FANTE & JOYCE
[2011] FMCAfam 1114
•20 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FANTE & JOYCE | [2011] FMCAfam 1114 |
| FAMILY LAW – Practice and procedure – consideration of adjustment pursuant to the ‘slip rule’ to orders previously made – consideration of relevant principles - effect of passing of time – withdrawal of one party’s consent to such an order – application of slip rule not appropriate. FAMILY LAW – Parenting – injunctions sought to prevent father from having five year old child further interviewed/examined – injunctions sought to prevent father from questioning school teachers and carers about what he considers abuse – application during hearing to vary existing orders and seek further family reports – cross application to injunct mother from making further applications – consideration of psychiatric assessments and recommendations – consideration of further harm to child – injunctions to prevent further enquiry and investigation in best interests of the child. |
| Child Protection Act (Qld) 1999, s.186(4) Evidence Act 1977, s.93A Family Law Act 1975, ss.60B, 60CC(2). Federal Magistrates Court Rules, r16.05(2)(e) |
| TWN & PAQ [2005] FamCA 677 Elyard Corporation Pty Ltd & DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 The Crown & Eyland (1970) 126 CLR 321 |
| Applicant: | MS FANTE |
| Respondent: | MR JOYCE |
| File Number: | BRC 13170 of 2007 |
| Judgment of: | Coker FM |
| Hearing dates: | 22 and 23 August 2011 |
| Date of Last Submission: | 23 August 2011 |
| Delivered at: | Townsville |
| Delivered on: | 20 October 2011 |
REPRESENTATION
| Counsel or the Applicant: | Ms McMillan SC |
| Solicitors for the Applicant: | Murdochs |
| Solicitors for the Respondent: | Charles Cooper Lawyer |
ORDERS
That the Application in a Case filed by the Father on 28 January 2011 be dismissed.
That the oral application by the Mother for additional orders sought by way of Amended Minute of Orders filed by leave on 23 August 2011, be dismissed.
That orders sought in the Response to Initiating Application filed by the Father on 10 March 2011, be dismissed.
That the Father be restrained and an injunction issue restraining him from attending with/or presenting the child, [X] born [in] 2006, to any medical practitioner, allied health professional, or mental health professional for the purposes of assessment and/or investigation of an allegation that the child [X] has been abused or is at risk of being abused, except in instances of life threatening or other significant emergency.
That the Father be restrained and an injunction issue restraining him from taking the child to the police or Department of Communities (Child Safety Services) without the Mother’s written consent.
That the Father, and/or his servants or agents be restrained and an injunction issue restraining them from discussing, questioning or reporting bruises, bites, marks, or injuries with staff at the child’s school and before and after-school care.
That the Father be restrained and an injunction issue restraining him from denigrating the Mother, her family and associates in the presence of the child or from allowing the child to remain in the presence of any other person acting in such a way.
That if there is any application for costs by either party, written submissions to be filed and served within 28 days of the date of this order.
That all outstanding applications before the Court be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Fante & Joyce is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
BRC 13170 of 2007
| MS FANTE |
Applicant
And
| MR JOYCE |
Respondent
REASONS FOR JUDGMENT
On 7 November 2008, orders were made by me following a two day trial relating to arrangements with regard to the parenting of the child, [X]. Those orders were comprehensive. However, a little over 2 years later, on 28 January 2011, an application was filed by Mr Joyce, whom I shall refer to as the father. In that application in a case he sought orders in these terms:
1. That the orders of the Federal Magistrates Court made the 7th November 2008 be amended pursuant to the slip rule, Rule 17.02 of the Family Law Rules 2004, to insert the following order as order number 29:
“29. That the mother be restrained from leaving the child unaccompanied in the presence of the maternal grandfather.”
2. That the Respondent, Ms Fante, pay the Applicant’s costs of this Application.
3. Such further or other orders as the Court may deem meet.
Following the filing and service of that application in a case, a response was filed by Ms Fante, whom I shall refer to as the mother. In that application she sought a consolidation for determination, of her application with the application in a case filed by the father and then went on to seek various orders with regard to restraints that she said should properly be placed upon the father, in respect of presenting with the child to medical practitioners, as well as to the Queensland Police Service, Department of Child Safety or from generally discussing with [X] issues in relation to bruises, bites, marks or injuries, including discussions direct with the child or, additionally, with staff at the school, before and after school care and holiday care, as may be arranged, in relation to provision for the child.
Further, and perhaps achieving greater relevance in relation to these proceedings, were orders sought with regard to the parties attending upon Dr H for psychiatric assessments to address issues in relation to the capacity of each parent to provide for the needs of the child and also to assess whether there may be any issues of risk in relation to the care of the child.
Orders of an interim nature were made in relation to consolidation of the proceedings and also in relation to arrangements with regard to the psychiatric assessments required in relation to these proceedings. Those orders were made on 1 April 2011 and are in these terms:
1. That by consent and pursuant to Rule 13.04 of the Federal Magistrates Court Rules 2001, Orders, Declarations and Notations be made in terms of the document titled “Minutes of Consent” marked as Exhibit “1” and attached hereto.
Exhibit 1:
2. That the parties agree to attend upon [Mr J] on 12 April 2011 with a view to addressing the following:
2.1The time which [X] is spending with each of her parents, in particular the weekend arrangements;
2.2The manner and place at which changeover occurs between the parent, in relation to [X];
2.3The applications filed by each of the parties as follows:
(a) The Notice of Appeal filed by the Mother;
(b) The Applications filed by the Father pursuant to the ‘Slip Rule’, 28 November 2010 and those contained in the Response of 10 March 2011;
(c) The Application filed by the Mother for 21 February 2011;
(d) Of the cost of $5,500 the Father pay $1,000 and the Mother the balance, for mediation;
(e) That the parties are entitled to have legal representation present for the medication;
(f) That the mediation process occur in a manner at the discretion of Mr J;
(g) That the Mother’s solicitors be at liberty to provide a copy of the Reasons of Coker FM in September and December 20087 and Turner FM January 2011, a copy of the reports of Dr H,
Ms L and the transcript of 21 January 2011.
3. That the Father and Mother attend upon Dr H for psychiatric assessment to address whether the child, [X] is at risk of harm including psychological harm, in either of their care, and for that purpose that:
(a)The Father and Mother co-operate fully with any attendances for appointments required;
(b)If requested, by Dr H, the Mother and Father co-operate fully with any attendances for appointments required of her and/or the child, [X];
(c)The Mother’s solicitors provide Dr H with copies of these Orders, the report prepared by Ms C on
7 October 2009 and any other material filed in this matter and the transcript of 21 January 2011;
(d)That the costs of same be met by the Mother, Ms Fante.
4. That the applications be further mentioned on a date in the week commencing 9 May 2011 in Brisbane.
5. That if the applications cannot be resolved then the Mother have leave to issue a Subpoena to the Queensland Police.
IT IS FURTHER ORDERED:
6. This matter be adjourned to 9.00 on 13 May 2011 in the Federal Magistrates Court of Australia at Brisbane.
The final orders then sought by the mother were a repeat, to at least some extent, of those orders sought on an interim basis, particularly with regard to the restraints that might be necessarily required in relation to further attendances, or reports by, or on behalf of the child [X]. The final orders sought were in these terms:
1. That the father, Mr Joyce be restrained from attending with/or presenting the child [X] to any medical practitioner, allied health professional or mental health professional for the purposes of assessment and/or investigation of an allegation that the child [X] has been abused or is at risk of being abused, except in instances of life threatening or other significant emergency.
2. That, the Father, Mr Joyce, be restrained from taking the child, [X], to the police or, Department of Department of Communities (Child Safety Services) without the mother’s consent.
3. That the Father, Mr Joyce, and/or his servants or agents be restrained from discussing, questioning or reporting bruises, bites, marks, or injuries with staff at the child [X]’s school and before and after-school care, and be restrained generally from criticising or denigrating the mother, her family and associates.
4. That the Mother have liberty to amend and seek further parenting Orders.
It is noteworthy that the mother included as order 4 a specific application for there to be liberty to amend and seek further parenting orders. The relevance of that becomes clear when it is noted that on the second day of the hearing of this application, further interim orders were set out in an amended minute of orders sought by the mother which continued those orders sought with regard to restraints upon the father but in addition sought orders in respect of further preparation of family reports, as well as provision of additional information including a provision of Dr H’s report, filed as accompanying his affidavit of 15 August 2011.
More specifically, orders were sought with regard to a reduction in the opportunities for time to be spent by the father with the child. The additional interim orders sought in relation to this matter and contained in the amended orders presented on behalf of the wife are as follows:
1. That:
1.1pursuant to Regulation 23.01A of the Federal Magistrates Court Rules 2001, a family report be prepared in relation to the child, [X], born [in] 2006;
1.2pursuant to Regulation 15.09 the Federal Magistrates Court Rules 2001, Ms L be appointed as the court expert, to prepare that family report addressing the following matters:
(a) the benefit to the child of having a meaningful relationship with each of the parents;
(b) the need to protect the child from physical and psychological harm;
(c) the views expressed by the child and any factors the expert considers relevant to the weight to be given to those wishes;
(d) the nature of the child’s relationship with each of the parents and any other person;
(e) 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;
(f) the likely effect of any changes in the child’s circumstances, including the likely effect of separation from either parent;
(g) the practical difficulty and expense of a child spending time with and communicating with a parent;
(h) the capacity of each parent to provide fore the needs of the child, including emotional and intellectual needs;
(i) the maturity, sex, lifestyle and background of each parent;
(j) the attitude to the child and the responsibilities of parent hood, demonstrated by each parent; and
(k) any family violence.
1.3the parties and the child attend upon the court expert as requested by her, for the purpose of the preparation of the family report;
1.4that Ms L be briefed with the expert report of Dr H filed 15 August 2011, and any affidavit material filed by the parties in the proceedings;
1.5the court expert’s costs in and about the preparation of that family report, be met in equal shares by the parties.
2. That paragraph 4 (d) (i) of the Order of 7 November 2008 be varied, and instead provide:
(d)commencing on the first weekend falling after the date of these orders:
(i) During the gazetted school term:
A.on alternate weekends, from after school Friday afternoon until the commencement of school on Monday mornings (with changeovers to occur at school).
3. That the matter be mentioned on a date to be listed.
For completeness, I should also note that on 10 March 2011 the father filed a response to the mother’s initiating application which, on a final basis, detailed his position with regard to the mother’s application, which was basically to the effect that it should be dismissed and that the mother should be restrained from bringing further applications, without leave of a court of competent jurisdiction. The orders 1-4 were as follows:
1. That the Application filed by the Applicant mother on
18 February 2011 be dismissed in its entirety.
2. That the mother be restrained from bringing any further Applications in relation to the child, [X] born [in] 2006, without leave of the Court first obtained.
3. That the Applicant pay the Respondent father’s costs of and incidental to the proceedings.
4. Such further or other orders as the Court may deem meet.
Unfortunately, this is a matter which appears, to all intents and purposes, to have developed a life of its own. The child, the subject of these proceedings was born [in] 2006. In November 2008, when the orders were made and lengthy reasons were given, the child was only 2½ years of age. She is now a little over 5 years of age and there have unfortunately been continued proceedings and dispute between the parents, leading to this particular hearing being required, in relation to the issues in dispute.
As is obvious from the amended minute of orders sought by the mother, further orders including variations have been sought and will no doubt be the subject of further arguments in relation to proceedings.
I note that the Family Law Courts file is already one which is five parts or folders in length and that there are at the present time 101 entries on the FLC record of documents filed, in relation to the proceedings. It is a tragic situation and it is one that no doubt gives rise to the concerns that both parents are expressing and, in fact, leads to the orders that are sought with regard to various restraints upon each parent, in relation to certain steps or actions being taken.
I intend in this matter to deal with the two separate issues in relation to the dispute entirely separate, from one or the other. The fact is that the first application that was brought by the father, in relation to the slip rule, was dealt with almost exclusively by way of written submission, though at the conclusion of the second day of hearing both, Mr Cooper for the father, and Ms McMillan SC for the mother, did touch upon what they relied upon, in relation to these proceedings.
Quite simply, the Federal Magistrates Court Rules provide pursuant to rule 16.05(2)(e) as follows:
16.05(2) [Condition after entrance] The court may vary or set aside its judgment or order after it has been entered if:
(e) the order does not reflect the intention of the Court;
Here, it is strongly contended on the part of the father that the orders that were made did not reflect what was intended and detailed pursuant to the reasons that were given, because there was no specific restraint order which was made with regard to the child, [X], being left unaccompanied in the presence of the maternal grandfather. It was argued that the reasons given in relation to the matter indicated clearly, that the order was to be made in relation to the matter and, in particular, that whilst I was not satisfied on the material that was before me that it was necessary for such an order to be made, the mother did not oppose such an order and in fact any order which was not opposed would simply reflect the assurances or undertakings which were to be given by the mother, in relation to this matter.
From the perspective of the mother, it was argued that as the orders were made over two years before the application in a case that was filed, there was no direct correlation between what might or might not have been the intention of the Court upon whatever basis, in November of 2008, and what was now necessary in relation to continuing the operation of the orders, however they might appear.
I have agonised over what course should be taken, in this matter. Quite clearly, the order in November of 2008 was to contain the specific injunction that was sought by the father and which is reiterated in the application in a case more recently filed. It is clear that an error or accidental slip can be corrected pursuant to the slip rule. In that respect, I was referred by Mr Cooper to the decision of the Full Court of the Family Court of Australia in TWN & PAQ [2005] FamCA 677 at paragraph 62 where the following was said:
The slip rule is a well settled common law convention which allows for an error arising from an accidental slip or omission or an ambiguity or infelicity of expression not of substantive significance to be corrected at any time by a judge by further order.
It is argued, by Mr Cooper, that it was clearly the intention of the court to include the order in November of 2008 and that there is no convention or requirement with regard to time passing, which might then preclude the operation of the rule.
Accordingly, however it may have arisen as an order to be made in relation to the proceedings in 2008, the fact is that it was not included in the orders which eventually issued in relation to the matter and it is a clear case of the fact that the slip rule should be utilised, for the purposes of correcting the order, so that it reflects the reasons for judgment. As was submitted on the part of the father at paragraph 15 of the written submissions:
The passage of time since the orders were made and the fact that no issue concerning this slip early (earlier – sic) are irrelevant to an application such as this. The issue is, and remains, whenever such an application is made, do the orders truly give effect to the intention of the judge at the time when the order was made.
There is obviously strength in such a position taken with regard to the matter by the father and it is a particular issue which must be addressed in order to oppose the insertion of a restraint, such as that which is sought some two or more years after the orders were made.
It is a strong argument but it is one that is opposed just as vigorously on the part of the mother. In that regard, I was referred by counsel for the mother to the decision o f the Full Court of the Federal Court in Elyard Corporation Pty Ltd & DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 where at pages 209 to 210, Justice Lockhart, when commenting upon the operation of the slip rule said the following:
The slip rule is a qualification of the rule that a court may not vary a duly passed and entered order which brings a proceeding to an end because it is obviously desirable that the litigation should be brought to an end.
Lockhart J later went on to say:
Courts have an inherent or implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended. Indeed, after a decree or order has been passed and entered a court will not, unless by consent, permit it to be altered without a rehearing, except in cases of mistakes or errors arising from accidental slips or omissions.
The slip rule applies where the proposed amendment is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy, nor does it extend to mistakes that are the consequence of a deliberate decision.
Here it is contended on the part of the mother that there is clearly a “real difference of opinion” about the need for the order. Quite simply, the mother’s undertaking or assurances, as they are referred to in submissions on behalf of the father, not to have the maternal grandfather left unaccompanied with the child have been withdrawn and it is contended on the part of the father that that then gives rise, all the more strongly to the need for there to be a restraint specifically addressing issues in relation to the maternal grandfather being left unaccompanied with the child.
By the same token, there must be consideration of the fact that when assessing the evidence in 2008, I was not at all satisfied that it was necessary for such a restraint to be put in place and only intended to do so, as that course was not opposed by the mother. It would normally be appropriate, in light of the fact that there is a clear indication of an intention to include the order, to properly include the order by way of the slip rule.
However, there is in my view an additional consideration which does require some further thought. That arises from the comments of Justice Barwick in The Crown & Eyland (1970) 126 CLR 321 at 330 where his Honour said:
In a proper use of terms, the judgment given by the court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the courts reason for the decision.
Obviously, the reasons here are relevant in relation to this contested position. That is because I indicated at the time that I would make the order in relation to a restraint being placed upon the maternal grandfather, specifically, because of the fact that it was not opposed by the mother.
The circumstances have changed. The fact is that the restraining order, however it may have occurred in November of 2008 was not included in the sealed orders that left the court. For a period in excess of two years, no issue arose in relation to those matters and of course, the circumstances have quite significantly changed in one very important respect, that being that the mother no longer gives the assurance, nor does she consent to an undertaking or the making of an order, with regard to the maternal grandfather being restrained from spending time with the child, unless accompanied by another person.
Accordingly, there is a contested issue here. It is clear that whilst the reasons given in November of 2008 specifically made reference to the arrangements to include a restraint upon the maternal grandfather, the circumstances that existed in 2008 are very different to those which now exist at the time of the decision, in relation to this matter and being mindful of the fact that the reasons for judgment are not themselves the judgment but rather simply an explanation of the decision and the orders stand separate and apart, I am not of the view that this is one of those occasions where the slip rule should properly be applied.
Accordingly, I intend to dismiss the application in a case filed by the father on 28 January 2011.
As I indicated, the second issue in relation to this matter relates to other matters which must be considered and to that end it will be necessary for me to obviously comment upon the evidence that has been called in relation to these proceedings, prior to determining the various restraints sought either by the father or the mother, in relation to this matter.
The second issue that arises in relation to this matter is one that is most interesting. I say that because in both the initiating application filed by the mother and the response to initiating application filed by the father, each seeks injunctive relief in relation to restraining the behaviours or actions of the other parent. In other words, both parents are of the view that in some way the behaviours of the other parent is detrimental or damaging to the child as well as of course, causing difficulty or hardship for the other parent.
In order to address those issues it was agreed that there would need to be evidence taken in relation to each of the parties and in particular it gave rise to the bringing of the application which lead to the orders for the preparation of psychiatric assessments by Dr H, in relation to both the mother and the father.
I shall, of course, come to Dr H’s evidence in relation to this matter a little later in these reasons but before dealing with his evidence, or the evidence of the mother and the father, it is noteworthy that evidence was provided by the maternal grandmother, Mrs F, as well as from
Ms E, Ms R and Mr C. Their evidence was not extensive but was informative in relation to the determination of this matter.
I intend to comment upon their evidence firstly, in relation to this matter. Quite simply, the evidence of Ms R and Mr C related specifically to whether or not they were in attendance at the mother’s residence on 21 and 22 December 2010. Both depose to the fact that they, as a couple, along with their two children were visiting Brisbane and spent time at the residence of the mother, Ms Fante. The father did not believe that that was the case and it was evidenced by the fact that he had his solicitor, at his direction, issue subpoenas in relation to both telephone and credit card records to obviously identify that whilst they resided in New South Wales, they were in fact in Queensland and specifically in the vicinity of the mother’s residence on 21 and 22 December 2010.
The evidence of Ms R, in relation to this matter, is contained within her affidavit filed on 19 January 2011. Her evidence was, to all intents and purposes, unchallenged though there were some questions relating to whether or not Ms R was able to categorically indicate that, in particular, the grandfather, but generally both grandparents were in her presence, and therefore able to be observed by her for the entirety of the time that they were visiting at the mother’s house at the same time as Ms R and Mr C.
The best that could be obtained from both Ms R and also Mr C was that they didn’t, as Mr C put it, “follow the grandfather around the house,” and therefore, for example, if he went into another room or attended the bathroom or lavatory, that they would not have been present.
What was more telling was the fact that there was a general impression, certainly from the father at least, that these two upstanding members of the community would be in some way in a conspiracy to mislead the father. Their evidence was categoric and I accept it unconditionally.
What was more telling still, was that their evidence clearly showed the significant state of distrust that arose from the father’s own behaviours and attitudes in relation to this matter.
Additionally, the witness Ms E was required for cross-examination. Ms E filed an affidavit on 11 August 2011, which related specifically to a birthday party which she and her husband arranged to celebrate the 6th birthday of their son, [name omitted]. That occurred on 29 May 2011. In her affidavit filed on 11 August 2011, Ms E details her recollections of the day and also her interaction, albeit of only a limited nature with the father, who had attended on that day with [X]. The reason for Ms E’s evidence being called in relation to this matter was because of certain comments made by the father to the mother following his attendance with [X] at that particular function, which gave rise to a suggestion that there had been inappropriate behaviours by at least one person at the party which, in the father’s opinion, which reflected poorly upon the mother and others.
Suffice it to say that, Ms E opined that the physical disciplining of children is inappropriate and more particularly noted that she is, “aware that the other parents of the children invited have similar views on the inappropriateness of physical discipline”.
Notwithstanding that, Ms E was questioned at some length in relation to the incident that the father had referred to as occurring at the party. Ms E indicated that she knew a woman at the party by the name of [omitted], having had produced to her, on behalf of the father, a photograph taken by the Father. Ms E was asked whether, if the father said that that woman was hitting and yelling at her child and acting in a manner that was, at least in the father’s opinion, abusive, she would be able to comment upon that. She indicated that it was not anything that she had observed at the party and noteworthy she thought, was the fact that after the event, no one else at the party and they are, as she has already indicated, of similar mind to she and her husband, raised any concerns in respect of the behaviours of anyone at the party.
As she put it, there was overwhelmingly positive feedback about the party and the enjoyment that was experienced by the children. Ms E indicated, I think, understandably, that she was “shocked and disappointed” at the suggestions made by the father in relation to this matter.
The requirement for Ms E to provide evidence in relation to this matter was somewhat troubling and, again, if anything was of itself, in fact, evidence more informative of the attitudes and behaviours of the father, than of anything reflecting upon the mother or Ms E and her friends.
Additionally, as I indicated, an affidavit was filed by the maternal grandmother, Mrs F, on 11 August 2011. Ms Fante was cross-examined about a number of matters referred to in her affidavit, including particularly an exchange between she, the maternal grandfather and the father, on 5 June 2011 and also comments that she says were made to her on Tuesday, 7 June 2011 by the child, [X]. The maternal grandmother was also cross-examined about the attendance by she and the maternal grandfather at the mother’s residence on the evening of 21st and the morning of 22 December 2010.
In particular, the grandmother was questioned about her interaction with [X] on the morning of 22 December 2010 and more particularly her observations of the grandfather on that particular day. It is noteworthy that there appears to have been conversation exchanged between the grandmother and the grandfather with Ms R and Mr C on that day, as well as also the general preparations necessary with regard to having [X] readied to go off to time to be spent with her father.
The maternal grandmother noted that, to the best of her recollection, she and the grandfather were together at all times, and more particularly noted, that they were generally in conversation with Ms R and Mr C. She was asked about whether she had noted bruising or no bruising on [X]’s legs and confirmed that she had noted bruising because she had seen the child sitting in the car seat at the time of transportation. When asked how she recalled that, Mrs F was able to immediately respond that it was because she had notes of all of her sightings of [X] and again it is indicative of the tragic situation that now exists in relation to this child where both sets of family members are so defensive of their interaction with the other and also any interaction with the child, that notes are kept, diaries are recorded and there is a total lack of trust in relation to interaction one with the other.
I accept that Mrs F did, as she indicated, keep a note of any of her sightings or observations of [X] and that those notes would be available if required.
Mrs F was also questioned about the exchanges in relation to the handover of [X] within the foyer of [omitted], on 5 June 2011. Mrs F was adamant that her recollection of how events proceeded on that day was an accurate reflection of what had occurred and cross-examination in no way diminished the very definite status of the evidence that she gave.
I was satisfied, as I was some years ago, that the evidence of Mrs F was evidence upon which there could be absolute reliance and I gathered in no way that there was any reluctance on her part to provide statements in relation to this matter, other than in a full, frank and honest manner.
Obviously, of real consequence in relation to this matter is the evidence of Dr H given with regard to his professional examinations of both the mother and the father. In relation to the mother, it was noteworthy that he commented at page 24 of 34 as follows:
Ms Fante did not meet full diagnostic criteria for any psychiatric disorder at the time of review. She had probably met diagnostic criteria for a major depressive episode when treated between 2000 and 2002 by Dr O. It was not clear that she had had a depressive episode since that time.
It did seem likely that she had a rather perfectionistic and anxious personality with associated issues around her self-esteem. I did not think in 2008 or 2011 that she met criteria for a personality disorder. It sounded like she had come from a family where her parents shared some similar characteristics to this.
In 2011 she had progressed further and appeared to be more settled and insightful regarding the process.
She did not on the data available pose any significant physical or emotional risks of harm to the child.
However, in relation to the father, different and, I think more troubling, comments were made under the heading, Opinion. In that section of his report, Dr H said the following:
Mr Joyce had been noted in 2008 to be a man who was rigid and had an idealised and perfectionistic view of raising young children and the relationship that they might have with their parents. In 2008 he was extremely anxious about possible harm to his child to the extent of being suspicious of others actions and motivations in the absence of significant objective evidence.
In 2008 I commented that “his rigidity and suspiciousness potentially and practically make it more difficult for him to support [X] in having a relationship with the mother and the mother’s family.” This has unfortunately continued to be an issue
The father had been involved in a psychological process with
Ms C as recommended to reflect on his behaviour and the negative effect that this may have in terms of his child. This appeared on his and Ms C’s report to have no effect on his beliefs about the past or future harm to the child.
Unfortunately the father is in my opinion in 2011 more fixed, inflexible and convinced of the risk that the mother’s parent’s and possibly the mother pose to the child. I was not provided with credible data to support an objective basis on his part for these contentions. He had no insight into any negative that effect this preoccupation might have on his child. He also continues to have fixed and rigid beliefs regarding a range of child rearing matters and this is in keeping with his opinions in 2008.
I have considered whether the fixed nature of the father’s beliefs might represent a delusional belief. I think that this is less likely and that the beliefs are more likely based on his rigidity of personality and his high level of focus and dedication to his child’s welfare.
I am not sure that he meets criteria for a personality disorder as his dysfunction appears to be restricted to the area of his beliefs about his child’s safety and child rearing matters (on the information available).
It seems likely that the child is exposed to the father’s views, or the effect of his views in terms of observing for potential harm and photographing or possibly enquiring of the child. In my opinion this exposes the child to the risk of some emotional harm.
Most significantly, in the heading Recommendations on page 25 of 34, Dr H makes the following comments:
In my opinion the father’s approach and attitude is likely to make the shared parenting arrangement difficult. I identified this in my previous report of 2008 and unfortunately rather than improving it appears to have deteriorated.
While the father may overtly be able to be emotionally controlled in face-to-face interactions with professionals, on the data available I am of the opinion that any attempt at therapy to improve parental communication and co-parenting is very unlikely to result in the father changing his views or shifting his position.
Dr H was very definite in his opinions in relation to this matter and, I must say that the impression I gained of Dr H was that he was one of the most professional expert witnesses I have ever had appear before me. Dr H was cross-examined by the legal representative for the father and, of course, by counsel for the mother.
Insofar as cross-examination in respect of the mother is concerned, there appeared, with respect, to be a determination, no doubt at the instruction of the father to “rehash” those matters which had been the subject of consideration at the hearing in 2008 and which, in fact, were matters which related back to issues in the mother’s life very many years ago. In that respect, for example, I note that the mother is 39 years of age and yet questions related to what might or might not have been perceived by the mother to have been inappropriate actions, touching or behaviours by her father, the maternal grandfather, some 25 years or more ago.
Dr H was asked how those matters might have affected the mother and he noted, for example, that the mother was not comfortable with loud, verbal arguments because of incidents in her past and when asked about the allegation when she was about 13 years of age, relating to a touching of her breast, he indicated that whilst it was troubling, it was as reported by the mother as an isolated incident, and not one which generally gave rise to current effects upon the mother. As Dr H recorded it, the mother apparently “regarded it as in the past and resolved”.
When asked whether he, in his professional opinion, considered that it was resolved and whether therefore the mother had been able to satisfy him that she had moved on with her life, he indicated that he was satisfied with that being the current situation, and noted, in particular, the comments contained within the notes that he had read, as produced by Dr M.
Interestingly, and perhaps re-emphasising the father’s determined position in relation to this matter, Dr H was asked whether such behaviours, as much as 25 or more years ago, gave him concerns as to any possible threat to the child, [X]. He rather pointedly noted that it would give rise to concerns with him if there were a more consistent pattern in relation to the complaints and concerns expressed by the mother but that, as there did not appear to be any ongoing issues, and as the mother appeared to have resolved such issues as events in the past, he could not hold such concerns.
Interestingly however, when cross-examined by the legal representative for the father about the father’s “rigid views and beliefs”, he was asked whether those rigid views and beliefs were understandable, in light of what the father says he was told by the mother, in relation to the inappropriate behaviours alleged with regard to the maternal grandfather. Dr H noted that, in his assessment, the father’s beliefs were understandable but that they, “did not reflect the data that was available”.
Most particularly, at the conclusion of the cross-examination by Mr Cooper, Dr H was asked about his comment at page 22 of his report where he noted that the father’s behaviour, exposed the child to some risk of emotional harm. When asked whether there was a continuing concern then, if the father were unable to take the child to the doctor, Dr H noted that:
The father’s belief is fixed and unshakeable and is not based on relevant data.
Quite clearly, the position of Dr H in relation to that question is that there was no proper basis upon which the father’s behaviours in relation to this matter could be explained or justified, other than that they were a reflection of the father’s fixation with abuse, both physical and sexual, without any appreciation whatsoever of his own emotional abuse of this little girl.
Cross-examination by Ms McMillan centred on the fixation to which I have referred and, in particular, the continued and, in fact, perhaps increased behaviours of the father, with regard to attendance at police, and Department of Communities (Child Safety), as well as at hospitals and doctors and his continued determination to take photographs of the child, which though the father seems to deny that they are primarily designed for the purposes of evidence-gathering, appear clearly to reflect his position in relation to the child being bruised or harmed on all occasions she attended with the father.
It is clear that Dr H’s report and concerns in relation to the father centred on his failure to in any way really appreciate that his actions might be more harmful or, in fact, the only harm being perpetrated upon the child.
In that regard, Dr H was referred to the paragraph at the conclusion of page 12 of his report, totalling 31 pages, and to the commencement of page 13 where Dr H said:
He acknowledged that there had been a child protection investigation in late 2010 by the police and he was unsure of the outcome of this.
He was specifically asked regarding this matter and said that no matter what the outcome of the investigation was he would remain completely convinced that the child was being abused “unless someone went there every day”.
Dr H commented that he thought that this was an incredibly important statement and emphasised that it was, in his professional opinion, a more strongly held belief than just normal anxiety. Dr H noted that the father’s view in this matter was based on an internal belief of the father and not the evidence that appears to arise in relation to this matter.
Dr H emphasised that on a number of occasions in cross-examination and also generally within his report, that the father, as he assessed him, had a fixed and inflexible position in relation to this matter and that his beliefs were without rational basis.
It was telling evidence because when asked how the matter might be able to be dealt with, Dr H had commented in his report that he thought that therapy would be unlikely to assist and that it was, as he put it, “unlikely that an injunction will change the father’s perceptions.”
When being asked specifically about that view, Dr H was asked whether the father’s belief system would abate and he indicated that he thought that that was unlikely and, when specifically asked whether there was anything that might change the father’s view such that there might be evidence which would comfort the father that abuse was not happening, Dr H noted that he was not of the view that any evidence would be able to be produced which would influence the father’s beliefs other than that abuse was occurring.
Dr H concluded evidence given in relation to cross-examination by
Ms McMillan in relation to this matter by noting that the father’s behaviours and his fixed belief system would have an effect upon the child and that it was likely that it would be a detrimental effect upon the child.
In re-examination, with leave given to Mr Cooper for the father, he asked Dr H about the father’s reactions to the photos, some of which had been shown to Dr H and Dr H noted, as he had in his report, that the vast majority of the bruises were bruises which clearly occurred below the knee and that they were obvious bruises and far more likely to relate to issues with regard to the child’s own behaviour and a child of that age’s play than, from any form of abuse or physical chastisement.
I was most impressed by Dr H’s expertise in relation to this matter and of his particular assessment in relation to each of the parents.
I turn then, obviously, to the evidence of both the mother and the father. Insofar as the mother was concerned, my observation, obviously from the perspective of a layperson rather than an expert, would be of a generally similar nature to that of Dr H. The impression that I gained in relation to the mother was that she had, as Dr H suggested, progressed and appeared more settled and insightful regarding issues in relation to the child. I gained the distinct impression that the mother was developing in her capacities with regard to the parenting of this little girl and that she was experiencing enormous frustration at continued allegations made by the father and the repeated determination on his part, to gather evidence in any way that he could with regard to establishing that the child was the subject of abuse, notwithstanding that every piece of evidence produced in relation to the matter to date would reflect that there was not abuse occurring from the mother or by any member of the mother’s family.
The mother gave me the distinct impression that, notwithstanding a reluctance, perhaps understandably held on her part, to interact with the father, she was willing to put the best interests of [X] to the fore and that that explained instances, such as an attendance at the child’s day care breakup or at her first day of school where a happy face was shown and proximity to the father was obvious in relation to photographs and other interactions between them.
If anything, it reinforced the view that the mother put the child’s interests and welfare to the fore and was able to act in a manner which was conducive of the child’s capacity to develop and achieve all that she was able to achieve. If anything, my impression was that the mother was, in the most difficult of circumstances, working towards ensuring that the child’s best interests were met.
I was enormously impressed by the mother in relation to this matter, both in respect of her oral evidence but noted also the repeated attempts by her to move forward, as evidenced by the evidence contained within her affidavits and, notwithstanding her concerns as to the continued actions of the father, her determination to ensure that the child’s best interests were to the fore.
I also had the opportunity to observe the father in relation to this matter and to note the lengthy cross-examination that was directed to him by Ms McMillan on behalf of the mother. Ms McMillan, I thought, explored quite properly those issues which related to the rigid views referred to by Dr H and the inflexible nature of the father’s personality, in respect of the child and his assessments of the child. The father had, what could only be described and was described in material, both expert and lay, is an idealised view of his relationship with [X] and of the child’s interaction with him.
The father’s evidence in relation to this matter is that any and all difficulties that might be experience by the child are a reflection of the mother’s and her families’ behaviours with the child and that his relationship with her is perfect. That was examined on a number of occasions and in particular I noted that when the father was asked whether he accepted that perhaps [X] was having some issues because of the constant movement between the two households, his response was that on two occasions, [X] had said to him that she had some difficulties settling back into the mother’s household but his observations were that the child had never had any difficulties settling in with him.
The father’s view was again a reflection of his inflexible and rigid attitude in relation to the relationship that he had with the child. The father could not accept that this child would, after so much difficulty in the relationship between the two parents, begin to take on the attitudes to each of the parents and to attempt to furnish them with information that would be a reflection of their views in relation to this matter.
I would have no hesitation in finding that this child would have made statements to the father about issues happening at her mother’s home because she knew that that was what the father wanted to hear and would not make statements to the father about any concerns she had in the father’s home, such as missing her mother or grandparents because she would know that the father would not wish to hear such statements being made by the child.
Throughout his evidence, the father, in answer to various questions, reinforced the view that he had a rigid, obsessive belief in relation to himself and to the qualities that he brought as a parent, as well as the lack of qualities brought by the mother and her family.
A few examples of that were when the father indicated that physical violence was being perpetrated either upon [X] or on other persons in the mother’s house on every week that the child was there. The father was of the view that it was not possible to consider that any of the bruising that he had observed on the child would have come about from normal play. His view again of an idealised and inflexible nature was that she has not had a “bump, bruise or scrape, except on one or two occasions” when with him and that he was “mindful of the mother’s family history,” such that she is disciplined with physical violence every week that she is in the mother’s care.
The father also indicated that he had an absolute and complete belief in what the child, [X], told him and that there was no possibility that she was just making up stories, or as I have referred previously, telling the father what he might want to hear. The father in answer to a question relating to that issue, simply said words to the effect:
I believe [X]. We have good lines of communication and she has never told me anything that his been made up.
Such a limited view of the world is troubling in relation to this matter and it gives rise to real concerns as to the father’s capacity to, in any way, properly appreciate the effects of his beliefs and attitudes upon the child. The father was asked about comments contained within the mother’s material which indicated that the child also makes statements to her but that she took them with “a grain of salt” and that, for example, a reference to [X] telling her mother that the father had threatened to kill or harm the mother was not something that she placed great weight upon.
The father’s response however was telling in that he said words to the effect:
I can’t believe [X] would say this. I think it is something that
Ms Fante has made up.
It again reflected the father’s view of an idealised relationship between he and the child where all that is said between the two of them is true, honest and accurate and anything that is said which might be contrary to that idealised view of his relationship with the child to other persons is made up, untrue or fabricated. The father, on a number of occasions in that respect, for example, spoke of the mother being a pathological liar. That was an interesting comment, particularly when a number of inconsistencies were addressed throughout statements made by the father, either within affidavits or within his evidence generally, in relation this matter and in particular in that regard, the real prospect of exaggeration on the part of the father.
For example, he was asked about his view as to whether physical disciplining of a child is abusive and he indicated that that was certainly the case and, if anything, he was of the view that raising your voice to a child was abusive.
He then went on to compare whether or not the raising of a voice should be something to be considered when the child in his assessment had been disciplined to the extent that there was “bruising right to the bone”. Not a skerrick of evidence was produced in that regard and of course if was not something that had previously been referred to.
In the end, the father’s position in this matter was reflected in the answers that he gave to questions regarding Dr H’s assessment that he would remain convinced that abuse is occurring within the mother’s household unless someone was there to observe the mother and her family’s interaction with the child every day.
When asked whether the abuse occurring every day was something that he believed, he answered with words to the effect, “I don’t have a shadow of doubt that it is occurring.”
This is the crux of the matter in relation to these proceedings and it overrides any evidence or data as indicated by Dr H and others that might be able to counter the father’s beliefs. The father confirmed that it was his belief that all members of the Fante family were abusing [X]. He indicated that it was in the long term, consistent with the family’s behaviour. He believed that the mother abused [X], referring on a number of occasions to her being, “the angriest person that I’ve met.” He believed that the grandfather abused [X], particularly with implements, and reference was made to hairbrushes and wooden spoons, and he believed that the maternal grandmother abused [X], as it was, as he put it, consistent with the family attitudes.
The father went on to indicate that his belief was that [X] was at risk constantly of sexual abuse, because of what he was told by the mother of her experiences, though I have indicated that they were some 20 or more years ago.
Most telling of all was that the risk of sexual abuse to the child came from many persons within the mother’s family, including the maternal grandmother whom the father believed was a risk because there was, as he put it, “a range of perverted behaviours.” When asked if he could give examples of those “perverted behaviours” he said that he could not, other than to say that “their family was just different to any other family that I have known” and then went on to describe their behaviours as “deviant”.
The father’s attitude in relation to this matter was troubling. It was troubling on a number of levels, not the least of which was the very real concern, as also expressed by Dr H, that the effect upon [X] of being exposed to the father’s views gives rise to a real risk of emotional harm. It is reflected in the behaviours of the father. It is reflected in his determination to continue, at all levels, to investigate and to gather evidence as best he can to show that the child is the subject of abuse and manipulation.
The father would not believe the evidence of Ms R and Mr C. He directed his legal representatives to issue subpoenas to confirm that their telephone records and credit card records showed that they were in the locality. His reason for suspecting that that was the case was because [X] had told him that only “grandma and granddad” were present. The father begrudgingly accepted that Ms R and Mr C may have been present at that time, but I gained the distinct impression that it was more a situation of the father saying what he believed he had to say because the evidence was so overwhelming, rather than any reflection at all of the father actually expressing a genuine belief in what was said.
The father’s idealised view of his relationship with the child meant that if the child had told him something, it must be true and even when shown to be untrue, there was a reluctance in the extreme for him to accept the evidence that was given in relation to this matter.
It is clear that the father cannot accept any other stance in relation to this child and her relationship with her mother and extended family, other than that abuse is occurring and whilst the evidence is overwhelmingly to the effect that it is not occurring and that there is harm only coming from the behaviours of one person, the father toward the child because of the emotional toll placed upon her, the father can not accept that this was the case.
I was enormously troubled by the father’s behaviours and attitudes in relation to this matter and, in conjunction with the expert observations and opinions of Dr H, gained the distinct impression that the father’s behaviours and actions would not abate, and that this child would eventually experience the most telling of emotional harm as a result of the father’s actions, if in fact that has not already occurred.
Before turning to the orders to be made in relation to this matter, I note the arrangements made with regard to observing the section 93A statement which was obtained from Queensland Police Service involving the interaction between the police officer questioning [X], the police officer investigating the matter and the child, [X]. That section 93A recording was taken on 5 January 2011. It is noteworthy that in that respect it would seem that virtually all of the evidence upon which the child was interviewed was evidence that had been provided to the police by the father.
Noteworthy was the fact that when more particularity was sought with regard to an apparent striking of the child by the maternal grandfather was concerned, the child was unable to say anything other than that she could not remember the particulars relating to the grandfather hitting her with a hair brush. When asked about arguments between the maternal grandfather and the mother, the child indicated that she had forgotten what had occurred. She did not remember how she got a bruise on her leg that morning. She did not remember whether her grandfather had “whacked her with a hair brush” and then almost in the next breath, commented upon it being “good at mum’s place”, that she liked hanging out with her grandmother and her grandfather and that she had not been hit with other things.
I was not assisted in any evidentiary way by the interview that was conducted in relation to this matter. What it did however emphasise is that this child is more likely than not, as I would assess, telling the father what the father wants to hear and the father is feeding particular behaviours on the part of the child by allowing her to be the centre of attention. The father, in fact, would have agreed for this little girl being a witness in proceedings brought against her grandfather if he had been able to convince the police to bring such proceedings on the limited and, I think, unsubstantiated evidence that he sought to produce to them. If anything, the only assistance that came from the recording of the interview with the Queensland Police Service was to reinforce the father’s determination to achieve what he set out to achieve in relation to this matter and to reinforce the inflexible and rigid nature of the father’s belief systems.
The mother is of the view that the father’s behaviour in repeatedly attending with the child [X] at medical practitioners, allied health professionals or mental health professionals for the purposes of assessment or investigation is abusive and harmful to the child. There are concerns that the father’s repeated attempts to gather evidence by having the child attend with the Queensland Police Service or the Department of Communities (Child Safety Services) is abusive to the child and there are concerns that the repeated discussions and evidence-gathering that the father sets out to achieve in discussions with after-school carers and school teachers is harmful to the child, particularly when in many instances it occurs in the presence of the child.
I could not agree more wholeheartedly that such concerns are genuinely held and legitimately based, in light of the evidence that is before the court at this time. The father’s rigid and inflexible attitude in relation to the matter is not beneficial to the child.
I am mindful in that regard of course of the objects of the act as set out in section 60B and of the need to ensure the relationship between a child and a parent is a meaningful one to the extent that it is in the best interests of the child. Those objects are reflected in the considerations, and in particular the primary considerations set out in section 60CC(2). The provisions of section 60CC(2) are as follows:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
It is clear that they are to be balanced, one against the other, and here whilst there is a right and an obligation to foster a meaningful relationship with a child and with both of their parents, there is also a need perhaps on balance to ensure that a child is protected from the behaviours, however misguided they might be, of one parent or the other which is harmful for the child. In this instance, I would have no hesitation whatsoever in finding that the behaviours of the father in this particular matter have been in every respect, both misguided and harmful to this child. The father has, without any proper evidentiary base, set out repeatedly to gather evidence and to seek to find what does not exist, abuse of this child.
There is no evidence to that regard, except evidence of the father’s extreme emotional and psychological abuse of the child and it is a matter which needs to be more fully addressed. Dr H specifically speaks of the fact that the father has, if anything, deteriorated from the situation which existed in 2008 and noted that the father’s rigidity and suspiciousness, potentially and practically make it more difficult for him to support [X] in having a relationship with the mother and the mother’s family. Dr H noted that this has continued unfortunately to be an issue and in fact has exacerbated. Dr H noted that the father was more fixed, inflexible and convinced of the risk that the mother’s parents, and possibly the mother, posed to the child though there was no data upon which such a fixation could be based.
The father is, in my view, unable to appreciate the matters that arise in relation to this matter and in particular the harm that he causes to the child on each occasion that he puts the child through further interviews or reviews. Without hesitation, I intend to make the orders sought with regard to the father being restrained and an injunction issuing in respect of the father’s continued attendances with medical practitioners, allied health professionals, Queensland Police Service, Department of Communities (Child Safety Services), schools day-carers and the like.
The father’s response in relation to this matter is to restrain or to seek to restrain the mother from bringing further applications in relation to the child without the leave of the court. Whilst to some extent I can understand that particular concern in respect of this matter because every time that there are further proceedings, there are concerns that arise with regard to the effect upon the child, emotionally and one would think in one manner, financially, because it affects the household of both the mother and the father.
By the same token, however, in light of the findings that I clearly make in relation to this matter, it is impossible to imagine other than that there may be further proceedings and in fact they have been hinted at by the fact that an amended minute of order was filed on the second day of hearing seeking interim orders with regard to further report and assessment preparation as well as the variation of the existing orders in respect of the matter.
Being mindful, obviously, of the rules of natural justice and of the fact that there was little that was able to be fully considered in relation to the variations that were sought in respect of the matter, I do not intend to make orders in terms of those which were contained additionally within the amended minute of orders sought by the mother, however I would not in the circumstances preclude the bringing of further applications in relation to this matter, in light of the very real concerns that exist with regard to the harm that is caused to the child by the continued dispute between the mother and the father. I would be hopeful however that the orders now made with regard to restraining further evidence-gathering and attendances to which I have referred would lead to a reduction in the possible hurt and harm to the child, and accordingly the real possibility of there being better interaction between the child and each of her parents, if there is a reduction in this continued behaviour.
If not, then it may, unfortunately, be necessary for there to be a further consideration of proceedings in relation to the matter, but one would have thought that that would not be the case. As I have indicated therefore, I do not intend to make the additional orders sought in respect of this matter but to certainly make the injunctive orders sought in relation to the proceedings before the court.
As a result of what I have said, it is of course obvious that the orders sought within the response to the initiating application filed by the father and in particular, a restraint from the bringing of further applications must of course be dismissed. The orders of the Court will be as per orders 1, 2 and 3 of orders contained within the initiating application filed 18 February 2011, the dismissal of the oral application for additional orders contained within the amended minute of orders sought by the mother presented to the court on 23 August 2011, the dismissal of the orders contained within the response filed by the father on 10 March 2011 and, of course, order 1 would be that the father’s application in a case filed 28 January 2011 be dismissed.
I will make a general order that all other applications presently before the court be dismissed, and that should there be any application in relation to costs by either party in relation to this matter, that written submissions be provided within 28 days of the date of this order.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 20 October 2011
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