EGBERT & EGBERT
[2014] FamCA 1064
•2 December 2014
FAMILY COURT OF AUSTRALIA
| EGBERT & EGBERT | [2014] FamCA 1064 | |
| FAMILY LAW – CHILDREN – Best interests – competing proposals for parenting orders for 11 year old child – the father has not spent any time with the child since late September 2010 – the child does not wish to spend any time with the father – determined in the best interests of the child not to spend time with the father. | ||
| FAMILY LAW – COSTS – Circumstances justifying order – Applicant pursued litigation despite the recommendation of an expert who was not cross-examined– wholly unsuccessful in that application – Court of the opinion circumstances justify the making of an order for costs in the respondent’s favour as agreed or assessed on a party/party basis | ||
| Evidence Act 1995 (Cth) s 140 Poisat & Poisat [2014] FamCAFC 128 | ||
| APPLICANT: | Mr Egbert | |
| RESPONDENT: | Ms Egbert |
| INDEPENDENT CHILDREN’S LAWYER: | Daniele Webb Lawyer |
| FILE NUMBER: | MLC | 2964 | of | 2008 |
| DATE DELIVERED: | 2 December 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 20 – 23 May 2014 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr J. Sala |
| SOLICITOR FOR THE RESPONDENT: | Zeljko Stojakovic Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms S. Dowler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Daniele Webb Lawyer |
Orders
All previous parenting orders be discharged.
The mother have sole parental responsibility for the child B born … 2002 (“the child”).
The child live with the mother.
The father be permitted to communicate with the child by forwarding birthday and Christmas gifts each year to the mother’s residential or other address as nominated by the mother.
The father is not to contact any future service providers for the child including school teachers, sports teachers and medical service providers by phone (landline), mobile phone, texting, email and any form of social media unless:
(a) he is notified of a medical emergency regarding the child; or
(b) he is paying an account for services; or
(c) he is invited to do so by the service provider.
The mother authorise the child’s school to send to the father the child’s school reports and school photos at the father’s expense.
The parents communicate issues concerning the child via email and the mother notify the father as soon as practicable of any emergency involving the child requiring specialist medical treatment or hospitalisation.
The Independent Children’s Lawyer meet with the child to explain the orders made to the child.
The appointment of the Independent Children’s Lawyer be discharged.
The father pay all costs associated with this hearing incurred by the mother on a party/party basis on scale. The amount is to be agreed between the mother and father within 28 days.
In default of agreement under order (10) the costs be as assessed by a Registrar of this Court on a party/party basis.
All extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Egbert & Egbert 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 MELBOURNE |
FILE NUMBER: MLC 2964 of 2008
| Mr Egbert |
Applicant
And
| Ms Egbert |
Respondent
REASONS FOR JUDGMENT
These proceedings concern competing proposals for parenting orders for the child B, the only child of a seven year marriage. The child is 11 years of age and since the parties separated in March 2008 has lived with the mother and her two half-siblings from the mother’s previous marriage.
Final parenting orders were made by consent in this Court in January 2010 providing for the child to live with the mother, the mother to have sole parental responsibility for the child and the father to spend supervised time with her each alternate Saturday and on special occasions.
B spent supervised time with the father until late September 2010 when her psychologist recommended the suspension of those arrangements in accordance with the child’s wishes. The mother deposed[1] that “[o]n the basis of professional and medical advice supervised visits were suspended.” Since that time the father has not spent any time with the child.
[1] Affidavit of the mother sworn 14 April 2014 at [13].
B does not want to spend time with her father. The child has told Dr A unequivocally that she does not want any contact with her father.
The father attributes the child’s attitude to the influence of the mother. He asserted that the mother has failed to facilitate and encourage the child’s relationship with him. The father believes that the mother has unfairly influenced the professionals who have dealt with the child. It is his belief that the professionals have placed undue emphasis upon the mother’s version of events.
These proceedings originated in the Federal Circuit Court on the application of the father in December 2012 and were transferred to this Court on 7 May 2013.
The father sought an assessment by Dr A, forensic psychiatrist, but disagreed with Dr A’s recommendation that the child spend no time with him. The father also did not accept the opinion of Dr A that the father should be discouraged from pursuing his application in the Family Court. The father has a history of mental health issues and was diagnosed by Dr A with “paranoid personality disorder.”
The mother was also assessed by Dr A who found no evidence of any psychiatric condition which is likely to compromise her ability to provide appropriate care for the child.
The father sought, amongst other orders, that he have equal shared parental responsibility for the child and that he spend alternate weekend, school holiday and special occasion time with the child.
The mother, relying on the recommendations of Dr A, opposed the father’s application and sought to retain the status quo with the child spending no time with the father. She also sought orders that the father be restrained from contacting any future providers for the child because of the father’s behaviour towards a number of professionals who have had dealings with the child.
The father is subject to a current Intervention Order made in the Suburb C Magistrates Court in September 2009 until further order. The Intervention Order names the mother, the child and her two half-siblings as protected parties. The father consented to this order without admission of the allegations.
An application by the father for revocation of that order was struck out in February 2012.
Background
The parties were married in 2001. They separated on 14 March 2008 and were divorced on 7 August 2010. The child is the only child of that marriage.
The father is 51 years of age. He is employed as a data integrity team officer. The father told Dr A that he suffered a stroke in 1992 at the age of 30 years. He stated that as a result he suffers from short-term memory loss which is not obvious to anyone else. The father has not re-partnered.
The mother is 51 years of age and is currently engaged in home duties. She is not in the paid workforce. The mother has re-partnered.
B lives with the mother and the mother’s two adult children from a previous marriage: Ms D, who is 24 years of age, and Mr E, who is 22 years of age. Their father, the mother’s first husband, died in 2005 from bowel cancer. Ms D and Mr E have both inherited their father’s medical condition, a hereditary form of bowel disease which is associated with very high rates of bowel cancer. Ms D was diagnosed with cancer in August 2010 and required intensive treatment including a complete colectomy but is currently in remission. Mr E is expected to have a prophylactic colectomy in the not too distant future.
Procedural History
The initial court proceedings resulting in the 2010 final parenting orders were commenced by the mother in April 2008 in this Court. An Independent Children’s Lawyer was appointed and two family reports were completed by Mr F, family consultant, on 29 September 2008 and in December 2009. Dr G, psychiatrist, also assessed both parents and completed reports in September 2008 and November 2009.
Final parenting orders were made by consent by Cronin J on 13 January 2010. The orders provided for the mother to have sole parental responsibility for the child, and for the child to live with the mother and spend time with her father on alternate Saturdays from 1.00 pm until 6.00 pm, with such time to be supervised by either of the paternal aunts. The orders also provided for the mother to organise counselling for the child as recommended by Mr F in his first family report. The Independent Children’s Lawyer was discharged. Final property orders were also made by Cronin J on 19 January 2010.
The father then commenced these proceedings in the Federal Circuit Court, as it is now, on 6 December 2012.
The proceedings were transferred from the Federal Circuit Court to this Court by order of Judge Small on 7 May 2013.
On 10 July 2013 Registrar Field made orders for the re-appointment of an Independent Children’s Lawyer.
On 22 July 2013 the mother filed two Notices of Objection objecting to the inspection or copying of documents produced pursuant to subpoenas issued by the father to Dr H, the child’s general practitioner, and Ms I, the child’s psychotherapist, on the basis that disclosure of the information within the documents would be “detrimental to the child’s development and relationship with her trusted providers”.
On 19 August 2013 Senior Registrar FitzGibbon ordered that the subpoenas to Dr H and Ms I issued by the father on 4 March 2013 and all records, files and documents produced pursuant to the subpoenas were not to be released for inspection by the parties or the Independent Children’s Lawyer without further order of this Court.
On 12 September 2013 Senior Registrar FitzGibbon dismissed the objections of Dr H and Ms I in response to the subpoenas issued by the father and ordered that the Independent Children’s Lawyer have leave to photocopy the files produced pursuant to that subpoena and provide copies to each of the parties and to the family consultant for the purpose of preparation of a family report.
On 19 September 2013 Senior Registrar FitzGibbon ordered that the parties attend for a Children’s and Parents Issues Assessment pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”) rather than a family report. This assessment was completed by Ms J, family consultant, who recommended a psychological assessment of the child by Dr A and the preparation of a full family report by Dr A if the proceedings were to continue.
On 27 November 2013 Mr K, principal of the child’s school, filed an Application in a Case seeking that compliance with a subpoena issued by the father on 27 June 2013 be dispensed with
,or, in the alternative, that it be set aside. Mr K also sought costs of compliance with the subpoena.In his affidavit filed 27 November 2013, Mr K deposed that he had formed the view that the subpoena issued by the father was an abuse of process. Mr K deposed to the interactions he had had with the parties, including frequent demands by the father for information about the child which he described as “often aggressive, accusatory, demanding and inflammatory” in tone and content. Mr K deposed that the father also sent similar requests to other staff members at the school, including the school’s psychologist. Mr K deposed that he estimated that he had received in excess of 100 emails from the father over a six year period. Mr K also deposed that in February 2012 the father issued a subpoena to the school to produce documents to the Suburb C Magistrates’ Court. He deposed that in November 2012 the father requested health records relating to the child which the school held.
In his affidavit Mr K also deposed to the efforts he had made to comply with the subpoena and of the father’s accusation by email that he had not fully complied with the subpoena and had “selectively culled the material supplied”.
Mr K’s evidence is untested and disputed by the father. His affidavit was not relied upon by the parties for the purpose of these proceedings. However, his application for compliance with the subpoena to be dispensed with is relevant to the injunction the mother seeks restraining the father from contacting future providers of services to the child (as discussed below).
On 9 December 2013 I ordered, by consent between the father and Mr K, that all further compliance with the subpoena issued by the father against Mr K be dispensed with. I also ordered that Dr A prepare a family report. Dr A subsequently prepared a report dated 28 March 2014.
The Applications
The father sought orders for the parents to have equal shared parental responsibility for the child and for her to live with the mother and to spend time with him on alternate weekends from after school on Friday until the commencement of school on Monday and for half of school holidays. The father also sought orders for him to be notified of and be able to attend school, sporting or social events where the child attends. He also sought telephone communication with the child for up to 15 minutes on each day that she is not in his care or to have contact by way of electronic communication.
The mother ultimately sought that she continue to have sole parental responsibility for the child and that the child live with her. The mother sought an order pursuant to s 68B of the Act restraining the father from contacting any future providers for the child, including school teachers, sports teachers and medical personnel by phone, mobile phone, texting, email and any form of social media. The mother also sought an order that the father pay her costs of the trial on a party/party basis.
The Independent Children’s Lawyer supported the mother’s application for sole parental responsibility for the child and for the child to live with the mother. The Independent Children’s Lawyer also proposed that orders be made for the father to return the child’s presents which he had withheld from her, that he be permitted to send the child birthday and Christmas gifts each year and that the mother authorise the child’s school to send school reports and school photos to the father at his expense. The Independent Children’s Lawyer submitted that this was one of the rare cases where, aside from birthday and Christmas gifts and receipt by the father from the school of reports and photographs, that it is appropriate that the father otherwise have no contact with the child.
The Independent Children’s Lawyer also sought that both parents be subjected to a restraint from discussing the proceedings in the presence of the child and that non-denigration orders be made.
The Issues
The issues for determination were as follows:
· whether there should be an order for equal shared parental responsibility;
· whether it is in the child’s best interests for her to recommence spending time with her father and, if so, under what circumstances;
· whether the mother has facilitated and encouraged the child’s relationship with her father;
· whether the father should be restrained from contacting any of the child’s future providers, including school teachers, sports teachers and medical personnel by phone, mobile phone, texting, email or any form of social media;
· whether the father should return presents he gave to the child but refused to allow her to take home; and
· whether an order for costs against the father should be made.
Other applications by the parties, including an application by the mother that the father be declared a vexatious litigant, were abandoned during the trial.
Evidence
The documents relied upon by the parties are listed in Annexure A and are incorporated into these reasons.
The mother abandoned her proposal to rely on affidavit material from the child’s half-siblings and her current partner prepared for the trial. In those circumstances the father did not seek to rely on his response to that affidavit material which included affidavits from his two sisters who had supervised the time that he had spent with the child.
The psychiatric assessments of the father by Dr G dated 4 September 2008 and 13 November 2009 were relied upon for historical purposes, as were the family reports of Mr F dated 2 September 2009 and 22 December 2009.
A psychological report by Ms L dated 12 January 2012 was annexed to the father’s affidavit. This was referred to by the father for historical purposes but Ms L was not a witness in these proceedings. Her report was prepared when the father made an application to revoke the intervention order. Ms L recommended that the intervention order restricting the father from making contact with the child with the exception of the Family Court requirements should continue.
Both parents were cross-examined. No party sought to cross-examine Dr A, forensic psychiatrist, or Ms J, family consultant, and thus their evidence remains unchallenged.
The parties agreed to conduct the trial with a focus on the recent history since January 2010. The history before then included allegations by the mother that the father had engaged in family violence. This agreement was reached because the intervention orders were made five years ago and predated the final parenting orders made by consent in January 2010. The father had also consented to those intervention orders without admission of the allegations in the complaint.
Standard of proof
The relevant standard of proof is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.[2]
[2] Evidence Act 1995 (Cth) s 140.
The father
The father was cross-examined by counsel for the mother and counsel for the Independent Children’s Lawyer. The cross-examination of the father revealed that he was not a credible witness.
The father insisted that the experts had been influenced by the mother and that because of the strength of that evidence it was unnecessary for him to cross-examine Dr A. He was particularly focused on the mother’s use of the communication book, suggesting that the mother had denigrated him in that book. The father lacked any insight into his own behaviour and was not child focused. He did not accept that the child’s views were her own. He unreasonably claimed that the mother had influenced the child to view him in a negative light.
All of this was despite very clear evidence to the contrary.
In accordance with the final parenting orders made by consent by Cronin J on 13 January 2010, the father spent supervised time with the child each alternate Saturday between 1.00 pm and 6.00 pm commencing 23 January 2010. The orders also made provision for the father to spend supervised time and communicate with the child on Christmas Day, Father’s Day and on the birthdays of the father and the child.
In August 2010 the father was informed via the communication book that the child was receiving counselling through her primary school in order to address the diagnosis of her half-sister Ms D with cancer. Ms D was diagnosed with third stage cancer in July 2010. the child had six sessions of counselling with Ms M which concluded on 8 September 2010.
In August 2010 the child also participated in the “Seasons Program” designed for children who have experienced loss, grief or change in their lives. This was because of the death of the child’s maternal grandmother and Ms D’s illness. The father was suspicious of this counselling and suggested that the child was being unduly influenced by the counsellors.
The father spent supervised time with the child in accordance with the orders until Father’s Day on 5 September 2010. This was the last day that he spent any time with his daughter. The mother had followed the recommendation of the child’s counsellor that the contact be suspended. On the evidence of Dr A, who reviewed assessments by the other professionals, this was because the child developed significant anxiety related to spending time with her father and possibly also related to Ms D’s illness.
As a result of the father’s time with the child being suspended, the father would not return presents he had given the child.
It was the father’s consistent view during the trial that the mother had influenced the child to hate and fear him and that the child was “greatly influenced” by the mother in her discussions with Dr A and other professionals. Although he accepted that initially the child would be upset, anxious and concerned by the prospect of spending time with him, he believed that this could be ameliorated by counselling and a gradual reintroduction of time with him.
The father did not concede, at any point, that his behaviour had negatively affected the child. He did not concede that his conduct in bringing further proceedings and having documents served by the paternal grandfather on the mother at home, in the presence of the child might affect her. However, he was ultimately prepared to concede that his personality had some influence over the whole situation and that his stroke and depression may have played a part in the breakdown of his relationship with the child “in some way”. Nevertheless, he qualified this by saying that the degree of influence over the professionals by the mother had been extremely detrimental and that “the line in the sand has to be drawn”. It was not entirely clear what the father meant in making this statement but it was an example of him deflecting responsibility for his own conduct.
The father conceded that he did not dispute the professionalism of three report writers, Ms L, Ms J and Dr A, in the previous three years or that they had made independent assessments. He conceded that he did not challenge the opinion of Dr A. However, the father maintained that all of these assessments and the child’s views had been unfairly influenced by the mother.
In regard to the communication book, the father complained that it had not been produced by the mother. The mother produced the communication book at trial and when the father was cross-examined about the contents of the book it became clear that he had not utilised the communication book effectively.
The father’s evidence was that his writing is illegible. However, he conceded that his sister supervised the contact and had written responses on his behalf. He did not provide any satisfactory explanation for failing to respond to numerous reasonable requests by the mother in the communication book about practical arrangements for the child’s activities. He complained of the tone of statements and suggested that any response that he might have made could be “torn out” of the book. He conceded that he perceived complaints in the communication book about his failure to respond as a personal attack on him which did not warrant a reply. He stated, “I didn’t believe it was being used appropriately”.
The responses written in the communication book by the father’s sister, on his behalf, are examples of his lack of child focus and lack of flexibility to assist the child in arrangements for her extracurricular activities. The communication book provided an example of the father’s general lack of communication and failure to cooperate.
An example of this is the following entry by the mother in the communication book on 12 June 2010 in relation to the child’s taekwondo grading. It is addressed to the father and the father’s sisters, who were supervising contact:
[B] has two gradings on 26/6/10 which falls on your visit day. You have not responded to whether you would take her to events – options
- you can swap the day of access
- you can change the time to 2.30-8:30 pm on 26/6/10 or is there an alternative which you could suggest. Grading schedule included.
The response from the father, written on his behalf by his sister, the supervisor, is as follows:
AS PER AGREEMENT [THE CHILD] IS TO BE READY FOR COLLECTION AT 10AM AND WILL BE RETURNED AT 3PM
This response was initialled by the husband.
The father tried to distance himself from this response, suggesting that the initial was not his. I accept on the balance of probabilities and the evidence of the mother that the initials under that response are those of the father, consistent with his own court documents filed in the current proceedings.
A final request by the mother, on behalf of the child, was detailed in the communication book in August 2010. The mother asked the father to refrain from kissing the child on the lips because she didn’t like anyone kissing her on the lips and was too scared to ask the father to stop such behaviour. This request seemed to be met with disbelief by the father and there was no response from him in the communication book.
The father was not prepared to concede that the mother was being sensitive towards his feelings by suggesting that the child “doesn’t like kissing people on the lips generally.” When asked if he stopped kissing the child on the lips because of these requests, the father responded:
I gave my daughter loving hugs and kisses … I didn’t refrain from it because it appeared quite parentally normal and because it was no different to kissing her on the cheek or hugging her.
His evidence was that despite the child’s complaints he did not refrain from kissing her on the lips.
The father was cross-examined about what the child had told Dr A when she referred to an incident when her father had left her and her cousin at the play centre. When cross-examined about his conduct in leaving the child at the play centre and returning home without her, the father agreed that the incident was deeply troubling and admitted that he made a mistake in leaving the child. However, he stated that at no time were there any safety issues for the child while she was spending time with him.
There was no detailed evidence in the trial about the circumstances or the date of this incident. It is relevant only because it was referred to by the child in her interview with Dr A. the child stated to Dr A that she hated her father so much because of all the things he did when she was little. This incident was included in a list of examples given by the child to Dr A.
When cross-examined by the Independent Children’s Lawyer about his paranoid personality disorder as diagnosed by Dr A, the father conceded that this might affect his view and was prepared to recognise certain aspects of the definition which included “pervasive long-standing suspiciousness which may affect persons close to him”. However, he stated that there are varying degrees of any illness and that he was at the lower end of the scale and did not agree that it affected his life. The father’s evidence during cross-examination was, “I think I’m normal.”
The father was prepared to concede that he had made numerous complaints against various professionals including:
· three complaints about the Independent Children’s Lawyer, Ms Daniele Webb, to Victoria Legal Aid;
· a complaint to Victoria Police about a police officer who investigated a complaint about an incident at the school;
· complaints to the education department about Mr K, the principal of the child’s school;
· reporting the child’s general practitioner, Dr H, to the medical board for failing to supply him with the child’s health records; and
· attempting to complain to the medical board about the child’s psychotherapist, Ms I.
I accept the evidence of the mother that in February 2013 the father submitted complaints to the Health Services Commissioner against Dr H, Ms I and Mr K.
I accept the evidence of the mother that applications were made by the father to the Victorian Civil and Administrative Tribunal (“VCAT” or “the Tribunal”) against Ms I, Dr H and Mr K. I accept the evidence of the mother that the father ultimately withdrew the applications against Ms I and Dr H.
The father had required the Commissioner to refer the complaint against the school to VCAT. VCAT had joined the mother as an interested party in this proceeding. The Tribunal concluded that the complaint against the school should be dismissed because the father had no authority to make it.
Annexure PE 24 of the affidavit of the mother filed 14 April 2014 is a copy of the Tribunal’s reasons dated 31 May 2013. The proceeding originated from a complaint made by the father on behalf of his daughter to the Health Services Commissioner against the child’s primary school. The father complained that the school had refused his request, made on his daughter’s behalf, for access to health information about her held by the school.
These proceedings in VCAT are examples of the father’s determination to obtain confidential information about the child in his pursuit of litigation and are relevant in respect of the mother’s application to restrain the father from contacting the child’s providers (discussed further below).
The mother
The mother impressed as having been very reasonable and extremely patient in responding to the detailed requirements demanded by the father. She appeared worn down by the process of litigation and conflict. I found her to be a truthful witness who had made a reasonable effort to facilitate the relationship between the child and the father. Notwithstanding an acrimonious history involving applications for intervention orders, the mother cooperated in facilitating supervised time for the child with the father until the child’s psychotherapist advised the mother that it was not in the child’s interests to continue with that arrangement.
The mother’s application reflected the child’s strong views that she does not want to spend time with the father.
I accept the evidence of the mother when she denied saying to the father that it would be psychologically damaging for the child to spend unsupervised time with him.
The mother’s evidence about the counselling the child received was as follows:[3]
… in 2010 I did organise ongoing counselling for the child outside school, initially, to reduce trauma related to the Applicant’s behaviours. This occurred in September 2010 after the Applicant’s last supervised visit of the 5th September 2010. the child commenced exhibiting more frequent physical symptoms that required the professional intervention of our Medical practitioner [Dr H].
During 2010 the child did receive in-school counselling specific to her Sister’s (Ms D) life threatening illness. I wish to note that [Ms M] works in the capacity as school counselor [sic] only. This was confirmed on the 11th October 2010 in correspondence to the Applicant by [Ms M]…
Counseling [sic] ceased on 8/09/2010 because the Applicant compromised the child’s relationship with [Ms M]. the child told me that she felt uncomfortable talking to [Ms M] because she did not trust her anymore.
[3] Affidavit of the mother sworn 13 April 2014 at [9] – [10].
The mother’s evidence was that the child then commenced seeing Ms I, psychotherapist. She deposed that the child stopped spending supervised time with the father on the basis of Ms I’s professional and medical advice. Attached to her affidavit is a letter from Ms I dated 25 September 2010 recommending that supervised time be put “on hold”. The mother deposed that she informed the father’s sister, who was supervising the contact, of her decision to suspend the father’s time with the child based on Ms I’s advice.
In response to the father’s suggestion that the mother has been inappropriately discussing the litigation with the child, the mother provided a number of examples of reasons why the child was aware of proceedings initiated by the father.
The mother deposed that “[B] has become aware that these proceedings have been served on the family, by her Grandfather Mr N Egbert and others at various times from 2012 to date which I have had no control over”. The mother’s evidence was that the child had also become aware of the proceedings because of the father’s actions; for example, the father objected to the mother’s application for a passport for the child and thus the mother needed to obtain a court order authorising her to obtain a passport for the child without the father’s consent.[4]
[4] Orders made by Federal Magistrate O’Dwyer on 23 July 2012.
The mother deposed that the child also became aware of the father’s application to subpoena the health records of her half-siblings because her half brother Mr E became distressed by the father’s presence and collapsed at Suburb C Magistrates’ Court on 26 February 2012. The mother deposed that in February 2010 she gave verbal permission to the child’s primary school for the father to visit the child’s classroom outside of ordinary school hours to view records of the child’s progress, provided that there was no contact with the child. The mother alleged that when the father attended the child’s primary school on 7 December 2010 in apparent breach of the existing intervention order he approached the child and said “I’m picking you up today the child”. The mother attached to her affidavit[5] a report about the incident produced by World 4 Kids, the after school care provider, which the mother also sent to Constable O of Suburb C Police Station.
[5] Affidavit of the mother sworn 13 April 2014 at Annexure PE-17.
The mother deposed to incidents that occurred during the supervised time between 2008 and 2010 which contributed to the child feeling unsafe or distressed. The supervision was originally an issue between the parents but at trial the parents agreed to abandon their dispute about the nature of the supervision. Accordingly I make no finding about the nature of the supervision. However, the evidence of the mother about the child feeling unsafe or distressed is relevant when considering whether the father should spend any time with the child.
The mother emphasised communications from her to the father in the communication book such as that the child did not like being kissed on the lips by her father and requests for a response from the father about arrangements for the child’s extracurricular activities. These communications were ignored by the father.
Ms J
Ms J, family consultant, completed a Children and Parents Issues Assessment dated 22 October 2013. Ms J was not required for cross-examination and thus her evidence is unchallenged. I accept the opinions expressed by Ms J.
Ms J reported that:
… it quickly became evident that [the child] has been exposed to a high level of information pertaining to the dispute between her parents and, more specifically, past and present alleged actions and behaviours of her father.
She stated that “B’s narrative regarding her relationship with her father was entirely negative and based in feelings of fear, frustration, guilt and hatred.”
Ms J stated that the father proposed that the child be psychologically assessed by Dr A as he was distrustful of the assessment and treatment provided by Ms I. Ms J said:
[Mr Egbert] presented a somewhat dichotomous view of his future relationship with [the child]. On the one hand he presented a child focus approach indicating that if the child does not wish to spend time with him, or it is assessed that she would experience psychological distress resulting from their relationship, then he would not pursue spend time arrangements. However his belief is that an assessment will not indicate psychological disturbance in the child and consequently, whilst he acknowledged that her resistance to their relationship is the same regardless of its origins, that gradual and increasing spend time arrangements should be re-established. He does not deny that [the child] may have presented with the somatic symptoms as outlined [by Ms Egbert]. He wished to make clear however that these symptoms were not caused by him. [Mr Egbert] conceded that ideally the child would not be required to attend upon a further practitioner for assessment but he would view himself and [sic] “neglectful and not acting in a parental role to get her assistance”.
Ms J stated that the father’s view was that the mother had coached and coerced the child into her negative view of him.
Ms J reported that the mother spoke positively of the father’s initial parenting role, however she “identified that the child has always demonstrated fear of her father and her presentation with psychosomatic symptoms ultimately led her to believe that it was no longer in the child’s best interests to continue to spend time with her father”.
Ms J’s opinion was:
There is little to indicate, at the current time, that the child would manage a reintroduction to her father. This is based on the substantial passing of time since the child last saw or communicated with [the father], her current views of her father as unsafe, both physically and psychologically, and what is reported to be an underlying anxiety condition exacerbated by the various and significant health issues of her family members.
Ms J’s recommendation was that Dr A should prepare an independent psychological assessment of the child if the legal proceedings were to continue. She also recommended that a family report be prepared and suggested it could be completed by Mr F in the context of the child having already engaged with a significant number of practitioners.
Dr A
Dr A, forensic psychiatrist, completed an extensive family report dated 19 February 2014. In addition to reading a substantial volume of materials provided by the parties, he interviewed the parents individually for about two and a half hours each and interviewed the child for 80 minutes. He was not cross-examined and his expertise was not challenged. I accept his evidence.
Dr A summarised previous psychiatric assessments of the father undertaken by Dr G in September 2008 and November 2009 and Dr P in April 2009. He noted that Dr P, unlike Dr G, did not interview the mother.
Dr A emphasised that in preparing his report he had not spoken to Dr G. He also emphasised that in reaching his conclusions regarding the father that he had given no weight to the suggestion attributed to Q Mental Health that the father may have had bipolar affective disorder, as reported by the mother.
Dr A stated that the father:
… had a poor memory for dates and particularly for events surrounding his admission to the [R Clinic]. He tended to minimise his history of conflict with others and litigation and dismissed his almost six-week admission to the [R Clinic] as being due to the difficulty the Dr had in understanding his suicidal ideation.
Dr A’s opinion was that it was likely that the father “has longstanding personality difficulties sufficient to warrant a diagnosis of Paranoid Personality Disorder” and noted that the stroke the father suffered may have been a contributing factor to his presentation. Dr A stated that there was no indication that the father was suffering from depression at the time of interview and there were no psychotic features evident at interview. He noted that the father appeared to have “little insight into his own contribution to the present situation”.
In relation to the mother, Dr A stated that there was no evidence that she was suffering from any psychiatric condition. He said that her presentation suggested that she had had to survive many challenges throughout her life prior to her relationship with the father and that “she appears to deal with the many difficult situations she has had to face by a degree of denial and putting things out of her mind”.
Dr A referred to a psychological report prepared by Ms L dated 12 January 2012, which was prepared in relation to an application by the father to have an intervention order revoked. He noted that Ms L had recorded the following:
[B] also recalled her father kissing her on her lips, which the child did not like. [The child] spoke of pretending that she liked her father during supervised visits because her father would get an angry if she didn’t. [The child] spoke of her father “kidnapping her” from her house.
He noted that in that report Ms L recommended that the intervention order restricting the father from making contact with the child outside the Family Court requirements should continue.
Dr A noted that in 2010, Ms I, a psychotherapist to whom the child had been referred by her treating general practitioner, had recommended that the child’s time spent with her father be suspended to reduce the distress that she was experiencing. Following six sessions with Ms I, it was noted that the child was no longer experiencing physical symptoms of anxiety about seeing her father since the visits stopped.
B told Dr A that she did not like having to retell her story and that she would like to tell the judge that she does not want to see “him,” referring to her father. She told Dr A that “her father used to kiss her on the lips, which she hated”. Dr A reported:
[B] said that she hates her father so much because of all the things he did when she was little. Her father had hurt her cousin and tried to kill [Ms D] and [Mr E] by choking them and putting them in a headlock. He left the child and [S] (her cousin) in [the play centre]. He tried to take the child from afterschool care. the child said she can recall all of these events and remembers [Ms D] trying to call 000.
Dr A reported that the child stated that she is angry with her father because he has kept her presents since she stopped seeing him and she also recalled an episode where her father acted like a child and refused to leave after school care until he had something to eat. She recalled another occasion when the father threw a Frisbee at some children and hurt one of them and an occasion when police were called.
Dr A reported that the child started experiencing anxiety in 2010. This was about spending time with her father and her half-sister’s illness. He reported that:
… since then [the child] has developed extremely negative views of her father to the extent that she clearly stated that she wants nothing to do with him, that is she wants to spend no time with him and to have no contact with him, even by telephone. She remains angry with her father for his behaviour towards her mother, herself and her siblings. The intensity of [the child’s] feelings towards her father appear to be out of proportion however it is consistent with trauma related anxiety leading to alienation from her father.
Dr A’s opinion was that considerable weight should be given to the child’s views. He stated that it was unlikely that any attempts to force the child to spend time with her father would be successful.
Dr A recommended that the mother be granted sole parental responsibility for the child and that the child spend no time with her father. He stated that the father should be discouraged from continuing the court proceedings, but that if he wanted to maintain some contact with the child he should first return the presents which the child believes he has withheld and consider sending her a gift at Christmas time. Dr A recommended that the mother authorise the school to send the father school reports and school photos and keep him informed of any significant illness that the child suffers. Finally, Dr A suggested that the father may benefit from “psychotherapy aimed at helping him understand the contribution of his own personality difficulties to his alienation form [sic] [the child]”.
Mr F
Both parties relied on the two family reports prepared for the purpose of earlier proceedings by Mr F, psychologist, for historical purposes, citing extracts from Mr F’s reports in their affidavit material and annexures. The reports of Mr F are relevant markers of the impact on the child of the father’s psychiatric history. I accept his evidence which was unchallenged.
In his family report dated 29 September 2008, Mr F stated:
In my view, [Mr Egbert’s] psychiatric condition and his current level of insight into its effects on [the child] are impediments to [him spending time with the child] immediately and I would recommend that [Mr Egbert] take immediate steps to re-engage with a treating psychiatrist to address these issues.
Until [Mr Egbert’s] treating psychiatrist certifies that his psychiatric condition is stably managed, I can only recommend the continuation of supervised contact between him and [the child], of about the current level of duration and frequency, in accordance with her wishes.
Mr F relied on a psychiatric assessment by Dr G of both parents dated 4 September 2008. At that time Dr G considered that there was no evidence that the mother was suffering from any psychiatric disorder. Dr G initially diagnosed the father as suffering from a major depressive disorder with psychotic features, occurring in a driven, obsessional man whose self-esteem had been compromised by suffering from a stroke at the age of 30 years.
However, in that 2008 assessment, Dr G ultimately concluded that the father was suffering from “a psychiatric condition of psychotic proportions” and recommended that the child only spend time with her father under supervision. In September 2008, the child, who was then five and half years old, told Mr F that she did not want any change to the supervised visits and indicated that she was scared of her father.
In his second family report, dated 22 December 2009, Mr F accepted the view of Dr G in his updated psychiatric assessment of the father dated 13 November 2009 that any psychiatric condition that might have previously impeded the normalisation of the child’s interactions with her father had abated. However, Mr F stated:
Nonetheless, I cannot recommend a substantial change in the arrangements for the child to spend time with [Mr Egbert] because she does not want this, and that is probably the most useful information I can give to the Court.
Legal Principles
These proceedings are brought under Part VII of the Act.
The rule in Rice & Asplund (1979) FLC 90-725 should be considered where an earlier parenting order has already been made. The rule essentially requires that there be a changed circumstance sufficient to justify revisiting a final parenting order afresh bearing in mind that the best interests of the child are paramount.[6]
[6] Poisat & Poisat [2014] FamCAFC 128.
All parties agreed that this was not in issue. Although final parenting orders were made by consent on 13 January 2010 by Cronin J, providing for the child to spend supervised time with the father, I accepted the parties’ submissions that the child’s refusal to spend time with the father constituted a sufficient change in circumstances warranting a reconsideration of what is in her best interests.
Determining the child’s best interests
Pursuant to s 60CA of the Act, in deciding to make any parenting order I must regard the child’s best interests as the paramount consideration.
In determining what is in the child’s best interests the court must consider the primary and additional considerations set out in s 60CC(2) and s 60CC(3) of the Act.
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations in proceedings instituted after 7 June 2012, such as these, I must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[7]
[7] Family Law Act 1975 (Cth) s 60CC(2A).
I am satisfied that it is not in the best interests of the child to maintain a meaningful relationship with the father, having regard to the need to protect her from psychological harm.
Findings
I am satisfied that there is no evidence before the Court that the father has physically harmed the child.
In this case, both of the primary considerations are relevant. I have weighed the benefit to the child of having a meaningful relationship with her father against the need to protect her from psychological harm, having regard to her expressed view that she does not want to spend any time with her father, the fact that she has not spent any time with him since September 2010 and the recommendation of Dr A that the child not spend any time with the father.
I do not accept the father’s contention that the child’s views are the product of the influence of the mother or her partner and the child’s half-siblings. The father relied upon the comments of Ms J about the child being exposed to a high level of information pertaining to the dispute between her parents and more specifically past and present alleged actions and behaviours of her father, for this proposition. Whilst this may well be the case, the child’s views have been reasonably consistent. I am satisfied that it is the father’s conduct which is the source of the child’s negative view of her father and there is no evidence to the contrary. the child’s information about her father has been drawn from her own experiences.
B has been exposed to litigation initiated by the father resulting in her being interviewed by Mr F, Ms J, Ms L and Dr A.
I accept Dr A’s diagnosis of the father as having a paranoid personality disorder. I also accept his evidence that the father has little insight into his own contribution to the situation where the child is now refusing to see him.
During the trial it became apparent that the father has no insight into how his behaviour towards the child and her half-siblings has affected his relationship with his daughter. An example of this was the father’s insistence on kissing the child on the lips against her wishes because he thought it was “parentally appropriate”. In his outline of case, the father submitted that his sole reason for instigating the current proceedings was to have “the child professionally psychologically assessed and to gain access to the child”. He also referred to the mother’s failure to comply with the consent orders. He has failed to grasp the significance of the child’s views.
Despite Dr A’s recommendation that the father be strongly discouraged from pursuing these proceedings and the unequivocally negative views expressed by the child to professionals including Dr A in the past, the father has pursued orders for the child to be required to spend time with him against her wishes. This is a clear demonstration of the father’s lack of insight into how his litigious conduct impacts upon the child.
I accept the submission of the Independent Children’s Lawyer that the father’s unremitting criticism of the mother during the trial was out of all proportion and that the criticisms are not justified.
The father has a deep mistrust of the mother’s capacity to parent and her parenting skills which is inconsistent with the assessments of experts. I am satisfied that the mother has proven herself to be a responsible and committed parent to the child.
I am satisfied that the period of time that the father spent supervised time with the child was unsuccessful because of a failure by the father to communicate and cooperate, particularly surrounding the child’s extracurricular activities, and a lack of insight about the child feeling uncomfortable about being kissed on the lips by him.
I accept the opinion of Dr A that it would not be in the child’s best interests to maintain a meaningful relationship with the father in view of the strength of her views and the impact that the father’s personality disorder and his lack of insight into his own behaviour has had on the child and her family.
I accept the evidence of the mother about the history of the child being exposed to the conflict between the child’s half-siblings and the father prior to separation. The mother’s evidence is supported by the child’s account to Dr A of the conflict between the father and her half-siblings.
I reject the father’s allegations that the child has been subjected to psychological and emotional abuse by the mother which has resulted in her not wanting to spend time with him. The evidence does not support those allegations. It is clear on all the evidence that the mother is not responsible for the child’s firm view that she does not want to spend any time with her father.
The father’s conduct:
· during the supervised time that he spent with the child involving kissing her on the lips despite her request noted in the communication
sbook that he not do so;· in the use of proceedings to obtain confidential information from the child’s counsellor, school principal and general practitioner;
· in using the paternal grandfather to serve legal documents on the mother in the presence of the child;
· in witholding the presents he had given the child, and
· towards the child’s half-siblings in circumstances where the child has been anxious about their health;
has contributed to the breakdown of his relationship with the child.
I am satisfied on the balance of probabilities that the child requires protection from psychological harm from her experiences of being subjected in the past to conflict between her half-siblings and the father. I am satisfied on Dr A’s evidence that the child still suffers flashbacks about those historical incidents of conflict involving her father which she outlined.
The reality is that the child now views her father in a negative light and the source of this is the father’s conduct combined with the unfortunate history of the family conflict. It is unrealistic to expect the child to have been quarantined from the impact of the father’s conduct in respect of her half-siblings. She has told Dr A of this impact.
I have not placed great weight on the issue of family violence because the focus of the trial was on events post-January 2010 and I make no findings about the circumstances which led to the making of the intervention orders. However, I accept that the child was aware of the application to revoke the intervention orders because the documents were served on the mother in the child’s presence by the paternal grandfather. the child was also interviewed by Ms L because of the father’s application for revocation. The relevance of family violence is that the child has told Dr A that she has been adversely affected by the conduct of her father towards herself and her family. Wherever the blame for the conflict lies, this is the child’s view.
The manner in which the father has pursued litigation has impacted negatively upon the child, requiring her to repeat her story about stressful matters to numerous professionals.
I accept the evidence of Dr A that it would be appropriate for the mother to authorise the school to send the father the child’s school reports and school photographs and keep him informed if the child suffers from of any significant illness.
In his case outline, the father referred to allegations made by Ms D to Mr F that the father had sexually assaulted her when she was aged 15. The father submitted that Ms D’s was “using the Court as a platform to make unsubstantiated allegations without any authoritative investigation.” The parties did not seek to pursue this issue in the trial and no formal complaint has ever been made against the father. Accordingly, I have made no findings on this issue and it is not a factor which I have taken into account.
The additional considerations
The additional considerations are listed in s 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case. I have considered the additional considerations in the context of the primary considerations.
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
B is 11 years of age and will be 12 soon. She has expressed a strong wish not to spend any time with her father. Her views have no doubt been formed by the history of conflict between the father and other family members, which she has witnessed.
B has expressed her views to a number of professionals since 2008, all of whom have reported that she did not want to spend time with her father or that it was not in her best interests to do so unsupervised.
I accept the evidence of the mother that the child became aware of litigation starting again when the child observed the mother being served with papers by the paternal grandfather. I accept the evidence of the mother that the child was also upset about the father subpoenaing the health records of her two half-siblings. It is understandable that the child would be aware of the court process, having regard to the conduct of the father and the number of interviews in which she has participated for the preparation of reports.
B is in Year 6 at school and described herself to Dr A as an average student with an interest in sport, including soccer, taekwondo, swimming and gymnastics. She was unequivocal in her wish that she not see her father and explained that she hated her father so much because of all the things he had done.
She stated that she remembered her father pushing her mother over and that “he was horrible, treated me and my family really bad.” She stated that she still has flashbacks about the things he has done, including the time that he nearly killed her two step siblings by choking them and putting them in a headlock and when he “kidnapped” her. While this alleged kidnapping was referred to in Dr A’s report, it was not the subject of any other evidence before me. In any event, it relates to events prior to 2010, which were not the subject of this trial.
B told Dr A that despite telling her father that she hated him kissing her on the lips he ignored her. She also stated that her father had tongue kissed her three times and also kissed her on the head and neck and cheeks and that she did not like the germs. She stated that she calls her father by his Christian name and does not call him Dad. She stated to Dr A that she could not think of anything good about her father and that he had broken her heart. She expressly told Dr A that she would like to tell the judge that she does not want to see her father.
I have placed significant weight on the child’s views expressed to Dr A, having regard to the depth of her feelings and the consistency of her attitude. I have taken into account that the child is almost twelve years old.
It would clearly not be in the child’s best interests to be required to spend time with her father against her wishes and would be impracticable having regard to her age.
Section 60CC(3)(b): the nature of the child’s relationships with each parent and with other persons, including grandparents
B has a stable relationship with the mother and her half-siblings who also live in the maternal home.
B has not spent time with her father since September 2010 and the time that she did spend with the father before that was supervised from May 2008. The child has not spent time with the paternal family since she stopped spending time with her father.
I accept the evidence of the mother that she made overtures to the paternal grandparents in September 2012 to spend time with the child. The mother annexed to her trial affidavit two letters dated 4 September 2012 and 4 November 2012, which she sent to the paternal grandparents offering to trial the child spending supervised time with them in order for the child to attempt to reconnect with them. The mother deposed that she received no reply to either letter. She also deposed that when the paternal grandfather attended her home to serve court documents, he made no request to spend time with the child.
The father deposed in his trial affidavit that “my parents were greatly distressed, disgusted and upset that they were being subjected to Supervision with their own grandchild. So upset they never replied to the letter.” There is no evidence that the paternal grandparents made any request to spend time or communicate with the child since she stopped spending time with the father in September 2010.
The relationship between the child and the paternal grandparents was not an issue for determination in the trial but was referred to by both parents in the context of background events after separation.
Having regard to the child’s age, the length of time that has passed since she last spent time with or communicated with the paternal grandparents and the lack of evidence of any request by them to communicate with her, I have not placed any weight on this relationship in arriving at my conclusions.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long‑term issues in relation to the child, to spend time with the child and to communicate with the child
Since 13 January 2010, the mother has had sole parental responsibility for the child and accordingly has made all decisions about long-term issues regarding her welfare.
I accept the evidence of the mother that she facilitated the relationship between the father and the child until there was a professional recommendation by Ms I for the child to cease spending time with her father.
In his case outline, the father stated that he had a:
… strong and committed attitude towards the equal shared responsibilities of both parents in the growth and development of [the child’s] life. The father would continue to facilitate this commitment through open communication with the mother and continue to foster and support [the child] in her education and extracurricular activities.
The father’s submission is not supported on the evidence.
The father has refused to fulfil his responsibility as a parent by failing to cooperate with any communication by way of the communication book. I do not accept the explanation of the father that it was inappropriate for him to write in the communication book because it might be interpreted as harassment or intimidation.
I also reject his assertion that he did not have access to the communication book as there are written entries in the communication book from the father’s relatives who were supervising the contact between the child and the father. The father has initialled the entries in the book which are evidence of his lack of communication and his lack of cooperation with the mother in organising the child’s extracurricular activities.
Section 60CC(3)(ca): the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
There was no real focus in the trial upon the extent to which each of the parents has fulfilled or failed to fulfil their obligations to maintain the child. The Independent Children’s Lawyer submitted that the father is assessed to pay child support and the father submitted that his wages were garnished. The father also deposed in his affidavit filed 31 March 2014 that he has paid all child support as assessed by the Child Support Agency. It would appear that the father has fulfilled his obligation to maintain the child.
I accept that the mother has also fulfilled that obligation and the child has always resided with the mother and been supported by her.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The orders I propose to make will not change the child’s circumstances as she has not spent any time with the father since September 2010 in accordance with her wishes. Neither has the child spent any time with her paternal grandparents since September 2010. There is no evidence of the paternal grandparents requesting to spend time with the child.
If the child were ordered to spend time with her father against her wishes there is a likelihood of her becoming anxious about even temporary separation from her mother and half-siblings, having regard to her experience of anxiety during the previous supervised time she spent with the father.
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 has received counselling for anxiety but I accept Dr A’s view that she does not suffer from any psychiatric disorder which would compromise her ability to care for the child. The mother has demonstrable capacity to provide for the emotional and intellectual needs of the child. This has been corroborated by all of the report writers. In particular, the mother has demonstrated a capacity to provide for the child’s emotional needs by obtaining treatment for her as recommended by the child’s treating general practitioner, Dr H. Because of the child’s physical symptoms of anxiety about seeing her father, Dr H referred the child to psychologist Ms I.
In his closing submission, the father stated: “if the counselling was consistent I would accept that the mother has acted in the best interests of the child, but sadly that is not the case”. Any inconsistency in the child’s counselling is not attributable to the mother. the child’s school counselling was compromised because of the father. Ms I wrote to Dr H indicating that she intended to take extended leave from her practice for personal reasons in February 2013. The other professionals who interviewed the child have been involved essentially because of litigation initiated by the father.
Dr A’s evidence, which I accept, is that because of the father’s paranoid personality disorder, he has no insight into the way his behaviour has contributed to the breakdown of his relationship with his daughter. Mr F, the family consultant in previous proceedings, also noted that the father “does not acknowledge any contribution of his own behaviour” to the distrust that others have of him.
As outlined previously, the father has no insight into how his behaviour towards the child and her half-siblings has affected his relationship with his daughter. The father does not have the capacity to provide for the child’s emotional and intellectual needs.
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
B was described by Dr A in May 2010 as “as articulate, pre-pubertal girl of at least average intelligence”. His opinion was that, “given the child’s age, her developmental maturity and the strength of her feelings, I believe that considerable weight should be given to [the child’s] views”.
Section 60CC(3)(i): the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
I accept the mother’s evidence that she has done her best to maintain the child’s relationship with the father until there was a professional recommendation for the suspension of that contact.
The father’s misguided pursuit of the child’s school principal, treating general practitioner and psychotherapist in support of his litigation is an example of his distrust of professionals. It demonstrates that he holds an irresponsible attitude towards parenthood, because he has no insight into how his pursuit of professionals dealing with the child has impacted upon her and contributed to her desire to spend no time with him. It would be difficult for the child to have confidence that any therapeutic relationship in the future would not be compromised by her father’s potential for interference and breach of her confidentiality.
Sections 60CC(3)(j) and (k): any family violence involving the child or any member of the child’s family and family violence orders
An indefinite intervention order dated 14 September 2009 was made against the father in favour of the mother, the child and the child’s two half-siblings. This was made with the father’s consent but without admission of the allegations in the complaint. No inferences adverse to the father can be drawn from this order because there was no hearing on the facts for the making of that order.
The father’s application to revoke the order was unsuccessful in 2012.
The father complained that he was not entitled to cross-examine the mother at the hearing to revoke the intervention order and he was therefore unsuccessful. This procedure was in accordance with the rules applicable to these types of proceedings in the Magistrates’ Court where there is an unrepresented litigant. As previously stated, there was insufficient evidence before me about this hearing for the revocation of the intervention order to draw any inferences against the father.
The father conceded that he pleaded guilty and was convicted and fined $500 for breaching the intervention order against the mother. He conceded that he breached the intervention order by attempting to serve the mother personally with his family law application (filed 6 December 2012) when she was in attendance at the VCAT hearing in February 2013.
The breach of the intervention order by the father in this way demonstrates that his litigation and use of court processes is a vehicle for harassment of the mother. He demonstrated a disregard for the intervention order. The father has failed to adhere to his obligations under the intervention order and this reflects unfavourably upon him.
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
A suggestion by Dr A which found no favour with any party was that therapeutic counselling or psychotherapy with an experienced child psychologist might assist to address the child’s fear of her father. Dr A suggested, however, that if after six months of counselling the child still refused to spend supervised time with her father at a contact centre, the therapist should inform the Court that it is not in the child’s best interests to resume contact until she is old enough to make an independent decision. This proposal was not supported by any party and I do not consider that it is in the child’s best interests to revisit therapy for this purpose having regard to the number of professionals the child has already seen. It is also a proposal which might encourage further litigation which would not be in her best interests.
The parties have been involved in proceedings in the Federal Circuit Court and in this Court since 2008. the child has experienced six years of litigation and interviews by numerous counsellors. Most recently, the child told Dr A that she did not want to come to see him because she does not like having to retell her story.
The father is an experienced litigant in multiple jurisdictions. Having regard to the history between the parties and the father’s propensity for using litigation as a vehicle for his deep suspicion and mistrust, there is a real risk of the father initiating further proceedings.
A boundary for the communication between the child and the father will assist in minimising excuses for further opportunities for litigation. It is clearly in her best interests.
B needs an end to litigation and some certainty about her relationship with her father. She needs to be told that she will not be “required” to have unwanted contact with him.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
Restraining order on father
Pursuant to s 68B(1) of the Act, the Court may make such order or grant an injunction, in relation to a child, as it considers appropriate for the welfare of the child. An injunction may be granted unconditionally or on such terms and conditions as the court considers appropriate.[8] In considering what is appropriate for the welfare of the child, any order or injunction must be likely to benefit the child.
[8] Family Law Act (Cth) s 68B(3).
Under s 68B(1) of the Act, counsel for the mother proposed that the father be restrained from contacting any future providers for the child, including school, sports teachers and medical personnel by phone (landline), mobile phone, texting, email and any form of social media. I accept the evidence of the mother relied upon for this discretionary remedy. Her evidence was that the child’s counselling with her school counsellor, Ms M, ceased because the child felt uncomfortable talking to Ms M and did not trust her anymore once the father had compromised her therapeutic relationship with the child.[9]
[9] Affidavit of the mother sworn 13 April 2014 at [10].
The mother also deposed[10] that she is “concerned that the levels of harassment being endured by the child’s providers are generating negativity towards having dealings with my family.”
[10] Affidavit of the mother sworn 13 April 2014 at [38].
The onus is on the mother to demonstrate that restraining orders are appropriate for the welfare of the child. The standard of proof is on the balance of probabilities under s 140 of the Evidence Act 1995 (Cth).
Having regard to the history of the father contacting professionals and pursuing the disclosure of their records, I am of the view that a restraint upon the father contacting professionals with whom the child communicates is in the child’s best interests and would promote her welfare. I am not satisfied that the father’s motivation and insistence on obtaining the records of the professionals was entirely genuine. No doubt he suspected that the records might provide evidence to support his case. However he does not appreciate the impact on the child of having her confidences betrayed. This would be so, even in the case of a close and trusting relationship between father and daughter, let alone in circumstances such as these, where that relationship has entirely broken down.
An order is necessary because of the risk of the child being deterred from obtaining valuable assistance from professionals in the future, in the knowledge that her father may pursue them for her personal information. It is also likely that such behaviour would not assist the father’s prospects of having any relationship with the child in future. Accordingly, it is in the best interests of the child that the father be restrained from contacting any of the child’s future providers including school, sports teachers, counsellors and medical service providers in the future within reasonable limits, such as in the event of a medical emergency, or when invited by those providers and professionals to do so, or for the payment of services for the child.
Following the recommendation of Dr A, it is appropriate for the mother to authorise the school to send the father the child’s school reports and school photographs and keep him informed if the child suffers from of any significant illness.
The father and the Independent Children’s Lawyer sought an order restraining both parents from discussing the proceedings with the child. I am not satisfied that such an order is in the child’s best interests. I am not satisfied that the mother has been inappropriately discussing the proceedings with the child and the father will not be spending any time or communicating with the child, so will not have the opportunity to discuss the proceedings with her. The enforcement of any such order would be fraught with difficulty. In this particular case such an order might well provide further opportunities for litigation which would not be in the best interests of the child.
The father and the Independent Children’s Lawyer also sought an order that both parties be restrained from denigrating the other parent or encouraging others to do so in the presence of the child. I am not satisfied that there is any evidence to support the need for such an order.
In this particular case it is appropriate for the Independent Children’s Lawyer to explain the orders to the child so that she has a degree of certainty about her future relationship with her father and understands that her wishes have been taken into account.
Parental responsibility
Section 61DA of the Act provides that when making a parenting order, there is a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
Parental responsibility is defined in s 61B of the Act and means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Equal shared parental responsibility relates to decision-making about “major long-term issues”, which is defined in s 4 of the Act as follows:
… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point for determining the amount of time or communication that a child is to have with parents.
Section 65DAC of the Act provides that where two or more persons share parental responsibility in relation to any major long-term issue under a parenting order, they are required to make the decision jointly. The concept of shared parental responsibility carries with it the requirements to “consult the other parent in relation to the decision to be made about that issue” and to “make a genuine effort to come to a joint decision about that issue”.
I accept the submission of counsel for the Independent Children’s Lawyer, supported by counsel for the mother, that the presumption of equal shared parental responsibility is rebutted on all the evidence in this case, as there is a history of high conflict and allegations of physical violence between the father and the child’s half-siblings. The father alleges he was a victim of violence from the child’s half-siblings and the mother alleges that the father was violent to the child’s half-siblings.
Whatever the circumstances of this conflict, which was not the focus of the trial, it has clearly impacted on the child as she has expressed the view that she does not want to see her father because of his behaviour towards her mother, herself and her half-siblings.
Despite the father’s assertion that he wanted open communication with the mother, he provided no plausible explanation for why he did not avail himself of the use of the communication book to facilitate any communication. The father’s insistence on the production of the communication book did nothing to support his case but instead demonstrated that the mother had written appropriate notes advising him of the child’s successes at school and in sport and politely communicating to him that the child didn’t like being kissed on the lips saying “it’s not just you”, or words to that effect, “it’s everyone. She doesn’t like being kissed on the lips.”
The father’s failure to utilise the communication book, combined with his litigious approach and lack of insight into the causes of the child’s anxiety demonstrates that any shared decision-making for the child is impractical and would be likely to lead to further proceedings. After the final parenting orders were made in 2010 by consent, there has been no shared decision-making and the proposal by the father for equal shared parental responsibility is unrealistic.
It is not in the best interests of the child that there be equal shared parental responsibility. As previously stated, I accept the diagnosis of the father by the family consultant, Dr A, that the father suffers from a paranoid personality disorder and that there is a lack of trust on the father’s behalf such that joint parenting would be impossible.
An order for equal time is not being sought by either parent. The father sought that he spend alternate weekends with the child as well as half of all school holidays.
Dr A recommended that the child should not spend any time with the father and I accept that recommendation on all the evidence. This is consistent with the child’s wishes. The supervised time spent by the child with her father, has been trialled and was unsuccessful. There could be no confidence that any arrangements for the father spending time with the child could be effectively implemented. I am satisfied that it is not in the child’s best interests to spend any time with her father or for her to be compelled by court order to have communication via telephone or email with her father. Accordingly, no orders will be made for the father to spend any time with the child.
Additional orders sought by the father
The father also sought a raft of other orders relating to the child’s family and treating general practitioner. He sought that the mother bear all expenses for the child’s medical treatment but did not provide any evidence to demonstrate the need for such an order. The father sought that a medical practitioner other than Dr H be agreed upon by the mother and the father to be appointed to care for the child’s medical needs. There is no evidence of the necessity for such an order and it is not in the child’s best interests to replace a trusted medical practitioner with a new practitioner, having regard to the number of professionals already consulted.
There is also a question of what power would be exercised by the Court to make any of these orders and whether the exercise of that power would be appropriate. Presumably the power sought to be relied upon would be s 68B of the Act, for the personal protection of the child. However, the father has not proved his case that there is the necessity for these additional orders.
The father also sought an order that he be notified and able to attend any special or significant school, sporting or social event in which the child participates or attends. Having regard to the child’s wishes that she spend no time with her father, I consider that this type of order would be counter-productive to the father/daughter relationship and would not be in the best interests of the child. At a later time, when the child has had some respite from litigation, it will be open to her to invite her father to attend any activity within the constraints of any intervention order which might be in place.
The father sought an order that the parents communicate issues concerning the child via email and that each party notify the other soon as practicable of any emergency involving the child requiring specialist medical treatment or hospitalisation. It is reasonable to make such an order having regard to the fact that the father will not be spending time with the child and the fact that the mother will have sole parental responsibility for the child.
The father’s application that he have full and transparent access to the child’s health records is dismissed on the basis that there is no evidence to support such an order and it is clearly not in the best interests of the child having regard to the findings previously outlined.
Conclusion
It is in the child’s best interests that she live with her mother and not be required to spend supervised or unsupervised time with her father. Unfortunately, the father believes that his pursuit of information about the child through those professionals treating her is a reflection of his dedication to his daughter. During the trial he repeatedly referred to the need for litigation in pursuit of a reconciliation of his relationship with the child. The father sadly did not appear to appreciate the connection between his conduct and the breakdown of that relationship.
Whilst prepared to make limited concessions, the focus of the father’s case was directed towards a misconceived view that the mother was responsible for the child’s wish to spend no time with him. This view cannot be substantiated on the evidence and the mother has in fact made reasonable efforts to facilitate his relationship with the child from the outset, in difficult circumstances.
Dr A recommended that the father should return presents which he had withheld and consider sending the child a gift at Christmas time if the father wished to maintain some contact with her. The father did not agree to the return of the presents. The Independent Children’s Lawyer submitted that an order should be made that the father should return the presents which he has withheld from the child.
However, there is no reason consistent with the child’s welfare, for the father to be compelled by court order to do so. A requirement to return the presents is unlikely to enhance the prospects of any reconciliation. The imposition of such an order on the father in circumstances where he opposed the order would be counter-productive to any reconciliation of the relationship. Such an order also has the potential for the presents to be returned in bad faith which would also be counter-productive. The making of such an order would not be in the best interests of the child.
I am not satisfied that such an order would be appropriate for the welfare of the child in accordance with s 68B of the Act.
In terms of the future, Dr A recommended that the father be strongly discouraged from pursuing the matter further through the Family Court. He provided some suggestions for the father if he wished to maintain some contact with the child, which might be useful. He suggested that the father may benefit from “psychotherapy aimed at helping him understand the contribution of his own personality difficulties to his alienation from the child”.
Although the father, in his earlier argument, suggested that the child might have counselling to overcome the practical difficulty of her reluctance to spend time with him in accordance with his proposal, ultimately no party sought orders for the child to undergo further psychological treatment or counselling. It would not be in the bests interest of the child to make such an order.
This is an unfortunate case where the father professed his deep love for his daughter, the child, who is his only child, but where he cannot comprehend the obvious reasons for the breakdown of that relationship. The father told Dr A that the child is the “love of his life and everything he has lived for”. If that is so, the father might reconsider the useful steps recommended by Dr A and provide the child with some respite from further litigation.
Costs
The mother has made an application for costs to be paid on a party/party basis by the father.
The general rule is that each party should bear his or her own costs of proceedings under the Act. However, the Court is empowered to make an order for costs if it is of the opinion that there are circumstances which would justify such an order.[11]
[11] Family Law Act 1975 (Cth) s 117.
Section 117(2A) of the Act mandates the factors to which the Court should have regard in considering whether to make an order for costs. They are:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
There are reasons in the circumstances of this case which justify the making of an order for costs on a party/party basis to be paid by the father to the mother. The father’s pursuit of an order contrary to the recommendations made by an expert, being Dr A, whom the father insisted upon, has been wholly unsuccessful. This is particularly so where the expert, Dr A, provided a comprehensive report which was not challenged by the father. The father preferred to make submissions about the report rather than cross-examine Dr A about the deficiencies which the father argued.
In arriving at this conclusion I have also taken into account the conduct of the father during the trial and his detailed cross-examination of the mother in a manner which had a punitive quality and did not assist his case.
The Family Law Rules 2004 (Cth) (“the Rules”) provide for a procedure for the costs payable by a party to another party to be assessed by a Registrar who may determine whether costs are reasonably incurred, are of a reasonable amount and whether they are proportionate to the matters in issue. If the parties do not agree on the amount of costs to be paid by the father to the mother, the costs are to be assessed by a Registrar under the Rules.
I certify that the preceding two hundred and seventeen (217) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 2 December 2014.
Associate:
Date: 2 December 2014
Annexure A
Documents relied upon by the applicant father:
·Amended Initiating Application sworn 25 March 2014;
·affidavit of the father sworn 17 June 2013;
·affidavit of the father sworn 26 July 2013; and
·affidavit of family consultant, Mr F sworn 22 December 2009
Documents relied upon by the respondent mother:
·Amended Response sworn 13 April 2014;
·affidavit of the mother sworn 13 April 2014;
·affidavit of the mother in response sworn 13 April 2014; and
·affidavit of the mother in response sworn 24 March 2013.
Documents relied upon by the Independent Children’s Lawyer:
·Children and Parents Issues Assessment by family consultant, Ms J dated 22 October 2013; and
·affidavit of forensic psychiatrist, Dr A sworn 5 May 2014.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Expert Evidence
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