DAWHURST & TINTO

[2013] FamCA 640

FAMILY COURT OF AUSTRALIA

DAWHURST & TINTO [2013] FamCA 640

FAMILY LAW- CHILDREN – With whom the child will live – Child to live with the father – Child to spend supervised time with the mother at a contact centre – Mother to engage with psychologist in order to treat mental health issues before graduation to unsupervised weekend time – Where the mother has a history of aggressive outbursts in front of the child.

FAMILY LAW – INJUNCTIONS – Where the parties are restrained from bringing the child into contact with the mother’s ex-partner, whom is also the cousin of the father – Where the mother’s ex-partner was the perpetrator of serious family violence in the mother’s home.

FAMILY LAW – PARENTAL RESPONSIBILITY – Where the father is allocated sole parental responsibility – Where child has a meaningful relationship with both parents - Presumption of equal shared parental responsibility rebutted by evidence that there is a risk of harm to the child while in the mother’s household - Where it was not in the best interests of the child for the parties to have equal shared parental responsibility.

Family Law Act 1975 (Cth) ss 60CC, 68B

APPLICANT: Mr Dawhurst

RESPONDENT: Ms Tinto

FILE NUMBER: (P)NCC 1278 of 2011

DATE DELIVERED: 19 July 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 26, 27, 28 June, 3 & 4 July 2013

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Murray

SOLICITOR FOR THE RESPONDENT: The Family Law Firm

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Mr Scally

Orders

1. The father is to have sole parental responsibility for the child E Dawhurst born … 2007 (“the child”).

2. The father is to keep the mother advised in writing of decisions he makes in relation to long term issues such as enrolment at school, religious instruction and medical treatment for serious ill health or injury of the child.

3. The child is to live with the father.

4. The child is to spend time with the mother as follows:

a)For a period of not less than six months after the date of these Orders:

i.supervised by a Supervisor nominated by the Independent Children’s Lawyer, either at a Children’s Contact Centre or by an experienced Supervisor;

ii.with the Independent Children’s Lawyer to instruct the Supervisor that the supervision occur for no less than two hours on one day of each weekend;

iii.at times and places determined by the supervisor;

iv.with the parties to share equally in the costs of the Supervisor;

v.with the attendance of one or more of the child’s siblings by prior arrangement with the Supervisor.

b)Thereafter, provided that the mother has complied with Order 5, for a period of three months from 10.00 am to 4.00 pm on one day of each weekend and failing agreement otherwise, on Saturday noting such time to be unsupervised;

i.Changeovers of such time shall take place at the R Contact Centre … and commencing and concluding times are to be determined by R Contact Centre;

ii.The parties must as soon as practicable contact the Director of the R Contact Centre as to the implementation of the changeover service;

iii.The parties are to share equally in the costs of the R Contact Centre;

1. Commencement of the child’s time with the mother pursuant to Orders 4(b) and 4(c) is conditional upon the following:

a)The mother, having commenced and committed to a course of individual therapy with a Clinical Psychologist to address the issues related to her diagnosis of Borderline Personality Disorder.

b)The mother providing to the father written confirmation from the Clinical Psychologist of her continuing engagement in the course of individual therapy.

1. Thereafter and provided that the mother is continuing to comply with Order 5:

   i.each alternate weekend from 10.00 am Saturday until 4.00 pm Sunday;  and

   ii.such other or additional times as the father proposes.

2. For the purpose of implementing Order 5 above, the mother must as soon as practicable, attend upon a general practitioner to obtain a referral to a Clinical Psychologist who is able to provide a course of Dialectical Behaviour therapy and to that end the mother may provide the general practitioner with a copy of the report of Dr B and these Orders.

3. The mother may provide copies of the following documents to the Psychologist undertaking the therapy:

a)Report of Dr B dated 9 September 2012;

b)Two reports of Ms T, Family Consultant dated 23 January 2012 and 17 November 2012; and

c)These Orders and Reasons for Judgment.

1. If the mother does not engage in the therapy referred to in Orders 5 and 6 above or she engages with therapy but does not continue to the conclusion of the therapy as recommended by the Psychologist, then the child shall spend time with the mother in accordance with Order 4(a) reducing to one such visit each alternate weekend after a period of twelve months from the date of these Orders.

10.  The father must as soon as practicable attend upon a General Practitioner to obtain a referral to a Counsellor or Psychologist to address the issues of:

a)Family violence in the father’s relationship with the mother;  and

b)The co-dependent relationship he has had with the mother as described by the Family Consultant, Ms T.  To that end the father may provide to the General Practitioner a copy of the reports of Ms T and/or the Orders and Reasons for Judgment.

11.  The parties must not denigrate each other or members of the other parties’ family to or within the hearing of the child and must not allow other persons to do so.

12.  The parties must ensure that the other party is informed as soon as reasonably practicable of any serious medical matter involving the child when she is in that parent’s care.

13.  These Orders are sufficient authority for the mother to obtain at the mother’s costs, information in relation to the child from any medical professional treating her.

14.  The father is restrained from changing the child’s enrolment at S Primary School … before the conclusion of Term 3 2013.

15.  These Orders are sufficient authority for the parties to obtain at their respective cost, information including notices, newsletters, reports, photographs and the like in relation to the child from whichever school she is attending.

16. Pursuant to 68B of the Family Law Act 1975 an injunction for the personal protection of E Dawhurst born … 2007 is made as follows:

a)Each parent is restrained from bringing the child into contact with Mr VT and shall instruct third parties to be likewise restrained when the child is in their care.

17.  That the appointment of the Independent Children’s Lawyer be extended for a period of six months from the date of these Orders.

18.That the Independent Children’s Lawyer will consult with Ms T, Family Consultant, to arrange for the mother to be provided with names of appropriate therapists in the event that the mother advises that the Independent Children’s Lawyer that her General Practitioner is unable to do so.

19.Each parent shall cooperate with a request by the Independent Children’s Lawyer to have the child attend a meeting with himself and Ms T, Family Consultant, as soon as is reasonably practicable for these Orders to be explained to the child appropriately.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawhurst & Tinto has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC1278 of 2011

Mr Dawhurst

Applicant

And

Ms Tinto

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction  

1. This is a dispute over parenting arrangements for one child, E Dawhurst (“the child”), aged five and a half years at date of hearing.

2. The applicant is the father, Mr Dawhurst.  He is employed as a technician.  He is 33 years of age.  He lives with his partner, Ms Y, in Suburb M.  The child E is his only child.

3. The respondent is the mother, Ms Tinto.  She works as a healthcare assistant from time to time.  She has been studying to be an Enrolled Nurse.  She has recently discontinued her studies and hopes to resume them in the future.  The mother is also 33 years of age.  She has recently separated from her partner Mr N.  The child E is her third child of four.

4. The parties began living together in mid 2000. They finally separated after numerous short splits in either August 2009 or February 2010. The difference is not significant. The relationship was irregular from at least 2005.

5. Each of the mother’s four children has a different father.  The child O, aged 16, has lived with his father Mr H, since he started school at the age of five.  He has regularly spent time with his mother but the relationship between them has recently broken down.  The child I, aged 13 years, lives with his mother and spends time irregularly with his father, Mr L.  I has cerebral palsy.  The fourth child, the youngest, is C aged two and half years.  She is the child of Mr VT.  The mother and Mr VT were married after C was born.  That relationship broke down soon after, although the marriage has not been dissolved.  C lives with her mother and spends time with her father on a regular basis, which is about one week out of four, her father working interstate at other times.  The child E and the youngest child C are second cousins because Mr VT is a first cousin of the father.  That is a complicating factor for the relationship between the two sisters in the particular circumstances of this case.

Orders sought

1. Each party sought an order that the child live with that parent and spend time with the other parent on alternate weekends, for half school holidays and at other special times.  They both sought an order for equal shared parental responsibility.

2. Implicit in these applications was an acknowledgement that the child needs to spend substantial and significant time with both parents.

3. By the conclusion of the hearing the position of the parties was radically different.  The father submitted for sole parental responsibility, residence with him and supervised time for the mother.  The mother, to her great credit, acknowledged that she was not the appropriate residence parent for the child and had a need to address the personality disorder identified by the Single Expert.  This acknowledgement was made by the mother in the witness box.

4. Submissions were made that it would be possible for the child to continue living with the mother, provided she was not brought into contact with Mr VT.  However, the mother did accept that the child had been put at risk by her own conduct, although she had never intended that consequence.

The Evidence

The father –Mr Dawhurst

1. The father impressed as a concerned parent and someone with a genuine interest in his daughter.  He also openly had love and affection for the other three children of the mother.  Indeed, I was left with the impression that there was a willingness in the father to assist the mother over the years, whether or not they were in a committed relationship at the time.  He apparently formed a belief that the mother suffered from some kind of mental illness or personality disorder, and for many years entertained the idea or hope that she would somehow “grow out of it.”  I accept that he made this application for residence of his daughter, not in a way designed to punish the mother, but because he had come to believe the mother’s behaviour would not change and that the child would be at risk. 

2. The parents separated in August 2009.  However the father regularly went to the mother’s home to see his child and probably to see the mother.  Certainly in 2010, he assisted in her search for a new rental property.  At that time the father believed that the mother’s fourth pregnancy was with his child, which also affected his thinking.  Ultimately he learned that C was the child of his cousin Mr VT.

3. The Family Consultant described the relationship between the parents as destructive and co-dependent.  Certainly, bitter accusations were made by each parent against the other, more particularly by the mother against the father.  This is consistent with the pattern of their relationship/friendship over 13 years to date, where there were angry scenes and allegedly violent scenes, but an underlying expectation that the relationship would go on.  The father appeared to be treated as a family member by the mother at all times.

4. A turning point in the relationship between the parents was when the father commenced a new relationship in June 2010 with his new partner, Ms Y.  The mother was unable to accept it. With the exception of one short period of time the mother has been relentlessly hostile to Ms Y.

5. There have been episodes of rage and uncontained behaviour of the mother on many occasions over the last three to four years.  These incidents were the subject of extensive cross-examination.  Not only would they have been frightening and alarming for children when they were present, but also for members of the public and other third parties who witnessed them.  One example is what I will call the Blue Book incident in January 2012[1].

   [1]  Exhibit 6, COPS Notes 02/01/2012

6. It started well.  The mother asked the father to accompany her for the child’s four year old vaccinations.  The father did so and took the blue book back with him.  The next day at a handover at a family restaurant, the mother requested the return of the book and became extremely angry when the father was not prepared to return it.  The mother then drove at speed to where the father’s car was parked, got out of her car and crouched down at the back of the father’s car.  She said to examine his tyres.  He said that he had a fear of her intention towards his vehicle.  In any event, the father ran to the car, the mother stood up and they collided.  The mother called out, shouted, to anyone who would listen that she had been assaulted by the father.  The mother enjoined third parties to confirm what had happened.  According to the father she then drove away yelling and screaming.  I accept that she probably did.  The mother herself concedes that when she starts to get “upset” she loses focus on everything else.

7. There was an incident of the mother chasing the father down by car in March 2010.  She had the children I and E in the car.  The father told the mother in obviously angry terms, that she was “driving like an effing idiot, you’re going to kill the children.”  He contacted the police.  The mother did not allow the father to spend time with the child after that incident for a period of eight or nine months.  Looking back on it, the mother agrees that it was not a safe course she had taken.  However at the time her angry focus was on the father and she lost focus on the children.  That is the adverse consequence of the mother’s behaviour.

Allegations of Violence

1. The father conceded that he had pushed and shoved the mother during the course of their relationship, he said twice.  He denied an allegation made by the mother of punching her and pushing her down the stairs.  There was no evidence of injury or police action in respect of the more serious allegations and I am left with each party’s version.  The father resolutely denied punching or hurting the mother.  He admitted grabbing her hair and pushing her face into the mattress of their bed.  He conceded an argument in the stairwell of the property where they lived in 2005, and denied pushing her in the back with his hand so that she fell.  I am easily able to accept that there were arguments and fights where both parties lost control and became reckless.  However, in the face of the father’s willingness to make some concessions and the absence of any other evidence, such as police or medical reports, I cannot find that the father caused injury to the mother, nor that she was in fear for her own safety.

2. I accept that there was a threat made by the mother to the father as follows:  “I am going to kill you.  I’ll drop the kids off first then stab you.”  The father was asked about the threat and as to whether he sought an Apprehended Violence Order (AVO) for his protection.  He said he had spoken to the police about it who had advised him that it would be difficult to get the order.  He made this comment:  “I’m not fearful that she would hurt me without a weapon, but I don’t know what she is capable of.”  This is further evidence of the father being at a loss to deal with the mother’s behaviour, “She hates me one minute, next minute I am her best friend”. 

Current relationship

1. The father was questioned about his new relationship. His partner of three years is now 20 years of age.  He was questioned as to whether he had supplied alcohol to Ms Y before she was 18, or purchased cigarettes for her.  The father denied he had and gave answers consistent with a committed relationship with Ms Y. That was confirmed by Ms Y’s evidence.  I accept that the father’s intake of alcohol reduced when his life stabilised with the commencement of that relationship.  I accept that the parents had been in the habit of yelling and screaming at each other quite regularly, and to a great extent when affected by alcohol but that is not a feature of his relationship with Ms Y.

Relationship of the parties

1. I consider that the father was out of his depth when dealing with the mother.  He knew that she had experienced a painfully difficult childhood and within a short time of leaving school, had begun work as a sex worker.  She was working in that way when they met.  It is apparent that he thought that he could help her, but was confounded by her episodes of rage, where she blamed him for a variety of difficulties.  The proposition was put to the father that he was denigrating the mother in these proceedings to make himself look better.  He denied it and spoke of having researched the mother’s behaviour during an attempt to understand it.  I accept that he did that research and came to understand that there was a genuine psychological issue, but was simply unable to deal with it.

2. The father had formed a close and it seems a loving relationship with the child I over the years he spent with the mother.  The paternal grandmother also became important to I, he referred to her as “nanna.” I accept the father’s evidence that at times the mother would say to him words such as, “My kids won’t be coming anywhere near you” soon after ringing him for help.  It is revealing that the father said this: 

   Unfortunately it got to the stage where it was really like water off a duck’s back (this is a reference to outbursts of rage by the mother) and I really had to evaluate that.

3. The father realised that he had simply accepted that the mother would be, at least in his view, irrationally angry and have changes of mind and mood that were inexplicable to him. 

4. There was a time towards the end of 2012 when the mother became quite close and friendly with the father’s partner, helped her, took her to work with her, advised her about a career in nursing. The child is reported by her father and Ms Y to have enjoyed changeovers during that period. The mother’s attitude changed back and the mother became entirely opposed to the child having any contact with Ms Y at all. 

5. An incident which exemplifies the sudden shift in the mother’s attitude is what I will call the “pre-school” incident.  Again, the incident started well, with the mother contacting the father by phone to say that the child’s pre-school had rung and asked for the child to be given Panadol as she had an elevated temperature.  The mother became aware that the father was not alone in the car, because either the father said, “I’ve got someone with me”, or the mother heard Ms Y’s voice.  I accept that the mother became enraged and said words to the effect, “Don’t fucking worry about it you idiot.”  The stated reason that the mother had contacted the father was that she was out of the area and thought that the father would be able to get there more quickly. The father dropped

   
   

   Ms Y off at her grandmother’s home and then proceeded to the pre-school, where he administered the Panadol to his daughter.  At that point, it is uncontroversial that the mother ran into the pre-school and said loudly, “Get your fucking hands off her you effing paedophile.”  The father left the pre-school and the Director of the pre-school spoke to the mother about her conduct and tried to calm her down.

1. This reaction of the mother was sparked by the fact that Ms Y was with the father when she made the phone call. It was an irrational response and completely disproportionate.

2. The father acknowledged that the mother took good physical care of the children and made several insightful concessions: 

   [The mother] tries to be a good mother.  Her intentions are not to hurt those children, but in her mind she does everything she can for the children, but she fights for them in front of them.

3. The father’s statements accord with my own view of the mother, that she goes into battle in a state of a white anger, in the belief that she is protecting one or more of the children, or herself and has not identified that she is at least a part of the conflict and trouble that follows.  The father also said, somewhat wistfully: 

   [The mother] has so much potential.  She is a very determined person.  If she could get some skills and put her potential into action she could do anything. 

4. No doubt the father recognised the mother as an intelligent person, with the ability to achieve in a variety of ways.  Certainly she did well at school and continued until Year 11, in circumstances where other young people would not have been able to continue at school at all.  Her mother had died, she had gone into unsatisfactory foster care and her older brother had committed suicide. School had apparently been her sanctuary from the neglect and emotional hardship of life at home.  Her mother had abused alcohol and drugs and had apparently died from a drug overdose.

5. It is to the credit of the father that he understood that events in the mother’s life had held her back and worked against her in a way that was simply unfair.  However over time, he understood that redressing those events was something he could not do.

Education

1. The father would change the child’s school to A Primary School.  His basis for doing it is not just for proximity, but that the child has friends at that school and that the parents had at an early stage, agreed that that is where the child would go. He may do so after the end of the current school term.

Ms Y – the father’s partner

1. Ms Y is a student nurse, she has just turned 20.  She impressed as a bright and thoughtful person.  The parties began a relationship in June 2010, when Ms Y was 17.  They had known each other socially before that time.  It is a significant difference in age. I note that the Family Consultant, in her oral evidence said that she had initially been concerned about the 13 year age gap between the father and Ms Y, but to her observation, “[Ms Y] seems an incredibly mature sensible down to earth girl, so my concerns diminished.”  That observation aligns with my own assessment of Ms Y as mature and considered beyond her years. 

2. Ms Y made a decision to terminate the relationship with her own father for the child’s sake.  She did not like the child being in his presence when he was intoxicated.  There had been four or five visits where Ms Y and the father took the child to spend time with Ms Y’s father.  She also did not like the fact that her father began referring to himself as “poppa …” in relation to the child. She did not like the prospect of his use of alcohol and marijuana to any extent.  I accept that Ms Y took this action through concern for the child and also for the father.

3. Ms Y spoke respectfully about the mother.  The mother presently will not speak to Ms Y at all.  No doubt Ms Y has found it very difficult.

4. For instance, there was an incident in the morning of 20 June 2011. The child was in Ms Y’s care at the home of the child’s grandmother.  She was due to be returned by the father at 5.00 pm on that day.  The mother came to the door and demanded that the child unlock the door. When she did the mother reached in and grabbed the child.   Ms Y said she let the child open the door thinking it was better for her to go to her mother than to stand behind the door and see her angry mother on the other side of it. This was a mature and child focussed assessment. The mother then unleashed a torrent of vile abuse towards Ms Y. The child was crying uncontrollably. The mother put the child in her car and sped off.   The situation could have been much nastier if Ms Y had reacted with any degree of antagonism. The child was put at physical risk by the mother. Her behaviour was emotionally abusive to the child.

5. Ms Y also saw the incident at the hotel where the parents collided at the back of the father’s car.  She was in a position to witness the incident.  She saw that the mother stumbled and did not fall, and in that sense neither party had been physically aggressive.  Again, on that occasion, she did not react or become involved.

6. Ms Y described her relationship with the child as fantastic.  Ms Y has withstood extremely insulting and provocative text messages from the mother and is aware that the child has some problems because of the mother’s reaction toward her..

7. Ms Y wants to have a civil relationship with the mother and her intention is to maintain civility.  Given her conduct to date, I accept that she will certainly make her best effort to do so and further, that she will be genuinely affectionate and supportive towards the child, understanding her need for contact with her mother and half siblings.

8. The following piece of evidence is of some significance.  Ms Y said that on occasions accidently in her view, the child has called her “mum” and that when that has happened she has said “Now what’s my name, you only have one mum.”  She went on to say that it was important for the child to have a close relationship with her mother, especially in her teenage years.

9. Ms Y is 13 years younger than the parents, but does not lack maturity by comparison.  No doubt she would like to have her own children in time.  The father certainly expressed a wish for marriage and children in due course.  I accept that Ms Y’s commitment to the father fully extends to including the child.

Mrs D - the paternal grandmother

1. Mrs D filed an affidavit on 28 May 2013.  She was not required for cross-examination. 

2. She has four other grandchildren besides the child E, aged between nine years and three months.  She has spent a lot of time with the child, usually in her father’s care, but sometimes with the other cousins.

3. The paternal grandmother has recently re-partnered, having been a widow for more than 10 years.  The grandmother has been involved with the child all her life and was regularly asked by both parents to care for her from the time she was born.  She has personally witnessed the mother’s mood swings and violent arguments, including with the child I’s father.  In the opinion of the grandmother, the mother has an obsession with telephone calls.  She was present with the mother in a department store when the mother became aggressive and angry with an assistant.  When she asked her why, she said, “I didn’t like the way she looked at me”.

4. The paternal grandmother expressed the view that the mother seemed to be triggered into an extreme over-reaction by the slightest irritations, would dwell on the problem and then explode with violent physical and verbal abuse.  After these scenes she would often just switch back, as if nothing had ever happened[2].

   [2]  Affidavit of Paternal Grandmother sworn 28/05/2013, par 13

5. This is entirely consistent with the evidence given by other parties and the police records of the mother’s conduct.  The grandmother said she has been abused by the mother with what she described as “filthy language.”  On occasions the mother has come to her home, parked in the forecourt with the children in the car, screaming abuse and throwing the father’s belongings out of the car.

6. Despite this conduct by the mother towards the paternal grandmother, she cared for the children E, I and C when the mother moved away from Mr VT because of his violence and when she had nowhere else to go.

7. On 27 March 2010, the mother pursued the father and his mother, whose car they were in.  The paternal grandmother describes it this way: 

   We later realised that she was following us and yelling abuse at us on the phone, while driving with the children in the car at high speed down the F3 freeway from Tarro to Boolaroo, across many multi-lane sections of the highway.  She started tailgating my car at Boolaroo and then tried to overtake me, crossing double centre lines.  At this point she was forced to pull back into her lane, as she was heading straight into oncoming traffic.  I could see this occurring beside me.   She pulled back behind me just in time and then tried to overtake me again on the inside, the shoulder of the road on the single lane road at Boolaroo.  She had to pull back again as there was no room.  This all happened at high speed and I was terribly alarmed that she had her children in the car[3].

   [3]  Affidavit of Paternal Grandmother sworn 28/05/2013, par 34

8. The paternal grandmother had the experience of believing that the child E was Mr VT’s child and then finding that she was her own son’s child.  Similarly with the child C, she and the father initially were led to believe that C was the father’s child, but subsequently she proved to be Mr VT’s child. I don’t doubt she loves both children.

9. The paternal grandmother has maintained her commitment to the child E, assisting her son with taking the child to pre-school.  She enjoys a good relationship with Ms Y.

10. The paternal grandmother no longer has contact with the mother at all, but I accept her evidence that she would assist in arrangements for changeovers or whatever was needed for the benefit of her granddaughter.

Ms Tinto - the mother

1. When she gave evidence on 28 June 2013, the mother had moved three days previously to a five bedroom home in W.  The father asserted and the mother did not deny that she had lived in 18 different residences over the years that he knew her and was in the habit of moving, sometimes impulsively[4].  He conceded that he had been part of those moves at times.

   [4]  Affidavit of the father sworn 21/06/2013, par 59

2. The mother says she is separated from her husband Mr VT, the father of C, although they are still legally married.  She said that she goes out with him and all the children when he is in New South Wales.  There is significance in this ongoing relationship of friendship.  Mr VT has been extremely violent to the mother on her own evidence, raping her, sexually assaulting her, violently abusing her, often when severely intoxicated.

3. The mother said that she and her aunty and friends are always present when  Mr VT is with the children and that he was “not allowed to drink in front of the children.”  However, at a later point, the mother agreed that Mr VT would easily be able to overbear her, no matter how intoxicated he was. The mother is a very small slight woman.

4. The mother has presently lost her license for three months.  When asked why she said, “Speeding, thinking about other things I guess.  I looked at a mobile phone.  There were six offences over two years.”  The mother was then asked about the incident referred to by the father and his mother, where she had chased them in her car.  Her explanation was as follows:

   That she had expected the father to come to her home on that day in 2010 as he had been in the habit of doing, that he didn’t come as expected, so she required him to give back his access key.  Both the father and paternal grandmother said that they had dropped the key off to the mother, but her position in the Court was that she wanted the key and decided to drive to the father’s work to “show him that I wouldn’t accept this.”  She put all the children in the car to drive to the father’s workplace.  When it was suggested to her that she felt angry, she said she was annoyed and upset. 

5. Throughout her evidence the mother referred to herself as being upset when others referred to her as being enraged, angry or out of control.  This may be a reflection of the fact that the mother was considering her own feelings and her own reasons for saying and doing the things she did, rather than considering her impact on others whilst in that state.  The mother agreed that she was driving down the highway, attempted to overtake and then pulled up behind the other car.  She had beeped the horn and flashed the lights.

6. The evidence overwhelmingly suggests that when the mother has a mood change and becomes “upset” to use  her word, she puts the children in the car and leaves, and goes to wherever it is she thinks she needs to, to solve the problem.  It is consistent with her having lost her license for speeding.  Her conduct in relation to the children is dangerous and neglectful, although she does not intend it to be.

1. After this incident the police contacted the mother and asked her to come in, which she did.  When asked whether she was in a very angry state, she conceded that she “probably was a bit.”  When it was pointed out to her that the Police Officer is recorded as having said “the mother was in a rage”, she responded, “Maybe because I was so emotional, it may have looked that way.”  The mother agreed that she had been very unhappy when the police told her that the father would not be charged with any offence.  A Senior Constable recorded that the mother had “ranted and raved” about this decision.  The mother denied it.  She said she had simply told the Senior Constable that she was wrong and that the Senior Constable had not liked the mother challenging her decision.  She was just putting forward her point of view.

2. The mother contacted the police again to continue to argue the point.  She was referred to as having “a loud and threatening manner.”  The mother said she did not believe she had a loud and threatening manner, but she was probably “still annoyed.”  The mother rang two separate police stations to continue to raise her opposition to the decision not to charge the father with any offence.

3. At the conclusion of this passage of cross-examination, when asked if what she had done had been reasonable or appropriate, the mother said “no, taking the children had not been appropriate and she should have just stayed at home.”  This response is an indication of the mother’s intelligence and ability when in a calm state to assess the situation.  The difficulty is that when she is not in a calm state, all that ability is lost.

4. In 2010, the mother was upset that the father had outstanding pre-school fees which needed to be paid.  I have not attempted to understand whether or not the fees were outstanding, whether the fees were owed by the mother or the father, or if this was a reflection of the fact that at times each of them sent the child to a different pre-school.

5. The mother’s reaction to her own feelings is a significant matter.  She said she was upset about the outstanding fees and the possibility that the Sherriff would be called, “I was embarrassed and humiliated and I wanted him to feel the same.”  She then drove to a hotel, parked her vehicle, got into the father’s parked vehicle, drove the car around the car park and parked it in the middle of the car park.  Again, when cross-examined about this method of getting the father to understand her feelings, the mother said, “I should have let the school deal with it.” 

6. In relation to the pre-school incident, where the mother had asked the father to attend the pre-school to administer Panadol, the mother agreed that she had become angry when she learned that the father had somebody with him in the car, probably Ms Y, “I didn’t want to see her at all that day.”  There was no reason for the mother to go to the pre-school knowing that the father had agreed to go there as she asked with some Panadol.  The mother would not concede that she was enraged at the pre-school, but said she was “pretty annoyed.”  When asked why the mother thought she could not control herself in those circumstances, she said, “I didn’t look at that at the time.  He has the capacity to upset me.”  This is an example of the mother blaming the father for her own feelings.  It is a failure by the mother to identify her own feelings and to accept responsibility for how to manage them.

Interviews with Family Consultant-Ms T

First Report 17 January 2012

1. In the interviews in January 2012 for the first report by Ms T, the mother is assessed as follows

   …emotional lability, she was hostile and critical to the interview process, she then left the interview prior to it ending and stormed into the child care room, where she began shouting and swearing at the father in regard to the questions that had been put to her.  She was unable to desist when the reporter asked her to do so.   [The child] appeared fearful of the mother’s outbursts and was clinging to the father.  The mother was again asked to stop and it was pointed out to her that she was frightening [the child] and [C] and that [C] was crying.  The mother was unable to stop.  She took hold of [the child] roughly and pushed the stroller towards the door.  She then left the centre by pushing past Ms [T], who was attempting to hold the front door open.  The mother returned 15 minutes later with both children, no sign of anger and apparently unaware of the impact of her behaviour on the children.  When challenged about that impact the mother said, “I was upset and I got myself together.  Now I’m not.[5]

   [5]  Report of Ms T, Family Consultant 23/1/2012, par 42

2. There was also this incident[6].  It relates to the child C, who at that time was less than 18 months old.  C was content to be cared for by the father while the mother and the child were being interviewed.  C had not seen the father for 12 months before this occasion.  When the parties were leaving the Centre at the end of the day, the father was holding the child E.  C approached the father indicating she wanted to be picked up.  The mother told the father that C was tired and had missed her sleep and liked to be picked up.  The father crouched down, still holding E so he could put his arm around C and hold her next to his body.  C stopped crying and put her arms around the father and rested her head quietly on his chest while the mother sat in full view of C in the child care room. 

   [6]  Report of Ms T, Family Consultant dated 23/1/2012 par 58

3. When asked about this incident the mother said that it was an indication that C trusted the judgment of her sister and her mother about the father and felt that she was therefore safe with him.  I regard that as quite an insightful comment and likely to be true.  However, it is also a sign that the father is quite sensitive and attuned to the needs of very young children, that the mother knows it, and trusts him in that regard. 

Second Report 17 November 2012

In the second interview with Ms T, in November 2012 the mother presented with Mr N as her partner. In fact the mother had at that time already separated from Mr N. The mother gave oral evidence that Mr N had insisted on coming and presenting as her partner and she had conceded the point.  Accordingly she misrepresented to Ms T that Mr N was her current partner.

1. When Ms T asked her view of Dr B’s report, the mother said to Ms T, “He said I’m not crazy, there’s nothing wrong with me.”  She became agitated about the contents of the report.  The mother agreed to take up Dr B’s recommendation to engage with Brighter Futures and then appeared to ask Ms T why she had the problems she did, “Was it because of my childhood?”

2. At that time, the mother was assessed as “appearing quite interested in Dr [B’s] opinion, that she had features of borderline personality structure, emotional lability and attachment difficulties and is assessed as having been keen to access the Court in addressing her childhood trauma”[7].  In fact the mother did not attempt to access Brighter Futures or engage with any therapist in the way that was recommended.  She said that it was her belief that that was a recommendation to the Court and that she did not need to take any step unless the Court decided she had to.

   [7]  Report of Ms T, Family Consultant dated 17/11/2012, pars 45

1. I take that evidence to mean that the mother did not actually accept that she had the problems identified and was waiting to see what the outcome of the Court proceedings was.  If that is the case, she was not being candid with Ms T in the same way that she was not candid about Mr N. The mother will say what it takes to achieve the outcome she wants. This trait makes her unreliable.

Ms Ts oral evidence

1. Ms T had been updated with all of the affidavit material.  Ms T was not surprised that the mother had not taken up Dr B’s recommendations or her own.  She said it was difficult to predict whether the mother would commit to therapy or not, that dialectical behaviour therapy is very intense (one or two times per week) and that a minority commit.  She also said that there would be a high risk of not committing once the “gaze of the Court went off”.

2. Ms T recommended that if the child went to live with her father, time with her mother should be in a commercial Contact Centre where the issues would be best understood.  Ms T was not at all disparaging about the mother’s evidence that she had had insight into her behaviours being damaging for the children and that she had experienced that insight only in recent weeks.  Ms T did not dismiss that this could be genuine insight to hang on to, she said it could also be a dramatic statement, part of the disorder she suffers from, to swing between extreme positions and perhaps to persuade the Court.

3. Ms T was emphatic that time with the mother should be supervised until the mother was well engaged in therapy.  She said the fact that the father had offered unsupervised time with the mother was a reflection of his knowledge that the child loved her mother and that the father did not want to upset her, however Ms T was not persuaded against supervision, at least in the period when therapy was underway.

4. Ms T was concerned that the mother has been unable to protect the children from family violence and does not have any insight into the impact on children of aggression or violence.

5. I accept the evidence of Ms T in relation to domestic violence.  She said that anyone who has used physical violence in a relationship should have counselling to learn tactics for ensuring that that “Nothing like that should ever happen again in front of [the child].”  I take it that the two incidents of pushing and shoving are less significant than the fact that the child has been sensitised to violence.  In particular she has seen her mother hurt and frightened by Mr VT.  It is immensely important that the child not have her confidence undermined by any further episode of violence, abuse or overbearing conduct.  For that reason, there should be an order for the father to engage for what will probably be a relatively short program, of learning skills to avoid resorting to physical resolution of conflict.

6. Ms T said the first benefit from the recommended therapy for the mother is that she would begin to learn strategies for recognising when anger was about to take her over and how to avoid that happening.  She expressed the view that there was presently significant risk for the child in the mother’s care, and that an age appropriate explanation, without blame, should be provided for the child.  Fortunately for the Court Ms T is available to conduct that explanation, together with the Independent Children’s Lawyer.

Mother’s conduct

1. In cross-examination the mother said that it was correct that she held a belief that there was no issue about her mental health.  She agreed that perhaps she should have followed Dr B’s recommendations.  I cannot be satisfied that the mother accepts or understands the significance and future implications of Dr B’s recommendations.

2. The mother said that three weeks prior to the hearing she had experienced a realisation that she did have problems.  She had enrolled for a domestic violence course and had obtained an assessment the previous Friday.  I do consider that the mother was experiencing some insight from having participated in the proceedings when she said this: 

   I should have done those things.  I’ve done a lot of reflecting lately.  I thought I was being attacked when I was with [Ms T].  Now I see there are some things I need to do. 

3. However I also consider that the mother has had such moments of insight before.  In the past, she had attended for counselling when the child I’s father assaulted her, although she did not follow through with it.  She was referred for counselling for anxiety, but had no recollection of going to see a counsellor.  It may be that the mother has such moments of insight, which are forgotten or subsequently rejected by her.

4. The mother agreed that she had made verbal threats to the father and Ms Y, “There were a few, yes I participated, yep yep.”  When taken to specific threats such as to stab the father and to track him down and kill him, the mother said she did not recall the conversation but “I recall being quite upset that afternoon”  She went on to say that she recalled calling him a few names, “Fucking dog, useless father, not a father’s ass, dog.”  She reflected, “Yeah, I had given him quite a bit that evening”.

5. The mother adopted quite a self righteous tone through this passage of evidence.  Overall she had a tendency to underplay her own conduct through her language, “I was upset” and “I gave him quite a bit”, in reality means she was in an ungovernable rage and used harsh abusive and derogatory language.  She is dismissive about complaints regarding her conduct. 

6. On one occasion Ms Y apparently painted the child’s fingernails.  The mother became incensed: “Tell the little slut to stay away and not to paint my child’s fingernails or her eyelids will be shut.”  The mother said she didn’t remember that text message but she was “pretty upset about the fingernails being painted.”  “Being upset” in the mother’s opinion is justification for whatever follows.

Violent relationships

1. The mother agreed that Mr VT had been extremely violent towards her.  She could only remember one occasion when that took place in front of the child, when Mr VT smashed the windows of her car. 

2. Just as she has done with the father and others, the mother seems to have been willing to maintain a relationship, although unhappy with it.  She agreed that Mr VT drank heavily and was sometimes violent towards her in front of the children I and O.  When drunk he had got her around the throat and smashed a glass.  The mother agreed that the child may have been distressed, but thought it was probably the sound of the mother’s voice that had upset her.

Attitude to the Father

1. The mother made concessions about the qualities of the father as a parent.  She described him as intelligent and able to teach the child a lot of things.  She said he was outgoing and that “people liked that”

2. This has some significance in relation to the mother’s oldest child, O, who has lived with his father since aged five.  O had lived with the parties’ in these proceedings.  The father put the proposition to the mother that within one month of their relationship ending, O went back to live with his father.  The mother said she could not recall, but the timing supports the father’s assertion.  The child O presently lives with his step-mother’s parents and in 2013 has had very little contact with his mother. 

3. There was a difficult, painful confrontation between O and his mother, where he arrived at the mother’s house with a couple of friends in a state of distress and told his mother that he hated both her and his father.  She said if that was the case there was no need for him to stay and said he could leave.  O became irate and punched the back of the house.  He is described by the mother as stomping through the house.  She picked up the leg of the chalk board, pointed to the door with the stick and told him to go.  He made statements which suggested self harm and left.  The mother then left the house to drive around looking for him.  She says that she called her friend Ms U to look after the child.

4. It is the description of a painful scene.  Dr B suggested in his report, that the mother would have even more difficulty parenting when the children are in their teenage years and it will likely be confronting.  The mother’s self protective response to O’s angry statements rather confirms this prediction.

5. In relation to the child I, there are also some indications that he is not coping well in his mother’s household.  There was an incident between the parents about a poster which the child had to take to school about her family.  In the father’s household one of the photographs had been of the child and Ms Y.  The mother agreed that when she had seen the poster she said the words, “That’s coming off”, referring to that photograph. 

6. Through his counsel the father suggested that the mother might have removed the photograph when she was at the school and the poster was on display, but the mother gave evidence that it was the child I who had swapped the photograph.  Indeed the mother said that I blamed Ms Y for the father no longer asking to spend time with him.

7. The mother does not appear to have understood that I’s actions in relation to his little sister’s poster, were about his own hurt feelings at the loss of his relationship with the father, perhaps entirely or perhaps in combination with his wish to assist his mother and be on her side. 

8. Ultimately the mother said that she would engage with the Brighter Futures therapy, whatever the orders were.  At one stage the mother said that the child should have no contact with her until she had been able to complete that therapy because she had come to understand that she was a risk to the child.  The mother certainly was showing strong signs of remorse that her love for her children had not been as protective as she believed, and that was now in a situation that she would lose the majority of care for the child, as she had with O at the same age.  However given the newness of this perspective and the possibility that it will slip away again, it would be quite inappropriate to make orders based on a hopefulness that the mother’s new insight would be sufficient to address the complex difficulties of her life.

Dr B - Single Expert

1. Dr B agreed that the mother met at least seven of the nine criteria in DSMV for Borderline Personality Disorder.  He quite fairly and conservatively said that he had been reluctant to simply come to a diagnosis in his report after a one off assessment.  However, he agreed that the mother did meet the criteria and needed to be referred to a Clinical Psychologist.  The reason for that was her poor emotional regulation, which led to unstable relationships.  The doctor recommended Dialectical Behaviour therapy and/or Cognitive Behaviour therapy for a period of six to eight months. 

2. The doctor expressed the view that the mother suffered from reactive attachment disorder.  In a small child, such a disorder manifests itself by approaching strangers for an emotional relationship indiscriminately.  It was probable that the mother had had that disorder as a child, given her “remarkably traumatic childhood”.  He said that individuals in most need of therapy often have the least insight.  Accordingly it is not surprising that the mother, despite her intelligence, has had difficulties with insight.  There needed to be a commitment to counselling for 12 to 24 months ongoing, not just the intensive therapy in the first six to eight months. 

3. The doctor stated candidly that one of the greatest difficulties was commitment and following through for somebody with a Borderline Personality disorder. 

4. Doctor B defined Borderline Personality as a personality disturbance, ingrained maladaptive characteristics or coping mechanisms, which persist through life.  Dr B also said that if the children remained in their mother’s care, it is essential that she be engaged by the Brighter Futures program for the children, so that she did not bring too much pressure to bear on them during the time when she was engaged in the work of therapy.

5. The doctor said the mother did not understand the children’s emotional needs.  Instead of knowing institutively how to respond in the way that a person does who has had their own emotional needs met as a child the mother has to learn every step of the way how to do it.

The law

1. These are competing applications for parenting orders by each of the child’s parents.  Each of them has parental responsibility for the child, subject to orders of the Court.  When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for a child’s parents to have equal shared parental responsibility for the child.  In this case, each of the parents did ask for equal shared parental responsibility.  However I consider that the presumption is rebutted by the evidence of risk from the mother and her household, and of pathology in the relationship between the parents such that it would not be in the best interests of the child for her parents to have equal shared parental responsibility.

2. Just raising the long term issues for consideration is highly likely to lead to conflicts and in the case of the mother, an emotional reaction of anger.  Accordingly, one parent should have sole parental responsibility and in this matter, although the father is untested as the sole parent, it should be him, for reasons I will come to shortly.

3. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.  The matters to be taken into account in relation to best interests are set out in s 60CC of the Act.

Section 60CC(2)(a) & (b) The benefit to the children of having a meaningful relationship with both of their parents and the need to protect from physical or psychological harm.

1. The primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

2. The child does have a meaningful relationship with both of her parents.  However she has been exposed to family violence, most recently in the relationship between her mother and Mr VT, although there may have been at least high conflict between her mother and Mr N, who was the mother’s partner until about October 2012.

3. The mother’s lack of emotional regulation and angry aggressive conduct has represented abuse for the child, which could lead to psychological harm. 

4. I take the following additional considerations into account.

Section 60CC(3)(a) Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views

1. The child was assessed by the family consultant twice.  She is developmentally within normal parameters.  She is now in her first year of school and appears to be enjoying it. 

2. The child enjoys relationships with her mother, her brothers and her little sister.  She reports that “her parents used to push and shove and hurt each other, but they have now had enough of fighting”[8].  The child reported that the mother hurt I when he did not do as he was told: “She smacks him on the bum and on the arms because he cries all the time”.  The child reflected that she was scared when her mother “gets really angry with [I].”  Her mother is the angriest adult that the child knows.  The child thought that I was frightened of the mother when she became angry.

   [8]  Report of Ms T, Family Consultant dated 17/11/2012, par 71 

3. The child reported enjoying spending time with the father and the paternal grandmother and Ms Y, and that no one hurt anyone else in the father’s household.

4. The child’s express wish if she was the boss of the world is that “mum would stop screaming and yelling” and “mum and dad would be friends.”  She likes it when they are friends.  She also enjoyed it when her mother and Ms Y had a friendly relationship and changeovers were reported to be much less stressful for her.  The child thought it would be okay to stay where she was, or to live with her father and step-mother.

5. I give some weight to the child’s views about the nature of the relationships in her two households.  She has not had the experience of living with her father and at her age, could not imagine how different that will be.

Section 60CC(3)(b) The  nature of the relationship of the child with each of her parents and other persons (including any grandparent or other relative of the child)

1. The child has a loving and trusting relationship with her father and an affectionate, fun-filled relationship with his partner.  The child has a loving relationship with her mother but is sometimes scared of her when she becomes angry.  The child enjoys a relationship with her paternal grandmother, her brother I, her little sister C and to a lesser extent, her older brother O, simply because she does not see him so often.

2. The child presently has an affectionate relationship with Mr VT, but is too young to understand the risks of continuing that relationship.

Section 60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. The mother has taken the long term decision making into her own hands, to the extent for instance, that she discussed with the father which school the child should attend in 2013.  They agreed on the school and the mother then enrolled the child in a different school.  The mother has seen herself as the ultimate decision maker in relation to the child. 

2. The mother has spent time with the child, loves her, has taken good care of her physical needs and is immensely protective.  The mother has a limited capacity to understand the child’s emotional needs and has not had insight into the effect on the child of the mother’s own lack of emotional regulation and her formation of dangerous, threatening personal relationships.

3. Each of the parents has contributed financially and there is no reason to think that the child has not been sufficiently well fed, clothed and provided for.

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 either of her parents or any other child, or other person with whom they have been living

1. The child has always lived with her mother.  She has spent regular time with her father and also her paternal grandmother.  There will be a significant effect on her living with her father and Ms Y.  She will miss her mother.  There is likely to be a change of school, either later this year or next year.  She will miss part of being a family with siblings.

2. It will be difficult for the child to have limited restricted supervised time with her mother and she may well become more needy and sad in those circumstances.  She will enjoy and benefit from living with her father in a more stable and predictable household.

Section 60CC(3)(e) the practical difficulty and expense of the child spending time with and communicating with a parent

1. Both parents will have to cooperate and financially contribute to a supervisor, so that the child can safely spend time with her mother during a six month period when the mother begins a program of therapy.  In the event that the mother does not engage with such therapy, or begins and drops out, then supervised time will have to be by a private supervisor.

Section 60CC(3)(f) The capacity of the child’s parents to provide for the needs of the child, including emotional and intellectual needs

1. The capacity of the mother to meet the child’s needs is limited in respect of her emotional needs.  The mother under-rates the child’s need for consistent time with her father, to be protected from the mother’s rages and other emotional disturbances and to be protected from violent partners whom the mother brings into the household.

1. The father has brought the application for the child to live with him, motivated by concern that the child is at risk in the mother’s household.  He is prepared to make the necessary adjustments to take on her fulltime care and to meet her reactive needs when she is separated from her mother, brother and sister.

Section 60CC(3)(g) The maturity, sex, lifestyle and background of the child and of her parents, and any other characteristics of the child the court thinks are relevant

1. The child is a five year old girl in kindergarten.  Her mother had an unusually damaging and traumatic childhood, which has impacted on her ability to be a safe mother to the child, although she is a loving one. 

2. She is a happy, chatty child and she has never been directly been physically hurt by either of her parents.  She has probably seen her brother I being punished excessively.  She has seen her mother clash with her older brother O when he is in the household and she has an affectionate, although competitive relationship with her baby sister C.  She enjoys school.

Section 60CC(3)(i) The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. I accept that the mother believes that she has done everything in her power to care for her children and protect them.  She may be beginning to understand that her belief about that may not be correct, and there are things about her own nature, personality and psychological makeup which do represent a risk to her children.

2. The father is in my view, correctly described by Ms T, as having taken a while to grow up, but he is now a responsible and mature person and there is no doubt he has a genuine affection for all four of the mother’s children and a deep love and commitment to his own daughter E.  He probably has a strong level of family feeling for the child C, his cousin’s child, despite the poor relationship between his cousin and himself.

Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. There has been family violence in the mother’s household, to varying degrees with all four of the men who are the fathers of her children and with others.  It does appear that the mother accepts that there will be violence in her personal relationships.  She said she likes to see the best in people and be forgiving.  However it is likely that the mother’s experience of life has led to a loss of self esteem and a very limited sense of entitlement to good, safe, happy, loving relationships.

Section 60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

1. The indications from the psychiatrist and the family consultant who gave evidence in these proceedings, is that there is a very low level of commitment by those who suffer from Borderline Personality disorder to the therapy which is required to ameliorate that condition.  However, the optimistic and positive evidence is that for those who do commit, there can be a complete change, so that they no longer meet any of the criteria for the disorder. In short it can be “cured”.

2. In the event that the mother chooses not to take up the recommendations for therapy or fails to maintain commitment to therapy the orders are designed to allow for ongoing, but limited supervised contact between the child and her mother.  Hopefully she will take action.  If she does, the orders allow for a graduation into unsupervised weekend time, which no doubt the child will greatly look forward to and enjoy. 

3. There is an order that third parties are to ensure that the child is not brought into contact with Mr VT.  This will create some difficulties within the family, but the father, Ms Y and the paternal grandmother all understand the need to protect the child from any further episodes of drunkenness and violence in the child’s presence.

4. The orders provide for the Independent Children’s Lawyer to remain in the matter during the first period, where the mother will need assistance in recommendations to appropriate therapists, and perhaps with provision of reports.  There is also an order for the Independent Children’s Lawyer and Ms T to explain the change of residence to the child.

5. I make Orders accordingly.

I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 July 2013.

Associate: 

Date:  19 July 2013