Dyton and Bick & Anor
[2014] FamCA 417
•20 June 2014
FAMILY COURT OF AUSTRALIA
| DYTON & BICK AND ANOR | [2014] FamCA 417 |
| FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time – paternal grandmother seeks that the child lives with her – where the child’s primary attachment figure is the mother – where the father and paternal family are highly critical of the mother and unable to promote the child’s relationship with her – where the father was imprisoned for a sexual assault on his cousin – child to live with the mother – child to spend supervised time with the father on four occasions per year for identity purposes – paternal grandmother’s application dismissed FAMILY LAW – CHILDREN – Parental responsibility – mother to have sole parental responsibility for the child – where the father and the paternal grandmother have been the perpetrators of family violence – where poor relationships between the adult parties prevent shared decision making – where the parties have been in dispute about the child’s education, religion, health and cultural associations |
FAMILY LAW – INJUNCTIONS – Father and paternal grandmother restrained from making contact with the child or the mother other than in accordance with the orders
FAMILY LAW – PRACTICE AND PROCEDURE – Father and paternal grandmother self-represented at trial – father granted McKenzie Friend – paternal grandmother’s application for McKenzie Friend denied – where the father has difficulty with reading and writing
| Crimes Act 1900 (NSW) s 61I Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 12 Family Law Act 1975 (Cth) ss 60CC, 64B, 68B |
| APPLICANT: | Ms Dyton |
| FIRST RESPONDENT: | Mr B Bick |
| SECOND RESPONDENT: | Ms A Bick |
| INDEPENDENT CHILDREN’S LAWYER: | Fielden & Associates |
| FILE NUMBER: | NCC | 8 | of | 2011 |
| DATE DELIVERED: | 20 June 2014 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATES: | 19, 20, 21, 22 August 2013; 17, 18, 19, 20 and 21 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Burns |
| SOLICITOR FOR THE APPLICANT: | Ashby Family Solicitors |
| FIRST RESPONDENT: | In person |
| SECOND RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Boyd |
| SOLICITOR FOR THE INDEPENDENT CHLDREN’S LAWYER: | Fielden & Associates |
Orders
That all prior parenting orders made in this Court and the Federal Circuit Court (formerly the Federal Magistrates Court) in relation to Y born … 2008, (“the child”) are discharged.
That the mother shall have sole parental responsibility for the child.
That the child shall live with the mother.
That the father spend time with the child as follows:
(a)On four occasions per year, being the first Saturday in each of the months of February, May, August and November, commencing May 2014, such time to be supervised.
The father may forward cards, gifts and letters to the child which may be opened by the mother and handed to the child or not, at the absolute discretion of the mother.
The mother shall provide to the father written notice of her nominated contact address.
In the event that the child expressed a wish to her mother to send a letter, card or gift to her father then the mother may at her absolute discretion on any particular occasion facilitate the child doing so.
That to give effect to the above order the mother shall consult the Director of Child Dispute Services, Newcastle Family Court to obtain advice as to an appropriate private supervisor available to supervise the child’s time with the father in the Central Coast area and shall thereafter notify the father of the identity of the said supervisor, with the father to be responsible for the costs of such supervision.
The mother shall authorise the school which the child attends to provide to the father at his own expense if any, copies of school reports provided to parents and applications for school photographs.
The father and paternal grandmother shall not attend the school for any purpose.
The mother shall advise the father in writing of a change of school enrolment for the child as soon as practicable after the change and otherwise shall be at liberty to provide such information and documents concerning the child to the father as she may decide in her absolute discretion.
Pursuant to s 68B of the Family Law Act 1975 the father, and the paternal grandmother, are restrained from making or attempting to make contact with:
(a) The child;
(b) The mother;
(c) Any medical practitioner consulted by the child;
(d) Any school attended by the child
Other than in accordance with these orders.
The father is further restrained from causing any third party (included but not limited to his parents) to make contact on his behalf with any of the persons/institutions referred to above.
The mother is restrained from bringing the child into direct contact with Mr W.
The application of the paternal grandmother Ms A Bick is dismissed.
Pursuant to s 65DA(2) and s 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dyton & Bick and Anor 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: NCC8 of 2011
| Ms Dyton |
Applicant
And
| Mr B Bick |
First Respondent
And
| Ms A Bick |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings with three competing applicants. The parties are the applicant mother Ms Dyton (25) (formerly Bick), the respondent father Mr B Bick (26) and the second respondent paternal grandmother Ms A Bick (48).
The parents married in 2007. One child, a daughter Y (six), (“the child”) was born of the marriage in 2008.
The parties separated in December 2010 and are now divorced.
Conduct of proceedings
Litigation between the parties began in the Federal Magistrates Court, as the Federal Circuit Court then was in January 2011. The proceedings were transferred to this Court six months later. There have been numerous court events since then, including contravention applications.
The father was in prison between December 2011 and March 2013. The paternal grandparents became even more involved in those circumstances.
The first and second set of hearing dates in September 2012 and June 2013 were vacated.
The matter was listed for final hearing for four days commencing on 19 August 2013. At the conclusion of those four days the applicant’s case only, was complete.
A further period of five days was allocated commencing 17 March 2014. All of that time was used.
Both the father and the paternal grandmother were self-representing throughout.
The father represented himself with the assistance of a McKenzie Friend. That role was taken by his aunt Ms S in the first part of the proceedings, and his brother Mr D Bick in the second part. The father asserted and I have no reason not to accept, that he has difficulty with reading and writing.
For that reason I permitted the father to indicate to me during his cross- examination, questions on which he wished to re-examine himself to enable his McKenzie Friend to make a relevant note. Other accommodations were made. To my observation the father also had some difficulty with articulation at times.
The father presented as angry and easily frustrated, both during his cross- examination of others and during his own cross-examination. At those times his speech became hesitant.
More than once the paternal grandmother, unprompted by him, addressed the Court on behalf of her son. That pattern was consistent over the whole course of proceedings before me, although it diminished.
The paternal grandmother represented herself and also asked for the assistance of a McKenzie friend. That application was denied. There was no disability or difficulty put forward. To my observation, the paternal grandmother who is employed in a financial industry role, was competent to prepare and present her own case.
Short history
The parties met in 2005 when the mother was 16 and the father 17. At the commencement of the relationship the mother did not have the support of her mother and step-father of her relationship with the father, quite the reverse. The mother ran away from home to be with the father.
In February 2006 the couple moved to Western Australia with the encouragement and support of the mother’s natural father who lived there. In 2006 the mother fell pregnant and a decision was taken to come back to New South Wales.
The parents lived first in a flat at the rear of the mother’s family home. They then moved in with the father’s family.
In early May 2007 that pregnancy miscarried. The mother spent a period of time in hospital. During that period the mother alleges that the father had forced sexual intercourse with her. The mother reports the paternal grandmother as having been entirely supportive of her over that alleged assault. The version of events in the affidavit of the paternal grandmother, suggest that if that was the case then it is no longer so. I make no finding about that allegation. The mother says she accepted the father’s subsequent apology and promises in relation to future conduct and did not report the matter to police.
The parents married in September 2007. The mother was pregnant with the child.
In 2008 the child was born. The mother remained estranged from her family and did not tell them of the child’s birth.
The parents continued to live with the father’s family for the following 15 months. The mother asserts that during that time both she and the father increasingly came to feel overborn as parents by members of the extended paternal family. However it is clear that they were financially assisted and supported in practical ways by the Bick family.
The parents discussed returning to Western Australia and did so in May 2009. The father found fulltime work and the mother was at home with the child. The mother describes their situation as a happy one.
The paternal grandparents visited the parents in Perth at Christmas 2009.
In 2010 the parents accepted an invitation to travel back to New South Wales to visit and stay with the paternal family over Christmas that year.
Events which gave rise to separation –criminal charges for father
On Boxing Day 2010 the parties and the child were in the paternal family home in Newcastle. The father, his brother and their cousin Ms C Bick, drank wine to the point of heavy intoxication. Ms C Bick is said to have been vomiting in the shower recess, lying in the shower almost unconscious.
The paternal grandmother, who had been in another part of the house, took photos of Ms C Bick in the shower, and of her son and niece falling around unable to walk. The mother was shocked by the levels of intoxication and by her mother-in-law apparently finding it amusing. On that night the father had sexual intercourse with his cousin Ms C Bick on two occasions.
Early the next morning the mother found Ms C Bick wrapped in a sheet crying. Ms C Bick told the mother that she had been raped by the father. The mother alerted the paternal grandparents. The grandmother rang the police. The police came, Ms C Bick went to hospital and the father was taken to a police station. Later the mother was asked to make a statement which she did.
The mother gives an account of what happened on her return to the Bick family home that evening. In short, she was strongly criticised for disloyalty and evicted. The child was asleep and the mother was confident about leaving her overnight although it was the first time she had done so.
On the following day the mother returned to the Bick home. The father told her that the marriage was over. She was directed to pack her clothes. The child was not in the house. The mother rang her own mother who collected the mother and took her home.
From that day, despite numerous requests to the father, the mother saw the child on only four occasions in the following three weeks; even that time was conditional on supervision of the mother by the paternal grandmother. The child turned three during the period.
The mother contacted police, who felt unable to assist, and Legal Aid whose offices were closed for the public holiday period.
On 5 January 2011 the mother filed and arranged service of an application to the Federal Magistrates Court (now the Federal Circuit Court).
The father contacted the mother by text and said he would return the child to her at a nominated police station the following afternoon.
On the next day the mother attended the police station at the stated time. The mother there received another text message saying:
I have given custody of [the child] over to my parents. You will need to talk to them about all this.
It was a particularly cruel thing to do to both the child and the mother.
On 17 January 2011 the parents were interviewed by a family consultant. The father advised that the child was enrolled in day care two days per week. His proposal was that the child continue with that and spend the other three weekdays with her mother. The mother was pressing for immediate return of the child to her.
The family consultant made a strong recommendation for urgent return of the child to her mother’s care.
Return of the child to mother’s care
On 20 January 2011 the matter came back before the Court urgently.
On that day the family consultant interviewed the maternal grandparents, who had by then filed their own application for the child to live with them and for shared parental responsibility with the parents.
The paternal grandparents reported to the family consultant their concerns that the child had been neglected whilst living in the care of her parents, whose parenting skills were doubtful in their view.
The family consultant again recommended return of the child to the mother with a period of recovery for the child to repair any damage done to her primary attachment before supervised time with the father commenced.
A recovery order and other orders were made in the Federal Circuit Court summarised as follows:
· The child to be returned to the mother forthwith;
· Both parents to have equal parental responsibility for the child;
· The child to live with the mother;
· Father to have day time contact with the child to be supervised by the paternal grandparents;
· Other ancillary orders in relation to changeovers, non-denigration, medical issues relating to the child and use of a communication book;
· Parents to attend Parenting After Separation course; and
· Mother to contact Brighter Futures program.
The child was returned to her mother on that day and has lived with her since then. The paternal grandmother has continued as a party and has not stepped back from seeking a residence order in respect of her granddaughter. Likewise the father has had time with his daughter supervised by his parents and in a contact centre. He continues to seek an order for his daughter to live with him.
On 21 January 2011 the mother received an invoice from the paternal grandparents in the order of $20,000 for (her) accommodation, cleaning and storage. To the extent that the paternal grandparents had provided support and assistance for their son and daughter in law they now sought reimbursement.
In mid-2011 there was an appearance at the Local Court for the father. He pleaded guilty to one count of sexual intercourse without consent and was convicted with a second count taken into account.
Examination of the child
On that same day either the father or the paternal grandparents notified the Department of Family and Community Services (DoCS) of the child possibly having been sexually abused.[1] The father called 000 and the child was taken to hospital by ambulance. This was done without reference to the mother.
[1]Affidavit of Paternal Grandmother filed 19/07/2013, para 143
The risk identified[2] was that the Bick family had learned through Court documents of an historical report that the behaviour of the mother (then aged seven) towards her sister (then aged four) might be sexual abuse. The mother rang police when the child was not returned at 7:00 pm pursuant to Orders. Police rang her back to say DoCS were investigating. She says, and I accept, that she was “absolutely frantic”.
[2]Exhibit 45, F Sexual Assault Service
A full medical examination of the child was undertaken. The child was then made available to the mother for collection at E Hospital at midnight, several hours after she was due to be returned. The mother was told that the examination revealed nothing of concern.
Much later, through a subpoena to the hospital, the mother learned the nature of the examination. She described herself as “shocked and furious” that the child had been subjected to such an examination without her being present. In my view that was an entirely rational reaction by the mother.
There was no adequate explanation from the paternal family for this urgent notification to DoCS, only “concerns that [the child] had been interfered with”.
It may have been tactical, a defence against future allegations, or a search for evidence. Whatever the motivation was, it was callous in the extreme and not the actions of loving child focused family members.
There had also been occasional police welfare checks prompted by the Bick family prior to this incident.
Shortly after, the mother made an application to suspend the orders providing for the child to spend time with her father and grandparents.
On 29 June 2011 Orders were made in the Federal Magistrates Court (now the Federal Court) summarised as follows:
· The parties are restrained from taking the child to a doctor, nurse or other practitioner for a medical examination without both parents being present;
· If any of the parties form a view the child has been sexually assaulted, physically assaulted or otherwise, he or she is to contact DoCS for advice as to the steps that should be taken to investigate such concerns;
· In the event of an emergency which requires the transport of the child to hospital by ambulance, the party caring for the child shall immediately notify the mother and father to enable them to attend the hospital;
· In the event the father is incarcerated the parties are at liberty to request the matter to be relisted;
· The matter was transferred to the Family Court.
In late December 2011 the father was sentenced to a term of imprisonment of two years six months with a non-parole period of one year three months.
There was an immediate problem over the child seeing her father in prison. The paternal grandparents were determined to take her and did so without reference to the mother. They were entirely dismissive of the mother’s concerns. They pressed for “full custody” of their granddaughter.
On 20 March 2012 Orders were made including orders for:
· A monthly visit for the child with her father organised and supervised by Organisation G.
· Alternate weekends with the paternal grandparents.
On 14 August 2012 the father filed Contravention applications which were heard in the Federal Circuit Court and ultimately withdrawn or dismissed.
In March 2013 the father was released from gaol on parole having served 15 months of his sentence.
The father did not advise the mother of his release, although she was anticipating it. He went straight to the child’s pre-school. Predictably the pre-school did not allow contact.
Later the mother asked to see the father’s parole conditions. It was a reasonable request given the orders in place. The father refused. The paternal grandmother rejected the request rudely and decisively:[3]
[The father’s] bail conditions are none of your bloody business, you won’t be getting a copy …..
[3]Affidavit of Mother filed 18/07/2013, para 141
In the end the parole conditions were only produced to the Court in response to a subpoena.[4] There was a requirement for supervision of mental health issues identified in sentencing reports for the father.
[4]Exhibit 30
The father could and should have volunteered the document and reassured the mother that he could understand her fears, especially not having seen him after a difficult 15 months in gaol.
This was another example of the father and his parents dismissing, high handedly, the reasonable parental concerns of the mother. On many occasions they have behaved as if the mother simply did not count in decision making for the child. There was certainly no respect or acknowledgment at this time for her care and support of the child with no financial assistance from the father in gaol.
On 11 March 2013 the paternal grandmother applied for the Mother to be dealt with for Contempt. That application was subsequently dismissed.
On 19 July 2013 the report of Dr H, Child and Family Psychiatrist was released. The central recommendation was that the child continue to live with her mother.
On 19 August 2013 the final hearing commenced.
On 21 March 2014 the adjourned hearing concluded.
The applications
The mother sought sole parental responsibility for the child, residence with her and time for the father graduating to alternate weekends over the next two years.
The father sought equal shared parental responsibility between the three parties, residence with him and undefined time with the mother, beginning with a period of no time between mother and child followed by supervised time.
The paternal grandmother sought equal shared responsibility between the three parties, residence with herself (and her husband) and weekends for the child alternating with each parent until age eight, then weekends with each party on a three week cycle.
Superficially the father and the paternal grandmother had applications for residence supportive of each other, because the father is presently living with his parents. However that situation was due to change when the parole conditions of the father expired in June 2014. The father has formed a new relationship and is hoping to move out of his parents’ home to live with his new partner and her three children.
The position of the paternal grandmother was clearly stated as residence with her, whether or not her son lived with her.
The evidence
The parties relied upon the following documents:
(i)Amended Initiating Application of Applicant Mother filed 07/05/2013;
(ii)Amended Response of First Respondent Father filed 16/09/2013;
(iii)Amended Response of Second Respondent Paternal Grandmother filed 04/06/2013;
(iv)Affidavit of Applicant Mother filed 18/07/2013;
(v)Affidavit of Mr J (mother’s partner) filed 19/08/2013;
(vi)Affidavit of Mr K, (maternal grandfather) filed 18/07/2013;
(vii)Affidavit of Ms K, (maternal grandmother) filed 18/07/2013;
(viii)Affidavit of First Respondent Father filed 19/07/2013;
(ix)Affidavit of Maternal Grandmother filed 19/07/2013;
(x)Affidavit of Ms L filed 19/07/2013;
(xi)Affidavit of Mr I Bick (paternal grandfather) filed 19/07/2013;
(xii)Affidavit of Ms M filed 05/08/2013;
(xiii)Two reports of Dr H dated 13/03/2012 and 19/07/2013;
(xiv)Memorandums of Family Consultant dated 17/01/2011 and 20/01/2011.
Ms Dyton (formerly Bick), the mother
The mother is now aged 25 years. The mother has formed a new relationship with Mr J. Mr J gave evidence. Their mutual expectation is that when these proceedings have concluded, they will live together and probably marry.
The mother impressed as mature for her age, although a little naive in her belief that the deep hostilities in this case will likely resolve with a determination of the proceedings.
When she was asked whether a non-denigration order for all relevant adults should be made, the mother’s answer was, “I’d like to think it will work.” When pressed by me as to what made her think that people would change, given the hostility in the litigation to date, she agreed that it was probably wishful thinking.
The mother gave her evidence in short responsive answers. She seemed somewhat flat, although ultimately I came to the conclusion that this effect resulted from her effort not to become emotional in her responses.
The mother has reverted to the use of her maiden name and is focusing her attention on the future rather than the past, which has an obvious benefit for the child.
Separation of the parties was traumatic for the mother. Over one or two days, in late December 2010 her marriage ended. The child was removed from her care and the paternal family excluded her from their home.
There was a period of about three weeks when the child, aged just three, saw very little of her mother. Deep division in the family and divided loyalties have characterised the matter since.
As a positive for the mother, she has restored her relationship with her mother and step-father and other members of the extended maternal family.
Financial support
The mother planned to complete a certificate level course in 2014, once the child started school. She may now have done so.
The mother has not been in receipt of any financial support from the father. Whilst he was in gaol his child support was assessed at Nil and that continues to be the case. In fact the father has been in reliable casual employment earning between $800 and $1400. He did not give any of those funds to the mother because, on his own evidence, he was not obliged to with a Nil assessment period in place. This behaviour reflects adversely on his attitude to the responsibilities of parenthood.
Accordingly the mother has borne the total financial cost of raising the child from separation to date.
There were offers from the paternal family to provide financial support for the child in the sense that the family is willing to pay for a religious education for the child at N School. The mother did not agree with enrolment at that school.
There has been no practical assistance to the mother in her day to day care and provision for the child’s material needs, food, clothes and medical attention.
The mother has undertaken a Parenting After Separation course. I am satisfied that she has been careful to protect the child as much as possible from the adult issues in the proceedings under the most testing circumstances, where she has been subject for instance to multiple welfare checks initiated by the paternal family, where there has never been any occasion when the police, who came out to do the welfare check, were concerned.
The strong theme of the mother’s evidence in her affidavit and orally, was that she wanted to raise the child with the father as parents and that it would be a matter for him to include his parents at a level he saw as appropriate. This too seemed a little naive given the extent to which the father appears to have been guided, if not controlled, by his parents, especially his mother.
Father’s assault on maternal grandfather, Mr K
The mother responded to questions about the assault by the father on her step-father, in a calm fashion, underplaying the seriousness of the event. In particular she said that fortunately the child had not seen this incident where her step-father was struck in the face by the father. When questioned by the father, with a view to an attack on her credit, the mother acknowledged that the child had been re-enacting for the police some of what had happened on that day. The child had very obviously heard enough or caught wind of something to enable her to understand what had happened.
The mother was also asked, again in an attack on her credit, about photographs of events in December 2010, which gave rise to the father being charged with sexual assault and his ultimate incarceration. The mother had said in her affidavit, that the paternal grandmother had taken photographs of the young woman who was assaulted and her own son on the evening in question.
In the police file were certain photographs with the words “photos taken by [the mother]” on the foot of them. In fact, the statements to which the photographs were attached made it clear that the paternal grandmother had taken the photographs as asserted by the mother, and had used the mother’s camera to do so. After proper objection by counsel for the mother, these facts were established. It was at best an inappropriate attempt to discredit the witness. At worst, it was an attempt to mislead the Court. Of particular significance was the fact that Ms A Bick, the paternal grandmother, who sat beside her son as he cross-examined in this way, made no attempt to rectify the situation in the Court.
Bick family illness, ITP
The mother was extensively questioned about an illness from which the father and members of his family have suffered.
An order was made in March 2011 for the mother to take the child to the general practitioner to have her assessed on the subject of this illness, namely Idiopathic Thrombocytopenic Purpura.
Tendered into evidence was a report by Dr O, staff paediatrician at the Town P Paediatric Assessment Unit[5] from Dr O to the Independent Children’s Lawyer. The paediatrician had seen the child in June 2011 and I accept that the referral from the general practitioner would have seen the child on a waiting list to be assessed in Town P, in the Paediatric Assessment Unit. The doctor makes clear two things:
1. The condition is an acquired condition, not genetic.
2. There is no testing which can predict whether a child will develop the condition in the future.
[5]Exhibit 7
The best advice of the paediatrician was that if there were any symptoms or signs of the disease, tests, which would be invasive by way of blood being taken, should be done.
The mother stayed calm and patient as she was repeatedly questioned about the extent of her knowledge of occurrence of the illness in the Bick family and how often various affected members were tested. I am quite satisfied that the mother is aware of the illness, aware of the signs to look out for and is alert and attentive to the child’s general physical health.
Education and religion
There has been disagreement between the parents and the paternal grandparents about the child’s education. The mother, acting on the advice of the pre-school, held the child back from the commencement of formal education until 2014. The father and his family did not support this decision.
More significantly, the father and his family want the child to have an education at N School, a Catholic school in the local area. The mother does not agree.
The child was baptised in the Catholic faith, but it appears the father is not a regular church attender, nor engaged in aspects of his faith, at least at this stage of his life. A significant aspect is the fees. The paternal grandparents have offered to pay for the education where they would pay the fees directly to the school. The mother is concerned that she is financially solely responsible for the child and is not in a position to make any kind of commitment to the school for paying fees.
Education has been an issue for the parties for as long as the proceedings have been before me. It seems most appropriate that the child attend at the school most convenient to the residence of the home where she primarily lives and in circumstances where neither of her parents are actively involved in church attendance, church activities or organised religion at all, that she should attend a public school.
The father appeared to be genuinely puzzled over the fact that he had sent an enrolment application to the mother and that she had declined to sign the form and send it on to the school. He was indignant that the mother’s solicitor had advised that the mother did not consent to the child attending that school.
I infer from his questioning that his belief was that the mother should simply have complied. It is an indication that equal shared parental responsibility, at least on this topic, is unlikely to lead to a suitable negotiated outcome for the child.
Stance taken by paternal grandmother to mother
There was an eagerness on display in the paternal grandmother, to criticise the mother and her family. It went beyond the common misunderstanding of self- representing parties to the effect that smearing the character of a party necessarily enhances the character and case of the other. When the mother was cross-examined by her former mother-in-law the focus was attacks on what was perceived as the mother’s credit. For instance, the mother was asked about the accommodation where she has lived for almost three years with the child, in a granny flat at the back of her parent’s home. It became clear that the paternal grandmother had arranged for photographs to be taken long distance of the accommodation.
The proposition was put to the Court that there was a letter produced in response to a subpoena to Town P Shire Council, which declared the granny flat to be “unfit for human occupancy.” The letters tendered into evidence; an email from Town P Shire Council to the paternal step-grandfather dated 13 September 2011[6] and a note generated by the Council on 21 January 2011,[7] did not support that assertion to any extent. It was at best exaggerated and at worst, a deliberate attempt to mislead the Court.
[6]Exhibit 14
[7]Exhibit 15
It appears that after the mother was excluded from the home of the paternal grandparents, her parents arranged to rebuild the back area of their house and create a granny flat for her. The paternal grandmother attempted to establish that the accommodation was affecting the child’s health. She pressed the mother to acknowledge that the photographs she had arranged to be taken from off site, showed moisture gathering on the walls of the granny flat.
I spoke more than once to the father and his mother about the need to focus on the real issues in dispute, with particular reference to the future care arrangements for the child.
I take into account that the parties may well have prepared their cross-examination in advance and were unable to move away from it, but the focus of the cross-examination did not move away from detailed criticism of the mother herself, with very little reference to the child’s needs.
The mother was questioned by the paternal grandmother about events on the night that the father was arrested for assaulting his cousin. First she was asked whether in December 2010, on a night when she had gone to visit a friend, she had drunk alcohol. The mother agreed she had. Whether she had rung and said she was staying overnight rather than driving home, the mother agreed she did.
In a challenging way, the paternal grandmother said to the mother, “And who was caring for [the child] that night?” The answer was, “Yourself.” If it was the case that the paternal grandmother was trying to establish that this was a failing in the mother, it did not succeed. That the mother would leave the then three year old child with her grandmother and phone home to let her know that rather than drive back she would stay at her friend’s house, seems an entirely responsible course.
The mother was asked about the events of Boxing Day 2010 and challenged about her earlier evidence that she did not binge drink. She was taken to her police statement where she said she and the young woman, who was assaulted, had drunk three bottles of wine between them. The father was obviously present and also drinking that night. Given the description of the high intoxication of the other young woman and the father, it seems likely that the majority of the alcohol was taken by them.
The significant matter is that the drinking itself and the events of the night took place in the home of the paternal grandparents, who were present at the time. To the extent that either of the parents was affected by alcohol in a way that they could not responsibly care for the child, the grandparents were available to do so.
The mother was asked about an email that was sent to her solicitor with a request that the condition that the child see her father in a Contact Centre be lifted. What the paternal grandmother did not acknowledge until she was questioned about it; was that the email which was sent apparently signed by the father, was in fact written by the paternal grandmother using her son’s name. The orders at that time provided that when the father was released from gaol, he was to have contact in the Contact Centre, but in the event his parole conditions allowed him to be away from the home of his parents after release, then there could be a negotiated arrangement for the child to spend time with her grandparents.
There is no doubt that the father and the grandparents refused to provide the mother and her solicitor with the father’s parole conditions. Nevertheless the mother was cross-examined on the basis that it had been entirely unreasonable of her not to simply allow ordinary weekend contact to be re-established once the father was out of gaol and in particular, once the request for that to happen had been received.
Quite unbelievably, the paternal grandmother put the proposition to the mother that since she had divorced the father at the end of 2012, she had disqualified herself from the right to know about his bail conditions. On considering this proposition, I am forced to the conclusion that the paternal grandmother has no respect for the mother at all and does not acknowledge her authority as a parent or even as an adult.
Clearly orders were designed to enable the grandparents to spend some time with the child in the absence of their son if necessary.
In any event, the mother remained calm, said she still had concerns about the father and had a preference for the matter being determined by the Court.
It is hardly unreasonable that the mother who was at all times anxious about the child being taken to see her father in gaol through Organisation G, had no basis for knowledge of the father’s state of mind post release. Her concerns for the child seem entirely reasonable.
The attitude of the paternal grandmother on the other hand appears to be that when a request is made by herself, or her son, the mother should simply do as she is told.
I consider the mother to have been a candid and straight forward witness who did not amplify her evidence even when given the chance to do so. For instance she was asked to develop her statement that the pressure of recent years has affected her parenting ability. Counsel for the Independent Children’s Lawyer raised the possibility that she could not relax and just be the child’s mum that she had to keep looking over her shoulder to see what others would think. The mother simply agreed and stated that she hoped the stress would be alleviated and everything would just calm down after the proceedings.
Ms K, maternal grandmother
The maternal grandmother is employed in administration. She has been married to the mother’s step-father for about 17 years.
She was worried when her daughter ran away to be with her boyfriend (the father) aged 16. It was a shock to the whole family of which the mother is the oldest child. Previously she had worked hard and done well at school and had been involved in her church youth group. Estrangement from her daughter was painful for her.
She accepted that the values of the Bick family were rather different to hers, but continued to support her daughter when the parents later married. She was unable to speak to her daughter in the Bick home and rarely saw the child.
In January 2009 the maternal grandmother attended the Bick home and asked to see the child. Her daughter explained she would need permission from her in-laws. The mother went into the house and returned with the child in her arms. The maternal grandmother says and I accept, that she then heard the father and paternal grandmother shouting from within the house words to this effect:
God help you [the mother’s given name] if you take that child out – no way are you taking her anywhere.
The father then emerged from the house, shoved the mother while she had the child in her arms, got into his car and sped off down the driveway, leaving smoke and rubber burning marks on the driveway. The maternal grandmother apologised to her daughter for getting her into trouble and reports her daughter’s answer, “Don’t worry mum; that is nothing new”.
After the events of Boxing Day 2010 the mother turned to her own mother for help, and has lived with her since.
It is apparent that although the Bick family allowed the mother to live in their home with the child, she was at that time at least subject to their control and at very best, not encouraged to maintain relationships with her own family members.
In relation to the child now, the maternal grandmother said she had settled down more recently and no longer had the tantrums which were referred to by Dr H.
The maternal grandmother had not read either of the reports by Dr H but she was asked to amplify her reported statements about the child having a secret. She described it as follows:
When they were in the kitchen together, [the child] had said to her ‘I’ve got a secret. I cannot tell the secret or mummy will get hurt’.
The child went on to say, ‘If I tell the secret my [DD] (a reference to the paternal grandfather) will hurt my mum’.
I accept this evidence was candidly given by the maternal grandmother, who was visibly affected by the memory of how frightened the child was at the time. It was concerning evidence and almost certainly related to the child being taken to see her father in gaol without the knowledge of the mother. The maternal grandmother appropriately reassured the child and encouraged her both to talk to her mum and that her mother would not be hurt as a result.
The maternal grandmother impressed as a woman of convictions, who perhaps lives her religious faith. Having reconciled her relationship with her daughter, there is a strong bond of affection between them and I formed the impression that the maternal grandmother has put the painful years of her daughter’s relationship with the father behind her. She is also a loving and dutiful grandmother to the child.
For instance, when the pre-school rang her as an emergency contact, she “rushed straight up there.” The pre-school staff had found a tablet in commercial foil with an empty blister where another tablet would have sat. The concern in the pre-school was that the child may have taken one of these tablets. The bag that the tablet was in was uncontroversially one that had been supplied by the paternal family.
It is worth noting that in the communication book[8] there is this note by the paternal grandmother about the school bag:
I have changed her school bag. It was torn parts broken and it made [the child] look as if she is unloved. I am disappointed that you were making her go to school as an unloved child.
[8]Exhibit 23
This was part of a broader message communicated by the paternal grandmother to the mother through the communication book, in which the paternal grandmother identified a variety of criticisms of the mother and sources of disappointment. For instance, there was:
Still no photo of her father in her room, inappropriate clothes had been packed for the weather and that the mother was failing to use insect repellent on the child when she played outside.
This was a misuse of the communication book and quite unnecessary. The issue of the tablet in the bag was a mysterious one. There was no attempt by the mother or the maternal grandmother to suggest any wrongdoing by the paternal family. Rather that the event had happened and it had been cause for in my view, appropriate concern.
The maternal grandmother went on to say that the child had also said to her: “Nanny I’m not allowed to love you.” This was at a moment after the maternal grandmother had given the child a hug. The maternal grandmother quite appropriately replied, “You can love anyone you like because that comes from your heart.” On many occasions the child also stated to her grandmother, “Daddy said it’s your fault.” This was a reference to the father having gone to gaol in 2011.
I accept the maternal grandmother’s evidence that when the child said such things to the mother, the mother simply distracted her with a drink or some other activity, and did not engage in conversation about the father.
The maternal grandmother volunteered to help with handovers and driving if necessary and I accept she would do her best to make the experience a safe and un-stressful one for her grand-daughter.
Cross-examination by the father of the maternal grandmother displayed considerable hostility from him towards his former mother-in-law. In particular, she was asked about an occasion when they had crossed paths on the way to and from the Contact Centre. There did not seem to be any significance to the questions, other than criticism. The father asked the maternal grandmother whether she had seen his parenting of the child; her answer was quite instructive:
I wish I had [the father’s given name]. I wish I did see it. I didn’t get to see her for three years you remember.
Bizarrely the father challenged the credibility of the maternal grandmother in respect of this answer, because she had had the opportunity to see her grand-daughter for one and a half hours at Town Q Police Station, during a period when he and the paternal grandmother had withheld the child from her mother immediately post separation.
There was a similar level of attacking cross-examination by the paternal grandmother. There was a focus on annexure ‘C’ to the maternal grandmother’s affidavit which was a personal reference by a former employer. There was likewise on display the hostility between the two grandmothers, most particularly the indignant anger that the paternal grandmother appears to still feel about the maternal grandmother’s opposition to her son’s relationship with the mother when the couple first met.
The paternal grandmother seemed personally offended by the statement in the maternal grandmother’s affidavit, “I hope that their relationship would not be able to continue.” When asked to amplify, the maternal grandmother unsurprisingly said:
It had been the wrong way for a relationship to be, that there was a safety issue for [the mother] in leaving the house without her parents knowledge and that it had upset the household.
I had the very clear impression that the paternal grandmother’s attitude has been and continues to be, “If you criticise my son you criticise me”.
The paternal grandmother has certainly written emails, signed off under her son’s name, taking over the writing up of the communication book and of course, has become a candidate for residence for her granddaughter to live with her to the exclusion of both her parents. It does seem to me that the paternal grandmother is a dominating force in her son’s life and likely persuaded him to take the very negative and destructive stance that was taken in the cross-examination of the maternal family by both of them.
Annexed to her affidavit were emails that the paternal grandmother had found on her own computer between the mother and the maternal grandmother. She printed them off and attached them to her own affidavit. She said that the mother had deleted all of her own personal material from the paternal grandmother’s computer. She had apparently missed these exchanges.
I asked the paternal grandmother if she thought that reading those emails and attaching them to her affidavit and including them in these proceedings was likely to have a negative impact on the maternal family’s attitude to her, particularly the mother and maternal grandmother. Her response was instructive, “I honestly did not give it any thought your Honour.” I accept that the paternal grandmother has not given any thought to her decision to try to attack and discredit the maternal family through these proceedings. She has been entirely focused on doing whatever it takes to prevail.
Something was sought to be made of the fact that the paternal grandmother had forwarded cards to the mother and maternal grandmother on behalf of the child. It was conceded that they had been photocopied before being sent in order to use them in these proceedings. I am satisfied that the paternal grandmother gave no consideration to the fact that the purpose of sending the cards would be clearly on display once they were annexed to her affidavit and had given no thought to the fact that it would inevitably be regarded as the self-serving gesture it was.
I thought the maternal grandmother was trying to communicate quite politely to the paternal grandmother that she thought she was “over involved” in the proceedings. This came in the context of questioning about a birthday party for the child, where invitations had been issued by the paternal grandmother through the communication book:
Q: Does [the mother] talk to you about the communication book?
A:Only if something upsets her in it. I’m only the grandmother, I don’t focus on every little aspect of [the child’s] life so no, [the mother] doesn’t tell me everything that goes into the communication book.
It became apparent to me that the maternal grandmother has struggled to support her daughter and granddaughter, both financially and emotionally, whilst stepping back from the intrusive and over bearing conduct of the Bick family, in particular the paternal grandmother.
Mr K, maternal grandfather
The maternal grandfather presented as a quiet man, unhappy about the proceedings, but comfortable to answer questions. He indicated his willingness to participate in changeovers for the child’s benefit. He has been the mother’s step-father since she was nine years old and the evidence suggests that he has been as fatherly and protective of her as if she was his own child, including clashing with her over the relationship with the father when she was a young teenager, and protecting her from the father’s anger when the relationship came to an end.
The maternal grandfather had disclosed in his affidavit that he had a conviction from past conduct involving his first wife. There was no violent assault, but an inappropriate attempt to persuade his first wife to return to him. He was charged and put on a good behaviour bond.
It is part of the paternal grandmother’s application that the maternal grandfather be excluded from the child’s life on the basis of this criminal conviction. The maternal grandfather was the target of a relentless, quite cruel campaign by the paternal family to criticise and discredit the mother and her family.
There did not appear to be any conflict or sense of irony in this attack by the paternal grandmother, given that her own son has recently been gaoled for two years for a serious sexual assault on his female cousin. There was an indignant anger displayed by the paternal grandmother, at any perceived criticism of her and her household.
There had been a reference in the maternal grandfather’s affidavit to his young son R, then 16, attending a bachelor party before the wedding of the parties in these proceedings. To the disappointment of his parents and particular his father, R had come home obviously affected by alcohol. In a very challenging way, the paternal grandmother asked the maternal grandfather, “Are you saying that’s from our house (a reference to the alcohol)?” The maternal grandfather quietly answered “Yes” and there were no further questions.
In the same way the father chose to focus on the incident on 21 February 2011, where he assaulted the maternal grandfather by punching him in the face. He was charged with common assault, convicted and put on a Good Behaviour Bond. The attitude taken by the father was that the maternal grandfather was at fault for having interfered in his communication with the mother. The assault took place in the front garden of the maternal grandfather’s home. It was at the other end of the spectrum to an apology for that violent attack on his former father-in-law in the presence of the child, who was sitting in the car strapped into her car seat at the front of the house.
There is no other explanation for the amplification of this ugly incident highlighting the father’s impulsive aggression than that he held the maternal grandfather responsible for the father assaulting him. It is a most worrying insight into how the father perceives the world.
Mr J, mother’s partner
Mr J presented as a straightforward calm young man of 27. I accept that he is committed to both the mother and the child. I also accept that he has done his best to support the mother without becoming drawn into the conflict.
He has had some provocation to resist. The police have attended the home he shares with a friend at least twice for welfare checks on the child at the request of the father and or the paternal family. On one occasion an ambulance was called unnecessarily.
He has been concerned about the child struggling to speak on the phone to her father for the 30 minutes expected of her. He reports that the child said to him:
Daddy said that he was going to ring the police to come and get me ‘cause I’m being bad.
I accept that he felt dumbfounded. Threats by the father to call the police to see the child because of her unwillingness to talk on the phone were painfully borne out by recordings produced and tendered by the father.[9]
[9]Exhibit 24
Mr J is intending to undertake a parenting course in order to approach being a step-father from a responsible position. It is a positive sign. He was asked whether the child would be calling him Dad in future. His reply was insightful:
I’d be torn between her wanting to do that and my knowledge that she had her own family.
Mr J remained calm and civil during cross examination by the father and paternal grandmother despite provocative questions about his friend/housemate with whom he has stayed and other minor matters.
I am satisfied that Mr J will be a positive benefit to the child, affectionate and protective.
Mr B Bick, first respondent father
The father is a man of 26 years. He presented as immature for his age, indignant about perceived wrongs against him, unable and/or unwilling to accept responsibility for his own failings and errors of judgment. He was highly critical of the mother often referring to her as an adulteress.
His presentation is consistent with my impression that the paternal grandmother has not stepped back from her role of parent to her son, despite his being a father himself. She treats him like a child excusing and defending him.
The father revealed during cross examination that he has a new partner, a woman of 37 years with three primary school age girls. He plans to live with her when his parole conditions expire in June 2014. He described all three children as suffering ADHD with the middle child having an additional disability.
The father had not apparently turned his mind to how the child would fit in to such a household. He did say that if the child was living with him, any weekend she did not stay with her mother he would arrange for her to stay with his parents. There was no other sign of the father having seriously thought through his parenting proposals.
Relationship with the mother
Separation from the mother was traumatic for the father. He was charged with a serious criminal offence which effectively ended his marriage. He had come from Western Australia with his wife and child for a holiday in Christmas 2010, but was unable to return to that life to any extent.
His oral evidence was that his marriage was already over by that date and he was looking for a way out of it. I do not accept that evidence. In prison, the father was still hopeful of reconciliation which he expressed in a letter to his wife and child.[10] There is now no cooperation or communication between the parents.
[10]Exhibit 32 “Letter to the mother and the child”
He expressed bitter resentment about his conviction and subsequent incarceration in respect to the criminal charges involving his cousin. His strongly expressed oral evidence was that three people were equally responsible for the events on the night in question and only he has been punished. This was a reference to the victim of his assault (his cousin Ms C Bick), the mother and himself.
To his initial credit, the father did concede that he was responsible for his levels of intoxication on that night, “40 odd drinks”, and for his unfaithfulness to his wife, the mother in these proceedings. However he went on to blame the mother for not ensuring that he travelled in his drunken state from the bathroom to the correct bedroom (with her) and for not physically removing him from the bed he and his cousin were in, in the wrong bedroom. He also blamed his cousin:
It was consensual… She actually raped me as well. When I tried to remove myself from that room she would not let me go.
These and other similar assertions effectively undid his earlier acceptance of personal responsibility and were both childish and absurd.
Significantly his evidence in this Court was quite different to that in the criminal proceedings. Sentencing remarks in the District Court refer to the father being “genuinely remorseful and contrite” for which he was given a discount in relation to sentence.[11]
[11]Exhibit 37, “Sentence” p 4
I have to conclude either that the father was insincere in his expressions of remorse in the criminal proceedings, or that he was fabricating stories of coercion and abandonment in these proceedings in an attempt to vindicate himself and display the mother in a poor light. Either explanation reflects adversely on his personal honesty.
Beyond damage to his credit this contradictory evidence does not reflect well on the insight of the father into the impact on his six year old daughter of taking such a stance, harshly critical of the mother, in these proceedings.
Telephone contact with the child
The father brought in taped recordings of his phone calls and attempted calls to his daughter.[12] They were an unhappy revelation of the relationship between father and daughter. The father taped conversations and told the child he was doing so.
[12] Exhibit 24
The father revealed a complete lack of insight into the pressure the child was being put under by both her parents during these calls, her father demanding that she answer his questions, the mother insisting that the child keep talking. The father used the opportunity to criticise the mother and the child herself. At times the child started out on a happy note which invariably turned to misery and frustration.
The tendered recorded phone calls between the father and the child were as follows:
· Group 1 26 February 2014 (16 mins);
· Group 2 26 February 2014 (10 mins);
· Group 3 4 November 2013 (6 mins);
· Group 4 10 April 2013 (33 mins).
First there was a set of a great many attempted calls. The father spoke briefly to the child twice with the phone being hung up abruptly each time. Otherwise it was attempts that reached voicemail. After each of the brief conversations the call ended with high pitched screaming by the child.
The first conversation began with the child answering the phone promptly and volunteering that she was “looking at numbers.” The father inappropriately responded in an annoyed tone, “Mummy should not have a count down on our time” and developed that theme by telling the child that they could talk as long as they wished. Selective passages are as follows:
Father: How was school today?
[The child]: You can never ask that question. (with angry distress)
Father: Daddy’s got every right to ask that question.
[The child]: No don’t. (screaming)
Father: Do I have to ask your teacher?
……………………..Hang up…………..
The second briefer conversation began with a question:
Father:Why did the phone get hung up? Daddy didn’t say anything mean or anything.
Father: How was school?
[The child]: No, don’t ask me again. (screaming)
Father:Have Mummy and [Mr J] been talking bad about me? [The child’s given name] .. [The child’s given name]….[The child’s given name]!
[The child’s given name and middle name]!
(child screams)
[The child’s full name] (child screams)
Phone hangs up.
In the second set of calls the father opened with a question:
Father: What happened to the phone?
[The child]: It got hanged up.
[The child]: It’s raining.
The father was dismissive of the obvious attempt by the child to change the topic and returned to the subject of the phone.
[The child]: I was frustrated with you.
Father: No you weren’t.
[The child]: I was!! (screaming).
Father: Mummy should be pulling you up on that squealing. A little lady should not squeal (Phone hangs up).
The father registered his protest in a voice mail and left an offensive message for the mother and Mr J.
At one point in a call the paternal grandmother came on the line and said to her grand-daughter, “You are just a little turd”.
Whether or not the child knew that word she would have understood the anger, blame and contempt with which it was said. The father said he spoke to his mother about that. However he also said he believed the child was being bribed or taken away from his call. In response to the proposition that he could have terminated the call and given the child a break the father complained, “She hadn’t been psyched up for the phone call”.
The father undoubtedly loves his daughter but is unable to protect her from his own feelings and thoughts. The letter he sent to her from gaol[13] exemplifies the problem. He referred to the Court stopping weekly visits, that the child should “tell Mummy to fuck off” if she was asked to call anyone but him Daddy and explained that the reason her parents couldn’t be friends was because “she hates Daddy”.
[13]Exhibit 32
Even if the father was writing the letter to the mother in the guise of a letter to their child, he apparently did not consider the risk of the letter coming into the child’s hands at some future stage.
Aboriginality
The father is of aboriginal descent through his father from the T tribe of the U Region. He and his father are said to be active members of the Land Council for the V tribe. Their tribe does not have a Council.
The father wants to keep the child connected with her Aboriginal heritage. He has taken relevant story books for time together at the contact centre.
The father is concerned that the mother does not acknowledge the child’s heritage. On balance it seems likely that without active denial the mother has not engaged with the child on this topic.
The mother became aware when she and the father were still at school that the father identified as aboriginal but to her observation he did not engage in any relevant cultural activities. Her view is that he became more interested, whilst in gaol, in both aboriginality and his religious faith.
The mother asserts that if she can be certain of this heritage for her daughter she will do all she can to assist the child “to learn about this aspect of her identity.” The mother is unconvinced on this topic and the father is offended by her attitude, especially the request for formal documentation.
Ms L, Bick Family friend
Ms L is a close friend of the Bick family and has worked for and with the paternal grandmother. There was little of relevance in the affidavit which contained effusive general praise of the father and criticism of the mother.
Her honesty was successfully challenged in terms of the signing of documents arising from the business of the paternal grandmother, a matter which had some minor relevance to the credit of the grandmother but not otherwise.
Ms A Bick, Second Respondent paternal grandmother
The paternal grandmother lives with her husband and has two adult children one of whom is the father.
In her early affidavits the paternal grandmother identified her occupation as being in a financial industry role, in her final affidavit and oral evidence as being in a different financial industry role. When challenged about her qualifications and attendance at Z University, she conceded that she had not completed a degree and did not have any qualifications in those roles.
Since early 2012 at least she has been self-employed and has worked less than fulltime due to alleged stress and anxiety arising from previous employment.
The paternal grandmother was cross-examined about her ability to participate in several court events in support of her son during this period and of her incapacity arising from employment. Further she was asked about Ms L’s assistance to her in acquiring clients from her previous employment. What I take from this evidence is that the paternal grandmother is a very strong character and is prepared to marshal whatever forces she can to pursue her own goals. That is consistent both with her evidence and presentation as a party and cross-examiner in these proceedings.
Attitude of the paternal grandmother to her son’s assault of his cousin Ms C Bick
Ms C Bick is a paternal cousin of the father and she was living in the Bick home by arrangement between her parents and her aunt and uncle, the paternal grandmother and the paternal grandfather.
The paternal grandmother strongly attempted to justify her son’s actions in assaulting his cousin and to minimise the significance of the offence. For instance, when asked whether she was horrified to hear her son having tried to exonerate himself in these proceedings, the paternal grandmother said that knowing the circumstances behind the assault she was horrified to know that Ms C Bick had been sexually assaulted, but also knew that she had later said it was “a raunchy dream.” She went further. When asked if she was horrified to hear her son say that Ms C Bick had raped him, she answered quite definitely: “I am horrified to know that she raped my son”.
The paternal grandmother knew quite well what her son had said in his criminal proceedings and that he was given a reduction of sentence on account of his early plea of guilty and his expressed contrition and remorse. She took the decision to support her son’s efforts to minimise his guilt in the matter, despite the contradiction and was willing to say that the mother was partly at fault for what had happened on the night of the assault. Counsel for the mother put this:
Wasn’t the mother entitled to go to bed and trust her husband not to rape her cousin. Why is it then that it’s the mother’s fault and not yours?
The paternal grandmother was present in the home that night and her answer was that she was elsewhere and did not know how intoxicated they were. Altogether it was an illogical position for the paternal grandmother to take and I assume an attempt to play down her son’s conduct in order to maximise the chance of a good outcome in relation to the child.
The paternal grandmother’s presentation was one of entitlement and self-righteousness. She agreed that she had told her grand-daughter that “Orders allow [X] (herself) and daddy to see you.” She also agreed that although she knew that the orders provided for the father to have supervised time at a centre, she had tried to tell the child that the child would be coming for the weekend with her grandparents and would see her father then.
The paternal grandmother has been certain that the child should spend the majority of her time in her care. Her application for the child to live with her is competitive with her son’s application and not supportive. I draw this conclusion from her evidence that she had in the past believed that her son was incapable of parenting the child; that she no longer held that belief, but was unwilling to withdraw her own application for residence. The evidence supports the conclusion that the paternal grandmother has waged a campaign against the mother.
She has no legal obligation to have provided any financial support for the child. However she was aware that her son was in prison and providing no financial support. She was asked how much money she had given the mother for the benefit of the child. She gave the answer, “Physically to [the mother], NOTHING!” Quite loudly and with considerable contempt in her voice.
The paternal grandmother denied awareness that requests by herself and her son for the police to carry out welfare checks on the child and her mother’s home might cause fear, embarrassment or distress to the mother. Yet she must have known because she participated in the telephone calls that were put into evidence, that the child was most concerned about the possibility of the police being called. The child interpreted this as a threat directed at her for bad conduct. The child was right about that in respect of the father’s actions. I do not consider that the paternal grandmother had any concerns for the child’s physical welfare in the mother’s home, which was the family home of the maternal grandparents; rather she was sending a message to the mother through that means that the paternal grandmother was checking up on her.
Invoice directed to the mother
It emerged that the paternal grandmother had generated an invoice for services delivered to her son and daughter-in-law when they first lived with her in 2007/2008 and that the original invoice was regenerated and added to after the mother left the Bick family home in January 2011.
The paternal grandmother was adamant that it was proper for the mother to pay for the child’s possessions to be stored in the Bick family home. This rather harsh stance is consistent with what appears to be the paternal grandmother’s world view; either you are one of the family and therefore with them, or if you leave the family you are against them.
After the mother left the home the paternal grandmother and Ms M, who became a witness in these proceedings, read part of the mother’s diary and went through her personal emails stored in the family computer. The paternal grandmother conceded that that had not been appropriate or respectful, but had not apologised because sending anything like a card or letter or email to apologise, could lead to her being accused of harassment. It is an unlikely explanation. There has been a steady stream of correspondence by letter and email to the mother and her legal advisors from the commencement of proceedings. The more likely explanation is that the paternal grandmother never considered that her conduct in terms of the mother’s personal information justified an apology.
The paternal grandmother was the one who typed the affidavits for herself, her husband, her son and Ms M. She prepared her own affidavit first then showed the others her affidavit, “They said what they wanted and I typed it.” The paternal grandmother grudgingly conceded that this was not independent evidence. She agreed that paragraphs from her affidavit were used, “Yes, because they liked the wording in them.” What I take from this information is that it was the paternal grandmother who was driving the litigation.
Visits to gaol
The paternal grandmother denied awareness of the mother not wanting the child to be taken to visit her father in gaol. She agreed that she had taken the child for visits twice before telling the mother she had done so in 2012. In a sense she blamed the mother. When asked whether she had tried to tell the mother about the visits, she said she had attempted to, but the mother did not pick up her phone calls. Ultimately she conceded that she had not told her.
The paternal grandmother vehemently denied that she felt disregard for the mother’s role as a parent, but I conclude that she has and continues to feel such disregard.
The paternal grandmother took it upon herself to write messages in the communication book purporting to be from the father, but in fact written by her. One instance of that was a direction that the child not be handed over in her pyjamas. She repeatedly used phrases such as “please explain, it concerns us, it is disappointing.” The paternal grandmother was quick to say that she “could have put it in a lot worst words so yes, those words were respectful”.
It is reasonable for the paternal grandmother to be concerned that her son would lose contact with the child when he was in gaol. However it was never clear to me why, once her son was released from gaol, the application for residence irrespective of where her son was, continued:
Q: You don’t want [the child] to live with your son, you want her.
A: Yes.
When she was directly asked why she did not pull out and offer her son financial support for his application, the paternal grandmother said she did not know she could withdraw her application. I do not accept this evidence. The paternal grandfather had withdrawn his application from what had initially been a joint application by both grandparents.
In her attempts to ensure that the child is a part of the paternal family, the paternal grandmother has been a direct contributor to the breakdown of the relationship between the mother, her family and the father and the Bick family. She stated her position in this way:
It’s best if [the child] is with me. I can ensure that she sees her maternal grandfather in Western Australia, her maternal grandparents, her mother and her mother's partner and her father and his new partner.
It is abundantly clear that the paternal grandmother wants to be in charge of the child and the allocation of her time with others. It is very far removed from a close focus on the child’s emotional needs and that other than the three week period in 2011 when the child was withheld from her mother, she has lived with and been cared for by her mother all her life.
Medical examination of the child
In June 2011, the day when her son pleaded guilty to charges in the Local Court, the child was with her paternal grandparents and father. She was due to be returned to her mother at 7.00 pm that night. The paternal grandmother had recently learned from studying material recently produced in response to subpoena in these proceedings, that there had been an incident in the past for the mother when she was a seven year old child, involving her younger sister and some behaviour which may or may not have been characterised as sexual between them.
Apparently seizing on this information, the family called 000 and reported the possibility of the child having been assaulted to DoCS. The child was interviewed and medically examined on the basis of possible sexual assault. Following the medical examination it was determined that the child should be returned to her mother. There is this note: “No evidence determined of sexual assault of [the child]”.[14]
[14]Exhibit 45 F Sexual Assault Service
The paternal grandmother made direct allegations in her affidavit[15] and in her oral evidence, stating that she had concerns about the child’s safety and “The social worker was concerned that [the mother] might hurt another child again.” I do not accept that the paternal grandmother was concerned that the child had been sexually assaulted by her mother or anybody else, rather she had found evidence that she regarded as helpful to the case of herself and her son and acted on it without thought to the impact on the child of the experience she went through that night, nor on the relationship between the child and the whole of the Bick family. It was in my view, abusive conduct by the paternal grandmother and her son.
[15]Affidavit of paternal grandmother filed 19/07/2014, pars 23, 58
ITP
Some members of the Bick family suffer from a condition known as ITP. The paternal grandmother has never been satisfied that the possibility that the child could also develop this condition has been properly managed by the mother. She had read the reports by a Staff Paediatrician at BB Healthcare; first the letter to Dr CC after an assessment of the child, and then a letter to the Independent Children’s Lawyer in November 2011 providing further information.[16]
[16]Annexure ‘Y’ to affidavit of paternal grandmother filed 19/07/2013
I am satisfied that the mother has been conscious of the condition and complied with the order for the paediatric assessment and that the blood tests, which the paternal grandmother has repeatedly requested, are on the medical evidence, unnecessary and could not be definitive. I note this comment by the Paediatrician:
How often should we be doing full blood counts just in case she develops it. It would be far more appropriate to do the testing only if [the child] has the symptoms listed above.
I note that the Paediatrician went on to comment that the child was at risk of psychological harm due to the conflict between her parents, which could be minimised by her seeking medical attention “only if she is actually unwell”.[17]
[17]Exhibit 46 - Letter dated 08/11/2011
The paternal grandmother was dismissive of both reports and did not accept the advice contained in them. She conceded that she had no medical qualifications, but was quite unmoved. I have no doubt that in her grandmother’s care the child would have regular blood tests, even over the recommendation of medical practitioners.
Mr I Bick, paternal grandfather
The paternal grandfather was originally an applicant and he and the paternal grandmother were joined as parties on 20 January 2011, when the child was first returned to her mother’s care.
The paternal grandfather was present in Court when a telephone call was played featuring his son and the child. During that conversation the child told her father he was stressing her out, which he immediately denied. She cried and screamed when her father asked “Does daddy need to send the police around to do a welfare check.” It was said in a tone of threat. Shortly after the father repeated the threat, “Daddy will have to send them then”.
The paternal grandfather agreed that it was his voice in the background of the call, but he did not remember it generally and it was “not up there in the top 50 per cent of my thinking.” He gave the impression of being irritated by the proceedings and frustrated by not simply being able to have the child with them on a regular basis.
He was asked about his niece Ms C Bick, his brother’s child. He agreed he had been there for the sentencing for his son, who has received the discount for his remorse and contrition for his actions against Ms C Bick. The paternal grandfather then went on to say that he did not know whether the father had been raped by Ms C Bick, “I wouldn’t be surprised”.
When asked whether he knew that his son was now claiming to be a victim of an offence, the paternal grandfather said, “Only by what I’m hearing in this Court.” When pressed as to whether his son had lied about his remorse and contrition in the District Court, the paternal grandfather said he did not know; which was also his answer to whether or not he cared about it. My impression was that the paternal grandfather had heard nothing of that type before and was genuinely shocked, but was protective of his son in his responses.
The paternal grandfather conceded that his relationship with his son was somewhat estranged since he had taken up with the mother, that is for the whole of the child’s life. He also expressed the view that he had been “shafted out of the case” and that he would have preferred his wife to have been removed from it also.
The paternal grandfather considered that the child was closest to her mother now, but that was only true of the last three years; that the Family Court had pushed it that way and that “her relationship with our family has been shattered”.
The paternal grandfather has clearly not taken the active role in the proceedings that his wife has and has been dismayed by events of the last three and a half years. He likely was a loving and affectionate presence in the child’s life while she lived in his household as a young baby, but events have overtaken that relationship and there is no evidence before me of active steps by the paternal grandfather to protect the child from aggressive actions such as unnecessary welfare checks, a full medical examination and detailed criticism of her mother.
Chapter 15 Expert, Dr H
Dr H confirmed her view that the father was not an independent self-functioning adult; rather was still dependent on his parents and would take guidance and direction from them.
Dr H also expressed her opinion that it was concerning that the paternal grandmother was unable to accept the advice of the Paediatrician in relation to the child and the possible development of ITP. She said that the paternal grandmother was unable to take on recommendations and advice, that her mindset is that she is correct and she has the right of it and that other people don’t understand.
She expressed the view that if the child lived with her paternal grandmother, there would be blood tests and other intrusive treatment, and that her need to follow through on her own beliefs would affect her attitude to the child’s care by her mother; her attitude being one of inflexibility and rigidity. It was at that point that the paternal grandmother raised an objection on the basis that the Paediatricians who had seen the child were not ITP Paediatricians. It was a perfect example of Dr H’s expressed view.
Dr H’s other concern was the Bick family having required the child to keep a secret about being taken to see her father in gaol; the concern being that keeping secrets for young children psychologically places the child at risk of abuse, amenable to keeping secrets and would undermine the relationship between the child and a mother from whom a secret was being kept.
Dr H was particularly critical of the use by the Bick family, particularly the paternal grandmother, of information relating to an incident between the mother and a step-uncle when the mother was about six. The mother was apparently interfered with by a step-uncle and this was used by the paternal grandmother as a source of criticism of the mother. Dr H said this:
I wondered about her psychological health in putting such information into her grand-daughter’s case. It’s concerning and unreasonable. The concern is that she sees an outrageous incident inflicted on the mother (as a child) as a fault of hers. There are implications for [the child].
Dr H was also concerned about the paternal grandmother’s behaviour on the night when Ms C Bick was assaulted by the father. She said the fact that the paternal grandmother took photos, did not offer any care-giving, was making a record of the intoxication and laughing, showed a lack of empathy and a lack of judgment that was a worry.
Dr H expressed the view that for the paternal grandmother, her son was the priority over the child. I agree.
Dr H described the father as a vulnerable boy, “He’s had life-long difficulties. They (his parents) are very protective.” In her first report Dr H noted:[18]
The conflict between the paternal and the maternal families is significant and harmful to [the child], who appears not to be protected from the adult’s feelings and opinions. They must maintain appropriate boundaries and protect her from issues she must not be exposed to.
[18]Report Dr H dated 13/03/2012, p 17 mid-point
In her second report, Dr H says this:[19]
However [the paternal grandparents] obviously care for [the child] and have developed a good relationship with her. Unfortunately the ongoing family conflict undermines their positive contribution to her life. If the conflict is not contained, or better still resolved, then [the child’s] position in the middle of two warring sides, consisting of people she loves, will be destructive to her development. Should it continue throughout her childhood, her adolescence will be very troubled and her adult life adjustment poor.
[19]Report H dated 19/07/2013, p 19, para 3
Dr H commented on some of the phone calls, in particular the criticism that was directed at the mother through the child. For example in one call the child made the sound of a whistle blowing and was asked “Where’s your recorder?”
A: It’s in mummy’s room.
Q: Why?
A: Because it’s too loud.
Comment by paternal grandmother:
How are you supposed to learn music if you don’t play it?
As Dr H commented, it was outside the child’s power and knowledge to influence. She could do nothing about her grandmother’s comments and likely only be hurt by them.
Dr H agreed that many of the things in the phone calls were inappropriate and quite frightening for the child. She was asked whether the presentation of the Bick family through those calls meant that they were unable to shield the child from their view of the mother.
Dr H said she had given the family some latitude because they were in crisis, possibly decompensating with their son in gaol and then just out of gaol. However she agreed that there had been no amelioration of “the war” and that the child needed to be protected. She said that the moments where the child screamed or made noises was to deflect and avoid her feelings at what was being said.
Ultimately Dr H expressed the concern that although the child should have contact with her paternal family, it would expose her to matters that she should not be exposed to. Accordingly the frequency of such contact should be identity only so that she knows that the family are alive and thinking of her and she has her own first-hand experience of them.
Concerningly Dr H said that the child had already been compromised. Her emotional development was such that she was not ready for school at aged five. Dr H recommended that orders be cautious and conservative rather than liberal. Dr H explained the compromise that the child had experienced as follows:
As you gain emotional development you learn how to manage feelings, take notice of them, process them and act in a socially acceptable way. [The child] hasn’t learnt how to manage her emotions. Something has disrupted her capacity to feel process and act. She said that [the child’s] ability to hang onto positive feelings was disrupted by the father and his parents flooding the child with their emotions.
On the topic of Aboriginality, the father asked Dr H if the child should attend if there was a corroboree presumably that both he and his father were attending. Dr H said that if the child felt supported and cared for and had been introduced to her culture, there would be a benefit. If that was not the case, then it would not be a good purpose. The father described a corroboree as people getting together with dancing and food. Dr H said that if the child was settled with her caretaker who took her to that event, it would be a good way to learn, but if being with nominated caretakers is difficult for her or for her mother, then it would not be a good experience for her.
The questioning of Dr H on this topic indicated the father’s genuine wish to include the child in his increasing interest in Aboriginal culture, but a revelation of his inability to reflect on how the child would experience the event if she was distressed or uncomfortable with the caretakers with whom she attended it. It is an example of Dr H’s statement:
[The father] is in that category of parent who doesn’t think about his role; doesn’t ask the question, how am I going?
The Law
The objects of the Act in relation to parenting Orders are to ensure that :
a) Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests
b) To protect children from physical and psychological harm
c) To ensure that children receive adequate and proper parenting to help them achieve their full potential
d) To ensure that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3).
There is also a presumption when making a parenting order that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of their parents
The child does have a meaningful relationship with her mother, who has cared for her all her life. The child also has a meaningful relationship with her father and in the context of this case, a meaningful relationship with her paternal grandmother.
The child has lived with her mother all her life and clearly has her closest attachment with her. The benefit to those relationships being ongoing varies. Dr H said this:[20]
[The child] presented as a determined somewhat disorganised and distractible immature five year old whose drawing was rather primitive. [The child’s] behaviour deteriorated at times of transitions between the maternal and paternal families reflecting the stress and strain for her of their ongoing conflict.
[20]Report Dr H dated 19/07/2013, p 17, para 1
This observation sets out with clarity the difficulty for the child in maintaining her meaningful relationships with members of her family who are in severe conflict with each other. She has however protested against forced conversations where criticisms are directed against her mother in particular and her mother’s partner, Mr J. She has done so by screaming crying and hanging up.
In a sense the child is expressing a view that she finds the clash between various members of her extended family very difficult to bear.
Additional considerations
The additional considerations are set out in s 60CC(3) of the Act. These are:
Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The child has a close affectionate loving relationship with her mother. She has also had a close relationship with her father, but his tendency to admonish her and to freely criticise her mother to her and his inability to protect the child from his own fears and views has done some damage.
The child has had important relationships with her paternal grandparents, her maternal grandparents and Mr J, her mother’s partner. Relationships with her grandparents have been disrupted. She did not begin spending time with her maternal grandparents until she was three and continues now to do so.
Her relationship with her paternal grandparents broke down not long after her father was released from gaol in conflict over the circumstances of how she was able to see her father.
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
This is a significant matter. The father and the paternal grandmother have searched for evidence of wrong doing and deficiency in the mother and focused on it in protracted proceedings which have concluded this year. The father, but more particularly the paternal grandmother, have used the communication book as a means of expressing sharply critical and hostile views of the mother directly to her.
The father and the paternal grandmother have used court ordered telephone calls to deliver commentary and critical comment about the mother to the child, which has caused her enormous distress.
To her credit, the mother has complied with Court orders, has not criticised the father or the paternal grandparents in the presence or hearing of the child and supported phone calls between the child and the paternal family, despite her well placed misgivings about their impact on her.
I consider that the mother is more likely to encourage an ongoing relationship between the child and her father and paternal family, than the father is likely to do with the mother and her family.
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including any separation from either of his or her parents or other person (including grandparent or other relative)
To remove the child from her mother’s care would be to disrupt her most important attachment. When she was withheld from her mother in January 2011, the family consultant noted:[21]
Given the period of separation from the mother, it is suggested that overnight time with the father at the paternal grandmother’s home is delayed for at least three weeks to allow the child to repair any possible damage done to her relationship/attachment with her mother from a developmental perspective.
[21]Memorandum of Family Consultant dated 20/01/2011 p 2, para 3
The child has now consistently lived with her mother and extended maternal family for three years. She has come to develop an affectionate and deepening relationship with Mr J who is protective towards her.
To place her into the care of her father is to do two things. First of all to put her into a brand new experience of her father with a partner whom she has never met and that partner’s three children, some of whom have learning difficulties and one a disability, given that the father’s proposal is that initially there would be no time between the child and her mother and thereafter supervised time, it is likely that the child would experience traumatic shock and be adversely affected.
Likewise, if she were to be placed in the care of her paternal grandmother, she would be cut off in the same way from her mother and to an extent, also from her father. She would be unlikely to be allowed to communicate freely with her mother given the profoundly critical view that the paternal grandmother takes of the mother’s capacity to care for the child. Such a placement would also have an adverse impact on the child’s circumstances.
The most appropriate course is for the child to continue living with her mother.
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.
The parties live relatively close to each other and have driver’s licences, drive cars and have telephones. There is no practical financial difficulty with communication and time; rather there are difficulties in the relationships between the important people in the child’s life.
Section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
The mother was assessed by Dr H as a pleasant contained woman who made good eye contact and listened to some criticism by her about her use of language. Dr H considered that the mother was committed to parenting the child and that she seemed insightful and caring enough to not knowingly place her at risk of harm. Further she noted that the mother had developed a healthy relationship with Mr J, who presented as a reasonable person to be involved in the child’s life.[22]
[22]Report Dr H dated 19/07/2013, p 19
Dr H assessed the father as a stressed and anxious young man, who had come through his criminal matter / prison ordeal with a combative and litigious mindset, similar to that of his parents.[23]
[23]Report Dr H dated 19/07/2013, p 17
Dr H considers that the father’s chronic academic difficulties have contributed to the development of his low self-esteem and defensive attitude. He appeared to be focused on his rights and the attribution of blame to others, especially the mother and his cousin in relation to the assault.
Dr H assessed the paternal grandmother as supportive of her son, but needing to learn how to civilly consult and negotiate to demonstrate a proper caring attitude towards the child. That was an assessment of both grandparents. That accords with my own observation of the parties and their oral evidence.
The mother was recommended to undertake a parenting program and all parties would benefit from undertaking a course of study to understand how the child was impacted by their conflict. However at this time, it appears to be the mother who has the capacity to best meet the child’s emotional and intellectual needs. She is continuing to consult a psychologist and has done her best to shield the child from her own reactions to this litigation. That is something that the father and paternal grandparents have not done and apparently not seen the need to do.
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.
The child is a six year old girl and an only child. She is the focus of attention of both her parents and all her grandparents and extended family. She was not sufficiently mature to start school in 2013 and started this year at aged six. She was assessed by Dr H to be emotionally disorganised.
When the child was seen with her father and paternal grandparents, she appeared to enjoy that time, although becoming very controlling of the adults, at least at one point. It was when she was due to return to her mother that she decompensated by rushing out of the room without saying goodbye and was found telling her mother that she didn’t want to go. She stated she wanted to say goodbye to her father and paternal grandparents, but could not cooperate with Dr H sufficiently to allow that to happen.
This collision of worlds with its unravelling impact on the child is the subject of Dr H’s concern.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander
The child’s father identifies as Aboriginal, as does her paternal grandfather. There is conflict between the parents on this topic. The mother and father went to school together and it was at that time that the mother learned of the father’s Aboriginality. She did not observe him then or at any other time of their relationship to be particularly interested in or engaged in his Aboriginal culture.
During his time in gaol to the mother’s observation, the father became more interested both in his Aboriginality and his religious faith. She has her reservations about involving the child in Aboriginal cultural activities until she understands more about that connection to culture through the paternal family.
The mother had wanted documentary evidence of the father’s Aboriginality and he was genuinely offended by such a request. However I take the mother to be asking for information which she is able to understand and talk to the child about to prepare her for engagement with Aboriginality at school or in cultural activities, which the paternal family would want her to participate in.
I accept the evidence of Dr H that such activities for the child could be very positive, for example the corroboree that her grandfather suggested that she could come along to, but only if she was at ease with being there, which would include her mother being at ease with being there, so that she could actively participate in activities which include dancing and special food.
With the child continuing to live with her mother, she is less likely to participate in her father’s connection with Aboriginal culture. However in the event that the father wished to provide information to the mother about activities that the child could participate in and if the mother accepts that children can engage at school without documentary evidence of Aboriginality, then at least the possibility of connection can remain open for the child and as she grows older, she will know that the possibility of greater involvement is open to her.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The mother has taken on the responsibility for the child since separation three and a half years ago and the entire financial responsibility, although her parents have assisted her by providing accommodation.
The father has been willing to provide financial assistance, but only on his own terms; that is he would pay for fees in a Catholic school for the child, but since the mother did not agree to that, he has provided no financial assistance at all. It shows a very poor attitude to the practical obligations of parenthood.
The paternal family pushed very hard for that particular school and for the child to commence in 2013. However the mother chose to be guided by the pre-school and her own sense that the child was not emotionally ready for school.
Section 60CC(3)(j) – any family violence involving the child or a member of the child's family
There have been two incidents of physical violence. Both incidents involve the father with various others. Actions of the father and paternal grandparents also fall into the category of family violence as they have proven to be coercive and controlling of the mother:
(i)The first involves the sexual assault by the father of his adult cousin Ms C Bick.
(ii)The second involves an assault by the father on the mother’s step-father Mr K.
(iii)The third father and paternal grandparents preventing connection with her mother.
(iv)The fourth involves the father withholding financial support from the mother and the child.
(i) The father and Ms C Bick
On 26/27 December 2010, in the home of his parents, the father had sexual intercourse without consent twice with his cousin Ms C Bick (s 61I Crimes Act1900 (NSW)).
The father was charged and entered a plea of guilty to one count in the Local Court in June 2011.
In December 2011 the father was sentenced in respect of one count. The Court also took into account the criminality of a second count of sexual intercourse without consent in coming to sentence. The father had his sentence discounted for the early plea of guilty. There was a further discount without particular quantification, “his genuine remorse and contrition”.
That remorse and contrition was apparently exhibited to the Court by an apology by the father and by “his attitude in insisting that the police be called and in making full admissions before a complaint was formally taken from the complainant”.[24]
[24]Exhibit 37 – “Sentence”, p 4
In these proceedings the father gave very different evidence. He resiled during cross-examination from any responsibility for one count of non-consensual sexual intercourse asserting that one episode of intercourse was consensual and that:
She ([Ms C Bick]) actually raped me as well. When I tried to remove myself from that room she would not let me go.
Second time she was on top of me not letting me out of the room.
My cousin inserted my penis into her vagina. There was no way I would have done it. I was passed out.
In respect to the other count the father attributed responsibility in equal shares between himself, his cousin Ms C Bick, and the mother. Himself because he was intoxicated; Ms C Bick because she was intoxicated; the mother because she should, in the father’s view, have guided him from the shower to the correct bedroom and failing that, extracted him from the wrong bedroom when she saw him in the bed with his cousin.
The father’s conduct is of the utmost concern for at least these reasons:
· That he gave conflicting evidence in the criminal proceedings and in these proceedings; so has logically been untruthful in one court or the other and is therefore an unreliable witness.
· That he sought to exculpate himself and to blame the victim of his conduct supported in this by his mother. She too blamed both Ms C Bick and the mother for not having taken steps to effectively save the father from himself.
· The evidence strongly suggests that the father has not been held to account for his own actions growing up, and therefore readily blames others for his own misconduct; in this case, his criminal conduct.
(ii) The father and Mr K, the maternal grandfather
On the morning of 21 February 2011 the father came to the home of the mother’s parents, the maternal grandparents. The mother and the child were living there.
The maternal grandfather saw the father standing at the front stairs of the house, having heard the raised voices of the parents. The Mr K told the father to leave. He did not.[25]
[25] Affidavit of the maternal grandfather filed 18/07/2013, pars 35-48, Annexure ‘B’ Statement of witness
Later when the mother, the child and the maternal grandfather were leaving their home by car the father stood in the driveway. The maternal grandfather got out of the car and spoke to the father. The situation escalated when the father said he would take the child. There was a push by the father with his shoulder and a grab by the maternal grandfather of the father’s shirt. The father punched the maternal grandfather “hard to my left jaw with a closed fist”. Police were called. The father’s sister removed the father by car.
The police attended. An AVO against the father was made and he was also charged with common assault. The father was placed on a Good Behaviour Bond.
The father cross-examined the maternal grandfather about this incident, referring to it as the “alleged common assault.” The father sought an admission that the maternal grandfather had on that day interfered in the communication between himself and the mother.
There was no acknowledgment by the father of his own uninvited and unwelcome presence on the maternal grandparent’s property; the injury he inflicted on the maternal grandfather, or the significance of the child being present in the car at the time of the assault. It was an amplification of an ugly incident by the father. The father in my view, revealed no hint of responsibility for the events described.
(iii) The father and paternal grandparents preventing connection with her mother
Between 27 December 2010 and 20 January 2011, the child was not permitted to live with her mother. Four periods of time were permitted, supervised by the paternal grandmother. The child had not previously spent a night away from her mother and was not quite three years old at that time.
(iv) Withholding by the father of financial support from the mother
The father withdrew all the funds from the parties’ common bank account, leaving the mother with no money. The mother and the child had been dependent on the father for financial support.
Further on 20 January 2011, when the child was returned to the mother by Court order, none of her clothes and other necessary items were provided to the mother.
The mother and the child were financially supported by the maternal family.
The child has heard abusive language. She has witnessed violence by her father towards her maternal grandfather. She may have developed an uneasy attitude to the police because of welfare checks organised by the paternal family, but also held as a threat over her head for misbehaviour.
Section 60CC(3)(k) – any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There have been family violence orders made on two occasions. The first is in relation to an order made for the protection of Ms C Bick from the father. The child will come to understand that the reason her father went to gaol was because of an assault by him on a member of her paternal family.
The second is in relation to an order made for the protection of the maternal grandfather from the father.
(i) Family Violence Order for Ms C Bick
The assault by the father on his cousin was recorded by the District Court as a domestic violence offence pursuant to s 12 of the Crimes (Domestic and Personal Violence) Act 2007(NSW) because whilst the father was not living with the victim, she was his cousin.
Apparently an order pursuant to that Act was made for a period of two years, for the protection of Ms C Bick prior to the father being sentenced in December 2011. For that reason an AVO order was not made, as it otherwise would have been at the time of sentencing.[26]
[26] Exhibit 37 p10
(ii) AVO for the maternal grandfather
As a result of the incident in February 2011, an AVO was made for the protection of the maternal grandfather.
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
Litigation commenced in this matter in January 2011 when the mother applied to have the child recovered into her care, which happened.
Over the following three and a half years there have been tumultuous events. The child’s father had a criminal trial and was sent to gaol; where he remained for 15 months. His parents, her grandparents, were enormously distressed by the event which gave rise to that charge, conviction and imprisonment of their son.
The mother was horrified by the child seeing her father in prison and crushed by the reaction of the paternal family to her involvement as a witness in the criminal proceedings.
Those forces have brought an animosity to bear in these proceedings which has been most destructive. The mother has been blamed, attacked and criticised relentlessly. She has found a stable relationship with Mr J, but has needed ongoing psychological support to cope.
The father and his parents have pursued their rights as perceived to the child, not seeing the damage it has done to the little girl that they love. In recent months, both the father and the paternal grandmother have become sharply critical of the child herself, blaming her for misbehaviour on the phone, effectively blaming her for what they see as her mother’s failings. It became intolerable for the child and her behaviour deteriorated.
In those circumstances, orders are cautious and conservative as recommended by Dr H. The hostile uncooperative relationship between the three adult parties in these proceedings makes shared parental responsibility an impossibility. Not only do the parties disagree about the child’s education, religion, health and other aspects of the child’s long term care, the father and the paternal grandmother have conducted themselves on the basis that the mother’s view is both irrelevant and an obstruction to their plans in that regard.
To allow for equal shared parental responsibility to any degree would be to set the child up as a victim of more conflict. She has started school and that should not be disrupted. Her health has been well managed by her mother and at a time before orders were made restraining their presence, several members of the paternal family would attend the child’s medical appointments with conflict of ideas erupting.
The safest course to promote the child’s best interests is to have her live with her mother and her mother to have sole parental responsibility, with supervised time with her father four times a year and other communication.
Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant
It is likely that the parents did enjoy a happy relationship between themselves and with the child in Western Australia and that their return for the Christmas holiday at Christmas 2010 put an unexpected end to that phase of their relationship. However they do have that proven capacity to work together as parents.
Further there is no doubt that the father loves his daughter and was probably sustained in prison by the thoughts of being able to spend time with her. The letter that he wrote her referred to earlier in this judgment was entirely inappropriate, but in his own way it was an expression of his protective love.
If the father were to get some psychological assistance with dealing with the impact of events, the breakdown of his marriage, imprisonment for a criminal assault on his first cousin and the loss of his regular relationship with his daughter, it is likely that the parents between themselves could agree to some additional time for the father, once his emotions were better regulated and his anger and tendency to blame the mother for his misfortunes had reduced.
However I have proceeded on the basis of present circumstances and the provision is for time four times a year supervised, with information to be provided as ordered.
The application of the paternal grandmother is dismissed and it will be a matter for the mother and the paternal grandparents in the ordinary way, to agree on any time for the child with her paternal family, if that can happen in a civil and cooperative way.
Unfortunately the harm to the child from being exposed to any further fighting and criticism directed at her mother, outweighs the undoubted benefit of having an enjoyable relationship with her paternal grandparents.
Orders are made accordingly.
I certify that the preceding three hundred and twenty-two (322) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 June 2014.
Associate:
Date: 20 June 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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