Davidson and Cox and Anor
[2017] FCCA 2832
•22 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAVIDSON & COX & ANOR | [2017] FCCA 2832 |
| Catchwords: FAMILY LAW – Parenting – care and protection order – intervention by Department of Health and Human Services – parental responsibility – change in living arrangements – mother’s attitude to the father – mother’s capacity to parent – mental health of the mother – supervision – unacceptable risk of psychological harm. |
| Legislation: Family Law Act 1975(Cth), ss.4, 60B, 60CA, 60CC, 65DAC, 65DAE, 69ZK |
| Cases cited: A & A (1998) FLC 92-800 M & M (1988) 166 CLR 69 Oscar & Traynor [2008] FamCA 95 |
| Applicant: | MR DAVIDSON |
| Respondent: | MS COX |
| Intervenor: | DEPARTMENT OF HEALTH AND HUMAN SERVICES |
| File Number: | HBC 95 of 2013 |
| Judgment of: | Judge Baker |
| Hearing date: | 25,26,27,28, 29 July 2016, 8 September 2016, 20,21,23 February 2017, 24 March 2017, 11 August 2017 and 27 October 2017. |
| Date of Last Submission: | 27 October 2017 |
| Delivered at: | Hobart |
| Delivered on: | 22 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Munro |
| Solicitors for the Applicant: | Munro & Associates |
| Counsel for the Respondent: | Ms Graves |
| Solicitors for the Respondent: | N/A | |
| Counsel for the Independent Children’s Lawyer: | Mr Fitzgerald | |
| Solicitors for the Respondent: | Fitzgerald & Browne | |
| Counsel for the Department of Health and Human Services: | Mr Lee | |
| Solicitors for the Department of Health and Human Services: | Director of Public Prosecutions |
ORDERS
BY CONSENT THE COURT ORDERS THAT:
That the child [X] born (omitted) 2007 ([X]) live with the father.
That the father have sole parental responsibility for [X].
That [X] spend supervised time with the mother each week for 1-2 hours at (omitted parenting program) or other supervised time by an agreed supervisor with such agreement to be in writing between the parties.
That the mother have supervised telephone communication with [X] each Tuesday, Thursday, Sunday between 6:30pm and 7:30pm for approximately 30 minutes and the mother shall telephone the father and he will facilitate that call to [X].
That neither party shall denigrate the other to the child and shall as far as is practical not allow others to do so.
That neither party shall consume illicit drugs while [X] is in their care.
That neither party shall use physical discipline on [X].
That the mother is restrained from taking [X] to any medical practitioner or counsellor except for a medical emergency.
That the mother is restrained from attending the school that [X] attends unless invited by the father in writing.
That the mother can contact the school attended by [X] by telephone to be provided (via post) with school reports, notices and school photos for [X].
That [X] spend other time as agreed in writing between the parties.
That Mr I’s report, Dr D’s report and the Judgment and Reasons for Judgment be released to any counsellor of the parties or [X] and also any expert who conducts a review.
That forthwith within seven days the parties shall complete the application to the Registrar of Births, Deaths and Marriages for the birth certificate of the child [X] born the (omitted) 2007 to identify the father as Mr Davidson.
BY CONSENT THE COURT NOTES THAT:
These orders are inconsistent with the following Orders provided in the Interim Family Violence Orders:
(a)Order 2 - not threaten harass or abuse [X];
(b)Order 3 - in respect to approaching [X] or Ms Cox;
(c)Order 4 – not to entre where [X] is living;
(d)Order 5 – not to go within 200 metres of where [X] may be living;
(e)Order 8- not damage property of [X];
(f)Order 9 – not go within 200 metres of School A where [X] may be present.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Davidson & Cox & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 95 of 2013
| MR DAVIDSON |
Applicant
And
| MS COX |
Respondent
And
| DEPARTMENT OF HEALTH AND HUMAN SERVICES |
Intervenor
REASONS FOR JUDGMENT
Introduction
This is a parenting application regarding the living arrangements for the child [X] born (omitted) 2007 (‘[X]’), now aged 10 years old.
[X] had lived with his mother all of his life until March 2016, when he was placed by the Department of Health and Human Services (‘the Department’) with his father and paternal grandmother after an assessment order was made pursuant to s.22 of the Children, Young Persons and Their Families Act 1997 (Tas). A care and protection order was made pursuant to s.42 of the same Act in around May 2016. [X] has been having supervised day time with the mother.
Background
The parties were in a relationship from around 1992 until 2007, according to the father, and until 2013 according to the mother.
Final parenting orders were made by consent on 18 December 2013. The orders provided that [X] live with the mother and spend alternate weekend time, special day time and school holiday time with the father.
The mother’s affidavits contain extensive allegations about the father perpetrating family violence against her and [X], both prior to and after the making of final parenting orders by consent in December 2013. At least fifteen notifications have been made to the Department. Between 2008 and 2013 around six notifications were made.
On 19 August 2014, the father filed an application seeking final orders that [X] live with him and spend time with the mother each alternate weekend. He also filed a contravention application. The mother sought an order that [X] spend no time with and have no communication with the father. She asserted that [X] was at risk of harm in his care, due to him physically hurting [X] on a number of occasions from January to July 2014.
On 21 November 2014, the final orders which were made in December 2013 were varied on an interim basis. The interim orders provided that the father have telephone communication with [X] and spend time with him for two hours each week, supervised by the paternal grandmother.
Between December 2014 and February 2015, three further notifications were made to the Department and in August 2015, three notifications were made to the Department and to Tasmania Police about [X] being assaulted by his father.
On 16 June 2015, on the father’s contravention application, the mother was found without reasonable excuse to have contravened the orders made on 21 November 2014, in respect of [X] spending time and having telephone communication with the father.
On 2 September 2015, interim consent orders were made that [X] be referred to Mr S, a clinical psychologist.
A further notification was made on the 14 September 2015 to the Department that [X] had alleged that his father ‘always beats him’.
On 5 November 2015, interim consent orders were made inter alia, that [X] live with the mother, and spend time with the father each alternate weekend; seven nights in each school term holidays; two separate periods of seven nights in the Christmas school holidays; and special day and telephone time.
Following concerns raised with the Department, [X] was placed in the home of the father and paternal grandmother on 1 March 2016. [X] commenced attending School B in Grade 3.
On 4 March 2016, the Secretary of the Department (‘the Secretary’) filed an application in the Magistrates Court seeking orders for custody of [X], an assessment of each of the parents of their parenting capacity and ability to care for and protect [X], and for each party to follow specified conditions.
On 16 March 2016 an assessment order was made for 28 days and custody of [X] granted to the Secretary. This order has been extended on several occasions and continues to have effect.
On 23 May 2016 an order was made granting the Secretary leave to intervene in these proceedings.
The basis of the Department’s concerns is the impact of the mother’s anxiety on [X]’s psychological and emotional well-being, by her subjecting [X] to multiple attendances upon various professionals to support her claims about the father being violent towards [X].
Counsel for the Secretary indicated in his case outline that on the basis of s.69ZK of the Family Law Act 1975, upon the making of parenting orders by this Court, the Secretary will apply to revoke the care and protection order currently in place.
The father reported that [X] is going well at school, has settled in and made friends. He has not missed any days of school and has not required numerous doctors’ appointments.
Issues
The main issues are the mother’s attitude to the father, her capacity to parent, and her mental health. Central to this are the mother’s allegations of family violence and abuse and whether these have been exaggerated or are baseless for the purpose of interfering in [X]’s relationship with his father.
Proposals
The father essentially sought orders that he have sole parental responsibility of [X], [X] live with him and spend supervised time with the mother for two hours per fortnight at the (omitted children’s contact centre)
The Independent Children’s Lawyer (‘ICL’) and the Secretary supported the father’s proposals.
At the commencement of the hearing, the mother sought orders for equal shared parental responsibility of [X], and that he live in a week-about arrangement, subject to the same conditions agreed by the parties in December 2013. After all the evidence was heard, she altered her position.
Consent orders were agreed at the end of the trial. They essentially provide that the father have sole parental responsibility for [X]; he live with the father and spend supervised time with the mother each week for one-two hours at (omitted parenting program); and [X] have telephone communication with the mother each Tuesday, Thursday and Sunday between 6:30pm and 7:30pm for approximately 30 minutes. Various restraint orders were also agreed.
Reasons for judgment and findings were still required by the parties and in my view are necessary, due to the mother’s family violence allegations made against the father, her lack of acceptance of Mr I’s report, and a concern that she will continue to make allegations.
The concerns of the father were noted in his case summary:
The conversations between [X] and his mother have convinced [X] that he has actually been assaulted by his father when it is plainly untrue. If the mother is granted unsupervised time with [X] such allegations will likely continue and further court proceedings will be required.[1]
[1] Case Summary of the Applicant Father filed 22 July 2016, 2.
Evidence
The father relied upon the following documents:
·His affidavit filed 23 June 2016;
·Affidavit of Ms J filed 23 June 2016;
·Affidavits of Ms Cox filed 18 November 2014 and 8 April 2015;
·Reasons for Judgment dated 21 November 2014;
·Report of Mr I released on 25 August 2015;
·Report of Dr P dated 21 October 2015; and
·Report of Dr D dated 13 June 2016.
The mother relied upon the following documents:
·Her case summary dated 25 July 2016 and sworn by the mother 28 July 2016;
·Her affidavit filed 8 April 2015;
·Affidavit of Dr J filed 22 March 2017;
·Affidavit of Mr L filed 20 March 2017;
·Affidavit of Dr D fled 21 March 2017; and
·Affidavit of Dr W filed 21 March 2017.
The Independent Children’s Lawyer relied upon the following documents:
·Report of Mr I released by the court on 25 August 2015;
·Report of Dr P dated 21 October 2015;
·Report of Dr D dated 13 June 2016; and
·Affidavits of Mr S filed 27 July 2016 and 21 March 2017.
The Secretary of the Department of Health and Human Services relied upon the following documents:
·Affidavit of Mr H filed 27 June 2016;
·Affidavit of Ms E filed 30 June 2016;
·Expert report of Mr I released by the court on 25 August 2015;
·Report of Dr P dated 21 October 2015; and
·Report of Dr D dated 13 June 2016.
Mother’s Mental Health
The ICL filed an affidavit of Dr P, Consultant Psychiatrist, about the mother’s mental health. His opinion is that she is not suffering from a psychosis:
i.e. that she is deluded or has other features of a major mental illness such as abnormal mood, perceptual disturbances or disturbances in the form of her thinking. However there was a certain demeanour which I found evident early on that Ms Cox was attempted to portray herself in a very positive light and unwilling to reveal any fragilities which have been described in a number of reports particularly that of Mr I… While in my opinion Ms Cox does not currently reveal evidence of a major mental illness she does reveal evidence of significant personality dysfunction or at least that is my conclusion after reading many of the key documents and observing her for more than one hour.
Dr P recommended that Ms Cox would likely benefit from engaging in treatment with a clinical psychologist to address areas of personality dysfunction outlined in this report and in other reports.
Evidence of Dr D
Dr D is a forensic and clinical psychologist. She prepared a report dated 13 June 2016 at the request of the Secretary for the care and protection proceedings.
On the first day of the hearing, I made an order granting leave for all parties to inspect this report and for the report to be released to Mr I. The report was admitted into evidence and Dr D was cross-examined.
Dr D’s opinion was that the mother’s heightened anxiety about [X] being unsafe in the care of the father has a negative psychological impact on [X] and has interfered with his ability to enjoy meaningful time with him.
She recommended that it is in [X]’s best interests to continue to live with the father and paternal grandmother for the remainder of the school year. This will provide some stability and give [X] the opportunity to spend significant time in the paternal extended family environment.
Dr D reported:
I have formed the view that [X] has tried to please his mother by aligning with her heightened perceptions of the risks posed by Ms J, and he has been actively involved in reporting violent incidents and attending for forensic photographs on numerous occasions. This dynamic has provided a significant barrier to [X] spending meaningful time with his father. He is currently benefitting from the opportunity to live with the father and paternal grandmother due to the intervention of child protection services. In my view, this time is valuable to protect him against the process of alienation from his father that he was experiencing when in the care of his mother.
It is my view that the current intervention is a positive and protective one for [X], and that through this experience both [X] and Ms Cox will be provided with evidence that [X] is safe and content in the care of his father, and that this evidence may reduce the heightened anxieties of Ms Cox over time.
Dr D believes that the mother’s anxiety is genuine. However, she reported that such anxiety has developed in the context of distorted perceptions. It is her opinion that she may benefit from further psychological intervention, focused on reducing her perception of threat when [X] is not in her care. She noted that evidence that [X] is safe in the care of his father should be helpful in this process of adjustment. She also recommended that should the Department remain involved with the parties, both parents participate in random drug screening to support their self-reporting about their recreational drug use.
Dr D reported that based on her assessment of the parties, she had formed the view that there has been ‘a long history of conflict’ between them, but that there appeared to be ‘inconsistent evidence regarding the nature and extent of family violence alleged by Ms Cox’. She reported that the mother’s perceptions of the family violence that had occurred did not appear to be supported by satisfactory evidence. She wrote:
Most importantly, [X]’s reactions in the care of his father are not consistent with Ms Cox’s expressed concerns that [X] has been repeatedly hurt and abused by his father. [X] does not indicate in his behaviour that this is the case at all…his behaviour as observed by others when in the company of his father does not reflect the behaviour of a victimised child.
Dr D reported that in her brief assessment of [X], he did not express any concerns about his father’s behaviour, past or present. He agreed that he was comfortable in his father’s care.
By way of explanation of the mother’s behaviour, Dr D reported that it was her clinical impression that she had been in love with the father for twenty years, and he has not wanted to reciprocate to the same extent in that relationship. She reported that the mother, rather than perceiving this situation in a framework of rejection, perceives the father’s behaviour in the framework of family violence. She noted that she had been provided with an email from the mother to Ms Rosie Batty, a well-known advocate in the area of family violence. She reported as follows regarding that email:
Ms Cox makes strong allegations in her email to Ms Batty, and she suggests that numerous professionals have been manipulated against her by Ms J, who have not been supportive of her allegations of the nature and extent of the family violence.
In Dr D’s view, the mother has an unhealthy attachment to the father. She is consciously or unconsciously using [X] to facilitate a relationship with him. By withholding contact over the years, she has used [X] to manipulate the father. She is likely not to have insight about that and it would be difficult for her to perceive the situation differently. Dr D supports supervised time for [X] with her.
Dr D reported that in the course of her assessment of the father, he acknowledged that he has lost his temper in arguments with the mother in the past. He reported that he had previously been verbally abusive towards her, and at times had been physically aggressive with objects ‘in frustration’. He acknowledged that he had smacked [X] on two occasions. He said that he had never hit the mother, but had ‘kicked her up the bum once for carrying on’.
Dr D wrote that, the father appeared to give a genuine account of his behaviour in relation to allegations of family violence. He expressed an awareness of the negative impact on [X] of being exposed to any such violence. She did not find evidence to suggest that he has a pervasive anger management problem, but that his anger could be defined as situational conflict between him and the mother.
The father reported to Dr D that he has no intention of taking [X] away from his mother, but that he felt he needed the help of authorities to address the current situation. He cannot communicate with the mother anymore, and just wants to ‘spend time with his son’. In relation to [X]’s progress since coming to live with him, the father reported ‘the difference is night and day…he’s happier, more of a little kid now…he used to always have something on his mind…you can joke with him now…he’s enjoying himself’.
In concluding her report, Dr D was of the opinion that the ‘ideal outcome’ in relation to this matter would be ‘for all parties to see the value in [X] spending time with his father, and to allay fears that he presents risks to [X]. This foundation experience may allow for a healthier shared care arrangement to be agreed in the future’.
Dr D believes that the mother’s lack of insight into the consequences of her parenting actions towards the father will not change easily. Mr I’s report indicated that there has been extensive psychological intervention without apparent success. The prospect for change would most likely be a long term scenario–years, as opposed to weeks or months.
The mother would need to gain insight in to the risks and protections that are required for [X]’s well-being in the future. There are a number of issues around anxiety, pregnancy loss, and family violence. She is of the view that Ms Cox has heightened perceptions of those risks. There is a need for focus on those perceptions of risk, and being able to parent [X] accordingly.
Dr D said that if [X] believes that these assaults on him by his father have happened, and they have not happened, she would have concerns for his psychological well-being. She could not determine whether [X] has been coached by the mother. However, [X] has been variable in his self-reporting of the incidents, depending on whom he is speaking with. This suggests to her that he is making decisions about the purpose of those reports in the context of the conversation.
In respect of the video of the police interview with [X] in August, the detail that [X] provided suggested to her that there was an argument between [X] and the father. However, the extent of what occurred in terms of the physical aggression is questionable. [X]’s demeanour during the interview was emotionless and incongruent with a description of graphic acts of physical violence. This reminded Dr D of [X]’s description of the backpack incident, in which there was an element of truth. She believes there was an argument, but the graphic nature of the violence reported to the police was not congruent. She believes a consistent theme in [X]’s reporting is that it has a foundation of truth, but then an exaggeration of violence. She believes that [X] is aware that his mother would like him to make allegations against his father.
Dr D agreed that if a child keeps hearing about an event, and keeps thinking about it, the child will believe it has happened. Any evidence then given about the event may seem to be credible. She agreed that this could have occurred. [X] had given accounts to a number of people that his father had accidentally hit him in the face with a bag. However, when speaking with the mother, and with professionals in the presence of the mother, [X]’s account was that it was a deliberate and malicious act. Dr D believes that [X] switches his recollection of events, or the way in which he describes things, depending on with whom he is speaking.
Dr D was cross-examined. Her opinions did not change. She is an experienced clinical psychologist. I accept her evidence.
Evidence of Mr I
Mr I’s report dated 24 August 2015 included a clinical assessment of the parties, a psychometric assessment, and observations of them with [X].
Mr I reported that at the time of the assessment, the mother did not appear to be suffering from psychosis. She displayed clear anxieties around the prospect of any change in the care arrangements for [X] and any close relationship that he may enjoy with anyone other than her.
The psychological testing conducted indicated an individual who is attempting to manipulate the impression of the assessor, portraying herself in a positive light, whilst insisting that the father is a disturbed and violent individual.
Mr I wrote that the mother’s personality appears characterised by emotional vulnerability and lability. She appears to be highly dependent on her relationship with [X] for her identity and self-esteem. Any threat to this relationship is met with the response designed to protect that relationship. There are aspects of both borderline and histrionic traits. Issues regarding abandonment, unstable interpersonal relationships, identity disturbance, effective instability and paranoid ideation appear to be consistently present and consistent with a borderline personality.
Mr I believes that there are clear patterns of intentional deception and manipulation by the mother in an attempt to prevent the father from having access to [X]. He believes that there is a possibility that [X] has been encouraged or even instructed to make allegations. He said there has also been abuse of systems and services as well as manipulation of other professionals, who have not had the benefit of all available information.
As a result of the mother’s beliefs and allegations about the father, [X] has been subject to presentations to multiple general practitioners, psychologists, has been interviewed by police in relation to abuse allegations against the father, has had his body photographed by police and has been subject to a forensic examination in relation to the sexual abuse allegation. Mr I wrote ‘the psychological impact of these investigations on a child of [X]’s age is of concern.’
Mr I recommended that the mother receive psychological care to assist in developing a healthier relationship with her son.
In respect of the father, Mr I wrote that there was no evidence of major mental illness noted from the psychological assessment tools used. He said that the father does have a tendency to express his anger outwardly, which may have been to his detriment within this relationship. It is his opinion that the father does not present with any sign or symptom of a major mental illness. He does not present with any traits consistent with any form of personality disorder.
Mr I recommended that the father may benefit from a referral to a psychologist or counsellor, who may assist him in developing improved coping strategies around managing interpersonal stressors and frustrations.
The mother did not demonstrate any insight about the consequences of her parenting in relation to the father. She did not believe that she was doing anything incorrectly. She believed that she was being protective of [X]. Mr I was of the view that her feelings and anxiety were genuine, but they were not based in reality and were an exaggeration. He agreed with Dr D’s opinion that it is more likely to take years than months for the mother to gain insight.
Prior to giving evidence Mr I viewed the interview of the police with [X] in August. He was of the view that:
[X]’s demeanour was fairly similar to how he presented to me...it’s also consistent with another interview by the police that I saw in 2014 – he tends to be quite withdrawn and there is not a lot of emotional tone to a lot of the disclosures that he makes – with me, he became more animated when he was talking about things that he had an interest in, that was certainly evident in the police interview as well…when it came to the disclosures, detail was fairly limited in many respects…
Many of [X]’s responses have been rehearsed. Mr I referred to an incident that occurred when he was three years old. He said that it is unlikely that [X] remembers this. It is possible that being over-exposed to similar accusations of violence and various incidents, that he may have come to believe that those things are true. There are psychological consequences to [X] believing these things have occurred.
Mr I was of the view that supervised time for [X] with the mother would be a starting point. He agrees that the best case scenario at this stage is for [X] to live with the father, and supports final orders in those terms.
For time to move to unsupervised time, there would need to be successful engagement and establishment of a therapeutic relationship by the mother with a professional, who has an understanding of all the issues. There would need to be an established pattern of change of certain behaviours. There would need to be child focused visits established for a significant period of time.
Mr I’s assessment was that both parents have strong bonds with [X], and that he has strong bonds with both parents. [X] is at a stage where he wants to be in the presence of both of his parents, seeks their reassurance, and wants to spend time with them. He may not be at a stage where he understands whether or not behaviours by his parents are causing him harm or not. Some weight would need to be given to his views, but he may lack understanding about what may occur if he is returned to a situation where one parent is alienating another.
Mr I agreed that it is possible [X] is making allegations against the father to the mother because he knows that is what she wants to hear. He wrote in his report that:
the vast majority of the memories he claims to have had there are ones that he cannot have possibly had himself, they have come from another source, most likely is mum, from discussions over a period of time, as a best case scenario, or deliberately coached.
He agreed that either way, this is damaging for [X] and his relationship with his father. He agreed that [X] would have a distorted view of his father, and needs counselling as a matter of urgency.
Mr I did not have any reason to doubt the responses/explanations of the father about the mother’s allegations.
Mr I was cross-examined. His evidence was not challenged and I accept it.
Evidence of Mr S
Mr S is [X]’s treating psychologist. He annexed to his affidavit, filed 27 June 2016, his letter to Dr W, the general medical practitioner for [X]. He detailed that he had sessions with [X] in December 2015, January 2016, April 2016 and May 2016.
Mr S reported that he sees [X] as being ‘a disturbed child’. He wrote that:
he has presented as anxious, preoccupied, often avoidant of problems and overly keen to say the right thing, often so as to not upset anyone. I understand that both parents see different reasons for this… the similarity is that both parents see [X] as being under a lot of at least psychological pressure…interestingly, both parents have described [X] as being happy when he is with them.
Mr S wrote that at his session with [X] in January 2016, he reported that his father had been violent towards him. He described several instances of violence; his father had punched his mother while she was pregnant with him; he had damaged property and vandalised the mother’s home; and he had been violent to him up until and including 2015. Mr S described him as being ‘very aligned with his mother’ at that stage, and ‘angry’ towards the father.
Mr S had a further session with [X] in April 2016. This was after he had been taken from his mother’s care and placed in his father’s care, pursuant to the intervention of the Secretary. He wrote that during this session, [X] told him that he was ‘okay’ living with his father and paternal grandmother. However, [X] was ‘very concerned’ about arrangements regarding contact with his mother, as he had no idea when he would next be able to see her.
In relation to his final session with [X] in May 2016, Mr S wrote that he discussed [X]’s living arrangements with both him and the father. He reported as follows:
Mr Davidson acknowledged that, although things were travelling along well for him and [X], Mr Davidson knew that he wanted to live with his mother and be able to see his father. He knew that he missed his friends and his particular objects at home.
In relation to [X]’s presentation at this final session, Mr S reported that he was ‘less distracted than he had previously and more responsive to issues that were raised, in that he did not avoid them’.
During cross-examination, Mr S said that [X] told him that his father had punched, kicked, and hurt him. When he asked him for details he could not give any. Mr S would have expected [X] to be able to provide details, and found it hard to believe that he was describing what he recalled, because of the lack of detail.
When the father was invited into the session, [X] was curt with him, refused eye contact, and turned away from him when he was talking. Mr S asked [X] to mention some of the things that he was concerned about. He was impressed that the father did not take umbrage. He explained that he and his mother were not going to get back together, and said that he just wanted [X] to be happy with him. Mr S said that [X] seemed to be satisfied with this.
In the April session, [X] said that he wanted to see his mother, and that it was strange to see her under supervision. He talked about not knowing what will happen.
Mr S agreed that once [X] became used to the new living arrangements and new school, he may cope better. However, [X] missing his mother may not necessarily abate over time.
In the May session, [X] said he wants to live with his mother and see his father, as before. He went into the other details about missing his films, his swimming pool, his grandparents, and his friends. The father said what he wanted for [X], and [X] was able to say what he wanted. [X] also gave an opinion about his mother wanting what he wants.
In previous sessions, [X] had shown a lot of anxiety. He was very careful about what he said, and he did not focus on topics for very long. In this session, although still upset, he was able to focus on the topic and was able to have a longer conversation.
Mr S said that if [X] is ordered to live with the father and to have supervised time with the mother, this will upset him. However, this still allows for an ongoing relationship with his mother. There should be an opportunity for that arrangement to enlarge, if the mother fulfils what is required of her. Ongoing, regular time for [X] with his mother would be a good thing for [X]. Mr S suggested ongoing therapy for [X] every fortnight. Nevertheless, he was of the view that [X] can cope living with his father by maintaining a connection with the mother.
When Mr S gave updated evidence in his affidavit of 21 March 2017, he wrote about family violence and [X]’s reports about the incident at (location omitted) when he and his mother were ‘nearly run off the road’ by the father and he had given the mother a black eye.
During cross-examination, Mr S explained that [X] had raised the incident and had given him a complicated story and he could not piece it together in a cohesive whole.
At this session, the father denied the allegations about him hurting the mother. [X] did not argue with the father. Mr S asked [X] if the father had ever been violent to him and [X] responded that he had not. This is in contrast to previous statements that he has been violent to him and his mother. Mr S noted that when [X] is with either parent, he tends to adopt their position, which reflects his age appropriate need to please them.
Mr S said that when the mother attended appointments with [X] twice in early 2017, her focus was to inform Mr S of the abuse she has suffered from the father and what she and [X] had experienced. She asked him to report that violence had occurred and to report that he believes it had occurred.
I accept the evidence of Mr S, who is an experienced clinical psychologist.
Dr W
Dr W’s evidence was based on what the mother has told him or what [X] has told him in her presence. Dr W was aligned with the mother and was unwilling to make any concessions about other expert evidence. I do not place any weight on his evidence.
Dr J
Dr J has been the mother’s treating psychologist since July 2016. The mother has had 26 sessions with Dr J.
Dr J was of the opinion that the mother does not suffer with any major mental illness and does not suffer with a personality disorder. He wrote:
in reference to the concerns raised by Ms Cox in regards to [X] suffering psychological and physical abuse from his father, it is my opinion based on my interactions with Ms Cox and a brief review of the file material at Court that it is most likely that such abuse did occur.
During cross examination, Dr J maintained the view that it is likely that such abuse occurred.
Dr J agreed that he is aware that the allegations against the mother are that she is likely to exaggerate or fabricate family violence perpetrated by the father against [X]. He is of the view that the mother is still concerned that [X] may be abused, either physically, emotionally or psychologically whilst in the father’s care.
Notwithstanding that Dr J has read Mr I’s report, he believes that the mother is accurate in her depictions of family violence against her and [X]. He is basing his opinion on his interactions with the mother and a discussion with her in regard to Mr I’s report.
Dr J agreed that Mr I is in a far better position than him to make the appropriate assessment after interviewing all the parties.
Dr J maintained his view that the mother recognises the need for [X] to have a relationship with the father, as long as there is minimal risk to him.
Dr J agreed with the ICL that the central issue for Dr D and Mr I was the ongoing allegations made by the mother, which are either baseless or exaggerated, and the lack of her insight. He agreed that based on their approach, working with the mother to change her way of thinking, so that she no longer makes baseless or exaggerated claims against the father, is a reasonable approach.
Dr J is of the view that the mother has genuine concerns. He indicated that if the court finds that the mother has exaggerated or made some baseless claims about the abuse, this would ‘to a degree’ alter his view about her way of thinking.
Dr J was of the view that the mother is capable of having insight into her behaviour and changing her behaviour. He agreed that by working with her for a period of between 12 months to two years she may change her thinking so that [X]’s time with her could move to an unsupervised time arrangement with some degree of safety and certainty.
Dr J again said that his opinion is that the mother has been ‘fairly accurate’ in her appraisal of the abuse. He believes that there has been bias in the system from the end of 2012, saying under cross examination:
From my meetings with Ms Cox, it would appear that there was a perception, perhaps, towards the end of 2012…that her brother suffered with schizophrenia, and she was most likely to have significant mental illness herself, and it…would appear that that went on police record…I think that influenced the parties past that point in their assessment or their appraisal of what they observed of Ms Cox. So it feels to me that there has been a bias in the system from that point that then led to an assessment of behaviours being a sign of significant mental health and exaggeration and distortion and parental alienation, as opposed to someone who is suffering with a history of family violence and – and not coping.
He agreed his opinion is based on believing that the authorities took a wrong tack by assuming that the mother has a mental illness.
Dr J agreed that he has accepted what the mother has told him. I asked him if I make findings that she has exaggerated incidents, how he could treat her, believing what she says. His answer was that his opinion will change and accord with the court, and he will work with her on the importance of accurate reporting.
Dr J said that the ability of the mother to move forward is recognition that some violence occurred. I pointed out to Dr J that there has already been recognition of family violence by the father and by this Court, and asked him whether the mother can move forward or whether she will focus on the past. He answered that he does not believe that she will focus on the past. He estimated that it would take six – 12 months to change her way of thinking. This is in contrast to the opinion of Mr I, who believes it is very likely to take years for the mother to gain insight into the consequences of her parenting actions towards the father.
I place little weight on Dr J’s opinions about the mother. He has accepted what she has told him. He has not had the benefit of making an assessment of her with input from other experts and from the father. This raises concerns about the future success of his treatment of the mother to enable her to change her perceptions and to enable her to move to unsupervised time with [X].
Evidence of Dr D
Dr D has met the mother and [X] on a few occasions as a general practitioner working for (medical practice omitted) in Hobart. She has seen them once in 2013 and once in 2014. She has seen the mother on 1 June 2015 and 28 October 2016. She told her that [X] had been taken from her care and was living with the father despite an AVO against him. Dr D wrote:
she came across the same as when I saw her previously, a mother desperately wanting to safeguard the well-being of her son. Her recount of events from the past matched the story she had told me previously on different visits over the past three years… She asked me specifically whether I thought that there was system abuse on her part on the occasions that I met her. On the occasions that I have met her, I have not had the impression of system abuse but rather of a woman who found herself in a very difficult, disturbing relationship with her ex-partner, which was marked by domestic violence. My impression of [X] was that he was a disturbed child who showed signs of having witnessed domestic violence… Otherwise no signs of a mental health disorder except for her sadness and anxiety surrounding her separation from [X] and the current court case.
Dr D agreed during cross-examination that she only has information from the mother and her impression was based on her interactions with her. Dr D was referred to some paragraphs of Mr I’s report by counsel for the father, in particular:
in receiving this psychological care, I very strongly recommend that any treating professionals, present or future, be presented with all of the available information regarding Ms Cox’s history. It seems that current treating professionals, including Dr R and Dr W, have been significantly disadvantaged by having the information provided to them carefully manipulated.
Dr D agreed that she can only comment on her interactions with the mother.
I place no weight on the evidence of Dr D. She relied on information provided to her by the mother and her interactions with her to inform her opinions.
Credit of the Parties
The Father
Although there were some aspects of the father’s evidence of the (location omitted) incident which were inconsistent, I consider that overall the father was a reliable witness. He made concessions of past family violence having occurred during the relationship. He was calm and patient when he gave evidence and when he was cross-examined at length by the mother. He was also patient about these proceedings and the numerous hurdles the mother has put up for him to have a meaningful relationship with [X].
The Mother
The mother was self-represented for this hearing until 24 March 2017 when she was represented by counsel until the end of the hearing.
I consider that the mother is intelligent, but manipulative. She was not a credible witness.
Her manipulative personality was evidenced by her actions in involving health professionals as a means to cease [X]’s time with the father. An example of this was when she obtained a medical report from Dr W on 21 March 2014 that she used to inform Ms E that time for [X] with the father should be suspended.
I consider that she gave evidence to suit her purposes. At the beginning of the hearing she changed her position about [X]’s time with the father after the Department obtained a care and protection order. She asserted that there has been significant family violence perpetrated against both her and [X] by the father in the past. However, she gave evidence that as there had not been any recent incidents, she changed her position about [X] being at an unacceptable risk of harm in the father’s care. She told Dr D that she would accept 50/50 shared care after the Department’s intervention.
She blamed others for deficiencies in her evidence. For example, she blamed her former lawyer for some of the wording in her affidavits.
She was intent to prove her claims about the father. She was not prepared to make concessions. She has made numerous allegations about him over many years and has involved [X] in these allegations. She has involved professionals to support her case against the father. She requested the support of Rosie Batty, the well-known advocate about family violence. She asked Ms Batty to write a letter of support to this court, asking her ‘to say that we cannot know if the father will harm the child further but due to experience you know it is a possibility and the danger is imminent despite how improbable it may seem.’
Ms E was the Principal of School A between June 2012 and December 2015. She has known the parties and [X] in that capacity during that time. The evidence of Ms E about the mother’s refusal to open the front door on 15 December 2015 highlighted the mother’s lack of credibility. During cross-examination, the mother was adamant that she opened the door to Ms E. I accept Ms E evidence that she did not open the door.
The mother’s evidence about a stillbirth in 2012 is another example of her lack of credibility. In her affidavit affirmed 2 April 2015, she deposed that:
I have been pregnant to the father innumerable times; I would estimate I have miscarried such pregnancies not less than seven times. The last time was in 2012 when I endured a stillbirth at 7 months into my pregnancy. This had a profound effect on me.
During cross-examination the mother explained that she did not have a doctor at the time of the stillbirth. She said she went to the (omitted hospital) for a scan, but could not remember the name of the doctor. She said she was not admitted to hospital, and had the birth at home. There was no other evidence of this, or the other, miscarriages. When asked if she needed a death certificate the mother said ‘well, no. It’s not a baby…’ When suggested to her by counsel for the father that, at seven months, it was a baby, she explained that it had died some months before and had disintegrated. She explained that she ‘went through it for weeks, and weeks, and weeks and weeks.’
Further on in her affidavit, she deposed:
In late 2012 I lost a late term pregnancy and delivered a still born baby. The labour came on quickly, I rang my doctor and told him, I was booked to go into hospital for the next day; he said I had to allow the loss to continue at home. That in fact is what happened. It was quite terrible. I suffered significant grief from this experience. The father was singularly unsupportive and continued to be abusive; while at all other times continuing to tell me he loved me and tell both [X] and I he was going to marry me. I did hang onto that hope. [X] was also very confused by it.
The mother blamed her previous counsel for choosing the term ‘stillborn,’ as she did not think it was a stillborn baby. She said she would have told her previous counsel that she had a late term pregnancy loss. She explained that there were not any medical records from the day of delivery because she was not admitted to hospital. She denied that the miscarriage was a fiction.
She agreed the loss occurred in late 2012, but then went on to say that it occurred around July/August 2012. She was initially unsure who her general practitioner was during this time, and later agreed it was probably her general practitioner in (omitted). She said her private obstetrician was Dr O.
She agreed that it was probably correct that she attended the (omitted medical centre) on about 10 occasions between November 2012 and late January 2013. She agreed that she did not mention the miscarriage to any of her doctors there during that time. When it was suggested to her that there was no record of the miscarriage at all in their records, she said this was ‘because there was no need to…it wasn’t a relevant issue.’ She then went on to say however that:
Actually, it would have been mentioned at some stage later on when the pathology blood test came back to show my extremely low iron levels, and I’m sure it would have been commented on there and certainly discussed that the reason I had such low levels was because of the enormous loss I had endured.
I consider this evidence about a late term miscarriage is not credible.
Relevant Law
Parenting orders are made in proceedings under Part VII of the Family Law Act 1975 (Cth) (‘the Act’). Section 60CA provides that when a court is determining whether to make a particular parenting order in respect of a child, the child’s best interests is the paramount consideration. In determining the child’s best interests, the court is guided by s.60CC, informed by s.60B.
Section 60B of the Act sets out the objects of Part VII, and the principles which underlie those objects. They are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) 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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) 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
(b) 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
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In this matter there have been allegations that [X] has suffered emotional abuse by the actions of the mother. The mother has made allegations against the father of sexual and physical abuse of [X].
In a matter involving these types of allegations, the nature of the risk is best expressed by the term ‘unacceptable risk’.[2] There needs to be an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable. The concentration should normally be upon the question of whether there is an unacceptable risk to the child. Risk covers not only physical but also emotional harm.[3]
[2] M & M (1988) 166 CLR 69.
[3] A & A (1998) FLC 92-800.
In accordance with these principles, a court should therefore evaluate the nature and degree of risk to [X] and whether, with or without safeguards, it is acceptable.
The father and the Department are seeking a change of residence for [X] from the mother to the father. In the decision of Re David,[4] the Full Court said that it is a very serious step to alter a residence order, which has the effect of removing a child from a principal caregiver. However, there are some situations where the court has no option but to do so. In that case, the trial judge changed the residence of the child David, as there was substantial evidence of emotional abuse of him by the mother. There was a need to protect David from this abuse.
[4] (1997) FLC 92-776.
I shall now turn to consider what orders should be made having regard to [X]’s best interests.
Primary considerations
Section 60CC(2)(a)
the benefit to the child of having a meaningful relationship with both of the child’s parents
I am of the view that it is of benefit for [X] to have a meaningful relationship with his father. [X] told Dr D about the many positive things he was enjoying about spending time with his father. She said that when [X] is given the opportunity to spend time with him, he reportedly demonstrates secure attachment and enjoys their time together. She is of the view that [X] will benefit from having a meaningful relationship with him.
[X] has a close relationship with his mother. I consider it will be of benefit for him have a meaningful relationship with her, if she undertakes psychological treatment and can successfully overcome her misconceived perceptions about the risk of harm to [X] when he is in the father’s care, and if she can cease placing [X] at further risk of psychological damage. Until that occurs, I consider that [X] is at risk of psychological harm, if he has unsupervised time with her.
Section 60CC(2)(b)
the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect of family violence
Pursuant to s.60CC(2A), the Court is required to give priority to this subsection over subsection (2)(a).
The evidence indicates that [X]’s chronic exposure to the mother’s heightened anxiety regarding the father has a negative psychological impact on [X]. I accept Dr D’s opinion that the mother has conveyed to [X] through her communication and behaviour that his father is someone to fear and from whom he needs to be protected. She has conveyed that it is not safe for him to spend time with his father, and that those with opposing views have been manipulated by him.
The mother has regularly taken [X] to health practitioners, such as Dr W and Dr R, to whom he has made disclosures of being hurt by his father. In January 2015, he reported that he had been punched in the back of his head and kicked in his back by the father and lost consciousness.
On 19 January 2015, the mother made a statement to Tasmania Police. She said that at Dr W’s surgery on 5 January 2015 was the first time she became aware that the father had punched [X] to the back of the head, kicked him in the back, and that [X] had passed out until the next morning.
This alleged assault had taken place on 19 or 20 December 2014, but [X] did not tell the mother after the incident. He spent time with the father on 2 and 3 January 2015 without incident.
The father denied the assault. The paternal grandmother said she was present at home, and nothing untoward happened.
On 27 January 2015, [X] was interviewed by Tasmania Police under video. The father was also interviewed. He was not charged with the assault of [X] or of the mother.
Mr I reported his conversations with [X] about his father hurting him and his mother. He wrote that the disclosures appeared to have something of a rehearsal tone to them. He was of the view that his lack of emotional reaction to his disclosures and lack of detail are of significant concern in relation to the veracity of what he was saying.
I agree with Mr I that most of the memories that [X] claims to have had, are memories that he cannot possibly have had himself. Mr I wrote that they have come from another source, most likely his mother, from discussions over a period of time, as a best case scenario, or deliberately coached. He was of the view that either way, this is damaging for [X] and his relationship with his father.
The mother made a sexual abuse allegation against the father in 2012. This was investigated by Child Protection and the police. There was found to be no basis for the allegation. At paragraph 53 of her affidavit of 18 November 2014, she deposed:
When playing a computer game later that year, [X] had asked me about the truth and imagination. I explained to him the difference in the context of movies and computer games, and [X] then told me, quite unexpectedly, “You know that thing about dad poking me up the bottom: it is true. When he pulled it out, it hurt,” but that he was too scared to tell me about it again, because Mr Davidson told him to lie and threatened his life if he didn’t. [X] said, “Please don’t tell anyone, because he will kill us.” Mr Davidson has been inappropriately affectionate with [X], kissing him on the lips as if he was his lover, not father, and then making a point of not giving the same affection to me, since [X] was one or two years old. It was weird.
The father denied the allegation. The mother subsequently consented to final parenting orders in December 2013 that provided for [X] to spend unsupervised time with the father.
I accept the opinions of Mr I and Dr D about the psychological impact presentations of [X] to professionals and various investigations have had on him.
I am of the view that [X] is at an unacceptable risk of psychological harm if he is to spend unsupervised time with the mother. I consider that [X] needs to be protected from further psychological damage from his mother’s heightened anxiety about the father, resulting in her actions referred to above. This should take priority over [X] continuing a meaningful relationship with her.
Section 60CC(3)(a)
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
[X] enjoys living with his father. He misses his mother. [X] told Dr D that he wants to live with both parents or to spend time with both parents.
I take into account [X]’s expressed views. However, he is too young to understand whether or not behaviours by his mother are causing him harm or not. [X]’s time with the mother will need to occur in a way which protects him.
Section 60CC(3)(b)
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
[X] has a strong attachment to the mother, as she has predominantly raised him as a sole parent. Mr I wrote that [X] has a close relationship with her, although this relationship may have some dysfunctional aspects, which largely relates to the mother’s dependence on [X].
[X] has been observed to have behavioural problems in the mother’s presence, at times being disrespectful, as well as being described as hostile and aggressive towards her. Mr I believes that this may reflect this unstable relationship.
Mr I wrote that [X] is comfortable and secure in his father’s presence. It was his observation that [X] was seeking increased contact with his father at the time of the assessment. [X] was relaxed and happy with him. There was no fear, anxiety or apprehension noted.
Dr D wrote that:
despite the long term difficulties with conflict over access and Ms J having limited opportunity to spend time with his son, the evidence suggests that [X] has a healthy attachment to his father and enjoys spending time with him. [X] was able to speak about many positive things he was enjoying about spending time with his father.
Mr S was of the view that [X] has a strong relationship with his mother, and he needs to have a relationship with his father.
Section 60CC(3)(c)
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The father has not been involved in making decisions for long-term issues in relation to [X]. At times he has been prevented by the mother from spending time and communicating with [X] over many years, as already discussed.
Section 60CC(3)(ca)
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The parties have fulfilled their obligations to maintain [X]. When he lived with the mother, she maintained him and the father paid child support to her. The father is now maintaining [X].
Section 60CC(3)(d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
If [X] lives with his father and has supervised time with his mother, he is likely to miss her.
Mr S said that this arrangement will upset him. However, such time allows [X] to have an ongoing relationship with his mother and protects him from risk of further psychological harm.
If [X] returns to live with the mother before she has had extensive psychological intervention, it is likely that [X] will suffer further psychological harm, due to her beliefs about the father.
Section 60CC(3)(e)
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There is little practical difficulty and expense of [X] spending time and communicating with both parents.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Dr D reported that while the father has had little opportunity to parent [X] on a consistent basis, he presented to her as child-focused with a good knowledge of [X]’s personal interests.
The father is currently parenting [X] with the support of the paternal grandmother. [X] is doing well in his care. [X] has had a good school attendance record whilst living with his father. I consider that the father has the capacity to provide for all his needs.
The mother does not have the capacity to provide for [X]’s emotional needs. Dr D reported that her parenting capacity appeared to be negatively impacted by her heightened perception of threat in relation to the father. It was her opinion that the mother’s communication and behaviour with respect to the father in the presence of [X] is a threat to him having a healthy relationship with his father. Dr D reported that the mother appears to have no insight about the impact of her behaviour.
In relation to the mother’s mental health, Dr D reported that while she appears to have had episodes of mental illness in the past, she is not currently suffering from a major mental illness. However, she noted that she appears to have a ‘heightened level of anxiety’ regarding the father and the risks that she perceives he poses, which is not supported by the nature and extent of documented incidents of family violence.
Unless the mother makes changes to her perceptions about the risk the father poses to [X], it is likely that [X] will be at risk of further psychological damage if he is in her unsupervised care.
Section 60CC(3)(g)
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
This subparagraph is not relevant.
Section 60CC(3)(h)
if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This subparagraph is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father has demonstrated a responsible attitude to parenthood.
The mother has not demonstrated a responsible attitude to parenthood by her actions in preventing [X] from spending time with and communicating with the father on many occasions and preventing [X] from developing a healthier relationship with his father. She has portrayed to [X] that his father will hurt him and has and will hurt her.
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
A police family violence order was made against the father in 2008. He was convicted of breaching the family violence order in June 2008 and in August 2008.[5]
[5] Exhibit M1.
There is a current interim family violence order that has been adjourned indefinitely by consent. This was made in favour of the mother and [X]. It prevents the father from going within 2,000 metres of the mother’s property or the School A.
The father has admitted that he has lost his temper and responded aggressively on occasion, including verbal aggression and lashing out at objects in frustration. The father told Dr D ‘I’m not a saint… We used to argue. I would shout and carry on… I would walk out and slam doors… I tried, but we couldn’t live together as a family.’
He acknowledged to Dr D that he had smacked [X] on two occasions. He stated that he had never hit the mother but had ‘kicked her up the bum once for carrying on.’ He told Dr D that there was mainly name-calling and swearing, and that he and the mother would engage in these heated exchanges which usually resulted in him leaving her presence. He conceded that ‘some of my behaviour was regrettable in terms of pushing the mother and breaking the door at her home.’
The father has therefore committed family violence against the mother. There has been yelling and screaming between the parties that [X] has witnessed. The father damaged property during the relationship. However, I am of the view that the mother has exaggerated the extent of family violence and has used this to interfere with [X]’s relationship with the father.
Counsel for the Department gave several examples that demonstrate that the mother has manufactured the case against the father to prevent [X] from seeing him. He gave several examples. The first was when the mother alleged that the father hit and kicked [X] on 9 January 2015. Mr H gave evidence that after the (omitted) Police made arrangements with the mother to see [X], she failed to present [X] on two occasions.
The second example was in 2007, when the mother alleged that [X] disclosed to her that the father inserted his finger into [X]’s anus. There was no basis for this allegation. Mr I discussed this in detail. The IDM report of the police interview with [X] reads, ‘I have concerns that this child is being manipulated by an adult and possibly the mother.’[6] The father was also interviewed and no action was taken against him.
[6] Exhibit DHH14.
The third example was the (omitted) incident in 2013 when the mother failed to report the incident to the police, and although there were 30 witnesses, she did not produce evidence from any of them.
The fourth example was the recent backpack incident. The mother’s evidence in her sworn case summary was that:
[X] was picked up by the mother at the Contact Centre in the last week end in February, Sunday 28 February. [X] had a black eye and a cut beneath his eye caused by the father. [X]’s vision was impaired to the point where he complained he could not see. The mother took [X] to the (omitted hospital), who assessed [X]’s vision and injury that [X] said was deliberate.
There is no evidence in the (omitted hospital) records of a black eye or evidence of it from anyone else apart from the mother.[7] The notes read, ‘patient was hit with a bag by father (on family violence order), he initially complained of visual disturbance but now improved. [X] is otherwise well, mother and patient had nil other concerns.’
[7] Exhibit DHH2.
I agree with Dr D’s view that this did not warrant attendance at the Emergency Department. The medical notes state that [X] presented with a ‘minor swelling right eye surrounding minor scratch right scratch.’ The notes referred to [X] being hit with a bag by father (on family violence order).
I reject the mother’s allegations of the father abusing or committing family violence against [X]. It is relevant that since [X] has been living with him and has been having supervised time with the mother, there has not been an allegation made by [X] about abuse or violence or by his school or any other authority.
Incident on 7 July 2014 (known as ‘(location omitted)’)
This incident has been given much focus by the mother. [X] has also told Mr S about it several years after it occurred. The father was interviewed by Tasmania Police at the time of the incident. There were no charges made against him.
The Mother’s Evidence
The mother has given several versions of how her injuries occurred on this day.
In her statutory declaration made on 7 July 2014,[8] the mother declared that at a dirt pullover area at the bottom of (location omitted), the father got out of his car and started yelling at her about why she had been driving to (omitted).
… As Mr Davidson was yelling at me I began to get [X]’s things out of my car and load them into Mr Davidson’s boot. As we were pushing the last bag in the boot, I said something along the lines of “don’t take [X] to places you shouldn’t or with people you shouldn’t.” Mr Davidson replied something along the lines of “you can’t stop me seeing my lifelong friends.” I then moved from the boot to the back passenger’s side door of the car to say goodbye to [X]. As I got to the passenger’s side door, Mr Davidson stepped in front of me and raised his
rightelbow striking me in the area of my right eye. I took a step back and said to [X] “dad just hit me do you want to get out of the car.” [X] started to get out of the car Mr Davidson buckled him back in and locked and shut the car door. I went to the front passenger side door and reached through to give [X] the last bag. As I did this Mr Davidson grabbed hold of both my ankles and dragged me face down out of the car andon to the graveland then went around to the driver’s side door and got in the car and drove off. I got up straight away and took a few seconds to compose myself.[8] Exhibit ICL1.
The mother annexed to her affidavit her application for a family violence order sworn on 1 August 2014. In her application she deposed:
…As Mr Davidson yelled I began to get [X]’s things out of my car and load them into Mr Davidson’s boot. As I got the last bag ready, I said “please don’t take [X] to places you shouldn’t or with people you shouldn’t”… Mr Davidson yelled “you can’t stop me seeing my lifelong friends” while I then moved to the back passenger door of the car to say goodbye to and kiss [X] as usual. As I got there and lent over and toward [X], Mr Davidson pushed in front and struck me hard under my eye with his elbow. I stepped back and said to [X] “dad has just hit me do you want to get out of the car?” [X] started to get out of the car and Mr Davidson pushed [X] forcibly, buckled [X] back in the car, and locked and shut the car door. He was yelling again “you can’t stop me” and [X] seeing this began to hit me also saying “I want to see [S], [C] and [O]” knowing Mr Davidson planned to take him there.… Mr Davidson bruised [X]’s chest badly and legs. I went to the front passenger’s side door and reached through to give [X] the last bag and to kiss him goodbye. As I did Mr Davidson grabbed both my ankles and dragged me out. When he let go he hurried around to the driver’s door, got in, and sped off.
In her affidavit sworn 2 April 2015, the mother deposed that the father was irate, yelling and pointing at her. He said ‘what are you doing, I’m going to pick up [X] from your place.’ She said that she was attending changeover in (omitted) as per usual. She took [X]’s things out of the car and when she was just about finished packing them into the father’s car, she asked him not to take [X] ‘to places he shouldn’t or with people you shouldn’t.’ The father objected to this and became ‘very nasty and abusive’. He said ‘you can’t stop me taking him to see my friends’…She deposed:
I ended the conversation and went to kiss [X] goodbye and hand him the last bag. When I reached [X]’s car door the father stepped in front of me and raised his right elbow forcefully back, striking me very badly in the right eye. [X] was aware of what had happened and was getting out of the car. The father pushed him back down very roughly and hurt [X] in doing so. I then opened the passenger door to give [X] his last bag which I was actually carrying, as I did so the father grabbed hold of both my ankles and dragged me face down out of the car on to the gravel. I tried to stop him by bracing myself against the door frame. The father gave up and left me and got into his driver’s seat and drove away…
During cross-examination, the mother’s evidence was that after she was hit by the father’s elbow and fell back, she then went to give [X] his bag through the front door. She said that she did not get into the front of the car and the father grabbed her by the ankles with her two feet on the ground. ‘He picked me up by the ankles and as I was getting pulled backwards, I had to brace myself against the door frame of the car as I was getting pulled out.’
The Father’s Evidence
In his affidavit sworn 21 June 2016, the father said that he collected [X] from the mother. She was aware that [X] was going to be spending time with his friends and said she had no problem with that as long as she could come along as well. They had an argument about that on the side of the road. He told her that she could not come and she then wanted to take [X] back into her care. [X] was already in the car and in the child restraint seat. He denied that he assaulted her by striking her to the side of her head with his elbow and pushed [X] to the chest at the same time.
[X] was in the back seat and kicked out at the mother as she was undoing his seatbelt from the front seat, as the back passenger door was locked. He did not want her to take him from the car. There was much yelling and shouting.
The father was interviewed by the police on 13 July 2013.[9] After the interview, the police told him that no further action would be taken and no charges would be laid against him about that incident.
[9] Ibid.
At the interview, the father said that after arguing, the mother climbed into the passenger front car and tried to unbuckle [X], took one of his bags and started getting hysterical. He denied that he stepped in front of her when she was at the back passenger side door, and raised his elbow striking the area of her right eye. He denied she took a step back and said ‘[X] dad just hit me, do you want to get out of the car? He denied that [X] started to get out and that he buckled him in. He denied that he grabbed her by both ankles and dragged her face down onto the gravel.
The father said that the mother climbed over the front passenger seat and was trying to get [X] out of the car, dragging him through from the back, over to the front. The father said he grabbed her and tried to pull her out of the car because she was screaming and [X] was getting upset and he was hitting her. He grabbed her around the waist and grabbed her around the ankles to try and drag her back out. He said that [X] was hitting her, laying into her. He was ‘just flaying, feet, hands, going leave me alone, leave me mum, leave me mum.’ The father said he could not physically move her and eventually she got out of the car. He said he locked the two passenger side doors and drove off.
During cross-examination by the mother, the father said that he locked the back door of the car and tried to lock the front door, as he was trying to remove himself from the situation as quickly as he could. He agreed that the mother reached through the open front left passenger door, he grabbed her by the ankles to try and get her out of the car because she was upsetting [X]. She had a hold of [X]’s jumper and the seatbelt and he could not budge her, so he let go and pleaded with her to get out of the car because she was upsetting [X].
Eventually she got out of the car because [X] was very upset with her. He had leaned back into his seat and was kicking her with both feet. He kicked her in the face at least five or six times. He was screaming ‘leave me, Mum. I want to go with dad. I want to go with dad.’ [X]’s legs hit her in the face as well as hitting the back of the seat. [X] leaned back, slid down in the seat so that the seatbelt had gone above his head and he was laying boots into her face. After she got out of the car, he shut the door and then drove off.
The father denied that he physically got her out of the car. He could not physically move her from the front seat. He said that she removed herself because she realised that she was upsetting [X] and he had told her that he wanted to go with him. He agreed that he was shouting and was begging her to get out of the car and to stop upsetting [X] so much. He drove off as fast as he could.
The mother suggested to the father that in the police interview on 13 July 2014, he did not mention that [X] slid under his seatbelt and kicked her. The father said that he was sure that he had said that [X] kicked her. The father told the police that [X] was hitting the mother and laying into her with feet and hands.[10]
[10] See [191] of these Reasons.
The father denied that he injured [X]. He denied that he has used physical force against [X] except on two occasions when he smacked him on the bottom. He denied that he has ever punched or kicked him.
When he was asked about his evidence that [X] was in the child restraint seat, the father said he could not recall a child restraint seat. He said that [X] was not sitting in a booster seat and did not know why this was in his affidavit.
During the father’s oral evidence on 11 August 2017, which was given to answer Mr L’s evidence, the father agreed that he stood in front of the mother, but denied that he pushed her out of the way by elbowing her.
Evidence of Mr L
Mr L swore an affidavit on 19 March 2017. He deposed that on a Saturday morning in July 2014, he was driving from (omitted) to Hobart. He saw two cars parked on the gravel pull-out on the Tasman Highway just passed ‘(location omitted)’. He said a station wagon was parked behind the other car and had its rear right wheel parked over the white line. He saw the station wagon with both passenger doors open, and a man step in front of a lady and strike her with his bent elbow. He appeared to be pushing and yelling at something in the car. He then slammed the rear passenger door. In his rear view mirror, he saw the man approach the woman from behind.
Under cross-examination Mr L claimed that he saw the above events whilst travelling between 70 and 80km/h. He first saw the vehicles about 200 metres away. He saw the man strike the woman with his elbow from between 100 and 150 metres away. He agreed that he had a clear vision of the back rear passenger door ‘because of the angle the car was parked at…’
He remembered the station wagon was parked over the white line when he wrote his affidavit nearly three years after the event, because he remembered having to ‘veer’ onto the other side of the road, crossing the double white lines, to avoid the vehicle.
Mr L’s evidence during cross-examination was inconsistent and not credible. Despite his detailed recollection in his affidavit of the events he saw at (location omitted), including the colours, makes and models of the relevant cars, when asked whether he saw anybody in the car, he said ‘I couldn’t clearly see that at the speed I was driving past’ and ‘at the speed I was coming past, I couldn’t see much’.
He admitted that he did not see much in his rear vision mirror. He saw Ms J approach Ms Cox for the second time in his rear-vision mirror, but also said, ‘I can’t say what I saw the second time…’
When cross-examined about whether or not he had discussed what he saw with Ms Cox, he initially said, ‘very vaguely when she asked me if I had seen anything of importance and I told her what I had seen.’ He then said that when she asked if he had seen anything, he only told her ‘…yes, I had seen something,’ and told her he would write it in an affidavit, but did not otherwise discuss it with her. He claimed that Ms Cox did not know what he saw until she read his affidavit. He then said she read the affidavit before it was signed by the Justice of the Peace. When asked why he would not tell her what he saw, he explained, ‘I probably wasn’t thinking straight at the time…’
He explained that this discussion with Ms Cox occurred a few weeks after the incident. He said that the first time he was asked by Ms Cox to make an affidavit was on or about 19 March 2017, five days prior to giving evidence at the hearing. He agreed that, prior to reading his affidavit on or around 19 March 2017, Ms Cox did not know what he was going to say. He denied that she was his friend, that she told him her version of what had happened, and that she told him what to write.
A further example of the inconsistency in his evidence was his admission that, prior to swearing his affidavit, Ms Cox told him that [X] had been sitting in the back passenger seat. He admitted that he ‘had heard a few bits and pieces...’ He admitted that he heard this information from Ms Cox. He then then said he was not sure when he heard it, adding he may have overheard her talking to someone else about it.
Mr L said that the first time he met Ms Cox was a couple of weeks after the incident when he recognised her car in (location omitted) and decided to introduce himself. He did not recognise her car as the car involved in the incident until later. He then said that he did not talk about the incident with her until later, ‘…it was a couple of weeks after.’ He decided to introduce himself because she was at his mother’s house. He agreed that after the incident he started doing some gardening work for her on a voluntary basis.
He explained that it was not too long after his initial meeting with Ms Cox that he recognised the car as the vehicle involved. Once he realised this he told Ms Cox that he recognised it and had seen an incident where she was assaulted by a man.
Mr L agreed that he was a cautious driver, consistent with his earlier explanation for driving between 70 and 80km/h in a 100km/h zone. However, he also agreed that he had committed a number of speeding offences, drink driving offences and driving with a prescribed illicit drug in his system. He also agreed that he had been charged with a burglary and stealing offence.
He agreed that he was concerned by what he saw when he witnessed Ms Cox struck in the face by an elbow. When asked why he did not stop and go back he said, ‘I don’t know’. He then said he did not want to go back and have problems himself. Although Mr L said he approached the police shortly after the incident, there was no evidence of this.
Mr L’ evidence was not credible and I do not accept it.
Evidence of Ms E
Ms E, a friend and neighbour of the mother, attached to her affidavit a letter she wrote in November 2014. She wrote that… ‘[X] has witnessed a lot of violent actions this man has done to his mum …the last visit [X] had with his dad, his dad hit and bruised his mum pretty badly…’
During cross-examination, Ms E said that she heard the father kicking at the mother’s door when she was not at home on one occasion in around 2013. She has also heard him yelling and abusing the mother.
Ms E said that on the day of the (location omitted) incident, she saw the mother in tears and with some red marks on her face. The mother told her that on that day when she tried to retrieve [X] from the car, the ‘father punched her and threw her up against a door, and kicked her, and when she fell into the car, he grabbed her by the leg and dragged her back out.’ She saw bruises on the mother’s eye, ribs, on her back, on her stomach, on her chest and her legs.
This evidence was not challenged and I accept it.
Conclusion about the incident at (location omitted)
I do not accept the mother’s evidence about how her injuries occurred. She changed her statutory declaration, in particular the reference to the father’s right elbow and to gravel. She deleted the word ‘right’ before the word elbow, and deleted ‘and onto the gravel’ after the words, ‘Mr Davidson grabbed hold of both my ankles and dragged me face down out of the car and…’ She also deleted the words… ‘left me face down in the gravel.’ These words reappeared in her subsequent affidavit. On the day of the incident she said something different when she told Ms E that she had been punched and kicked by the father.
In his affidavit, the father deposed that [X] was in the back seat and he kicked out at the mother as she was undoing his seatbelt from the front seat, as the back passenger door was locked. I do not accept the mother’s evidence that she went to kiss [X] and hand him his last bag. I prefer the father’s evidence that she wanted to get [X] out of the car after he would not agree with her not to take [X] to see the father’s friends. Her evidence that [X] was trying to get out of the car does not make sense. In her application for a family violence order her evidence was that [X] wanted to go with the father and that [X] hit her.
I am not persuaded by the mother’s evidence that the father struck her hard with either elbow into her right eye. There is no evidence she was dazed or crying in pain or had blurred vision. If she had been deliberately elbowed in the eye, it is likely she would have been in considerable pain. Her evidence was that after this occurred, she went to the front passenger door to give [X] his bag.
I prefer the father’s evidence that when she got into the front seat, [X] kicked out at her. I consider that prior to this, it is probable that she had tried to get [X] out of the back seat and the father had come in front of her and pushed her away from the door. She then went to the front door to try to get [X] out of the car.
Only in her family violence order application did the mother depose that ‘[X] began to hit her…’ She deposed that this occurred before she went to the front passenger door, which is inconsistent with her evidence that as she got to the passenger’s side door the father stepped in front of her and elbowed her.
I reject the mother’s evidence that the father dragged her face down out of the car onto the gravel or grabbed her by the ankles when her two feet were on the ground outside the car. I accept the father’s evidence that he could not move her from the car and she eventually gave up trying to get [X] to leave with her. I also do not accept the mother’s evidence that the father injured [X].
There were some inconsistencies in the father’s evidence. He deposed that [X] was in a car seat, but he could not recall this in his oral evidence. His evidence about the timing of locking the back passenger doors was different in the police interview to his affidavit and oral evidence. However, these inconsistencies do not alter my view of rejecting the mother’s evidence about how her injuries occurred and preferring the father’s version.
Section 60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It would be preferable for [X]’s welfare that the order I make will least likely lead to the institution of further proceedings. However, it is likely that there will be further proceedings if the parties cannot agree upon [X]’s time with the mother and the outcome of her extensive psychological therapy.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances the court thinks are relevant.
Parental Responsibility
The presumption of equal shared parental responsibility does not apply as there are reasonable grounds to believe that family violence has occurred.
The father is seeking an order for sole parental responsibility. The mother has agreed to this.
An order for equal shared parental responsibility requires consultation by the parents in relation to any relevant major long-term issue and requires that the parties ‘make a genuine effort to come to a joint decision’.[11]
[11] Family Law Act 1975 (Cth) s.65DAC(3)(b).
Situations where courts have ordered ‘sole’ parental responsibility have generally involved intractable conflict between the parents, where ongoing communication and ‘genuine’ consultation on long‑term issues affecting a child is unlikely. This may be the result of previous violence or abuse, or the ongoing fear of such abuse and/or violence.
In Oscar & Traynor,[12] Murphy J noted:
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their children – particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
The greater the degree of mistrust, lack of communication, disrespect and dysfunction in the co-parenting relationship the greater the indication that an attempt for those parents to equally share the responsibilities (and, importantly, actively carry them out) is unlikely to be in the children’s best interests.
A finding that the parties are utterly incapable of doing so [to make joint decisions, consult and attempt to reach agreement] and that there is no reasonable prospect of them doing so in the future, would appear to lead to a conclusion that equal shared parental responsibility is contra-indicated in the best interests of the children and all the more so if it be accepted that high conflict is generally antithetical to the best interests of children.[13]
[12] [2008] FamCA 95.
[13] Oscar & Traynor [2008] FamCA 95 [256], [260], [254].
Having regard to the high conflict relationship between the parties and an inability to communicate, I consider that an order for sole parental responsibility in favour of the father is in [X]’s best interests.
I consider that it is in [X]’s best interests to live with the father, with whom he has a close relationship. [X] is settled in his care and is doing well at school.
I consider that it is in [X]’s best interests to have supervised time with the mother. I consider that there is an unacceptable risk of psychological harm to [X] if he has unsupervised time with her. A supervision order means that he will not have the benefit of spending weekend and holiday time and in participating in daily routines with her.
The Full Court has accepted that it is within the proper exercise of a trial judge’s discretion to make such an order. In Champness & Hanson,[14] the Full Court referred to a number of authorities in which the Family Court has expressed concern about the absence of some kind of review mechanism when orders are made for long-term supervised contact. Part of the concern expressed in cases such as H & K,[15] is that the parties are left with ‘no mechanism for moving forward’ and that the parents seeking to remove the supervision requirement will have difficulty meeting the ‘changed circumstances’ test in Rice & Asplund.[16]
[14] (2009) FLC 93-407.
[15] [2001] FamCA 687.
[16] (1979) FLC 90-725.
In this matter, after the mother has undergone successful extensive psychological counselling, she may be able to establish a significant change in circumstances to permit her to bring an application for unsupervised time and to have the application heard on the merits. This will provide a mechanism ‘for moving forward’.
I am of the view that the orders I intend to make are in the best interests of [X].
I certify that the preceding two hundred and thirty five (235) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 22 November 2017
Key Legal Topics
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Family Law
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Consent
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Procedural Fairness
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