Falun and Dale Falun
[2009] FMCAfam 540
•1 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FALUN & DALE/FALUN | [2009] FMCAfam 540 |
| FAMILY LAW – Parenting – change of residence sought by father and supported by independent children’s lawyer and family report writer – mother failed to make child available for contact for 12 months immediately after separation and later for a further period of 11 months – mother falsely told child repeatedly that her father had tried to poison her and had sexually abused her half sister – domestic violence during relationship – another half sister has lived with the father for two years – mother having psychiatric and psychological counselling for anxiety – change of residence ordered. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | MR FALUN |
| Respondent: | MS DALE/FALUN |
| File Number: | MLC 2327 of 2007 |
| Judgment of: | Riley FM |
| Hearing dates: | 6 & 7 May 2009 |
| Date of Last Submission: | 7 May 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 1 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Allana Goldsworthy |
| Solicitors for the Respondent: | Albury/Wodonga Community Legal Service |
| Counsel for the Independent Children’s Lawyer: | Susan Buchanan |
| Solicitors for the Independent Children’s Lawyer: | Cathleen Corridon Solicitor |
ORDERS
All previous parenting orders be discharged.
[X] born in 2000 (“[X]”) live with her father.
The father have sole parental responsibility for [X].
The mother and father forthwith sign all documents and do all things necessary to enable [X] to spend time with her mother at the [W] Contact Centre.
[X] spend time with her mother under supervision at [W] Contact Centre on alternate weekends at such times as are nominated by the contact centre.
The mother continue to undertake psychiatric and psychological counselling with Dr C and Dr V respectively as directed by Dr C and Dr V.
The mother undertake therapeutic counselling with a counsellor appointed by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia, such counselling to be directed to the mother gaining insight into the benefit to [X] of having a meaningful relationship with her father.
The independent children’s lawyer give a copy of these orders and reasons to Dr C, Dr V and the therapeutic counsellor on the basis that Dr C, Dr V and the therapeutic counsellor are to maintain proper client confidentiality in relation to the orders and reasons.
If the therapeutic counsellor deems it appropriate, he or she is to certify that the mother has gained an understanding of the benefit to [X] of having a meaningful relationship with her father.
Upon the therapeutic counsellor certifying that the mother has gained an understanding of the benefit to the [X] of having a meaningful relationship with her father, and after the passage of at least six months from the date of these orders, the following orders shall take effect:
(a)[X] is to spend time with her mother as follows:
(i)each alternate weekend from after school on Friday to 5.00pm on Sunday;
(ii)half school holidays, and in default of agreement, the first half;
(iii)such other times as may be agreed:
(b)changeover is to take place at school on Fridays and at Wodonga Contact Centre on Sundays and on other non-school days.
The mother and father each be restrained from denigrating the other to or in the presence or hearing of [X].
The independent children’s lawyer be discharged at the expiry of
12 months from the date of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Falun & Dale/Falun is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2327 of 2007
| MR FALUN |
Applicant
And
| MS DALE/FALUN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of [X] who was born in 2000 (“[X]”). [X] is now 8 years old. Her parents met in 1998 and married in 1999. Their relationship was marred by repeated violence. In April 2000, the father was requested by the Department of Human Services to vacate the home. He did so, for a time, but the parties then reconciled. Later, the father pleaded guilty to and was convicted of a violent assault on the mother on 13 December 2001, when [X] was 18 months old. He was fined $2,500. The parents had a number of separations and separated finally on 4 July 2003, when the father left the family home.
After final separation in July 2003, [X] lived with her mother, and the mother’s child from a previous relationship, [Y], who is a girl about four years older than [X]. The father also has a daughter from a previous relationship, [Z], who is now 14 years old. [Z] has been living with the father for about two years. The mother lives in Wodonga and the father lives in [H].
[X] spent no time with her father for about one year after separation. The father commenced proceedings. [X] then began to spend time with her father at a contact centre, and eventually spent one weekend in four with him, pursuant to final orders made in the Family Court by consent. The father then filed a number of contravention applications. In particular, the mother contravened the orders repeatedly from December 2007 onwards with the result that [X] did not see her father for a further period of about 11 months. The mother eventually admitted that she contravened the orders on 10 occasions without a reasonable excuse. Contact resumed in October 2008 in the context of the determination of the contravention application.
During the course of the contravention application, the father filed an application in a case in which he sought orders that [X] live with him. That is the application that is presently before the court. The father’s application is supported by the independent children’s lawyer, and a family report prepared by Dr Harvey. The mother formally seeks orders that that [X] continues to live with her and spends one weekend per month with her father. However, the mother’s stated preference is for [X] to only have supervised contact with her father.
The father, the independent children’s lawyer and Dr Harvey argue that [X] should live with her father essentially because, in their view, the mother has demonstrated an inability to encourage and facilitate a meaningful relationship between [X] and her father and has in fact seriously undermined any such relationship. They argue that the mother’s conduct is damaging for [X]’s emotional and psychological development and could in fact make her psychotic. The mother submits that there are documented signs that her attitude is changing, and that she should be given the opportunity to continue that process.
Jay Manya’s family report
A family report prepared by Jay Manya dated 7 July 2004 notes that [X] had no direct contact with her father from separation on 4 July 2003 until the family report interviews were conducted on 2 July 2004, when [X] was almost four. In December 2003, the father applied to the Family Court for contact with [X]. The Family Court initially ordered weekly telephone contact with the father.
At the family report interviews, [X] began by saying “My dad is a bad man, he is mean … he hurts me, I don’t want to see him. … He tells lies.” She said that her father had hit her mother when [X] was “in her tummy”. By the end of the interview, [X] was sitting on her father’s lap and kissing and cuddling him. She did not want her father to leave and, if he had to leave, she wanted to go with him. It took “some effort” to separate [X] from her father.
Ms Manya noted that:
4. … The mother strongly refuses any contact between the father and [X] until the child is old enough to make her own informed decision about her relationship with her father. [The mother] makes further allegations that the father might have sexually interfered with her older daughter in the past and is likely to emotionally and sexually abuse [X] if he obtains contact with [X].
…
22. [X] stated to her mother that ‘dad was here. He is nice. He did not hurt me. I want to see him.’ [The father had brought some presents.] [[X]] showed the presents to the mother. The mother started to talk to the writer stating ‘They bribe, they do everything politically correct, He is a con man, I can not forgive myself for loving him and now he is going to do the same damage to [X].’ The mother started crying. [X] tried to reassure her mother stating ‘Dad did not hurt me mum, I want to go with Dad, but I will come back to you.’ [The mother] asked [X] ‘what does he do when he gets angry? Then he will hurt you.’ [X] answered innocently ‘I will not be naughty to make dad angry and he loves me. He won’t hurt me.’
23. The mother sat down and shed some more tears. In between the tears she asked the children, ‘what is the best thing that can happen to our family?’ [Y] answered ‘that we find a new dad and Mr Falun [first name omitted] will be out of our lives.’ [Mr Falun is the father’s name.]
24. The writer then asked the mother if she wanted to accept other gifts the father had left in the room. The mother took the presents. The writer wanted to conclude the session as it was not positive for the children to watch their mother crying and speaking negatively about the father. The mother left saying ‘No way is it going to happen, I will never forgive myself for falling for him.’ etc.
25. On the way out she stated that ‘He might have fooled [X] but [Y] knows different.’ She asked [Y] if she wanted to see Mr. Falun. Surprisingly [Y] answered ‘May be.’ But after seeing the shocked response on her mother’s face, [Y] quickly added that ‘Because I have not seen him for a long time… May be.. Well, I don’t know.’ The mother left the room with [X], looking totally devastated and vulnerable.
…
47. Ms Falun did not even like the idea of supervised contact. She stated that if the father was granted any contact it would seriously impair her capacity to provide care for the children which in turn [would] impact devastatingly on the children’s physical and emotional wellbeing. Ms Falun shared that she had promised the children that she would ‘protect them from the father’ and they would totally lose trust in her capacity to safeguard them against their father’s likely abuse.
…
50. Ms. Falun seemed to lack insight regarding the impact on the children of her distressed emotional state, her resistance to the issue of contact and direct suggestions tearfully made to the children about being harmed by their father. She totally negated the expressed wishes of her child wanting contact with her father and tried to entangle and enmesh [X] with her own unresolved issues with the father.
51. Ms. Falun impressed as a loving mother who has contributed to the wellbeing of her children over the years as both [X] and [Y] present as generally happy and healthy children. However during the report interviews Ms. Falun impressed as a highly emotional and volatile person. Both children seemed well attached to her but seemed emotionally distressed by their mother’s heightened level of anxiety and strong opposition to the issue of contact with Mr. Falun.
…
65. Mr. Falun presented as keen to be involved in his daughter’s life. He presented as a loving parent concerned about the welfare of his child. Mr Falun impressed as [a] calm and amenable person who stated that he had immense trust in the legal system and felt confident that the Court would assist him in having contact with his child. During the interview process the father was at all times respectful and polite. He did not present as charming or manipulative rather straightforward and plain speaking.
66. During the time spent with the [X] he was attentive, supportive and appropriate. He was warm and gentle with his daughter and at times teary but contained himself so that his child did not see him sad. He also seemed to have a calming influence on [X] and historically seemed to have had a positive relationship with her. During his interactions with [X] it was evident that [X] could receive positive benefits from having regular contact with Mr. Falun.
Summary and conclusion:
67. [X] is 4 years old. She is a bright and impressionable child. She is strongly attached to her mother being the resident parent and also has a positive relationship with her father. Even though she had no direct contact with her father for the last one year, [X] did not seem to have any difficulty in reconnecting with her father.
68. [X] seemed to positively benefit from spending time with her father. Although initially she stated that she did not want to have contact with Mr. Falun, with positive encouragement and in the absence of any negative suggestions from adults, she was able to enjoy the time spent with her father. Even though she is only just 4 years old she was able to clearly express to her mother that she wanted to spend time with her father.
69. Her relationship with her father did not impress as being an abusive one. [X] did not present as scared or distressed in the company of her father. In fact after being in his company for a while, [X] seemed to talk and behave age appropriately as against her presentation as a precocious and mentally preoccupied child before meeting her father.
70. Mr. Falun was able to successfully engage [X] to play with him as well as connect with her emotionally within a short period of time of being with her without [re]sorting to any manipulative behaviour. Mr. Falun was totally appropriate and loving towards [X]. He has also indicated that he has attended regular drug screening for over a year now and has obtained clear results.
71. [Y] seemed ambivalent about Mr. Falun. She showed some fleeting interest in seeing him. Her accusation about Mr. Falun’s sexual abuse had a rehearsed quality to it. Her psychologist’s report also does not indicate that Mr. Falun was sexually abusive to [Y] in the past. The report notes that Ms. Falun had told the psychologist in June 2002 that [Y] had engaged in an unusual behaviour of rubbing her vagina since the age of 8 or 9 months old (DOB.1995) and Mr. Falun started a relationship with the mother only in late 1998.
72. The parents make mirroring allegations against each other with relation to physical, verbal and emotional abuse throughout their relationship. It was highly difficult to absorb and make sense of the reported extreme and chronic abusive behaviour against each other. Each parent indicates that he or she was ‘the victim and entirely innocent.’ Each party indicates that he/she [has] ample evidence to prove to Court that the partner was the wrongdoer and perpetrator of abuse throughout the relationship. As stated in Mr. Spencer’s report even after interviewing both parties, it is difficult to determine where the truth may lie in relation to the history of the reported mutual violence in the relationship.
73. However the writer believes that both parents seemed obsessed and addicted to their destructive relationship for many years in the past. They have had a caustic and damaging influence on each other. They need to make sure that they would never reconcile again in the future.
74. Both parties need to assume responsibility for their brutal and sadistic behaviour of the past and address their past behaviour whether as a victim or a perpetrator with professional support and need to move on with their lives.
75. The mother needs to separate her own unresolved issues with the father from [X]’s father-daughter relationship issues. Ms. Falun also needs to become aware of her own overwhelming resentment, anguish and sense of betrayal about the father flowing into [X], corrupting her impressionable mind. The writer strongly recommends that the mother seek further professional assistance to work through her personal issues.
76. Furthermore, it is emotionally damaging for [X] to grow up with a powerful negative image of her father particularly if she can never experience a loving relationship with him until she is an adult. She needs to develop and maintain a positive relationship with her father in order to grow up to be a healthy adult. Therefore it is essential that she has substantial contact with her father in the years to come. The writer does not believe that it would be beneficial for [X] to be removed from her mother’s care to be placed in the primary care of her father, at least at the present time.
77. Based on the above discussion, the writer recommends that [X] commences contact with her father in Wodonga Contact Centre once a week for a few hours. After 8 such visits, [X] has contact with her father for the day and the parents still use the Centre as the changeover place. This practice could proceed until the matter returns to Court for the final Hearing. Further and final extended contact regime could be determined based on the report provided by the supervising Centre when the matter returns to Court for the final orders or before that, if the parents choose to negotiate the matter through their solicitors.
The mother’s counsel in the present proceeding did not pursue any of the mother’s allegations of sexual abuse.
The contact centre report
Interim consent orders were made by the Family Court on 9 July 2004 whereby [X] was to spend one hour each week with her father at the Wodonga Contact Centre. One hour sessions occurred on 2, 9 and
16 September 2004 and on 14 October 2004. The Contact Centre notes record a great deal of warm and positive interaction between [X] and her father. However, the notes also record numerous matters of concern in relation to the mother’s behaviour, thought processes and the statements she has made to [X].At the first session, on 2 September 2004, [X] told her father that her mother was going to find her a new Dad. [X] also told her father that “Mummy is sad I play with you.” At the end of the first session, on
2 September 2004, [X] allowed her father to give her a kiss goodbye. The father gave [X] a banana.
The Contact Centre reported that the mother telephoned the next day and said that [X] had eaten half the banana on the way home and had immediately gone to sleep. The mother told the staff that she was frightened that the father had put something in the banana such as “speed” in an attempt to get rid of [X] so he did not have to pay child support. (There was no suggestion in the present proceeding that the father has failed to pay child support as assessed. The mother’s counsel in the present proceeding did not suggest that the father had tried to injure [X] by tampering with a banana or in any other way.)
During the second session on 9 September 2004, [X] said to the father, “I think you poisoned that banana. Do you know you’re a bad man.” Later, [X] said to her father, “I remember when you gave [Y] a piggyback and stuck your finger up her botty.” At the end of the second session the father asked [X] if she would give him a kiss or a cuddle. [X] twisted her dress in her hands and said, “next time … Mum said not to kiss and cuddle you … next time.”
At the third session, on 16 September 2004, the mother told the staff that [X] had said that she only wanted to play with them, and not with the father. [X] told the staff that she had not wanted to attend the Centre because her father was a “bad man.” [X] later said, “I hate Mr Falun [first name omitted]. Mummy said so.” Later, [X] told the father, “I only have one Dad. You’re not my Dad any more. … I never tell lies but you do. Mum says you do. … Do you remember when you threw me and Mum out of the car at Rainbow. Mum told me. … Mum is disappointed that I come here, really disappointed.” Later, the father asked [X] about the wand he had given her. [X] said her mother had thrown it on the roof.
Near the end of the session, [X] said to her father, “Let’s pack up so Mum won’t know I played with you.” A staff member told [X] that her mother knew that she was playing with the father and the father told [X] that “Mum knows I love you.” [X] replied, “No she doesn’t, you’re a bad man.” [X] asked the worker why she had told the mother that she plays with Mr Falun. The worker said it was okay to play with
Mr Falun. However, [X] twisted her hands and said repeatedly, “No, I play with the Lady.”
When the mother arrived, the worker told her that [X] had played with Mr Falun. The mother said that [X] likes to come to the Centre because she likes to play with the toys. The mother asked [X] if she would like to play with the father without the toys. [X] shook her head.
At the fourth session, on 14 October 2004, [X] told her father that he was a “bad man” because he had “hurt Mum and [Y] and me”. She said to him, “A long time ago, you hurt me but you probably don’t remember. … My Mum is going to find me a new Dad because you are a bad one. … You lie, you always lie.” [X] hit her father with a toy spade during this session. The father was observed to appropriately control her behaviour.
When reunited with her mother, [X] told her that she had not said goodbye to the father because he is a bad man. [X] smiled at her mother while saying this, and put her arms around her and said she loved her.
The mother did not attend or cancelled the next six scheduled sessions. She told the Centre that she, and [X], would not be attending again.
Dr K’s psychiatric report
A psychiatrist, Dr K, wrote a report dated 5 November 2005 on both parents. Dr K said:
Of particular concern was Ms Falun’s unbridled and unfettered belief that Mr Falun had at least on one previous occasion attempted to do grievous bodily harm against [X] by feeding her poison implanted in fruit during a supervised access visit. She also claimed that he engaged in other odious actions including placing rat poison in [X]’s favourite breakfast cereal bowl under the pretence that he was trying to rid the former matrimonial home from vermin. She claimed that the children would have accidentally … consumed the poison. She claimed that at that point in time even though they were married, Mr Falun was already thinking about separating and was trying to murder the children so that he would not have to pay child support in the future. She said as a result of these events, and also as [a] result of what she claimed to be chronic severe and persistent violence being directed against her and the children, she felt it was incumbent on her to truncate any further contact between
Mr Falun and the children particularly [X].
When I put to her that it would be likely to be detrimental to the children, and also highly inappropriate to make remarks to them that Mr Falun had tried to poison them, she completely repudiated this implying that the event was just too serious.
… She also went to great lengths to inform me that she felt that Mr Falun had sexually abused [Y] by placing his fingers near her genital area during a piggyback ride and that there was a litany of evidence to suggest in fact this event did occur despite his denials. …
When I attempted to very gently challenge some of her comments, including the inappropriateness of discussing with the children sensitive aspects of her separation from Mr Falun (and particularly remarking to [X] that she had been poisoned by her father) Ms Falun became extremely irritable and tearful and [suggested] to me that I had been manipulated by Mr Falun like a range of other people. Throughout the interview she was additionally anxious and agitated making frequent references to her ex-husband as being “a manipulator” and “a psychopath”.
…
Ms Falun went to some lengths to trivialise the apparent disaffiliation that she has from her family, mainly her parents, seemingly related at least in part to the stance that she has taken over her ex-husband having contact with [X]. She admitted to her parent’s dissatisfaction to this arrangement. She also expressed distain (sic) and contempt that Mr Falun had been in contact with a number of family members of hers who seem to have been sympathetic to his situation in relation to the circumstances post separation.
…
… [It] was of some concern that Ms Falun stated to me “I wish [X] didn’t exist because then there would be no need to have any further contact with Mr Falun, I love my life as it is at present”. She did however deny any feelings of harm towards either herself or her children.
…
… [It] was of some concern that Mr Falun trivialised [the assault for which he was convicted] as being tantamount to self-defence.
In terms of Ms Falun, it was of considerable concern that she articulated a belief that Mr Falun had tried to poison the children on more than one occasion, basically in her opinion to avoid his responsibility for child support maintenance payments. It was also disconcerting that Ms Falun felt that her allegations of Mr Falun trying to harm the children via attempted sexual abuse or poisoning them could be discussed with the children, particularly [X] at her very young age.
Ms Falun seemed to have some difficulty grasping the inappropriateness of such dialogue with young children. She also presented as extremely agitated and tearful when a discussion about this was instigated by the writer.
…
I am … concerned with the information I have to hand concerning Ms Falun. As stated it is of some concern to me that Ms Falun believes that Mr Falun did try and poison the children, and her concerns could be discussed in an open forum with the children. Assuming that there is no foundation to the allegations that Mr Falun has sexually abused the daughter [Y], it would also be of some concern to me that Ms Falun continues to be trenchant in her belief about this, but in particular it would seem from the evidence at hand that this might have been also discussed with the children which I think is also clearly inappropriate. (I refer to correspondence that I have been provided with). Ms Falun presented as distressed and tearful and as stated I think her remarks are axiomatic of her inability to disaffiliate her own unresolved issues concerning the relationship with Mr Falun from the needs of [X] and perhaps to a lesser extent [Y]. I believe Ms Falun requires further psychiatric assessment, and ongoing counselling with an experienced psychiatrist.
Dr D’s psychiatric report
Another psychiatrist, Dr D, provided a report dated 7 May 2006. He noted that, by 19 January 2006, [X] had had 23 sessions at the Contact Centre with her father. Dr D noted, in relation to a report by the Contact Centre regarding the later visits, that:
… the report notes that Mr Falun engaged and interacted with [X] at all sessions and appeared content to follow [X]’s lead with regard to the games they might play. He was generally contained, even when [X] made negative comments about him or behaved inappropriately. On one occasion he told [X] he was angry when she threw coloured water in his face and then he walked away. [X] also told workers on 23/12/04 that her mother got angry at home after her contact visits. The workers noted that although [X] often played cooperatively with her father she never hugged him or kissed him goodbye.
The mother told Dr D that the father had tried to poison [X] by putting Ratsak in her breakfast cereal and:
the Court had forced [X] to face her perpetrator every second weekend for two hours … 55 km from her home.
[The mother] has felt pushed into agreeing to contact to stop [the father] applying for residence.
Dr D observed [X] with her father. Dr D saw no evidence of [X] feeling any fear or anxiety in relation to her father. As to the parents, Dr D observed that:
Ms Falun presents in quite a disorganized, distressed fashion that is suggestive of underlying personality difficulties or a personality disorder. However, there was insufficient evidence to diagnose a current, major, acute psychiatric disorder. By contrast Mr Falun presents in a very calm, contained manner, that is inconsistent with the allegations of domestic violence. There is some evidence to suggest that he minimises the extent of the violence in their relationship.
…
There is evidence to suggest that Ms Dale is actively alienating her daughters from their father and stepfather, in the name of protecting them from his abusive behaviour.
Final orders made on 2 October 2006
Final orders were made by consent on 2 October 2006 whereby:
a)[X] was to live with her mother (in the Wodonga area);
b)[X] was to spend time with her father (who after separation lived in Melbourne):
i)in the Albury/Wodonga area for six hours every third Sunday, under the supervision of one of the paternal grandparents, for a few months;
ii)then, in the Albury/Wodonga area from 10.00am Saturday to 4.00pm Sunday every third weekend under the supervision of one of the paternal grandparents, for six weeks;
iii)then, from 5.00pm on Friday to 4.00pm on Sunday every fourth weekend; and
iv)for half of school holidays;
c)changeover was to occur at the Wodonga Contact Centre; and
d)
both parties were restrained from knowingly being within
100 metres of premises where the other lived or worked.
Contravention applications in 2007
The father filed a contravention application on 1 March 2007. That application was resolved by consent with orders made on 7 May 2007. Among other things, those orders provided for changeover to occur at 6.00pm on Fridays, and each party was to inform the Contact Centre
24 hours prior to a scheduled changeover if he or she was unable to attend.
The father filed a further contravention application on 25 June 2007. That application was dismissed on 19 November 2007 on the basis that neither party appeared on that date.
Contravention application in 2008
In December 2007, the mother failed to make [X] available for changeover. The father filed a contravention application on 15 January 2008. At that time, the father did not know [X]’s whereabouts. The mother continued to fail to make [X] available for changeover. The father eventually obtained a location order, which permitted two contravention applications to be served on the mother. The father alleged 14 contraventions which were, essentially, that the respondent did not bring [X] to changeover at the Albury Wodonga Child Contact Centre at times as ordered so as to enable [X] to spend time with her father, from December 2007 onwards. Ultimately, [X] did not see her father from November 2007 until October 2008 (as well as the earlier 12 months, from July 2003 to July 2004).
The contravention applications were initially listed for hearing on
6 August 2008. The mother was represented by counsel on that day, but she did not attend court herself. The matter was adjourned to
29 August 2008, with an order that the mother attend court personally on that day.
On 29 August 2008, the mother did attend court with counsel. On his application, four of the alleged contraventions were struck out. The mother admitted the ten remaining contraventions but said that she had a reasonable excuse, which concerned [X]’s safety. Counsel for the mother then indicated to the court that the mother was not able to give instructions or go into the witness box on that day. Counsel suggested that, instead, evidence be taken from the mother’s two expert witnesses. Counsel advised the court that if the matter were adjourned after the expert evidence was taken, he would be able to proceed on the adjourned date. The father was agreeable to that course, and the matter proceeded in that way on 29 August 2008.
Evidence was given by Dr V, who is a medical practitioner who works as a counsellor and psychotherapist, and Dr M, who is a general practitioner. After the hearing of the expert evidence, the matter was adjourned to 11 September 2008 and orders were made for a family report to be prepared in the Wodonga area. That proved problematic. The matter was relisted for 7 October 2008. The family report prepared by Dr Harvey was provided to the court and the parties on 6 October 2008.
Dr Harvey’s first family report
In his first family report, which was dated 4 October 2008 and which was relied on in this proceeding, Dr Harvey said:
16. Mr. Falun is in his mid forties. He presented for the interview in good time, was fully cooperative with the writer and throughout was generally calm and reasoned. He sometimes indicated a degree of exasperation when questions were asked with relation to some of Ms. Dale’s allegations about him but nevertheless maintained control of his emotions. He has another daughter by an earlier relationship. Her name is [Z], now aged 13 years, and she has lived with has lived with him for about 18 months.
…
22. Mr. Falun said that he considers he is a good parent, that he loves his children but does expect them to behave decently. He said his thirteen year old daughter has been given a lot of personal freedom but it is always with the clear expectation that freedoms bring responsibilities. He said he has had [Z] in his care for over a year now after some difficulties arose between her stepfather and the presence of very young children in their house. He said, and this was later confirmed by [her mother] Ms. K, that the arrangement was by mutual agreement and [Z] kept up regular times with her mother. They play in the same netball team on Tuesday nights and having alternate weekends together.
…
26. Ms. Dale presented as a driven, highly anxious and somewhat disorganized person who began her interview by claiming that Mr. Falun had breached Intervention Orders by being at a home 600 meters up the road from her farm when he last had [X] in his care. When asked to explain how that constituted a breach together with requests for elucidation on other claims about Mr. Falun’s behaviour she burst into tears exclaiming, “I have anxiety” and it took some time for her to settle down. She went on to claim that her anxieties were all about [X], “I can’t keep her safe – against this man” because he had threatened them physically and was now doing emotional and financial abuse relating that being taken to Court all the time was costing her a lot of money, $108,000 having been spent already.
27. Ms. Dale further claimed that Mr. Falun was not interested in children, that she had married a “con man” who had hit her in the stomach while she was pregnant and had threatened to do away with [X] when she was a few months old. She said she was breastfeeding [X] one day when Mr. Falun threatened to “do away with her”. Asked whether she meant that she thought Mr. Falun was saying he wanted to kill [X] while still a baby, Ms. Dale declined to answer but immediately listed a further set of accusations against him ending with a comment that she thought the Court ought not to rule that [X] had to see him just because of a biological link. In her opinion a biological link did not make him a father, claiming that Mr. Falun’s stepfather had been a child molester and her former husband was just repeating in his life what his stepfather had done to him.
28 Ms. Dale argued that the problem at this present time had come about because [X] had refused to go to her father’s for Christmas 2007 and she had fully supported her daughter. In her opinion, [X]’s wishes should be the only determiner of whether she should spend time with her father and that every effort should be made to comply with her wishes and not her father’s. She seemed very convinced that what she conceived of as her experiences of him as a husband and father of her daughter ruled out any consideration of what were his rights as a father. At no time did she appear to have any concept of [X]’s rights to know her father but claimed that [X] herself had told her first husband, Mr D, that she wanted him to be her father and not Mr. Falun.
29. An issue that is prominent in the papers made available to the writer prior to the interview is the question of inappropriate comment to the children by the mother about the matters under consideration in the Courts. It took the attention of the writer on first meeting Ms. Dale and the children prior to the interviews when she introduced a male friend called Steve whom she said was accompanying them to ensure their safety on the road while Mr. Falun was in the area. All of this conversation took place in the presence of the children with no attempts made to ensure they were not party to what was being said.
30.Questioned about these matters during her interview Ms. Dale observed that the Court classifies comment by a parent as denigration and claimed that no one there had seen [X] crawling under the table and hiding from her Dad or been there when he had caught her [mother’s] fingers in the door. She also said that they never talk about him at home, his name is never mentioned, and [X] has told her, “He hates me.” In any case, she claimed, “He denigrates me when he’s not under supervision”.
31.[X] is in Grade 2 at [T] Primary School. She is of normal build and height and appears to be in good health. It was said that her birth was normal, that she has kept in good health throughout her early childhood and met all her developmental milestones as normally expected. No school reports were made available to the writer but Mr. Falun receives copies and he said it seems she is doing well and receiving positive comments. He was also able to congratulate [X] on the content of the reports and the general tenor of their descriptions of her progress. [X] herself told the writer that she likes school and is best at Indonesian, Maths and Music. She is not a “big fan” of reading but has some good friends at the school. Her mother is now living in Wodonga in a rented house but she travels each day by school bus to [T]. It takes about 45 minutes of a morning but an hour each evening to get to and from their new home.
32.[X] was happy to talk about her school but what was most noticeable about her time with the writer was that she came all prepared to talk about “Mr Falun [first name omitted]” rather than just let the writer run the session, and it was some way into the conversation before the information about herself and her schooling could be discussed. Instead she had immediately started off talking about “Mr Falun” who she agreed was her Dad but that Mr Falun was what they all call him although “he insists I call him Dad but I don’t want to see him at all”. The reasons she gave for not wanting to see him were that he “says bad things about Mummy and [Y]”, and “he bangs his hands on the table and gets angry with me … in front of grandma”. She went on to say that her grandma’s name is [first name omitted] and added “he acts all nice to me when grandma’s around.” Of others who are at father’s home she said that “[Z] is always really nice to me”.
33. [X] also outlined other reasons why she was not wanting to see her dad including the time when they went to stay at a friend’s place in November 2007 and her father “forced me to sit on his knee”. She said she was afraid of him but when asked to qualify what she meant she said it was only “a bit”. She also affirmed that he had never hit her but did not want to pursue that line of talk so immediately went on to talk about the visit when she and her father had stayed at the friend’s place in [T]. On that occasion she claimed her father had said the Police were trying to get her off her Mum and “[Y] hates you”. This was in fact the last visit with her father because at Christmas she had not gone with her Dad explaining that “I didn’t want to go at Christmas time – I was a bit scared – I really want to stay with Mum.”
34.Once [X] had finished talking about her father she happily talked of her school and what she likes about it but then she remembered something else and, without prompting, changed the subject back to her father. She said she can remember hiding under the kitchen table to keep away from him and that her father had destroyed her three year old party and had chased all the people out. She said “I think all the adults were inside talking, Can remember him yelling at them. Can’t really remember what he actually said.” That once said, she relaxed again and talked again about school.
35. [X]’s demeanour during her individual discussion with the writer was positive and friendly with the occasional flashes of high emotion when telling about what her father was like or what he had done. Based on her behaviours when interviewed on her own and later when with each of her parents and sister, the writer formed the impression that [X] could be quite precocious with a strong concept of herself as a performer and singer. There was a certain lack of discipline that suggested that in school she could be quite a handful who would need to be encouraged to get on with her work and not interrupt the other children. In her one to one interview she appeared at times as if she had so much to say that it all just tumbled out but once that was done she relaxed and slowed up a little. There was no need for a settling in period and she launched into what she wanted to say as soon as the opportunity arose. Her manner suggested that there had been some rehearsal and not until what was forefront in her mind had been dispensed with was there a chance to reflect on other issues. Her talk of the third year birthday party was of that ilk but had been forgotten in the first rush of talk so it was introduced into the conversation later without any opening by the writer while the general talk was still about her schooling and what she liked doing in her spare time. Once it had been dispensed with she was again relaxed and followed along with the writer’s directions.
…
39. [X] spent 40 minutes with her father during the interview process. This session took place after [X] and the writer had had their discussions together and Mr. Falun was brought into the room. There was no need for introductions and [X] was welcoming although not at all demonstrative. There were however no indications of fear or reticence on her part although she waited for her father to make the first moves when it came to talking together. [X] was doing some drawings and they provided an opening as to what might initially be talked about and [X] appeared quite happy to have her father’s attention.
40. There was talk of schooling and Mr. Falun congratulated [X] on the good things her recent report had to say about her when mention was made of the two towns, Old [T] and New [T]. The writer interrupted to ask about why there is an Old and a New. [X] became quite animated as she and her father talked about the history and reasons for the development. There was no need for further involvement of the writer and their conversations continued about school, and their respective pets and [X]’s drawings, a continuing topic as she continued drawing while they talked. She even got her father to attempt a sketch of an animal and gave him a mark out of 10 for his first effort along with some advice on how to improve it – the improvement only resulted in her raising the original mark from 4 to 4½ but it was all conducted in a spirit of good fun.
41. After 30 minutes of quite animated and friendly talk [X] appeared to droop a little and tended to go quiet but when a topic about which she had some ideas came up revived herself and became animated and talkative again. When the time came for her to leave she did not try to cuddle or kiss her father goodbye but looked somewhat pensive as she said goodbye and was taken back to her sister and the room where they were being looked after by the writer’s associate.
42. At no point did [X]’s behavior indicate or suggest that she was in any fear of her father or did not want to interact with him. It seemed very clear to the writer that [X] and her father can get along very well together.
43. [X] spent thirty minutes with her mother in the waiting room where the two girls had been drawing and chatting with the writer’s associate. Both girls were relaxed, had enjoyed themselves, and had been well looked after. Ms. Dale was brought into the room and invited to talk with girls and have a look at what they had been doing in her absence. Ms. Dale declined to look and instead sat on a chair behind [X] and addressed the writer about her dismay at having had to see Mr. Falun again and having him in Wodonga where she and the children now live. The writer kept suggesting that this was a time when she could look at the children’s work but she declined to respond and continued talking to the writer about Mr. Falun including how he had arranged for animals to be killed while she was at Court and more talk about how he almost poisoned [X] and so on. The writer therefore asked [X] to get up from the table and take her work over to her mother and show her what she had been doing.
44. Ms. Dale listened to [X] without too much response but she again addressed the writer and although the writer was able to get a conversation going about schooling and singing Ms. Dale’s efforts were clearly aimed to engage the writer, not focus on either child. At one point comment was made about [X]’s singing and she sang a song from the Sound of Music. Ms. Dale said the song had been performed at a concert where [X] was awarded the first prize and [Y], the second prize. Both girls corrected her telling her that they had got the second and third prizes. [X] has a very nice singing voice.
…
48. This is a very complex case with concerns about the long term effects on [X] of being continually subjected to what is clear emotional abuse occasioned by an unwillingness on the part of her mother to recognize that whatever her problems may have been with Mr. Falun they are not [X]’s problems. There are no questions about the fact that Mr. Falun is her father and, despite all that has happened, it is to be noted that he continues to seek his daughter’s company and her well being, and there are no obvious reasons why she should not be able to enjoy them without feeling guilty about acting against her mother’s wishes. The reasons for the lack of co-operation are alleged concerns that there is a need to ensure her continued safety but there are no indications that [X] is, or has ever been, in danger. In addition, Mr. Falun has continued to meet his child support obligations, has been prepared to travel to provide transport as required, and is showing he has the capacity to care full-time for a daughter who is now 13 years of age.
49.The question of who was responsible for the violence experienced in the marriage is important but it is now five years since the parents lived together and whether it should be continuously rehearsed in the manner that Ms. Dale has been doing is another open question. Irrespective of who set the arguments up the reputations of neither parent are enhanced by what happened or is alleged to have happened. Whether they were reacting or instigating the arguments for both parents to have engaged in such battles does not suggest that either is or was in good control of their emotions or suggest that they were capable of acting like mature adults with serious parental responsibilities. What could reasonably be expected is that, as time has progressed and the issues have been identified and analysed to the extent that they have, that both should now have moved on and learned more acceptable ways of dealing with frustrations. Both parents still have the responsibility to model acceptable behaviours and coping strategies to their children. The children may well have been exposed to some awful situations a few years ago but what are they being shown today? Regrettably Ms. Dale continues to bring the events and accusations up as if nothing has been learned in the meantime. In the case of Mr. Falun, there has been some minimization of the degree to which he considers himself responsible for his actions but there are no indications that he continues to let those events rule his life in quite the same way as Ms. Dale appears to be doing.
50. Allied to the above concerns are the opinions expressed in many of the reports referred to above about the practice of Ms. Dale to talk to and in the presence of the children about what she considers was Mr. Falun’s role in the earlier domestic violence and the alleged sexual interference of [Y]. In the light of what must now be considered the entrenched behavior of the mother and the long term exposure [X] has had to it questions need to be asked about what steps now need to be taken to ensure she develops a more balanced picture of her father than that being presented to her by her mother. Ms. Dale has been advised by a number of professionals that her talk about Mr. Falun and her troubles with him directed to or expressed in the presence of the children are psychologically damaging but she has rejected all their advice, indeed, as in the case of her talks with Dr. K, argued against such opinions. She has also, according to a letter to her solicitor from a barrister who represented her in Court a copy of which she herself gave to the writer, been warned that “[X] should have a relationship with her father, but that if Ms Dale/Falun is not able to sustain the relationship, she is at real risk of losing [X]’s fulltime care”[1]. It seems to this writer that in the last four years she has not heeded any warnings despite having signed an undertaking with DHS in 2004[2] stating she will not expose the children to inappropriate conversations. If any changes are to be brought about in this situation then perhaps the time has come when [X] should be moved from her mother’s home and her residence status changed to be fulltime with her father.
[1] Boyle, Elizabeth, Letter to Loretta Terrill Family Lawyers, 28 November 2004.
[2] Department of Human Services, First Visit Case Note, [X] & [Y]. 1/12/2004. P. 8.
51. A change in residence is major in anyone’s terms and in this case such a move would mean that the sibling relationship that has been built up between [X] and [Y] will be severed or at least seriously affected. On the other hand she would be moving into a household along with her other sibling, [Z], with whom it has been said by all parties that [X] has a good relationship. Mr. Falun has told the writer that he does not want to take [X] away from her mother but just wants to be able to meet with his daughter in circumstances where there can be no more of the malicious undermining of their relationship that has been the case in the past. If the Court should determine that such an outcome is not likely and [X] should be moved he is “most certainly” prepared to take [X] into his home and care for her as he does [Z]. [X] would have to change schools but he said that he works basically from a home based office and can work around [Z]’s needs satisfactorily. Where needed [Z] can also be looked after by her grandmother, or her grandfather, both of whom live in reasonable proximity to her father’s home. Mr. Falun said it would be no problem for either if a similar process needed to be put into place for [X] also.
52. An important question for [X] is how would she be affected by a radical change in residence by being moved from her present school and away from her mother and her half-sister? [X] has already this year had to deal with a move from their farm and house at Old [T] to Wodonga but she has continued at the same school and is still with her mother and sister. She told the writer she misses the farm but has got used to living in town and seems to have accomplished this without any obvious upset. What is clear is that there is a good relationship between her father and herself with the writer observing no indications of fear or dislike or any of the emotions Ms. Dale says [X] displays when her father’s name is mentioned. The observations were not of course in the context of a major move but the indications are clear that the relationship is good. She will be moving into a home where she is in familiar territory and her sister [Z], with whom she said she has a good relationship, will be there to help her settle.
53. The question of differing parenting styles is important. Mr. Falun impressed as having fairly clear standards of behavior that he expected of his children whereas whether the same standards apply in Ms. Dale’s home is not so clear. There are two specific examples that suggest what the differences may be; both relate to food or eating. Ms. Dale claimed that Mr. Falun could not look after [X] without scaring her and that he banged his hand on the table during a meal at grandma’s so hard that [X] was very upset. It was explained to the writer that the problem that led to whatever Mr. Falun did, and he denied “banging” his hand on the table as described by Ms. Dale, was that [X] was eating a roast dinner with her fingers. The second example relates to complaints by Ms. Dale that Mr. Falun fed [X] food and drink that was not suitable for a child with tendencies to obesity as is the case, she argued, in [X]’s background. Mr. Falun claimed that he and [X]’s grandmother were quite vigilant about such matters and ensured that only sugar free drinks and appropriate food as directed by Ms. Dale were ever given [X].
54. The writer noted however that on the day of the interviews on 1 October 2008 Ms. Dale arranged for her male friend to bring to the Centacare offices a “snack” for the girls comprised of KFC Popcorn Chicken. It is not usual for such takeaway fast foods to be categorized in the health food group seemingly demanded by Ms. Dale for [X]’s consumption. It was further noted that [X] tended to be a fairly self-willed child who has been treated as a child well beyond her years and the reports of how she used to behave toward her father when at the Children’s Contact Centre[3] and tendencies she showed for the writer suggested that when at her mother’s she is not living in a very disciplined or particularly respectful environment.
55. Although the question of whether a change of residence is likely to be in [X]’s best interests is entirely a matter for the Court, the writer is of the opinion that unless there is a radical, urgently implemented, change in Ms. Dale’ attitudes toward her daughter’s rights and her emotional needs then such a change is indicated. [X] needs to be given the opportunity to develop accurate and realistic images of her father, images that can only be developed by her spending substantial and significant periods of time in his presence and in his own environment and a considerable lessening of the input she has been receiving from her mother up until this time. Whether Ms. Dale is prepared to take the advice of the professionals who have recommended psychiatric intervention and treatment as prelude to her coming to terms with her present, as compared to her past, situations the writer is unable to say. The indications are that she is not – if the Court agrees with that summation then a change of residence for [X] is respectfully recommended.
56.If a change of residence is implemented then consideration needs to be given to how much and under what conditions [X] should be able to spend time with her mother. Mr. Falun said that he believed that a weekend once a month and time in the school holidays was probably appropriate, but advice from treating professionals may be required before definitive recommendations can be made about this.
57.If a change in residence is not determined as being in [X]’s best interests then specific and enforceable assessment and treatment schedules for Ms. Dale should immediately be put in place. Continuation of Ms. Dale’s negative attitudes toward the advice of the professionals who have assessed the parties and continued failure to abide by the Orders made to date that determine regular times for [X] to be with her father will result in permanent psychological damage to [X], if indeed this has not already occurred.
58. It is respectfully recommended that if the Court determines that [X]’s needs to develop accurate and personal knowledge of her father can best be met by her changing her residence from her mother’s home to her father’s that this change be introduced at the earliest opportunity.
59. It is respectfully recommended that if the Court orders a change of residence for [X] that the times she ought to spend with her mother be determined after consultation and advice has been received from a treating psychiatrist.
60. It is respectfully recommended that if the Court determines that [X]’s needs may be met by retaining her mother’s home as her primary place of residence that specific and enforceable Orders require that Ms. Dale undertake a full psychiatric assessment and that she be ordered to follow in their entirety any treatment schedules whether these be by medication or psychiatric counseling or both.
61. It is respectfully recommended that if the Court determines that [X]’s needs may be met by retaining her mother’s home as her primary place of residence that [X] spend time with her father on the first weekend of each month and for half of all school holidays.
62. It is respectfully recommended that regardless of where [X] has her primary place of residence that she be able to speak with the other parent by telephone every Wednesday evening between 6.30 pm and 7.30 pm.
[3] Albury-Wodonga Children’s Contact Service. Report to the Family Court of Australia re [X], 5 November 2004.
Resolution of the contravention proceedings
On 7 October 2008, the mother did not attend court. Her counsel sought an adjournment on the basis that the mother was unwell. He assured the court that her illness could be treated with medication and she would be fit for court in a few days. The matter was adjourned until 14 October 2008. On that day, the mother admitted that she did not have a reasonable excuse for the ten remaining contraventions. Orders were made for:
a)makeup time;
b)the mother to attend a post-separation parenting course;
c)the mother to attend Dr V for counselling and a referral to a psychiatrist;
d)the mother to attend a psychiatrist for therapeutic counselling; and
e)the further disposition of the contravention applications to be determined on 6 May 2009.
The purpose of the adjournment was to enable the mother to have time and professional assistance to develop an understanding of the importance for [X] of having a meaningful relationship with her father before the contravention applications were finally resolved.
It seems that, due to an error within the court, the mother was not notified of the details of the post-separation parenting course. However, when the matter returned to court on 6 May 2009, the mother said that she had attended another course of her own volition, had attended Dr V for counselling, and had attended a psychiatrist. In view of how entrenched the mother’s views are, it is very unlikely that a parenting course would have altered them.
The present parenting application
Meanwhile, on 25 August 2008, the father filed an amended application in a case in which he sought orders that [X] live with him while her mother was being psychologically assessed. On 22 January 2009, the father filed another amended application in a case in which he sought orders that [X] live with him. That is the application that is presently before the court. On 6 May 2009, the parties and the independent children’s lawyer agreed that no further orders should be made in relation to the contravention proceedings, but continued with the application for parenting orders.
Procedurally, the case has become unusual. The contravention application was part heard on 6 May 2009. However, the mother was represented by new counsel, for the purposes of the parenting part of the application, on 6 May 2009, and an independent children’s lawyer had been appointed. The parties relied in the parenting part of the application on affidavits filed in the contravention part of the application, and the father in particular relied on the cross examination of Dr M on 29 August 2008. To enable the new counsel for the mother and counsel for the independent children’s lawyer to understand the evidence from that day, a copy of the transcript was provided to them overnight during the course of the hearing.
The father claimed that the mother has an unresolved psychological condition that causes her to alienate [X] from her father and constantly denigrate him in [X]’s presence. The father said this is adversely affecting [X] psychologically. The independent children’s lawyer said that “[X] faces possible long term psychological harm” if she remains with the mother, who does not appear to have any concept of [X]’s right to know her father. The mother’s counsel said that the mother still believes that the father presents a danger to [X], but the psychological evidence indicates that the mother’s emotional state is improving. She said it would not be in [X]’s best interests to alter her place of residence when there are signs that the mother’s attitude is changing.
[X] spent five weeks with her father over the long school holidays in 2008/2009 as well as every fourth weekend and an extended time at Easter. After the orders were made on 14 October 2008, there were five matters that the parties regarded as particularly significant. They involved a tape recorder, a hair cut, abusive telephone calls, [X] not calling her father Dad, and the mother not collecting [X] at the changeover scheduled for 18 April 2009. These matters are discussed in detail below. For everyone’s convenience, I have set out my findings about each matter at the end of the discussion of that matter. However, in making findings, I have taken into account all of the evidence in the case.
The tape recorder
Following the court orders on 14 October 2008, [X] spent the weekend beginning on Friday 17 October 2008 with her father. He collected her from the contact centre and returned her to the contact centre. The father said in his affidavit sworn on 21 January 2009 that:
a)when he was driving [X] to his home on 17 October 2008, he heard sounds coming from her shoulder bag;
b)when they were settled at the father’s house, [X] said that she was not allowed to take her shoulder bag off;
c)she was clearly upset and uncomfortable;
d)[X] wore the bag to bed with her;
e)the father asked [X] what was in the bag on 18 October 2008;
f)[X] said that her mother had told her that:
i)she was not allowed to take the bag off;
ii)she had to wear it at all times;
iii)the father was not allowed to see inside it;
g)[X] was uncomfortable showing her father what was in the bag;
h)the bag contained a mini tape recorder that had been recording from the time the mother had taken [X] to the contact centre;
i)the father heard the mother’s voice and a contact centre staff member’s voice on the tape;
j)subsequently, a contact centre staff member told the father that, when challenged, the mother had defended her actions in relation to the tape recorder and was adamant that she had a right to know what was going in the father’s home.
In her affidavit sworn on 24 March 2009, the mother said that [X] had asked her if she could take the tape recorder because she wanted to record herself singing with [Z]. The mother said she did not tell [X] not to remove the bag from her shoulder, and did not tell [X] not to let anyone look in the bag. The mother then said:
When the contact centre staff asked me about whether I was recording [X]’s visits to Mr Falun, I explained that the tape recorder was for [X]’s singing and I was not trying to record what happens in his house. I was annoyed at the implication, and I said that if Mr Falun was making such a big deal about an innocent tape recorder, maybe there was something going on in his house.
The contact centre notes for 19 October 2008 (which are exhibited to the affidavit sworn by the father on 6 April 2009) record that the father told the senior worker that he had found a tape recorder in [X]’s bag over the weekend, and that the recorder had been turned on at the contact centre on the Friday. The notes record that the father played the tape for the senior worker, and she heard her own voice on the tape.
The notes then say:
When Ms Dale/Falun arrived the CSW [contact service worker] greeted her and told her that the SW [senior worker] wanted to speak to her. The SW went into the waiting room and chatted to Ms Dale/Falun. The SW told Ms Dale/Falun that Mr Falun had found a recorder in [X]'s bag. The SW told Ms Dale/Falun that she had heard part of the recording and that the staff at the CCS do not like being recorded without their knowledge. Ms Dale/Falun asked the SW if she knew the history of this case. The SW said that she did. Ms Dale/Falun said that Mr Falun had tracked her down and dragged her through the court and that he wants residency of [X]. The SW repeated to Ms Dale/Falun that the CSS staff do not like being recorded without their knowledge. …
The father’s mother, Ms F, swore an affidavit on 21 April 2009. Ms F was not cross examined. She said that:
a)[X] appeared uncomfortable about the bag;
b)[X] had said that she had to have it with her at all times and her mother told her that she was not allowed to take it off; and
c)[X] seemed more relaxed after the tape recorder had been removed from her bag.
When cross-examined on this issue, the mother denied that she had placed a tape-recorder in [X]’s shoulder bag or activated it. The mother denied that she told [X] she was not allowed to take the shoulder bag off and denied that she had told [X] not to let the father see inside it. The mother maintained that the true version of her conversation with the contact centre staff was the totality of everything in their notes and everything in her affidavit. The gist of the mother’s evidence was that the contact centre notes left out all the things she claimed were said, and her affidavit left out all the things the contact centre notes recorded being said.
I accept the father’s evidence on this matter and I do not accept the mother’s evidence on this matter. The father’s version was supported by his mother, who was not cross-examined at all. It was not put to the father that his version of events in relation to the tape recorder was false. The father was cross-examined on whether the mother’s claim that [X] used the tape recorder to record her own singing had a ring of truth about it, in view of [X]’s interest in music. The father denied that the mini-recorder used on this occasion was suitable for that purpose, and said he had an excellent recording device at his house which [X] had previously used. I do not accept that the contact centre’s notes, which appear thorough, would have left out the aspects of the conversation that the mother claims occurred. The father’s version is more consistent overall with the mother’s attitude towards him and towards [X] spending time with him.
The hair cut
The mother said in her affidavit sworn on 24 March 2009 that, in about early January 2009, the father grabbed [X]’s pony tail and cut her hair with barbecue or kitchen scissors, even though he knew that [X] was trying to grow her hair for the Guinness Book of World Records. The mother said that [X] felt embarrassed by the uneven appearance of her hair and disappointed that her grandmother had not stopped him.
The father said in oral evidence that he had said to [X] that, if she wanted her hair to be in the Guinness Book of World Records, she had to keep it healthy. He said her hair was dry and had split ends. The father said that [X] was happy with him cutting three to four centimetres off her hair.
I accept the father’s evidence on this matter. It is a matter of common knowledge that long hair does need to be trimmed now and then to keep it healthy and free of split ends. I do not accept that the end result would have embarrassed [X]. Trimming long hair is a fairly straightforward procedure. It seems to me that the mother has sought to make a major issue out of a trifling matter.
The late changeover
The father said that at 5.00pm on 18 April 2009, he took [X] to the contact centre for changeover in accordance with the court orders. However, the mother did not attend. The staff tried unsuccessfully to telephone the mother and eventually had to close the centre. The father arranged accommodation and stayed overnight in Wodonga. The contact centre was able to arrange for the mother to collect [X] the next day.
The mother agreed with this outline of events. However, she said she was confused, because 18 April was a Saturday and usually changeover was on a Sunday. She also said that she had received Dr Harvey’s second report on Friday 17 April and did not answer the telephone for some time after that.
I accept that the mother was confused about the correct date for changeover. Unfortunately, the orders made on 14 October 2008 had to be amended under the slip rule. In their original form, they said that changeover was on Sunday 18 April 2008. In their corrected form, they said that changeover was on Saturday 18 April 2008. Having said that, it is obviously very important for [X] that both of her parents take very great care to ensure that they have read and understood all orders affecting her, including orders that have been amended.
Abusive telephone calls
The father said that, in breach of court orders, the mother telephoned him while [X] was with him on 25 December 2008 and swore at him and then rang back a few moments later and spoke to [X] for ten minutes. The father said that, in breach of court orders, the mother telephoned him on 18 January 2009 and said:
cut my child’s hair will you, you f…ing c…. I am going to send someone down there to cut your f…ing hair, you sick c….
The father said that his friend Mr M overheard part of the telephone conversation. Mr M swore an affidavit in which he said he heard on the father’s telephone the second sentence set out above, spoken by a woman with a threatening and desperate tone.
Mr M was not cross examined at all. The father was not cross-examined on this issue, except that it was put to him that the mother did not have his mobile telephone number. He said that she could have easily got it from his work.
The mother said that she did not make those telephone calls and the father and Mr M were lying. In the absence of cross-examination by the mother of Mr M, and given that it was not put to the father that he was lying or mistaken, I accept the evidence of the father and Mr M on this matter.
[X] not calling her father Dad
The father said that [X] called him [first name omitted] rather than Dad. The father noted that the Contact Centre notes recorded on 16 September 2004 that [X] told him “I only have one Dad. You’re not my Dad any more.” The notes also record that the mother told [X] that she was going to find her a new Dad.
The mother did not dispute these allegations. However, the mother’s counsel did put to the father that it was not unusual for children of separated couples to refer to one of their parents by his or her given name, and did obtain from him an admission that [X] had never said to him, “I am not allowed to call you Dad.”
The fact that [X] has never said that she is not allowed to call her father Dad does not mean that she is allowed by her mother to call her father Dad. It is clear from all of the evidence in this case that the mother has discouraged [X] from accepting that her father should have a social role as her father, and has discouraged her from calling him Dad.
Dr V’s evidence
The mother relied on an affidavit sworn by Dr V on 20 August 2008. That affidavit exhibited a report dated 18 August 2008 which said Dr V said she had seen the mother ten times since 22 September 2006 for counselling. Dr V wrote:
The contact with Ms Dale/Falun has been related to her seeking support for the management of her sense of stress and anxiety. On all but one occasion Ms Dale/Falun was highly agitated. She remained well in contact with reality, being focused on her financial difficulties, the practical difficulties regarding the court matters such as getting to Melbourne, financing legal help and her overwhelming fear of any contact with Mr Falun. She continues to believe that he is using the court processes to harass her with a major contributor to her financial pressure being legal costs.
Ms Dale/Falun’s mental health remains problematic to her, with difficulty sleeping, and eating, vomiting when under pressure and a major fear of ongoing violence from Mr Falun through the legal system. Ms Dale/Falun attributes her agitation to external pressures over which she has little control. Recently she recommenced on an antidepressant, prescribed by her General Practitioner, Dr M, with a slight improvement in her day-to-day sense of disquiet Ms Dale/Falun remains very vulnerable to panic. This hyper-alert state and the sense of powerlessness would be consistent with Ms Dale/Falun’s experience of being in a violent domestic situation over a long period.
She believes that [X] receives poor care when with her father, evidenced by [X] receiving severe sunburn while in her father’s care and also being given foods that Ms Dale/Falun has requested be avoided such as high sugar, high preservative, drinks.
With regarding to parenting, Ms Dale/Falun reports putting a lot of energy into keeping her daughters safe. She also has worked to minimise the impact of changes in their lives, for example keeping them at the same school despite the need to move into Wodonga. Her agitation can, at times, intrude on the structure of their days and the life changes necessitated by the financial straits will require adjustment by the girls. Ms Dale/Falun has not reported that her daughters have found these of major concern.
At the time of Dr V’s report, the mother had recently moved from [T] to Wodonga. However, [X] has continued to attend school in [T], which is a 45 minute bus ride away.
Dr V gave oral evidence in the contravention part of the proceeding. Dr V said that the mother had lost her driver’s licence at one point so it was difficult for her to get from place to place. Dr V said that the mother was suffering from post-traumatic stress and was unable to come to terms with the traumatic events of the past while custody issues were continuing. Dr V said that she thought the mother understood the importance of following court orders but gave priority to keeping her daughter safe. Dr V said that the mother was in touch with reality in the sense that she did not have hallucinations, but for her, issues around custody were a very scary experience, and that was reality for her.
Dr V said that the mother had told her that she is afraid that [X] will be exposed to the same violence that she was, and the same attitude and approach, and that [X] will be used to punish the mother. Dr V said that the mother first raised these fears with her in August 2005. On 2 October 2006, the mother consented to [X] spending every fourth weekend and half school holidays with her father. When asked what has precipitated the mother’s feeling that [X] would not be safe with her father, Dr V said that she understood it to be an occasion in February 2007 when [X] returned from contact severely sunburned even though contact was under the supervision of the paternal grandmother, and the paternal grandmother was denigrating of the mother.
The mother also relied on an affidavit sworn by Dr V on 21 April 2009 and the exhibited report dated 8 April 2009. She said in her report that:
The focus of much of our discussion has been her fear of
Mr Falun and of his threat to hurt her through their daughter.
Ms Dale/Falun often presented in an agitated state, worried about the apparent impotence of ‘the system’ to protect her daughter and seeing Mr Falun’s efforts to gain access to his daughter as the activation of his threat to use the court system to further abuse her. Ms Dale/Falun has put a lot of effort into seeking support through counselling, and through the legal system, for her fears.
Ms Dale/Falun had resisted efforts to arrange access but eventually agreed to access in 2006. She stated that she felt bullied into agreement by the lawyer who was representing her. After access visits with the father had commenced, the daughter, [X], returned with severe sunburn, and complaints about her father’s anger. This confirmed Ms Dale/Falun’s fears of abuse and so, for all of 2008, she did not take [X] for access visits.
Ms Dale/Falun has found that anything related to contact with Mr Falun brings on an overwhelming physical reaction, with vomiting and diarrhoea, extreme sweating, sleep disturbance and nightmares. This reaction has, at times, interfered with her ability to travel in public transport and to attend some of the court cases in Melbourne.
The focus of counselling has been to help Ms Dale/Falun to working on managing the emotional impact of her sense of impotence. Ms Dale/Falun was referred to the Wodonga Mental Health system for mental health assessment with conflicting opinions received. A variety of medication in the form of anti-depressants, anti-anxiety and anti-psychotics has made little difference to her level of distress and side effects have been problematic.
Discussion and training in relaxation and stress management techniques have occurred during counselling. Ms Dale/Falun has generally found that while there is some gain in calmness, her physical distress over-rides any benefit from these.
Ms Dale/Falun states that she generally copes by blocking out fears and keeping physically busy to the point of exhaustion.
…
Ms Dale/Falun has remained distressed for most of the time that I have been meeting with her, and she has found managing her fear
‘hard work’. In the last three appointments she has worked on
‘being calm’ and made some gains, but they remain fragile at this stage.
It is difficult for me to give an opinion regarding Ms Dale/Falun’s skills as a parent. She brings a lot of distress with her to the appointments and I have little idea, other than her statements of her belief in her own competency, of how she functions in the everyday world. I have observed her in the waiting room speaking politely and calmly to her daughters and their apparent comfort in relation to her.
Dr V gave oral evidence in the present proceeding in relation to both of her reports. Dr V said she continued to be of the opinion that she expressed in her report of 8 April 2009 that the mother had “made some gains, but they remain fragile at this stage.” The gains concerned the mother “being calm”.
Dr V also said:
it’s difficult for [the mother] to actively encourage her daughter to see her father as someone who is safe …
[The mother] doesn’t spend time [with [X]] talking up the relationship with her father. …
[The mother] believes and knows [the father] to be a dangerous person and she doesn’t believe that [the father’s] interest in [X] relates to his affection for his daughter but rather is an attempt to punish [the mother].
Dr V said that she had read Dr Harvey’s first report and she had a copy of his second report but she had only briefly perused it. Dr V said the mother found it difficult to cope with differences of opinion.
Dr V read to the court her February 2009 letter of referral to Dr C, a psychiatrist. The referral said, among other things:
[The mother] has been involved in a protracted and acrimonious process with her ex-husband regarding access to their child, [X]. She has been attending counselling since 2005, working on managing the emotional impact of this. Ms Dale/Falun has fears about the safety of her daughter during access visits and so has not fully complied with a previous court order regarding access. … [The mother] has resisted efforts to arrange access, but was eventually persuaded to agree to access in 2006. She stated that she felt bullied into agreement by the lawyer who was representing her. … He said he would make her life hell and use the court system to impoverish and to harass her. She was also concerned that since she as a grown-up was unable to protect herself from Mr Falun's violence, verbal and physical, their daughter [X] was even more vulnerable to his violence. She is fearful that Mr Falun is using the current claims for access to [X] so that he can further torment Ms Dale/Falun with worry about [X]'s safety. When Ms Dale/Falun needs to have any contact with Mr Falun she becomes extremely agitated, developing vomiting, diarrhoea, sleeplessness and preoccupation with her impotence in challenging him. Her speech becomes incoherent and she has difficulty walking. This response has interfered with her ability to present her case to lawyers and in the court system. … To date the counselling process has focused on helping Ms Dale/Falun manage her anxiety and to survive with her current situation rather than on dealing with her past experiences. Whilst she continues to perceive herself and her daughter as unsafe Ms Dale/Falun has little interest in putting the past to rest and she finds relaxation techniques ineffective and irrelevant.
Dr M’s evidence
The mother also relied on an affidavit sworn by a general practitioner, Dr M, on 22 August 2008 in the contravention part of the proceedings, and the attached report dated 17 August 2008. In that report, Dr M said she had first seen the mother on 26 October 2007, when she was referred by her treating psychologist for the purpose of prescribing medication for the mother’s acute anxiety. The mother said her anxiety was the result of many years of domestic violence by her second ex-husband, a hostile work environment, financial hardships, having to leave her family to be able to work in town because she did not have a driver’s licence, the cost of renting in town and managing her 12 year old daughter who has epilepsy and who wets the bed. Dr M prescribed Lexapro 10 mg, on the basis that the dosage would be gradually increased to minimise side effects.
Dr M said the mother attended her again on 16 November 2007. She said her partner, Mr D, had expected her to get better after the first dose, and left when she did not. The mother said she was in a hostile work environment at work and was changing jobs. Dr M increased the mother’s medication to 15 mg.
Dr M reported that the mother had attended the Emergency Department at Wodonga Hospital on several occasions with acute anxiety and was prescribed Diazepan. On 31 December 2007, the mother had left the Emergency Department without being seen. The police apprehended her. She was uncooperative and aggressive and referred to the [K] Unit for in-patient management. She was diagnosed by a psychiatrist as having hypomania, was prescribed 25 mg of Seroquel, an anti-psychotic, and was discharged.
The mother attended Dr M on 7 January 2008. She said she was happy in her new job. On 9 January 2008, Dr M wrote a letter to assist the mother to recover her driver’s licence.
Dr M next saw the mother on 21 May 2008. She said she was stressed. Her tenants on the farm were not paying rent. She had lost her new job because she was used as a political scapegoat. She had looming Family Court issues. One of her biggest issues was having to wash her older daughter’s sheets everyday. She said she sometimes forgets to take her Seroquel and sleeps poorly. Dr M said she appeared settled and showed no signs of agitation.
Dr M gave oral evidence in the contravention part of the proceedings. Dr M diagnosed the mother as having acute and chronic anxiety with some depression. Dr M thought that with ongoing counselling and medication, the mother would be able to overcome her anxiety. However, Dr M was not able to say how long that process might take.
Dr M was told that the mother had consented to the orders made on
2 October 2006 and was then asked if anything had happened since then to make the mother concerned about [X]’s safety with her father. Dr M referred to the sunburn incident, and said that the father had at one time stayed with [X] in [T] quite close to the mother. The mother in her affidavit said this event occurred in November 2007, and caused her considerable distress and anxiety. However, Dr M’s report indicates that the mother had already moved into Wodonga as at 26 October 2007. Dr M initially confirmed that interpretation in oral evidence, but later resiled from that position. I prefer Dr M’s first version. I consider Dr M only sought to retract her first version when she realised that it damaged one of the mother’s claims.
That claim was that the father had breached an intervention order by spending a weekend in a house 600 metres from her house. The intervention order did not actually prohibit the father from being within 600 metres of the mother. In any event, based on Dr M’s evidence, I consider that the mother was not living in [T] at the relevant time.
Dr C’s evidence
The mother relied on an affidavit sworn by her psychiatrist, Dr C, on 20 April 2009, and the report of the same date exhibited to it. He said he first saw the mother on 24 February 2009 and had seen her three times since. Dr C said the mother reported that [X] is scared for her safety when she spends time with her father and she sometimes does not want to go. Dr C then wrote:
According to Ms. Dale, these fears are still a current issue for both [[Y] and [X]] as well as for herself and that sometimes she has, against her maternal feelings, to drag [X] to spend time with her father as the child does not want to go. She added that
Mr Falun drinks all the time and has a history of explosive behaviour and outbursts leading to physical aggression or destruction of property (sic).
Ms. Dale believes that Mr. Falun has no emotional attachment to their daughter and he is “using this dispute to punish her through her daughter and cause Ms. Dale financial and emotional distress”. She feels disadvantaged and powerless, as she believes Mr. Falun has manipulated people and used the legal system against her. She is facing financial constraints and besides the emotional distress every time she has to attend Court in Melbourne she incurs expenses and has to find someone to baby sit her daughters. Still, according to her, she is not able to hold a job as her ex-husband has been dragging her to Court for 6 years.
On mental examination, Ms. Dale was well groomed, very anxious, hyper-vigilant and sometimes tearful when speaking about her fear of losing custody of her daughter [X] to [X]’s father, who according to her is not interested in the child’s well being, but just winning a dispute and torment Ms Dale. She was tensed up, talkative, displayed some frustration regarding the whole process, feels that it has been increasingly difficult to cope with it and that every time she has to deal with it her anxiety and distress increase to the point she may have vomiting and diarrhoea. It has been hard for her to pull herself together at Court, as she feels as if she were doing a final exam and if she loses; she will lose her daughter to a “manipulative and not trustful man, who has physically abused her daughters. She stated that while living with Mr Falun, he pressed her to the point that she questioned her own mental sanity. Towards the end of the interview Ms. Dale was more relaxed and was able to give more articulated account of her concerns. She reported poor sleep and appetite, and low mood related to the current issues. She did not present any psychotic symptoms.
…
Since she has been on medication, Ms Dale has made a significant improvement in sleep, appetite and anxiety, and her mood has lifted. At last appointment (31/03/09) Mrs. Dale was calmer, more relaxed, feeling more confident and more capable of legally fighting for what she believes. She has put in an application for a job.
…
I believe that the current distress though rooted in the past, is currently related to the present and future fear of intentional infliction of emotional distress upon her and to some extent upon her daughter as apparently Mr. Falun has said that he will never let her be in peace and will use the legal system to impoverish and harass her.
Ms. Dale, however has made a significant improvement of her emotional state since she has been on treatment.
Under cross-examination by the father, Dr C said that the mother had never indicated to him that her parenting behaviour might be causing [X] any psychological damage. He later said to the father in cross-examination that:
[the mother] acknowledged that your daughter has the right – you have the right to have access to your daughter and she said she has to live with that …. Whether she is prepared to improve or keep things as they are, I don’t know. … she acknowledged that you have the right to see your daughter.
I understand from this evidence that Dr C corrected himself when he began to say that the mother acknowledged that [X] has the right to have a relationship with her father. That is, Dr C did not say that the mother acknowledged that [X] has a right to have a relationship with her father. Rather, the mother said, reluctantly, that the father had a right to see his daughter. The mother does not appear to have any inkling that the real issue is the benefit to [X] of having a meaningful relationship with her father and the very grave damage that might be done to [X] if her mother prevents her from having such a relationship.
Dr C said that the mother was not psychotic and did not have a personality disorder, but she did need ongoing counselling and psychiatric treatment consisting primarily of medication for her anxiety, distress and depression.
Mr F’s evidence
Mr F, a friend of the mother, swore an affidavit saying that the mother’s parenting was above reproach and she supported father-child relationships. He based the latter opinion on the fact that the mother had always encouraged him to exercise contact with his children. Mr F acknowledged that the mother had never indicated to him that she would change her parenting approach, notwithstanding the various psychological reports highlighting that there is a real risk of permanent psychological harm to [X] as a result of the mother’s behaviour in connection to [X]’s relationship with her father.
Dr Harvey’s second family report
Dr Harvey provided an updated family report dated 1 April 2009. In that report, Dr Harvey said:
11.The writer found that Mr. Falun displayed a very sensible attitude to the task of raising [X] without any indications that he was ‘gilding the lily’ or pretending that he was a better father than he is. … The writer found his honesty refreshing as it needs to be appreciated that for a father to entertain an eight year old demands different approaches to what he usually encounters.
12.Ms. Dale attended the interview in Camberwell in a calmer state than she had displayed at that held in Wodonga in October 2008. She explained that she had had a panic attack that day but has since learned breathing techniques to help her cope with stressful situations. …
13.Notwithstanding the above, Ms. Dale’ attitudes to the idea that [X] should continue to spend times with her father was not in any way different. Her constant theme was that she wanted [X] to be safe and that she did not trust Mr. Falun to treat her properly. The paternal grandmother had lost a lot also in that [X] could no longer trust her because she supported Mr. Falun when he cut her hair. Ms. Dale affirmed that she knew [X] loved seeing [Z] but not her grandmother because of the hair incident and her father was nasty to her and was mean. He didn’t feed her properly either as they ate fish and chips or bacon and eggs and yet he thought she had a weight problem and might have diabetes. Ms. Dale said she took [X] to a doctor who graded her on scales she produced with her affidavit and said these showed she was healthy and developing well.
…
15.[When the mother was asked] why, in view of the negative attitudes and fearfulness about [X]’s safety she had responded to his application by offering time with her father she replied that her barristers had told her that was the minimum she could expect from the Court and she may as well go along with it.
16.Overall, Ms. Dale was quieter and less obviously stressed than at the first interview but there were no obvious indicators that she had progressed in terms of subjugating her own feelings about Mr. Falun in favour of encouraging [X] to develop links with her father. Throughout there was the implication in her comments that she and [X], and [Y], would be better off he is moved out of their lives altogether.
…
20.When Mr. Falun had arrived he and [X] were left to interact together for thirty minutes. Although under observation, this was conducted without the writer being physically in the room all the time hence they were to all intents and purposes on their own. … They were sitting together on a two person couch and it was immediately clear to this writer that, as noted at the first interviews, [X] holds no fears about her father when left alone to engage with him and talk about whatever subjects arose.
21.It was noticeable that Mr. Falun did not “rush” [X] but allowed her to set the pace and tone of their time together and it was equally noticeable that she was very relaxed and showed no reticence to engage with her father. Even when the writer advised them that [X] only had a few minutes left her manner and demeanour in her father’s presence did not change. This did not happen until the doorbell rang and, rightly believing that it was her mother at the door, she immediately “cut off” from her father and moved toward the door. It was as if it was a curtain had come down and she was no longer the [X] she had been moments before. She turned away from her father as she stood up and had to be reminded to say goodbye, something she briefly did by turning and saying a brief “See you” and offering a hand wave before hurrying out of the door where her mother and sister [Y] were waiting.
22.… It is the writer’s opinion that although [X] has been able to spend time with her father since the Interim Orders were made, little progress has been made in terms of [X]’s peace of mind and developmental needs. Her mother’s attitudes toward her father as indicated by Ms. Dale in her interview with the writer, and as implicated in deposed material provided to the writer, as well as the writer’s observations of [X] with her father, suggest that [X] is being put under significant pressure trying to please both her mother and her father.
23.It is further believed that unless there are radical changes in her life these pressures will serve to adversely affect her development both in the short and long term. It seems to this writer that she has had to learn to be quite deceitful and an accomplished liar in order to ensure she does not lose the love of her mother at the same time as she wants to love her father, something she cannot do without the continual fear of what her mother will do if she “lets on to her” how she really feels. This is an intolerable situation for a young child especially as she also holds her mother in high esteem and wants very much to please her. For [X] it is a classic ‘double bind’ situation where on the one hand things are being ordered according to the law and her mother is sending her on the visits as she is meant to but underneath it all are the constant reminders to [X] that she is not safe with her father, and everything she says or does when she returns to her mother is being used as a means of proving to her, [X], that her father is not to be trusted.
24.It seems very clear to this writer that Ms. Dale has very little understanding of [X]’s needs and almost nil child focus in terms of what she wants to see as the outcomes of any Court activity. After outlining all the concerns she said she had about Mr. Falun and his parenting abilities and practices she was asked why she had filed a response to his application that allowed for [X] to spend considerable amounts of time in his presence. She replied that that was what her barristers had told her was the minimum she could expect from the Court and therefore that is what she was asking for. In the writer’s opinion such reasoning does not sit well with the negative attitudes she displayed even under the direct observation or presence of the writer. It is as if the letter of the law is being adhered to but the spirit is lacking. Such a situation means that if when under formal review the problems are still so prominent, away from any observation there will be no positive influences on [X] but she will again be subjected to the double bind in which she now finds herself.
25.Mr. Falun has amended his earlier applications for regular contact to a request that [X] reside with him and [Z] on a full-time basis where he also has the help of [X]’s grandmother as and if required. The earlier interviews with both Ms. F and Ms. K (mother of [Z]) had indicated that in their opinions Mr. Falun is capable of doing a good job in bringing up [Z] and there were no indications that that would change. It was noted that [X] has been with her father to meet to up with [Z] at her netball when her visits coincided with her being away from her father’s. He affirms that he is ready to take on providing [X] with the stability he believes is missing from her present life but although prepared to share the costs of regular transport between her two homes expresses concerns that a swap of times, ie [X] with her mother in similar fashion to how she is now with her father, does not address the reasons why it might considered in [X]’s best interests for things to change. The writer concurs with this opinion. If it is the case that [X] faces possible long term psychological harm in her present circumstances, and the writer believes this to be the case, then how these problems can be addressed needs to be considered by the Court. Counselling with appropriate professionals is probably the only formal means available at this point with [X] able, in a supervised setting until it is clear that she will not be subjected to the same sorts of influences as she currently experiences, the only way to ensure compliance until the new behaviours become habitual.
26.Unless the evidentiary material should indicate otherwise the following are respectfully recommended:
a.That [X] reside with her father.
b.That [X] spend time with her mother on the same or a similar schedule as presently applies to [X] and her father being together but that such time be introduced when Ms. Dale can demonstrate that she will use the time for [X]’s personal advantage and that she undertakes counselling with a psychologist experienced in such matters and that initial times with the mother be supervised at a children’s contact centre.
The father acknowledged in oral evidence and elsewhere that he had been violent towards the mother during their relationship and had caused her injury. He acknowledged that any violence in a relationship was unacceptable. The father admitted that some of the violence occurred in the presence of [X]. Indeed, he admitted in a letter to his mother that, when [X] was a baby, he had caused the mother to trip while holding [X] and [X] was lucky to avoid injury.
The father in oral evidence said that he had written the letter under duress from the mother as a condition of being able to return to the marriage. He said he had overstated some things in the letter because he was desperate. The father said that the mother was also violent towards him and she had, for example, attacked him with a broom.
Dr Harvey and others have mentioned the father’s tendency to minimise his violence towards the mother and to hold her partially responsible for his actions. Ms Manya described the parents’ relationship as destructive and damaging for both of them. She urged them not to reconcile again under any circumstances.
It is abundantly clear that the relationship between the parents was appalling. It was violent and destructive. Both of the parents were traumatised by it. However, the father appears to have recovered. The mother, notwithstanding a great deal of professional assistance over the last five years, has been unable to leave the past behind her.
When Dr Harvey was asked by the mother’s counsel whether he was saying the mother should just rule a line under the domestic violence and move on, he said:
Yes, I am saying that actually. Yes, and - she has to. It doesn't mean to say that she has to forget, but again we come back, where does [X] fit into all this?
That is really the question for the court. Where does [X] fit into all this? Until separation, [X] was exposed to domestic violence. However, since her parents have separated, there has been no suggestion that [X] has been exposed to or subjected to domestic violence, although the mother is fearful that [X] will be.
The mother says that the father is a conman who is able to behave appropriately when he is under scrutiny by a contact centre or a family report writer but will revert to form when he is alone with [X]. Since 14 October 2008, the father has spent with [X] one weekend a month, five weeks over the summer holidays and an extended period over Easter.
The worst that the father is alleged to have done in that time is slap his hand on the table when [X] was at his house and began to eat a meal with her fingers instead of a knife and fork. This was an overreaction on the father’s part. On the other hand, the contact centre notes and the family reports show that the father generally deals appropriately with [X]’s behaviour, and, in particular, appropriately controlled [X]’s behaviour when she hit him on the head with a plastic spade. It seems that [X] has perhaps tested the father, as children do, to see where the boundaries are. The father on the whole has responded well.
[X] and her father have been observed together on numerous occasions by skilled professionals who are highly trained and experienced in detecting fear and discomfort on the part of children. The experts have said unanimously that [X] shows no fear or physical discomfort when she is with her father.
It seems that the father’s violence towards the mother was tied up with the dysfunctional nature of their relationship. He has not repartnered. The evidence suggests that he is managing well with his fourteen year old daughter, [Z]. I do not consider that there is an appreciable risk that the father will be violent towards [X] or anyone else in her presence.
As noted above, the mother believed that the father attempted to kill [X] by giving her a banana that he had poisoned to avoid paying child support. There is absolutely no evidence to support this view. There is no evidence that the banana was analysed and found to contain poison. There is no evidence that [X] became sick. The mother said that the father had put “speed” into the banana but her complaint was that [X] slept for an unusually long time. There was no evidence that the father has not paid child support as assessed. Indeed, the fact that the father now wants [X] to live with him emphasises that he is not seeking to evade his financial obligations to her. The mother’s allegations about the banana are delusional.
The mother claimed that, during the marriage, the father tried to kill [X] by putting Ratsak in her cereal bowl. In oral evidence, the mother was asked explicitly whether she believed that the father had tried to kill [X] by putting Ratsak in her cereal bowl. The mother initially said that the father was trying to rid himself of a child support bill and then said that he was trying to either make the mother crazy or make [X] sick. There was no evidence to support this allegation. It appears to be a delusion on the mother’s part.
The mother has claimed that, during the marriage, the father sexually abused [Y] while giving her a piggy back. The implication was that the father might also sexually abuse [X]. The allegation appears to be that, while giving [Y] a piggyback, he touched her bottom. The allegation was not squarely put in the present proceeding. There was no suggestion that the father and [Y] were not both fully clothed during the piggyback.
The father may have touched [Y]’s bottom while giving her a piggy back. It is, of course, entirely possible for an adult to touch a child’s bottom during physical play without there being anything sinister about it at all. Most people can tell the difference between innocent contact and sexual abuse. I do not consider that there was any inappropriate behaviour by the father on the occasion of the piggyback or on any other occasion. I do not consider that there is any appreciable risk that the father might sexually abuse [X].
However, [X] is well aware of the allegations that her father has tried to poison her and has sexually abused [Y]. The mother denied that she had discussed these matters with [X] but also said it was necessary to tell [X] the truth for her own safety.
Based on:
a)the mother’s evidence that she considers it necessary to tell [X] the truth, as the mother perceives it;
b)[X]’s statements as recorded in the contact centre notes; and
c)paragraph 43 of Dr Harvey’s first report where he says that the mother insisted on discussing with him in [X]’s presence matters such as the father’s attempt to poison [X],
I find that the mother has discussed with [X] and has discussed in her presence the allegations that:
d)the father has tried to kill [X] by poisoning; and
e)he has sexually abused [Y].
This is a very serious matter. Dr Harvey said in his oral evidence that he in fact found it personally distressing that the mother persisted in denigrating the father in [X]’s presence during the first family report interview, notwithstanding his attempts to direct her attention to [X] and her activities. The really concerning aspect of this matter is that the mother appears to have absolutely no insight into how damaging it is for [X] to be told, falsely, that her father has tried to poison her and that her father has sexually abused her sister.
Dr Harvey explained to the court that the mother’s persistence in telling [X] that her father is bad, has tried to kill her and has sexually abused [X]’s sister is out of sync with [X]’s own experience of her father as a decent and loving parent. Dr Harvey told the court that, in his opinion as a psychologist, the disjunction between what [X]’s mother told her about her father, and [X]’s own positive personal experience of her father, could lead her to become psychotic. That evidence was not challenged and I accept it.
The mother’s persistent denigration of the father in [X]’s presence amounts to abuse. Until the mother understands that, and stops denigrating the father in [X]’s presence, the mother presents an ongoing risk to [X]’s emotional and psychological wellbeing.
The mother was given an opportunity between 14 October 2008 and
6 May 2009to gain an insight into the effect on [X] of her denigration of the father and to demonstrate that she had gained that insight.
Unfortunately, there is no sign that the mother has improved in that regard. She placed a tape recorder in [X]’s bag on 17 October 2008 and told [X] that she was not allowed to let anyone see it. The mother placed [X] in a position where she was required to be dishonest towards her father at the behest of her mother. In Dr Harvey’s opinion:
[[X]] has had to learn to be quite deceitful and an accomplished liar in order to ensure she does not lose the love of her mother at the same time as she wants to love her father, something she cannot do without the continual fear of what her mother will do if she “lets on to her” how she really feels. This is an intolerable situation for a young child especially as she also holds her mother in high esteem and wants very much to please her. For [X] it is a classic ‘double bind’ situation ….
Although this incident happened very early in the period of the adjournment, the mother stood by her version of events during the hearing on 6 and 7 May 2009. She could, instead, have admitted what she had done and said that she realised what a terrible position she had put [X] in. The mother’s failure to do so indicates that she has gained no insight at all into the effect of her actions on [X]’s emotional and psychological state.
Dr Harvey expressed the opinion that the mother’s attitudes had not changed between his first interview with her and the second, which took place on 26 March 2009. That was reinforced by the mother telling the court that her preference would be for [X] to only have supervised time with her father, notwithstanding that her formal position is for [X] to have one weekend in four with her father unsupervised. The mother told Dr Harvey that she had previously agreed to those orders because she had been pushed into it by her barrister. The mother has told her own counsellors that she felt bullied by her lawyers into consenting.
Counsel for the mother relied particularly on Dr V’s report dated
8 April 2009in which Dr V said that:
In the last three appointments she has worked on
‘being calm’ and made some gains, but they remain fragile at this stage.
That is, the “gains” related to being calm. The “gains” did not relate to such matters as understanding the benefit to [X] of having a meaningful relationship with her father, or the detriment to [X] of falsely telling [X] her father has tried to murder her and has sexually abused her sister, or the detriment to [X] of making her behave dishonestly towards her father.
Dr C also said in his report dated 20 April 2009 that the mother “has made a significant improvement in her emotional state since she has been on treatment”. Again, the improvements only concern the mother’s emotional state, not her insight into how her actions may be harmful to [X].
Improvements in the mother’s psychological state may be a necessary first step towards her gaining the necessary insight. However, there is no sign at present that the mother has any idea of the impact of her actions on [X]. All in all, I consider that there is a high probability that the mother will continue to denigrate the father in [X]’s presence. This creates a risk of abuse in the form of grave psychological harm. I consider the risk to be unacceptable.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
[X] has not expressed any clear views about who she wants to live with or spend time with. Any views that [X] might have expressed have been heavily influenced by the mother and her very negative view of the father. [X] is relatively young. For that reason, as well as the reason that her views have been heavily influenced by her mother, it is not appropriate for the court to give significant weight to them.
Having said that, Dr Harvey was of the opinion that any change of residence would be emotionally very difficult for [X], at least in the short term.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The family reports indicate that [X] and her father have a good relationship. [X] has a very good relationship with her mother, except to the extent that the mother is putting her into a double bind where her father is concerned. [X] has good relationships with [Y], [Z] and the paternal grandmother.
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
The father is clearly willing and able to facilitate and encourage a close and continuing relationship between [X] and her mother. On the other hand, the mother is neither willing nor able to facilitate and encourage a close and continuing relationship between [X] and her father.
The mother’s own witness, Dr V reported on 8 April 2008 that:
[The mother] has found that anything related to contact with [the father] brings on an overwhelming physical reaction, with vomiting and diarrhoea, extreme sweating, sleep disturbance and nightmares. …
… A variety of medication in the form of anti-depressants, anti-anxiety and anti-psychotics has made little difference to her level of distress and side effects have been problematic.
Dr V said in oral evidence:
it’s difficult for [the mother] to actively encourage her daughter to see her father as someone who is safe …
[The mother] doesn’t spend time [with [X]] talking up the relationship with her father. …
[The mother] believes and knows [the father] to be a dangerous person and she doesn’t believe that [the father’s] interest in [X] relates to his affection for his daughter but rather is an attempt to punish [the mother].
Dr V’s evidence amply demonstrates that the mother is both unwilling and unable to encourage and facilitate a close and continuing relationship between [X] and her father. That view is reinforced by the evidence of the mother’s psychiatrist, Dr C. He said in his report dated 20 April 2009, based on interviews since February 2009:
[The mother] believes that [the father] has no emotional attachment to their daughter and he is “using this dispute to punish her through her daughter and cause [the mother] financial and emotional distress”. ... [She] is not able to hold a job as her ex-husband has been dragging her to Court for 6 years.
… according to her [the father] is not interested in the child’s well being, but just winning a dispute and torment Ms Dale.
Of course, the reason that the matter has come back to court is that the mother has not complied with court orders. If the mother had allowed [X] to spend one weekend a month with her father, he would have nothing to complain of, and the mother would have been spared an ordeal.
Dr C said in oral evidence that the mother acknowledged to him that the father had a right to have access to his daughter. However, this case is not about the father’s rights, whatever they might be. The case is about [X]’s best interests and the benefit to her, if any, of a meaningful relationship with her father. By perceiving the dispute as being about the father’s rights, the mother has demonstrated yet again that she cannot see things from [X]’s point of view and cannot see that it might be in [X]’s best interests to have a relationship with her father.
The mother’s perception that the father is using the dispute to punish her indicates that the mother considers that the proceedings are about her and are not about [X] at all.
The mother’s claim that the father has no emotional attachment to [X] is extraordinary. It would be a very rare parent who would have no emotional attachment to his or her own child. The family report interviews and contact centre reports show that the father does in fact have an emotional attachment to [X], and she has an emotional attachment to him.
Not only is the mother unable and unwilling to facilitate and encourage a close and continuing relationship between [X] and her father, she has actively undermined the prospect of any such a relationship. The mother did not allow contact between [X] and her father from separation in July 2003 until July 2004 after court orders were made. Notwithstanding court orders, the mother did not allow contact between [X] and her father from December 2007 until October 2008 and then, only in the context of court orders and only after strenuous efforts by the father to, firstly, get a location order and, secondly, have the contravention proceedings heard. Ultimately, the mother admitted that she had breached the orders by failing to make [X] available for changeover on ten occasions without a reasonable excuse.
The contact centre notes set out above demonstrate that the mother told [X] that:
a)her father had tried to poison her with a banana;
b)he was a bad man;
c)she, [X], hated her father;
d)her father had sexually abused [Y];
e)the mother would find [X] a new father;
f)her father was not [X]’s Dad any more; and
g)her father always lied.
The contact centre notes also show that the mother threw onto the roof a wand that the father had given to [X]. The notes show that the mother told the contact centre workers in [X]’s presence and hearing that [X] did not want to play with her father but only with “the ladies”. At the session on 16 September 2004, [X] played happily with her father. However, towards the end of the session, [X] asked him to pack up early so the mother would not know she had played with him. When the mother returned to the contact centre, the mother told the staff in [X]’s presence and hearing that [X] only likes to come to the centre to play with the toys. The mother then asked [X] if she would like to play with her father without the toys. [X] shook her head.
All of this demonstrates that the mother has made it very difficult for [X] to have any relationship with her father. The mother has made it abundantly clear to [X] that she disapproves of her having a relationship with her father. Obviously, this creates divided loyalties for [X] and could ultimately damage her relationship with her mother.
Moreover, as recently as the family report interviews on 1 October 2008, the mother in [X]’s presence and hearing told Dr Harvey that she was dismayed at having to see the father again, that he had arranged for animals to be killed while she was in court and he had almost poisoned [X]. The mother persisted in this type of conversation despite Dr Harvey’s attempts to deflect her. Dr Harvey said he found the mother’s conduct personally distressing.
The mother’s unwillingness and inability to facilitate and encourage a close and continuing relationship between [X] and her father may be the result of the father’s very poor treatment of the mother during their relationship. However, that explanation does not alter the fact that [X] is a separate person from her mother and [X] would benefit from having a relationship with her own father.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Dr Harvey said that, if there were a change of residence, it would be very difficult emotionally for [X] at least for a time. On the other hand, Dr Harvey also indicated that a change of residence would be in [X]’s best interests because it was the only way that [X] would be able to have a relationship with her father without the mother constantly undermining it. Moreover, Dr Harvey expressed the opinion that a change of residence was indicated to protect [X]’s psychological wellbeing, and, in particular, to protect her from being caught in a double bind and the consequent risk of psychosis. I accept Dr Harvey’s evidence on these matters.
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
Unfortunately, the parents live a considerable distance from each other. The mother lives in Wodonga and the father in [H]. There are going to be practical difficulties and expenses associated with [X] seeing whichever parent she does not live with.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents are well able to provide for [X]’s needs, including her emotional and intellectual needs, except that the mother is endangering [X]’s psychological wellbeing in the ways described above. The mother has no insight into [X]’s needs and perspectives in regard to her father.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
This factor is not relevant, except perhaps to the extent that the mother is unable to put the past behind her, has difficulty dealing with differences of opinion and is unable to see the father from [X]’s point of view. These characteristics are perhaps indicative of a certain lack of maturity.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents have demonstrated a good attitude to the responsibilities of parenthood, except in so far as there was violence during the relationship and except in so far as the mother has undermined [X]’s relationship with her father.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
The family violence has been discussed above.
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
It was not suggested that there is any current family violence order.
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
In general, it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings. [X]’s parents have already spent far too much time in court. However, as always, it is difficult to predict what order would be the least likely to lead to the institution of further proceedings. If [X] remains living with her mother, there is a high probability that the mother will not comply with the orders for long, and there will be further contravention proceedings. If [X] lives with her father, the mother may well institute proceedings in the future to secure her return. In my view, it would be preferable to make the order that most promotes [X]’s best interests as they presently appear.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
There are no other relevant factors.
Section 60CC(4): Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii)communicating with the child; and
c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
These matters have been addressed previously.
Section 60CC(4A): If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The circumstances since separation have been addressed previously.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The independent children’s lawyer submitted that the presumption of equal shared parental responsibility was rebutted in this case by the family violence and also by the mother’s psychological abuse of [X]. The father seemed to argue something similar.
The mother, strangely, submitted that the presumption was not rebutted and said that the parties should demonstrate that they are each an important part of [X]’s life and that their relationship is such that they can make decisions about her together. This is despite evidence from Dr V that any thought of contact with the father causes the mother to have overwhelming physical symptoms including vomiting and diarrhoea.
In my view, the presumption is rebutted for the reasons advanced by the independent children’s lawyer, and also by reason of the mother’s present physical and emotional inability to deal with the father. In any event, it is in [X]’s best interests that there sole parental responsibility in this case. The parents are unable to communicate with each other.
In the event that sole parental responsibility were to be ordered, the mother submitted that it should rest with her, while the father and the independent children’s lawyer submitted that it should rest with him. Obviously, the parent with whom [X] predominantly lives should be the one to have sole parental responsibility for her.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility for a child, s.65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. That section provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
This factor does not apply in the present case, as there will not be an order for equal shared parental responsibility. In any event, the distance between the parents’ homes means that equal time, and even substantial and significant time, is not viable.
Conclusion
After extensive deliberation, I consider that it is in [X]’s best interests that she should cease living with the mother and commence living with the father forthwith. The mother is presently incapable of encouraging and facilitating a close and continuing relationship between [X] and her father. The mother has actively undermined any such relationship and is very likely to continue to do so.
The mother is jeopardising [X]’s psychological wellbeing by constantly denigrating her father in her presence, when [X]’s own experience of her father is positive and loving. This creates a risk that [X] will not only suffer conflicted loyalties, but could become psychotic.
The mother considers that the father is a physical threat to [X]. However, I consider that there is only a remote the risk of the father being violent towards or in the presence of [X] and virtually no risk of him sexually abusing her. I consider that the mother’s views that the father has tried to poison [X] and has sexually abused her sister are delusional.
While it will no doubt be difficult for [X] in the short term to be separated from her mother, and start a whole new life in [H], I consider that she will soon adapt and will be much better off in the long run. I consider that the father has demonstrated that he is able to care for a daughter by caring for [Z] over the last two years. He satisfactorily explained to the court some of the practical details of caring for both of them.
I accept the independent children’s lawyer’s proposal that [X] should spend time with her mother under the supervision of a contact centre for the first six months. The mother has demonstrated time and again that she has no conception of how damaging it is for [X] that her mother denigrates her father in [X]’s presence. The mother persists in denigrating the father in [X]’s presence notwithstanding an injunction restraining her from doing so. To avoid denigration happening in the future, there needs to be a continuing injunction, contact between the mother and [X] needs to be supervised and the mother needs to undergo properly directed counselling.
The mother has had a vast amount of psychological and psychiatric assistance over the years. However, it appears that none of it has been directed to assisting the mother to understand the benefit to [X] of having a meaningful relationship with her father. Accordingly, I consider that the mother should be directed to undertake therapeutic counselling to address that issue. The therapeutic counsellor should be appointed by the Dispute Resolution Coordinator of this court.
Furthermore, the mother should not be able to have unsupervised contact with [X] until the therapeutic counsellor has certified that, in his or her opinion, the mother has gained an understanding of the benefit to [X] of having a meaningful relationship with her father. To facilitate that, I will direct the independent children’s lawyer to give a copy of these reasons to the therapeutic counsellor.
Once the therapeutic counsellor has given the appropriate certificate, it would be in [X]’s best interests for her to spend each alternate weekend from after school Friday to 5.00pm on Sunday with her mother. The mother should collect [X] from school on the Friday and the father should collect her from the Wodonga Contact Centre on the Sunday and other non-school days. This will avoid contact between the parents and will enable the mother to have some involvement in [X]’s school life.
Increasing the frequency of weekend visits from once every four weeks to once every two weeks may inconvenience the father somewhat. However, the mother will be required to do one leg of the driving. At present, the father does all the driving to and from Wodonga.
The increased frequency will also inconvenience [X] somewhat. However, I consider that the benefit to her of spending alternate weekends with her mother outweighs that inconvenience.
Before the alternate weekends commence, I consider that it is in [X]’s best interests that she spend time with her mother at the [W] Contact Centre. This will involve less stress and travelling for [X] than would be the case if [X] had to travel to Wodonga each fortnight. This will be particularly important for [X] in the first few months of living with her father, as she will no doubt have the stress and strain of a major readjustment in her life.
The independent children’s lawyer proposed that the mother should be ordered to continue with her existing counselling for her personal stress and anxiety. In my view, it is in [X]’s best interests that her mother does resolve her emotional and psychological issues. Professional assistance seems to be necessary in that regard. Orders will be made to that effect. To assist with that process, I will direct that the independent children’s lawyer give a copy of the orders and these reasons to Dr V and Dr C. They will of course be under the usual obligations of confidentiality.
The independent children’s lawyer should not be discharged for twelve months. That will enable ongoing supervision of the orders while [X] is adapting to her new life and while the mother is, hopefully, gaining insight into [X]’s needs.
There will be orders accordingly.
I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Rhonda Soans
Date: 1 July 2009
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