 25 February 2008, 11 February 2009, 7 July 2009, 17 May 2010 and 19 October 2010.
In addition, the parties relied upon documentary evidence: exhibits 1-15.
It is not necessary to refer to all of the evidence. If in these reasons I should not refer to the evidence of a particular witness or parts of the evidence of any witness it ought not be inferred it has been overlooked. All of the evidence has been considered carefully.
The statutory matters
The child’s best interests
I turn now to the statutory matters concerning the child’s best interests.
Section 60CC(2) – the primary considerations
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents
The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark (2009) FLC 93-405 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.
Section 60B of the Act provides that the objects of Part VII are to ensure the best interests of children are met by (amongst other things) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests and protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Plainly, one of these objects may impact upon the other.
There is little doubt that, prospectively, T would benefit from having a meaningful relationship with each of her parents, if that should be possible to be achieved. However, the high level of conflict between them, detailed in the five reports of Dr A, the two reports of Mr F and the 10 year history of the litigation indicates little prospect of this being able to be achieved.
Dr A said in her fifth report, 19 October 2010, the most recent report as at the date of the trial:
4.In what appears to be repetitive, long standing and intractable litigation on the part of [the mother], [the mother] continues to seek to have [the child] in her full time care, and continues to allege all manner of abuses by the child’s father Mr. [Cameroon] upon [the child].
…
11.At present, [the child’s] living arrangements are that she lives with her father and spends some weekend times with her mother. There have been numerous applications made by [the mother] since February of 2008 when [the child] went to live fulltime with her father.
…
67.Overall, this assessment has essentially considered the nature of [the child’s] relationships with each of her parents and the nexus between empathic and safe parental capacity, those child/parent relationships, and the child’s developmental needs and best interests. …
68.The data collected from Mr. [F] and Ms. [EW’s] reports and from the previous four Family Reports have all contributed to this evaluation and subsequent recommendations for the Court’s consideration. This analysis gives significance to the far reaching serious developmental, emotional, psychological, psychosexual dangers and detriment that have reportedly been presented to [the child]. They have been presented through exposure to tightly held views that each parent has expressed over time about the other but particularly by [the mother’s] ceaseless campaign of promulgating to all available her view of Mr. [Cameroon] as a father who sexually and otherwise abuses [the child] and who has done so allegedly prior to and since the child was three years of age.
…
79.At twelve years of age, [the child’s] best interests are inextricable bound up in her emotional, psychological and psychosexual development and well being. The nature and quality of her relationship with her mother does not appear to be sound. It appears to be substantially qualified by [the child’s] thus far remarkable resilience to what the child must know is her mother’s seemingly professional complainant type preoccupation with having [the father] exorcised from [the child’s] life. [The father] has been described and assessed as a domineering man; nevertheless he has not apparently had any professional opinions of him, his behaviour or personality that would support [the mother’s] highly contested and highly inflammatory views of, and allegations against him. (emphasis added)
These few paragraphs are sufficient to exemplify that it is likely that any prospect of the child having a meaningful relationship with both of her parents is likely to be thwarted by their longstanding high conflict.
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence
Dr A concluded in relation to the mother (fifth report):
80.[The mother] appears motivated in her views by her unshakeable beliefs, which according to her reports to Mr. [F], have never been articulated to her by [the child] that the child is a victim of sexual and other abuse from her father. These motivations appear to emanate from [the mother’s] psychological and emotional incapacity to deal with her childhood traumas and her seemingly all consuming and self-reported commitment to her continuing allegations against [the father]. It seems useful to point out that understanding the import of a child’s negative childhood experiences which appear chronic and ongoing and involve ongoing emotional and psychological abuse, as [the mother] described to Mr. [F], appears to have greater coherence with regard to understanding the likely relationship between such childhood negative experiences and adult maladjustment.
81.There appear to be clear indications as Mr. [F] has noted that [the child] is very likely to face unacceptable risks to her wellbeing directly as [the mother] continues with her apparently vexatious position. There were no clear indications that [the mother] is likely to provide [the child] with rational, psychologically safe, child focussed and empathic nurture and care that does not involve requiring the child to join her mother in assassinating her father’s character.
Dr A concluded in relation to the father (fifth report):
82.The nature and quality of the relationship between [the child] and her father appears to be of good enough quality wherein the child to date has not alleged that her father is sexually abusing her or indeed, physically or psychologically mistreating her. The majority of the allegations against [the father] of abuse upon [the child] have emanated from [the mother]. The child has referred to historical allegations of smacking, hand over mouth and sitting on a couch. The child has never reported sexual abuse, being thrown around, being tormented by name calling, being ignored, being threatened, rejected, or otherwise abused. [The child] has not run away from her father’s home. [The child] apparently enjoyed her trip overseas with her father.
…
84.[The father] does not appear to be motivated by drugs or alcohol abuse notwithstanding his stated use of marijuana. He has maintained employment and stable accommodation. He has maintained [the child] in school and has supported the child financially and as best he could in all other ways.
In her oral evidence, Dr A was asked whether the child would be a “child at risk” if placed with the mother. Dr A remarked that whilst this might be a “fait accomplit”, as the father had not appeared at the trial:
…notwithstanding this I would have concerns for [the child] living with her mother full time
and
…her development has been impacted and [the child] in her emotional, psychological and psychosexual sense will be affected.
Mr F said in his oral evidence, of the mother’s problems, and potential effect on the child (transcript, 10 November 2010, p6):
Yes, thank you?‑‑‑With a father of alcoholism, a mother with major mental illness, a bipolar effective disorder. And there’s research looking at the effects of major mental illness in the parents upon children. And they are at risk for mental health problems. And the tragedy would be that if she doesn’t address her own problems that the same thing may happen to her daughter.
…
(p10):
MR BOEHM: Do I take it, Mr [F], that now that you know that the father is not primarily caring for the child and at this point is not seeking time with [the child] that – would you consider, from your psychological perspective, that [the child] is still a child at risk and a child at risk in the mother’s primary care?‑‑‑Yes.
…
(pp12-13)
And, Mr [F], moving from the general to the particular in this case for [the child], are there any developmental challenges that she has?‑‑‑I’m concerned that if she has a mother who is overly anxious and depressed and is very risk averse, exaggerates the level of danger in the world, that these fears will then transfer to [the child] and lead to a child who lacks confidence, is insecure, anxiety prone, and when things go wrong, not know how to deal with it.
HER HONOUR: Yes.
MR BOEHM: Do you perceive that is the risk for [the child] in this case?‑‑‑Yes, your Honour.
On the basis of the expert evidence, thus, there is ground for considerable concern that the child will suffer psychological harm if she lives with the mother, meaning, as I understood the evidence, lives with the mother “full time”. In relation to the father, his absence at the trial has effect that it is difficult to conclude the degree of substance in the litany of allegations of sexual, physical and other abuse by him of the child over nearly 10 years, so as to be able to conclude whether the father does or does not present to the child a serious risk of harm of, at least, physical and emotional abuse.
Dawe J dealt with the allegations of sexual abuse in 2004.
The current allegations are more directed to physical and or psychological harm.
Certainly there is evidence, as I have mentioned, that the child expresses fear of the father. The “hand over mouth” allegations referred to earlier in these reasons, and by Dr A, and the “gingerbread man” allegation referred to, if true, potentially would fall into a category of inappropriate physical discipline. Whilst such matters alone can amount to family violence, there are several other matters reported by the child to the mother, and to others, which matters, if true, are of a high level of concern. The allegations are so numerous that it is necessary to be selective. The mother’s affidavit filed 5 November 2010, pars 129 (part only) – 130 are illustrative:
129.[The child] also indicated that her father had driven past our new house several times during the first week of the holidays in September 2010. [The child] was anxious and worried about this. … I do not believe the father knows the exact house however was using [the child] once again to try to locate me…
130.[The child] has during court adjournments informed me that her father has interrogated her with questions and caused her to cry through questioning her on a chair at his house and not allowing her to move from the chair until he has finished. He had indicated to [the child] that he knew what she was saying to the counsellors but wanted her to tell him because he knew the truth already. [The child] said she told him that she didn’t know or say anything and the father she said would Yell at her loudly calling her a “F.ucking liar” causing her emotional distress. I say just before the father left [the child] revealed to her “I know you don’t love me”. [The child] said he makes her feel guilty for what he has done to her. She said she felt sad most of the time with him and didn’t feel motivated to do anything with him. I don’t like him! (added emphasis except 8th line)
K, who is the child’s half sister, at 25 years, is twice the child’s age. K provided two affidavits filed 26 November 2009 and 20 September 2010, which, from a sister’s perspective, contain telling evidence. K said (first affidavit):
7.Your honour I had been subject myself to the anxiety and the effects of [the father] and my mothers hostility over many years. I can understand and appreciate like no one else what [the child] is feeling. I had to leave the state of Sth Australia at a young age to escape the stresses of exactly what [the child] is now experiencing.
8.I hold great fears for [the child’s] mental and emotional wellbeing. [The child] has stated to me that she would like to live with her mother full time because she feels happy and safe when she is there.
In an earlier paragraph, there is consistency with the mother’s evidence of the child telling her of the father’s questioning of the child (same affidavit):
5. I am also worried for the wellbeing of my mother [Ms Darcy] as [the child] has also stated to me, “My dad asks me questions all the time, like where mum lives and when I tell him I don’t know he says he already knows the answers and he is seeing whether I will lie to him or tell him the truth”. [The child] says, “He says if you don’t tell me I will throw that perfume [K] bought you in the rubbish”.
Another consistent matter of concern throughout the material is the suggestion that the father is critical of the child because of her weight, and that she does not eat healthy foods, with the complexity of the fear by the child of germs at the father’s house so that she will not eat there, K reporting (same affidavit, par 4) that the child has said to her “Well why can’t [I] live with mum because at least I feel I can eat at her house”; “If I don’t eat I will just die” and “It would be sad for you but not me at least I will be dead”.
In her second affidavit, K said that the child has mentioned that she does not take her belongings to the father’s home because he either hides them or threatens to break them (par 19); that she has witnessed the child crying “everytime she has to return to her father” (par 19); that the child is sad when she “has had to go to her fathers and she should no longer be forced to do that” (par 19); that when K was living in Adelaide she witnessed the child with bruising when she would return to the mother’s care from the father (par 21); that after the recent trip to Scotland, in relation to the “gingerbread man” incident the father “kept yelling at [the child] and she was crying” and “then belted her 3 times while she was lying on the floor on her stomach and she couldn’t do anything just lay there” (apparently hearsay from the child) (par 26); and the following, which I will set out:
30.[The father] slowly put a wedge between me and mum and caused a lot of trouble for us. He did this by threatening my mum not to help me and if she did she would cop it from him. I seen my mum hit across the head and belted by [the father] which was emotionally painful. I felt helpless because he would threaten me as well and he assaulted me as well. The most painful abuse that has stayed with me was the emotional abuse of [the father] and the denigrating me and my developing body. I have fears for [the child] because I know he emotionally abuses her to. She tells me all the time about his put downs and she is already so worried about what she looks like and always talks about how ‘fat’ she is. She doesn’t feel happy and confident like a little girl should.
Other telling evidence was given by Ms S, a former partner of the father who, it should be noted, alleged that after breaking up with the father he stalked her (a complaint also made by the mother); referred in her affidavit filed 20 November 2008 to his habit in 2003 of taking speed, ecstasy and cocaine; and to a time in 2008 when for a short period she lived with him and the child, the child at this stage being 10 years. She had this to say:
9.During the period that I was residing at the home in […] [2008] I observed that [the father] was verbally abusive and physically abusive towards [the child]. [The father] treated [the child] like a slave in the house and spoke to her as if she were a dog. He ordered [the child] to get his alcohol and cigarettes and ashtray. He smoked Cannabis in [the child’s] presence.
…
12.In recent times I have noticed that [the child] has become unhappy, scared and unable to achieve her full potential like she used to be. She does not know how to act as she did before and is violent with my son and animals.
13.During this last period I also observed that [the child] only had a bath once a week, she had been developing some eating disorders and was becoming concerned about her body image.
14.I am genuinely concerned about the welfare of [the child] whilst she is in the care of [the father].
Ms S said in her oral evidence that during “the whole relationship” between the father and herself in 2008 the father abused the child “but not in front of people”. She said “he was drunk all the time pretty much. We lived most of our life at the pub” and that the abuse that she witnessed by the father of the child in 2008 (August to October 2008) was “physical, verbal and emotional.”
Ms S said that she was diagnosed with a “bipolar condition” in about 2001 but that it is managed with medication. There is no expert evidence to suggest that her condition has any negative impact upon the reliability of her affidavit or oral evidence.
A matter which, if true, strikes me as amounting to cruelty was described by the mother of the child wanting the father to buy her a “slushie” drink. The child reported that the father refused to buy her a slushie but bought himself one and had it in front of her saying she would not get any. The child told the mother she “did not eat her dinner” and the father had said “people who don’t eat their dinner do not get slushies”, and that he had then bought himself a slushie and said to the child “deep down I know you want one because they are nice” but that the child was not given a slushie. (Mother’s affidavit filed 8 December 2009, par 8).
Dr A noted at par 82, set out above, but which bears setting out again in part:
…The majority of the allegations against [the father] of abuse upon [the child] have emanated from [the mother]. The child has referred to historical allegations of smacking, hand over mouth and sitting on a couch. The child has never reported sexual abuse, being thrown around, being tormented by name calling, being ignored, being threatened, rejected, or otherwise abused. [The child] has not run away from her father’s home. [The child] apparently enjoyed her trip overseas with her father.
However, although Dr A has been involved with the matter now since at least her first report dated 25 February 2008, her opinion at par 82 is inconsistent with the evidence to which I have referred, save in relation to any (recent) sexual abuse allegations and save for the observation that the child “has not run away” from the father’s home.
Dr A, at par 83, said:
…[The child] continues to refrain from stating that she does not want to live with her father.
This observation, it appears to me, also is inconsistent with the evidence, as will be seen below, when I deal with the child’s own expressed views. Moreover, there is evidence, which I have touched upon, that the child has said that she does not want to express her feelings to Dr A because she is afraid that her father would then read them in Dr A’s reports. Thus, as I understand this aspect of the evidence, the child deliberately has refrained from telling Dr A her genuine feelings.
Finally in relation to this aspect of the matter I would refer, without setting out, to the Notices of Abuse. Even a cursory glance at the third Notice of Abuse filed 2 December 2009, first page, complaints numbered 1-20, shows subject matter unlikely to not have at least some foundation, and the threads of which are picked up in the evidence, to resonate with consistency, eg.
5.Father throwing [the child’s] belongings which include box of pencils. Father has broken and bent [the child’s] headbands to hurt her.
6.Father threatening to smash [the child’s] perfume in the middle of the road causing [the child] emotional upset (special present to [the child] bought by her sister [K])
7.Threatening to shove food down the child’s throat if she does not eat.
9.[The child] arriving at [C] School crying due to father yelling at [the child].
10.Father yelling at [the child] for using to (sic) much toilet paper when in fact the child had a urine complaint (frequent urination)… .
11.Father passing indirect messages to kill mother: i.e. telling [the child] to tell mum I’m going to kill her… .
Looking at the evidence as a whole, concerning conduct by the father to the child, it is unlikely that there have not been at least several instances amounting to abuse, if not a serial pattern of conduct by the father to her amounting to abuse. However, as the father did not appear at the trial or participate in it, it would not be appropriate to make specific findings or to express a concluded view. It is sufficient to observe that there is a considerable body of evidence of allegations of abuse of the child by the father, with effect not only of the potential for physical and psychological harm for her, but also, it would appear, a rational explanation for her expressed dislike of him and her own wish at 12½ years to avoid suffering at least emotional harm from being subjected to or exposed to abuse by him.
Section 60CC(3) – the additional considerations
Any views expressed by the child
The child has been pleading, desperately, it would appear, to not live with the father or be required to see him. Since February 2008, it will be recalled, except for a 10 month period, the child lived with the father and spent weekend and other time with the mother, until 20 October 2010, when the father departed for overseas and left the child in the mother’s care. The child’s pleading is extensively recorded. The mother, during the trial, made application on the child’s behalf for the child to speak with me. I declined that application on the basis that I prefer to deal with the matter on the evidence.
The mother’s affidavit filed 5 November 2010, book of annexures, annexure O, is a note in the child’s handwriting dated 8 December 2009, with the top right corner section marked “Please don’t read out for my own safety”. The note reads:
Dear Judge
I need to talk to someone today no (sic) another day I relly (sic) need to talk with you or someone that can help in person. Why. Becouse (sic) I don’t feel safe with my dad.
I feel safe and happy at my mums she is loving. Please please let me talk to someone. Thank you.
A second note, 24 February 2010, also annexure O, is too lengthy to set out, but in part reads:
Dear Judge
[T] is sad and do you no (sic) why? Well here is why well I don’t whant (sic) to live with my dad.
…
Says he will kill my mum that makes me sad
…
He has hung me over buy (sic) a three story balcony at his (frienids) (sic) …house. With his arm.
…
He has said to me that I am a bich (sic). Talked mean about mum.
…
No I do not want to come to him.
…
Please read and belive (sic) me so I dont have to go to my dads ever agen (sic).
Please Judge
All I whant (sic) is to live with my mum…
The note, covering 8 pages in childish scrawl, bears reading in full.
Exhibit 2 is a contemporaneous diary note by Father MA, of a visit with the child on 28 June 2007, which contains the following (extracted parts):
T: Yes. I want to be at my Mum’s forever. I don’t like my dad for he hurts me for no reason. I like Mum because she is caring – joyful and friendly – buys me lots of things. At dad’s, Nana buys me most of my clothes.
…
T: I have never seen her. She lives in Scotland. My Nana is really his stepmother. He smacks me. I don’t like it at dad’s. Only watch TV and do dishes I have to clean up all the time.
…
T: …He told me to say my mother was stupid. I didn’t want to say it. Dad does drugs. Starts with M. That’s the short way to say dope. He grows it. He told me not to tell anyone because I will get into trouble. One thing I am concerned about. He is going to kill my Mum. I want to stay with her until she dies.
Exhibit 3 (part) is a note prepared by Mr D, school principal at the child’s school, C School. The note is in a Mandatory Notification Record 27 November 2009:
I rang CARL to report that [the child] was extremely distressed, sad and upset about having to be with Dad. She asked me if there was anyone she could speak to who would actually listen to her and help her. She also said that she feels that nobody is asking her what she wants or listening to what she wants. After a conversation with my Principal we gave [the child] the phone number for the Kids Helpline and assured her that we were doing everything we possibly could to help and support her. She has been noticeably more upset more often and has verbalised to me that she does not want to live with Dad and that she misses, loves and wants to be with her mum. Her not eating or drinking anything from her Dad’s house continues to be of great concern.
Exhibit 4 is a diary note by Dr A of a telephone conversation with Mr D on 9 March 2010 containing the following (extract only):
Mr [D] reported that [the child] has been confiding certain information to him and the school chaplain since the beginning of term 4 2009. He noted that he has made several child protection notifications (based on the information from [the child]) to Families SA (Child Abuse Report Line) since that time. Also shared information with other leadership staff members. The several notifications referred to the amount by the school. I have only personally made a couple.
Mr [D] was able to sat that [the child] has spoken to a range of at the school in the last six months and he and other staff have noted that they have perceived a change over a period of time in how [the child] is coping in comparison to how she was coping previously.
Mr [D] noted that [the child] has enquired, of those whom she has spoken, about who might be interested in hearing what [the child] might have to say. ‘Who will listen to what I want?’ is the way she stated it.
He said [the child] has noted the following in a manner that was sometimes matter of fact and sometimes in a manner that indicated that the child was upset. :
·She would like to live with her mother
·Why she should be living with her father?
·Why will people not listen?
·Why she cannot have things the way she wants?
Mr [D] reported his view that [the child’s] demeanour has demonstrated that the child has been upset more in comparison to how the children (sic) previously presented. He said that they still see the enjoyment and pleasure that [the child] demonstrates at times but that the ‘upset’ times are now more prevalent.
…
Mr [D] reported that it appears that the most difficult times for [the child] occur in the transition from mother’s care to father’s care.
Exhibit 6 is a coloured chart prepared by the child “All About Me” which includes a “Family Tree” including the mother, K, TB, OB and Z, but with no mention of the father, and contains (amongst other matters):
I love being with my mum all of the time. …
Exhibit 7 is the poem by the child headed “my Mother is special to me because…”, which bears setting out because for the several positive statements in it about the mother:
She brought me to life
She cares for me whenever I need her
She loves ne so much
She takes me out where I like to go
She cooks lovely meals for me when I am hungry
She believes in me all the time
She buys me things when I want them
She does my hair how I want it
She listens to me and understands me
She helps me when I need her
My mum is so special
You are the best mum a daughter could ever have
I love you mum, I truly do
oxoxoxox
By your daughter
[T]
Ms W (school chaplain) said in oral evidence that the child has repeatedly said to her that she does not want to live at the father’s because she is “afraid”, and has repeatedly said this over the last two years. Ms W was asked whether, over that period, she has noticed any change in any pattern or degree of the child expressing this, and responded that the child is “steadily increasing her wish for something to happen and asking why someone isn’t listening to what she wants”, and “she has been asking for a long time for something to happen”, meaning, as I understood her evidence, in context, so that she can live with the mother.
It is difficult to assess weight to be placed upon the child’s expressed views. On the one hand, there is expert opinion that the child is so caught up in her parents’ conflict and the mother’s view of the father as perhaps to be unreliable. On the other hand, the evidence concerning the father’s alleged treatment of the child is such as to provide a foundation for her dislike of him, but which perhaps would be less intense but for the mother’s intolerance of the father. Whilst however it is one thing to explore the reasons for the child’s expressed views and wishes, it is another thing to consider the reality of her expressed views and wishes and the intensity of their expression in the context of her desperate plea for someone to “listen” to her and to what she wants.
A matter of great concern is that it is unknown what impact there might be upon the child if the result of this third trial should be that she feels that she has not been “listened” to.
The nature of the child’s relationships
I have referred sufficiently already to the nature of the child’s relationship with the mother and the father.
The child has a very close relationship with her half sibling K, her partner TB and their infant child OB who live in Melbourne.
There is scant evidence as to her relationship with other extended family, including the paternal grandfather and the paternal grandmother in Scotland. However, it appears that the paternal grandfather was protective of the child in relation to the gingerbread man incident, and that the child appreciated the protection.
Several of the mother’s women friends gave evidence. They appear also to be protective of the child, in particular, Ms OW and Ms E. Ms OW is a hairdresser who said that she, the mother and the child do “girly things” such as hair, nails and having dinner together. Ms E is a professional child care worker who has an adult daughter, nearly 21 years, and a younger daughter, who is 12 years, and a friend of the subject child. It appears from the evidence that the child trusts both women and has confided in them her fears and concerns, and that each provides emotional support for the child. Ms E said that the child has told her that when at the father’s home she “cries behind the shed for her mother all the time” but “can’t let the father see her crying or he would hit her”.
Very often, adult friends of parents in child cases are referred to casually as “cheer squad” witnesses, who in that capacity might not have insight or objectivity. Each of Ms OW and Ms E however, in quite separate and individual ways, struck me as sensible and sensitive women who gave evidence as to their own observations concerning the child from a genuine perspective beyond the “cheer squad” perspective.
K, although only 25 years, made clear in her two affidavits that if ultimately the child cannot live with either the father or the mother then she and her partner OB would take responsibility for her by the child moving to live with them in Melbourne.
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 made plain both in her affidavit material and in her oral evidence that she does not want the father to have any role in the child’s life. When squarely put to her in her oral evidence “You don’t want the father in her life?” the mother responded “No, I don’t”. She said however that if the father returned from overseas and wanted to see the child she would tell her but would not force her to see him.
I did not have opportunity at the trial to observe the father personally to assess his willingness and ability to facilitate and encourage a close and continuing relationship between the child and the mother. Although there is expert opinion that he has this capacity, there is evidence also that he constantly has denigrated the mother to the child. Mr F said in his report concerning the father (p 16) that he “appears to be a frustrated parent who is doing his best under difficult circumstances” and “is willing to compromise in an attempt to end the current legal dead lock”. However, Dr A referred to the circumstance that he has been “described and assessed as a domineering man” (fifth report, par 79) and it appears to me, on the face of the affidavit evidence, that probably he has little time for the mother, and has “suffered” rather than encouraged a close relationship between the child and the mother. Certainly, there does not appear to me to be anything very positive about a father telling a child that her mother is “stupid”, and that he will “kill” the child’s mother, if indeed these things happened.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other child or person (including any grandparent or other relative of the child) with whom she has been living
I have referred to ex 4, being the diary note by Dr A of a telephone conversation with Mr D on 9 March 2010. As at that date, the child had lived with the father for nearly 2 years. It is important to note that Mr D reported his view that the child’s demeanour has demonstrated that she has been “upset more in comparison to how” she previously had presented and that her “upset” times had become more prevalent. I have referred also to the evidence of Ms W, the school chaplain, of the child “steadily increasing” her desire over the last 2 years for “something to happen” in the sense of “listening to what she wants”.
According to the mother, the child at the time of the trial was much happier, having lived with her since 20 October 2010 after the father’s departure for overseas. At the time of the trial this circumstance had obtained for only two weeks. Whilst there is no expert evidence of the effect on the child now if she were required to return to live with the father primarily, but spend time with the mother, even substantial and significant time with the mother, there seems a sense of inevitability of continuance of the “cycle” of accusations by the mother against the father if such should occur, with effect that conceivably there could be no possible end to the conflict which the child has had to endure now for nearly 10 years and the likelihood thus of further litigation concerning her. A judge does not need expert evidence to conclude that continuation of the cycle that has occurred over the last 10 years would be destructive for the child and damaging to her. In particular it is unlikely that the mother’s “ceasless campaign” (Dr A’s fifth report, par 68), which has been on foot now for nearly 10 years would be likely to cease.
Dr A (fifth report, recommendations) offered three options. The first was that the child live with the father, that he have sole parental responsibility until she reaches 18 years, the child have no communication with the mother for say at least 12 months for the child to have “some respite from the mother’s views and litigation” and that the mother be ordered to undergo ongoing psychiatric or psychological treatment for at least 12 months to then be reassessed by Mr F as to whether she has the capacity to “nurture her daughter in the absence of any denigration” of the father. The second was that the situation “remains the same”, that is, the same as prior to the father’s departure for overseas if he should return. This, it was observed, “would not offer any respite to either [the child] or the father” from the mother’s “stated intentions to continue to try and achieve her desired result” of having the father removed from the child’s life. The third was the same as the first, but without the last limb of subsequent reassessment by Mr F. Notably, none of Dr A’s “options” contains a recommendation that the child live with the mother. Equally notable however is the circumstance that at the trial there was no expert evidence as to the effect on the child now if she should either remain in, or be returned to, her father’s primary care, with effect that she is likely to feel that she has not been “listened to”, nor indeed the effect on the child of the removal of the mother from her life for the period of “at least” 12 months.
For my part, it is plain that the child is dependent upon the mother, whom she perceives to be her primary carer, even while she was living predominantly with the father. This much is evident from exs 6 and 7, to which I have referred, and the evidence of Ms OW and Ms E.
I am conscious of the opinions of Mr F and Dr A to the effect that it is destructive for the child to live with the mother. (I refer to this more below in relation to the parties’ capacities to provide for the child’s needs). In dealing with the likely effect of change, however, one thing is clear, and that is that the arrangement pursuant to the existing final order that the child live primarily with the father and spend time with the mother is not working for the child and that according at least to her school principal and school chaplain has caused her to decline over the last two years.
Some change therefore is imperative. It seems to me that if the child should live with the mother, it is unlikely successfully that she could see or spend time with the father, at least at present, because of the mother’s “ceaseless campaign” against him so that if it were ordered that she see or spend time with the father the litigation cycle would ceaselessly continue. Conversely however, as I have said, if there should be an order that the child live with the father, that is, predicated in advance upon any return by him from overseas, there is difficulty because there is no expert evidence as to the likely effect of such on the child, according to Dr A’s first and third options, which would see the child in effect wrenched from the mother upon whom she primarily relies for her nurture, in the context also of security for her of her sibling relationship with K (although she lives in Melbourne) and the mother’s friends Ms OW and Ms E who appear also to be significant adult women in the child’s life.
Practical difficulty and expense
This matter did not assume significance at the trial.
The parties’ capacities to provide for the child’s needs, including emotional and intellectual needs
Mr F concluded in relation to the mother (report, pp21-22):
I believe that [the mother’s] parenting capacity at present is being impaired by her constant determination to use the Family Court process to protect her daughter from the father. She is unlikely to compromise and to allow [the father] any contact with their daughter. Her goal is to ensure [the father’s] contact is permanently ceased. I also believe her constant exaggerated fears of [the child] being abused by the father will contaminate [the child’s] psychosexual development. I believe that [the mother] is unlikely to be able to forgo the Family Court process for the sake of [the child’s] welfare.
I believe that [the mother] requires psychological and psychiatric assistance to overcome the psychological problems caused by her childhood abuse which now interfere with her capacity to parent [the child].
These conclusions by Mr F were in the context of the mother’s own experience of an unstable family background, with a father who was a violent alcoholic and a mother who suffered from Bipolar Affective Disorder, such that when the mother was fifteen years old she was required to assume responsibility for the care of her three young siblings while her mother was psychiatrically hospitalised for eight months and that she was exposed to both psychological and physical abuse from both her parents (Mr F’s report, p18).
Dr A concluded in relation to the mother (fifth report, par 69):
69.Overall, there appear to be significant possibilities that [the mother’s] apparent vulnerabilities and ongoing significantly impaired parenting capacity, as reported by Mr [F] and as this writer has previously reported, preclude her capacity to be an empathic, stable, safe and suitable parent to [the child] at this time. …
In contrast, Mr F concluded in relation to the father (report, p16):
[The father’s] understanding of the pernicious nature of [the mother’s] persistent allegations of child abuse is good. He is appropriately concerned about how these allegations will affect [the child’s] long-term development. He has good insight into how these allegations are to the psychological detriment of [the child].
…
I believe that [the father] is doing his best under very difficult and frustrating legal circumstances to provide [the child] with an as normal environment as possible. He is doing his best to normalise [the child’s] adolescent development by focusing on her needs and interests, not interrogating her about her mother, and shielding her from the Family Court process by not discussing matters with her.
Dr A concurred with Mr F’s assessment and concluded in relation to him (fifth report, par 84):
84.[The father] does not appear to be motivated by drugs or alcohol abuse notwithstanding his stated use of marijuana. He has maintained employment and stable accommodation. He has maintained [the child] in school and has supported the child financially and as best he could in all other ways.
Moreover, Dr A’s three options, to which I have earlier referred, inevitably are based upon her assessment that the father has the better capacity to provide for the child’s needs, and further, not just that he has the better capacity, but that the mother in effect does not have that capacity at all.
A difficulty I have however, with Mr F’s and Dr A’s adverse conclusions in relation to the mother, is that they appear to be premised upon factual conclusion that the father has not abused the child in any way, but rather is a long suffering maligned parent. This is at odds with the observations I have made concerning the father’s conduct such that it is unlikely that there have not been at least several instances amounting to abuse by the father of the child, if not a serial pattern of conduct by the father to her amounting to abuse, as dealt with already in relation to s60CC(2)(b). I would refer, in particular, to the evidence of K and of Ms S and the “slushie” incident which, if true, appears to me to be insensitive and cruel treatment of a child. Mr F’s and Dr A’s factual conclusions also do not seem to take into account the large body of evidence indicating that the father denigrates the mother to the child. The reference to damaging her headbands and threatening to smash her perfume bottle, if true, also do not indicate to me much capacity to provide for this young girl’s emotional needs. Further, if it is true that he has threatened to the child that he will kill the mother then he has serious deficiency in his capacity to parent the child. It is not the role of psychologists and social workers to make findings of fact in these matters, but the role of the judge. A stark example, I think, of apparent fact finding, on which opinions are then based, is in Mr F’s report concerning the father (extract p16 of the report, above) of the father “not interrogating [the child] about her mother”. In my view, the child’s report as to the father interrogating her has the ring of truth, as set out in the mother’s affidavit filed 5 November 2010, par 130 (above):
130.[The child] has during court adjournments informed me that her father has interrogated her with questions and caused her to cry through questioning her on a chair at his house and not allowing her to move from the chair until he has finished. …
If such has occurred, the father has not demonstrated capacity to provide for the child’s emotional needs, but rather to abuse her emotionally, with effect of that being a foundation for her not wanting to see or spend time with him.
I have the impression that over the past 10 years (nearly 10 years) of litigation there has been so much emphasis on the mother’s conduct in seeking to exclude the father from the child’s life, and the underlying psychological basis for that conduct, as assessed by Mr F, that adverse and damaging aspects of the father’s capacity to parent her have been minimised and that indeed there is the real possibility that the father has been and may continue to be cruel to the child, both physically and psychologically, as I have explained.
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
In my view, the father’s trial affidavit seeks to “gloss over” the matter of the child’s best interests, proclaiming generally that he is the “good parent” and that the mother is the “bad parent”.
It is difficult for me, as the trial judge, to accept Mr F’s opinion that the father has “good insight” (Mr F’s report concerning the father, p16) as to “how these [the mother’s] allegations are to the psychological detriment of [the child]”, meaning, “the pernicious nature of [the mother’s] persistent allegations of child abuse”, where, in my view, the father has no insight whatsoever, at least as displayed in his trial affidavit, as to the effect on the child of his cruelty to her, and indeed abuse of her, if even some of her complaints against him should be true.
Sometimes, through a quagmire of 10 or so years of litigation about allegations of abuse concerning a child, one or two reported incidents can capture attention as appalling, if true. In all of the evidence in this matter which I have read, and heard over the six day trial period, three things about the father have struck me as appalling, if true. The first is the “slushie” incident, already referred to. The second is the “gingerbread man” incident, already referred to. The third, if true, is the father’s apparently serial denigration of the mother, his use of the child to stalk the mother and his telling to the child of his intention to kill the mother. Less striking, but also appalling, if true, are the allegations concerning the threat to smash the child’s perfume bottle given to her by K; the damage to the child’s “headbands”, which clearly are important to her; and the allegation of not letting her leave a chair while interrogating her about the mother.
If these matters be true, it is little wonder that the child desperately is seeking the protection of her mother and the exclusion from her life of the father.
Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent
It is necessary to consider 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 and 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 and communicating with the child; and has fulfilled or failed to fulfil the parental obligation to maintain the child.
These matters have been sufficiently canvassed, to the extent relevant, in the s60CC analysis.
Beyond that, the psychological implications for the child, as to whether she should now live with the father or the mother have predominance.
Discussion at to “statutory pathway”
The “statutory pathway” has effect that I am obliged to consider the aspect of parental responsibility for the child, before considering the child’s living arrangements. This is an oddity in the current legislation. However, I am obliged by the legislation to consider the “statutory pathway”.
Parental responsibility
The presumption in s61DA(1) does not apply and is ousted by at least the incident of violence to the mother on 24 July 2007, to which I have earlier referred.
Even if the presumption were not ousted I would conclude in any event, in this particular case, that it is not in the child’s best interests that her parents have equal shared parental responsibility for her.
As at the time of the trial, the father was overseas, with no firm indication of whether, and if so when, he may be likely to return.
In these circumstances, in my view it is in the child’s best interests that the mother have sole parental responsibility for her, but with restrictions as to the child’s residential location, any serious health decisions concerning her and her schooling, which I will set out in the order concerning parental responsibility.
Equal time
The circumstance that I will not make an order for equal shared parental responsibility for the child has effect that I am not obliged pursuant to s65DAA(1) to consider whether the child spending equal time with each of her parents would be in her best interests and reasonably practicable.
However, it is appropriate nonetheless that I consider that.
I have referred already to Le Poer Trench J’s orders made on 20 April 2006 that the child live with the parties on the week about shared care basis. That lasted for about two years, but then failed. Presently, there is no indication on the evidence to which I have referred, without repeating it, that such would be likely to be in the child’s best interests, or successful.
In these circumstances, it is not necessary or desirable in this case to consider whether such would be reasonably practicable.
Substantial and significant time
Similarly, whilst the statutory pathway does not oblige me to consider whether a substantial and significant time order is in the child’s best interests, that is, that she live with one of her parents and spend substantial and significant time with the other parent, the particular circumstances of the case make plain that such would not work, nor be in the child’s best interests.
In particular, if I were to order that the child live primarily with the father, and spend substantial and significant time with the mother, or order that the child live with the mother, and spend substantial and significant time with the father, the evidence to which I have referred already, without repeating it, makes plain that such is neither recommended by Dr A, nor likely to be in the child’s best interests.
What order is appropriate, in the child’s best interests?
The difficulty with the father not appearing at the trial, and not participating in it, and on 20 October 2010 choosing to depart for overseas and in effect putting the child on that date into the mother’s care, has effect that I am obliged, on the one hand, to consider the matter of her best interests in that context, but on the other hand, in the context also that at any time the father could re-appear, so that a final order that the child live with him, if he should re-appear, must also be considered.
Perhaps, the father considered that he could thwart the Court process by departing for overseas, and that upon his return the interim orders put in place by Burr J on 18 December 2008, as subsequently varied, would continue as if final orders, so that if he should return to Australia from overseas, having abandoned the child on 20 October 2010, things could “pick up” as they were. This is fundamentally wrong, and, I would emphasise, fundamentally wrong for the father to absent himself from the trial concerning the child if indeed he, as he avows, is concerned with her best interests.
One of the fundamental difficulties which I face, by the father absenting himself from the trial, is that he did not subject himself to cross examination as to the many allegations of abuse of the child made against him, to which I have referred, including as reported by Father MA, K and Ms S, not just by the mother.
It is 4½ years since the last trial, when the child was nearly 8 years. She is now 12½ years.
The allegations of abuse against the father are serious. His absenting himself from the trial has effect that it would be inappropriate for me to make specific findings against him because, put simply, he did not present for cross examination.
Usually, any judge would be slow to make a final order that a child live with a parent who has absented himself or herself from the trial process.
The submissions
Mr Boehm of Counsel, for the independent children’s lawyer, helpfully provided written proposed final orders, which are annexed to the record of proceedings, with hand annotations by me which during argument Mr Boehm accepted.
In short, Mr Boehm submitted that as the father has absented himself from the trial, with effect that his application for a final order that the child live with him should be dismissed for want of prosecution, there should be a final order that the child live with the mother, but conditioned upon the recommendations of Mr F that the mother attend at the Mental Health Service (Port Adelaide) for the purpose of assessment and cognitive behavioural therapy or other therapy in relation to the matters raised in Mr F’s report concerning the mother and the transcript of his evidence 10 November 2010, and that the mother ensure that the child attend at the Child & Adolescent Mental Health Services at it Western District office at Port Adelaide for assessment and therapy of whether the child has or is at risk of developing obsessive compulsive disorder and other psychological therapy and/or support, with specific regard to Mr F’s oral evidence concerning the child on 10 November 2010.
In his oral submissions, Mr Boehm emphasised that, if there be a final order that the child live with the mother, there be a “safety net” of the conditions which he urged, emphasising that any final order that the child live with the mother be strictly conditioned upon her compliance with the “safety net” conditions.
During argument, reference was made to the necessity for the conditions to not be “freestanding”: see Bookhurst & Bookhurst [2010] FamCAFC 26; and the earlier decisions of L & T (1999) FLC 92-875 and Jacks & Samson [2008] FamCAFC 173. As proposed, the conditions are not “freestanding”.
In finality, Mr Boehm submitted that in the absence of the father prosecuting his application that the child live with him, her best interests would be met by the child remaining living with the mother, provided that there be the “safety net” of the conditions proposed such that, if the mother cannot meet them, she will “pay the price” of the independent children’s lawyer seeking that the Director-General, Department of Families SA take the child into State care.
The mother provided written submissions, supported by oral submissions, that the child live with her.
Analysis and decision
It is significant that there is profound expert evidence opinion by Mr F and Dr A that the child will be “at risk” in the mother’s care, and that a final order to that effect would not be in the child’s best interests, for the reasons already explained by reference to their very careful evidence, despite the criticisms of their opinions and evidence which I have seen fit to make.
There is however the pragmatic circumstance that on 20 October 2010 the father put the child into the mother’s care, and chose not to participate in the trial.
I have considered, very carefully, whether in all of the circumstances, in particular having regard to Mr F’s and Dr A’s opinions and evidence, and Dr A’s recommendations, I should order that the child live with the mother until the father’s return from overseas, if that should occur, and that then the child live with the father and have no communication with the mother for at least 12 months, as recommended by Dr A. However, as I have observed already, there is no expert evidence as to the effect on the child of Dr A’s first and third options, so as to deprive her of the comfort and nurturing which, obviously, she has from the mother, in the circumstances explained, nor of the effect on the child if she should feel that she has not been “listened to”, having already become steadily more upset over the last two years in the opinion of her school principal and school chaplain, especially in light of Mr F’s evidence concerning obsessive compulsive disorder, although the child is yet to be assessed, of the potential manifestation, in a person with that condition, of “depression and suicidality”.
The evidence of Mr F and of Dr A as to detriment to the child if she should live with the mother cannot be underestimated.
However, if the child does have obsessive compulsive disorder, the circumstance of any order that she live with the father, on Mr F’s evidence, particularly in light of the child’s expressed wishes, and complaints about “germs” in the father’s house, and not wanting to eat there, would be of concern.
There is also evidence that the mother, even if ordered to attend upon psychiatric or psychological assistance for herself, may be likely to thwart that, on the basis of her own conviction that she needs no assistance.
Be that as it may, in the circumstances which I have outlined, and having regard to the evidence, the statutory matters which I am required to consider, and the submissions, I am satisfied that the child’s best interests will be met by a final order that she live with the mother, but premised upon the “safety net” conditions proposed by Mr Boehm.
The real question which then arises is whether I should make any specific order for the child to spend time with the father, or leave that “open” to the mother’s ability to arrange that, but bearing in mind the expert evidence that she is unlikely to have the capacity to do so, with effect of there being no utility in such an order.
Mr F, on 10 November 2010 (transcript, p15), favoured an “open” order:
Okay. So sometimes the court orders in rare circumstances that there be no contact between a child and a father. That is not the case here. Other times the court orders there be no orders for contact between a child and the father. Do you see the difference? I get the impression that what you are recommending to me that I actually make an order that there be no orders for contact between [the child] and her father. That doesn't mean that if [the child] turned 15, rebelled against the mother and flew to Scotland and wanted to live with the father, she couldn't. But you see the difference. One is there be no – one is an order but there be no time between the child and the father. I am not contemplating that. The other is an order that there be no orders for the child to spend time with the father. Leaving it open, if the child ever wanted to, to ring her father up and say, help, daddy. Come and get me. I hate mum?‑‑‑I understand that would be an open order.
Yes?‑‑‑Yes, your Honour.
So you would recommend that?‑‑‑Yes, your Honour.
In other evidence however Mr F was clear that if I should make an order that the child live with the mother, it not be left for the child to decide if and when she spends time with the father, but there be an “open” order for the mother to facilitate that if possible.
Doing the best I can, it seems to me that if I am to make a final order that the child live with the mother, I should make no specific order for the child to spend time with the father but to formulate orders for that to occur, if possible.
It may be that it will be impossible for the mother ever to agree to the child spending time with the father.
However, it is to be hoped that the mother will comply with the first condition of the child living with her, that is that she attend at Mental Health Service (Port Adelaide) for the purposes I have described, and with the benefit of cognitive behavioural therapy and other therapy, as described, she will be able to facilitate the child spending time with the father.
In all of the circumstances of the case, although I am conscious that there may be no utility in an order that the mother facilitate the child to see or spend time with the father if she expresses the wish to do so, or if the father seeks to see or spend time with her, unfortunately presently that is the best that can be done, and I will make orders to that effect accordingly.
I propose also to make an order that the father may send to the child letters cards and gifts and that he may telephone her on special occasions and otherwise at reasonable intervals. Whilst this was not specifically canvassed, there was no evidence that such would cause detriment to the child, and in my view such would be in her best interests to maintain ongoing relationship with the father.
Specific reference was made, during argument, as to whether the mother would be agreeable to the child travelling to Scotland to stay with the paternal grandfather and/or the paternal grandmother during school holiday periods. The mother seemed agreeable to this, provided that she be able to accompany the child on all air travel, and that the cost of such be provided by the paternal grandfather and/or the paternal grandmother. The mother specifically acknowledged that, if such travel occur, the child may see and or spend time with the father, if he be in Scotland at the same time. I will include an order reflecting this.
I am satisfied, having regard to all of the matters to which I have referred, that in all of the circumstances of the case the orders I propose to make are in the child’s best interests, and will make further orders relating to matters of communication, information and other matters which I consider also to be in her best interests.
In relation to the “safety net” which Mr Boehm urged, I will make an order that the independent children’s lawyer as soon as possible provide to the Mental Health Service (Port Adelaide) and to the Child & Adolescent Mental Health Services copies of the orders which I will make, the accompanying reasons for judgment and other material, and an ultimate “safety net” provision that the independent children’s lawyer may, if he considers appropriate, report to the Director-General, Department of Families SA, if the mother should breach any of the conditions of the order that the child live with her.
There will be restraint orders in relation to both the mother and the father, as proposed by Mr Boehm. I am satisfied that each is reasonably necessary, in relation to the child’s best interests.
There will be orders also in relation to the child’s passport, as canvassed during argument, namely that it be returned by the father to the mother and be held by the mother. In particular, the purpose of the mother holding the child’s passport is that it is intended that if the child should travel to Scotland the mother accompany the child during all air travel.
Also as canvassed during argument, there will be an order that the independent children’s lawyer not be discharged for 12 months.
The father’s application, by his response, will be dismissed.
Final observations
Ultimately, I would make the observation that if the mother should breach any of the conditions of the order that the child live with her, upon information from the independent children’s lawyer to that effect, then in my view there is nothing further presently that the Court can do in relation to the child’s best interests, there having been ongoing litigation now for nearly 10 years, such that the Director-General, respectfully, potentially would need to regard the child’s case as a welfare matter and consider taking her into his care. Categorically, further litigation now would not be in her best interests. Further, in my view, the utility of Court proceedings presently is exhausted.
Put shortly, but firmly, presently I am unable to forsee any basis upon which, in any future proceedings, the Court could make a final order that the child live with the father, because of her expressed fear of him, and also because he may well be an abuser of her. Put another way, on all of the s60CC factors, as I have analysed them, in my view it is unlikely that the Court would now make a final order that the child live with the father, having regard to her age, fears and circumstances. Utterly, this is contraindicated because of her firm attachment to the mother, whom the child regards as her primary carer, nurturer, and person of safety realm.
This is a matter which calls into sharp focus the difference between the “statutory pathway” which the Family Court of Australia is obliged to observe, in particular, the s60CC considerations in relation to determining a child’s best interests, and the starkly different powers of a State welfare authority, able to act upon quite different considerations.
If ultimately the Director-General should take the child into his care, on the basis of breach by the mother of the conditions of the child living with her, respectfully I would suggest that the child not be placed into the father’s care, for the reasons already canvassed. Perhaps, consideration could be given to placing her with Ms OW, if she be a willing carer, or Ms E, if she be a willing carer, or alternatively with her half sibling K, in Melbourne, by appropriate State arrangements.
T is 12½ years now. Very soon she will be 14 years, and of an age to “vote with her feet” in relation to whether she lives with the father, the mother, or someone else.
I would venture to suggest that if the mother should breach the conditions of the parenting order that the child live with her, such that the Director-General place her with the father, even at her present age 12 ½ years, the child may be likely to “vote with her feet” and run away from the father (even though she has not done this to date), back to the mother’s residence, such that ultimately such placement may be to no avail.
In relation to the child’s mental health, there is an overriding consideration which has emerged in this trial, the third trial concerning her, namely whether she may have symptoms of or be developing, or have, obsessive compulsive disorder. In my view, whatever else happens, for the child’s present and future mental health, she needs urgently to be assessed in this regard, as stated in evidence by Mr F.
Imperatively, it will be recalled that there is evidence of manifestation of obsessive compulsive disorder symptoms when the child is in the father’s home, but not the mother’s home.
I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 6 December 2010.
Associate:
Date: 6 December 2010
0
5
1