FAULKNER & DANNEL
[2019] FamCA 659
•13 September 2019
FAMILY COURT OF AUSTRALIA
| FAULKNER & DANNEL | [2019] FamCA 659 |
| FAMILY LAW – CHILDREN – With whom the child shall live and spend time – Best interests – Where the subject child is aged two years and one month – Where the child lives with the mother – Where interim orders were previously made providing for the child to spend time with the father supervised by the paternal grandmother – Where the applicant father seeks orders for the child to live with him and spend time with the mother on a graduating basis – Where the respondent mother proposes the child lives with her and spends limited supervised time with the father – Where the Independent Children’s Lawyer supports a reversal of residence – Where the mother and the father suffer from mental health issues – Where the Family Consultant opined the relationship between the father and the mother as “toxic and dysfunctional” – Where the mother is diagnosed with Borderline Personality Disorder and has a fear that the father might have abusive intentions towards the child – Where the mother alleges that the father molested the child – Where the father is diagnosed with Post Traumatic Stress Disorder, but has engaged with appropriate medical treatment – Where the child has a meaningful relationship with both parents – Where factors under ss 60CC(2) and (3) of the Family Law Act 1975 (Cth) are considered – Where the parties’ respective mental health issues may, at times, adversely affect their capacity to meet the child’s needs – Where there is no evidence to support a finding that the father represents an unacceptable risk to the child – Ordered the child continue to live with the mother – Ordered the father spend unsupervised time with the child on two occasions each week – Ordered the child to commence overnight time with the father each alternate weekend when the child attains the age of three years. FAMILY LAW – CHILDREN – Parental responsibility – Where orders are made for the child to remain living with the mother and spend unsupervised time with the father, graduating to overnight time when the child attains three years of age – Where the applicant father seeks equal shared parental responsibility – Where the respondent mother seeks sole parental responsibility, with an associated consultation process for input by the father – Where there is no evidence of family violence or unacceptable risk of harm to the child – Ordered the parents have sole parental responsibility for the child for day to day decision making when in their respective care – Ordered the parents have equal shared parental responsibility for major health and education decisions. |
| Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 61DA(1), 61DA(2), 64B(1), 64B(2) |
| APPLICANT: | Mr Faulkner |
| RESPONDENT: | Ms Dannel |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 2317 | of | 2017 |
| DATE DELIVERED: | 13 September 2019 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 18 – 21 February 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levick |
| SOLICITOR FOR THE APPLICANT: | Harris Kelly & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Graham |
| SOLICITOR FOR THE RESPONDENT: | Gillard Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid |
Orders
That all prior orders in relation to the child X born … 2017 (“the child”) made in this Court and in the Federal Circuit Court are discharged.
Residence
The child shall live with the mother.
Parental responsibility
Each of the parents shall have sole parental responsibility for day to day decision making when the child is in the care of that parent.
That the parents have equal shared parental responsibility for:
(a)Decision making about major health decisions and specialist medical treatment for the child;
(b) Decision making about the attendance of the child at pre-school or not;
(c) Enrolment of the child at school.
Time with Father
The parties shall take all reasonable steps to ensure that the child spends time with and communicates with the father as follows:
(a)Until the child turns 3 years (28 January 2020) each Saturday and Wednesday from 10.00 am to 5.00 pm;
(b)Thereafter and until the child starts school or turns 5 years (28 January 2022), which ever event occurs sooner:
- from 10.00 am Saturday to 5.00 pm Sunday on each alternate weekend, commencing Saturday 1 February 2020, and
-on each Wednesday from 10.00 am to 6.00 pm, commencing 5 February 2020;
(c)Thereafter, commencing in January 2023 on each alternate weekend from Friday after school to Monday before school, and on each Wednesday from after school to 7.00 pm; and
(d)For one week of school term holiday periods and for two weeks in the Christmas school holiday period commencing in December 2023, being the first two weeks in odd numbered years and the final two weeks concluding on the Sunday before the commencement of term in the following year in even numbered years.
Communication
(a) Until the child starts school by Facetime (or similar video-calling app) each week and failing agreement otherwise on Monday at 6.00 pm with the father to initiate the call and the mother to receive the call and assist the child to engage with the father;
(b)From the time the child commences school, each parent shall ensure that the child is able to telephone or contact the other parent at any reasonable time.
Changeovers
If changeovers do not take place at school then at Suburb J McDonald’s unless another venue is agreed by the parties.
For the purpose of changeovers each parent may nominate a person as an alternative person to effect changeovers, provided that the person is a friend or relative well known to the child and the other parent.
Education
Each party is entitled to receive all information relating to the progress and welfare of the child at pre-school/school ordinarily provided to parents.
Each parent may, subject to the direction of the director of the pre-school/ principal of the school, otherwise, attend all events and meetings to which parents are invited, including but not limited to concerts, parent/teacher nights, special assemblies and sports carnivals.
Each party is restrained from enrolling the child at pre-school or school without the prior written consent of the other party, or further order of the Court.
Health and Medical Treatment
The mother is to provide the father within 7 days of the date of these orders the contact details for the medical practice to which she presently takes the child.
Each party is restrained from using any other medical practice than the one nominated by the mother pursuant to Order 12 except in the case of a genuine medical emergency for the child.
Each parent shall advise the other by email of all specialist medical appointments proposed for the child and the reasons why such an appointment is considered necessary, and shall provide the other parent with contact details for the medical specialist.
Each parent may attend all such appointments and may speak to the medical practitioner about the child as necessary.
In the event of accident, emergency or illness requiring medical attention, the parent who has the care of the child at the time of such situation arising shall contact the other parent forthwith to inform that parent of such illness or emergency.
Information
Each parent shall keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
Restraints
Unless as otherwise noted below, each of the parents are restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent;
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child, and from permitting any other person to do so;
(c)Attending the home of the other parent without the prior written consent or invitation of the other parent.
Leave to provide Documents
Leave is granted to each of the parents to provide a copy of the following documents to therapeutic practitioners with qualifications in psychiatry or clinical psychology which each may consult:
(a) Family Report dated 1 August 2018;
(b)These orders and reasons for judgment;
NOTING that at date of trial the father was consulting Dr A, psychiatrist, and the mother was consulting, but had terminated the relationship with, Ms B, clinical psychologist.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Faulkner & Dannel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2317 of 2017
| Mr Faulkner |
Applicant
And
| Ms Dannel |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These are competing applications for parenting orders in respect of one child, a boy, X, aged two years and one month at the date of the trial. The child presently lives with his mother.
The parties, who are the parents of the child, first met in 2013 after they connected online. Their relationship fell away after a few weeks.
In June 2015 the parties rekindled the relationship without ever establishing a common residence. The subject child was conceived twelve months later. The mother alleged that her pregnancy resulted from the father having unprotected sex with her without consent.
During the pregnancy the mother was hospitalised for mental illness.
In August 2016 there was also an aggressive confrontation between the parties which resulted in an interim Apprehended Violence Order (“AVO”) being put in place. No final order was made.
The child was born in early 2017.
When the child was less than two months old the parties’ relationship, never a strong one, came to an end.
The mother was anxious and uncertain about the way the father handled the child. The mother began to fear that the father might have abusive intentions towards the child.
By July 2017 the mother was unwilling for the child to spend any time with the father unless he was supervised.
In August 2017 the father made an application to spend time with the child assessing, probably correctly, that unless he did so he would not see the child at all.
The Parties
The Applicant Father – Mr Faulkner
The father is aged 53. He lives in Suburb C, in Newcastle. His household consists of himself and his flatmate, a lady named ‘Ms E’. The father does not have a current partner.
The subject child is the only child of the father.
The father is not currently in employment. In 2017 the father was medically discharged from his employment with the Public Service due to a diagnosis of Post-Traumatic Stress Disorder (“PTSD”). The father had been employed in the Public Service agency for 20 years prior to his discharge. He is currently in receipt of workers compensation payments.
The Respondent Mother – Ms Dannel
The mother is aged 40. She lives in the same suburb as the father. The mother’s household consists of herself and the subject child. The mother does not currently have a partner. She is in receipt of the disability support pension due to her diagnosis of Borderline Personality Disorder (“BPD”).
The mother has another child, a daughter, from a previous relationship, Ms D, aged 20. Ms D lives with her biological father in Queensland. She lived with the mother until 2015.
Distance between the households
The households of the two parents are less than two kilometres apart, a four minute car trip. The parties were both living in their respective properties prior to commencing their relationship and continue to do so.
The Trial
The father was legally represented and had briefed counsel. Likewise the Independent Children’s Lawyer (“ICL”).
The mother was legally represented and had briefed counsel. Unfortunately her original counsel became ill and another barrister was able to be briefed on short notice.
This created a manageable delay, with the cooperation of the other parties, at the commencement of trial.
The matter was allocated four days hearing time commencing 18 February 2019 and concluded within that time.
The Issues Determined
Is the father, a person diagnosed with Post-Traumatic Stress Disorder, likely to suffer debilitating stress if he had full time care and responsibility for the child?
The father presently has stable mental health and is compliant with medical advice.
There is some risk of relapse into symptoms of PTSD for the father in circumstances of heightened stress.
Is there an unacceptable risk of emotional, psychological, physical and or sexual harm for the child if he moves to full time care of his father?
There is an unacceptable risk of emotional harm for the child through the disruption of his primary attachment to the mother.
There is otherwise no unacceptable risk of harm to the child in the care of the father.
The evidence does not support a finding of sexual abuse of the child by the father nor of unacceptable risk of abuse. The allegations of abuse by the mother relate to her interpretation of the child attending to the hygiene and comfort needs of a very young child.
The father is untested as a full time parent especially in circumstances where the child would be fully separated from his mother, the primary carer, followed by supervised time.
Is the mother, a person diagnosed with Borderline Personality Disorder (also described as “stress related paranoid ideation”[1]) able to regulate her emotions sufficiently to recognise and protect the loving relationship that the child has with the father, as she does with the relationship the child has with her?
[1] Oral evidence of Dr A, psychiatrist
There is evidence of the mother quickly coming to adverse conclusion about the father in relation to the child, her acting on her own beliefs and being disappointed by or rejecting third parties who are unsupportive of her beliefs.
The mother acknowledges that the father wants a relationship with the child but fluctuates in her ideas about the father’s motives.
Is there an unacceptable risk of emotional and psychological harm for the child if he remains in the care of the mother?
The mother is providing a good level of care for the child and loves him very much.
The mother can be zealously over-protective which will be increasingly unhelpful to the child as he develops friendships and becomes more independent.
Are the sexual harm allegations made by the mother about the father vexatious? If so, what are the long term implications for the child?
There is some possibility that the mother complained strategically about the conduct of the father and the adequacy of supervision at a contact centre soon after interim orders were made for limited supervised contact.
Allegations of the mother about the father sexually abusing the child as an infant relate to innocent actions by the father cleaning the child and on one occasion moving the child’s penis when he urinated during a nappy change.
The mother has firm views about the wrongness of anyone touching the genitals of a child which are genuinely held, probably arising from trauma she experienced herself as a child, but unrealistic in the context of a parent caring for a child.
The Proposals
The Father
The father was more optimistic at the commencement of the trial than at its conclusion.
He proposed[2] that the parties have equal shared parental responsibility, and that the child live with him.
[2] Exhibit 2
Time with the mother was carefully set out in a phased program culminating after about 18 months in alternate four night weekends and other defined times. Once he was at school the child was to spend half school holiday periods with the mother.
In final submissions, counsel for the father adopted the Minute of the ICL, in particular that there be supervised time only.
I did not have the impression that the father had simply, in an opportunistic way, agreed to a proposal which suited him.
I concluded that the father had become genuinely worried as the anxious fears and anger of the mother were displayed through her evidence that she would not support his relationship with the child.
The Mother
The mother proposed through her Minute of Order[3] that she have sole parental responsibility with an associated consultation process for input by the father.
[3] Exhibit 3
The mother proposed limited supervised time for the father twice per week for six hours until the child starts school (likely in 2022).
Thereafter, when the child was at school, alternate one night weekends and one afternoon per week. There was no provision for holidays.
The nominated supervisor was the paternal grandmother or any other agreed person.
There were other specific issue orders some of which will be made, restraints on conduct and information exchange.
The formal position of the mother remained unchanged. Her anxiety about removal of the child from her care was palpable throughout the trial.
The Independent Children’s Lawyer
The ICL did not have a view at the commencement of trial.
By the conclusion of the evidence the ICL had come to a position.[4]
[4] Exhibit 37
The primary proposals were that the father should have sole parental responsibility for the child and that the child should move to live with him.
Time with the mother was proposed to be always supervised, first in a contact centre and then, after a relatively short period, by a supervision service in the community.
I have concluded that a change of residence for the child would not be in his best interests. Nor do I consider that an unlimited supervision order for a two year old is tenable.
That is not to say that there is a lack of evidence of risk to the child in the mother’s care or that the proposal was an unconsidered one.
There were other orders proposed by the ICL involving information exchange and restraints on parental conduct which I accept would promote the interest of the child. Those orders are made.
Brief History of Relevant Events
On 4 August 2017, the father commenced proceedings in the Federal Circuit Court seeking orders that enabled him to spend time with the child.
Orders providing for him to spend time with the child for one hour each week supervised at a contact centre were made. The child was by then about eight months old.
The Response of the mother to that first application was for the father to have no time and communication with the child at all and no input into decision making.
The question of the child having a relationship or not with the father was in the balance.
Transfer to the Family Court of Australia
On 8 December 2017 the proceedings were transferred to this Court.
The matter was not considered suitable for the Magellan protocol. The ICL and the parties wanted a single expert report on the effect of the mental health and personality structure of the respective parties on their parenting capacity. There was no funding for that course. A Family Report was ordered.
On 1 August 2018, the Family Report was released. There was a comprehensive review of the risks and benefits to the child in the care of each parent.
The F Contact Centre indicated to the parties that they could move from the Orientation Program to the Supervision Program. The mother was resistant.
On 21 September 2019 orders were determined by a judge of this Court. They provided time for the father with the child swiftly progressing to six hour blocks on two days per week. The paternal grandmother was accepted as the supervisor of this time.
There were some incidents. On 14 November 2018 the mother took the child to hospital with a concern that he may have been drugged and was reassured that he had not been. Generally contact took place as ordered over the five months before the matter came before me for trial.
Evidence
The documents relied on in respect of the application were as follows:
The Applicant Father - Mr Faulkner
(a)Amended Initiating Application filed 31/05/2018 superseded by a Minute of Order in Case Outline document;[5]
[5] Exhibit 2
(b)Affidavit of the father filed 4/12/2018;
(c)Affidavit of the paternal grandmother – Ms G Faulkner filed 5/12/2018;
(d)Affidavit of Dr A - psychiatrist consulted by the father filed 8/11/2018;
The Respondent Mother - Ms Dannel
(e)Amended Response filed 31/05/2018 superseded by Orders in Case Outline document filed 14/02/2019;[6]
(e)Affidavit of mother filed 20/12/2018;
(f)Affidavit of maternal aunt – Ms H Dannel filed 20/12/2018;
Reports
(g)Family Report dated 1/08/2018;
(h)Child Inclusive Conference Memorandum dated 13/10/17.
[6] Exhibit 3
The Father
The father was a quiet, considered witness. He gave short responsive answers. My observation of his demeanour accords with the assessment of his treating psychiatrist referred to below (paragraph 82 these Reasons). When asked whether he had needed help with care of the child he replied, “Help would have been great but I’ve got through it”. With those words he smiled with apparent happiness recalling time with the child.
He did not attempt to deny the difficulty of changing the residence of a two year old child.
He was candid in his recognition of the possible adverse impact of his PTSD mental illness on the subject child.
The evidence supports a finding that he has committed himself to medical treatment with a view to returning to a full life including sound mental health and employment.
Ms G Faulkner (Paternal Grandmother)
The paternal grandmother was not required for cross-examination. Her evidence is accordingly unchallenged.
The paternal grandmother is 72. She has worked in healthcare for 38 years. She presently works two shifts per week.
The subject child is her only grandchild and she has made every effort to develop a loving relationship with him.
Most unfortunately when the mother decided in the second half of 2017 that it was not safe for the father to spend unsupervised time with the child, she also excluded the paternal grandmother.[7] The mother had previously been on good terms with the paternal grandmother and no complaint is made by the mother about her.
[7] Affidavit of the paternal grandmother filed 5/12/2018, par 35
In 2018 the paternal grandmother agreed to supervise time for the child with the father, and after an interim hearing (on 21 September 2018 before Justice Austin) she was appointed to that role.
The mother sent some rather officious messages to the paternal grandmother about how to manage the care of the child and enjoining her to properly carry out her duties as a supervisor.
In October 2018 perhaps with a punitive intention, the mother corrected the child, in front of the paternal grandmother at changeover, when the child used “Dad” and “Nana”, directing him to use their first names instead.[8] The paternal grandmother was unprovoked.
[8] Affidavit of the paternal grandmother filed 5/12/2018, pars 55-57
Later that month the mother, with her sister, insisted on attending a swimming lesson arranged by the father during his time supervised by the maternal grandmother. The child became upset as the adults became verbally aggressive. The mother put a stop to that and the child began to calm down.
The mother should not have attended uninvited in the way she did, but it was to her credit that she closed her sister down after the latter accused the father of being a “molester”.
In November 2018 the mother took the paternal grandmother to task for failing in her duties by not reading the Communication Book set up by the parties.[9] The mother jumped to the conclusion that the paternal grandmother was scared of her son. I accept the evidence of the paternal grandmother that she is not and never has been. To her credit the paternal grandmother thereafter read the book but probably to reassure the mother that she was getting all relevant information.
[9] Affidavit of the paternal grandmother filed 5/12/2018, pars 71-76
Thereafter, changeovers went well for the three adults and the child grew in confidence as a result.
I conclude that the paternal grandmother is a calm and loving presence in the life of the child and would always continue to be so.
Dr A (Father’s Psychiatrist)
Dr A has been treating the father since April 2015. He updated his report on the father.[10] He gave his opinion that the father is in remission in respect to his PTSD.
[10] Exhibit 5
His prognosis was generally favourable whilst acknowledging the uncertainty of relapse which remains as a possibility for this condition. He explained as follows “the essence of the disorder is to react to events. Reactions become less frequent and less severe.”
In his report[11] and in the context of the mother alleging violent behaviour by the father, Dr A described the father as follows:
…I am confident that by comparison with most men [the father] is considerate, sensitive, gentle and respectful, and by reference to that same comparison he is overall unlikely to act in the ways alleged.
[11] Affidavit of Dr A filed 8/11/2018, Annexure C page 6
Dr A also gave helpful evidence in respect to BPD explaining that the term “Borderline” was an historical term with reference to the person being “on the edge of psychosis.” The doctor agreed that the definition raised by counsel for the ICL, namely stress related paranoid ideation, captured the nature of the disorder.
The Mother
The mother appeared stressed and was occasionally tearful throughout her evidence. She arranged for a support person to be present in Court whilst she was being cross-examined.
The mother calmly acknowledged that she had been diagnosed in 2011/2012 with BPD and that she continued to be affected by that disorder.
As she was taken through about a dozen characteristics of the disorder, the mother revealed a good understanding of those elements. I am less confident that the mother understands the overall impact of BPD on her capacity as a parent. That is to say that the mother intellectually understands the disorder she suffers from, but because she has the disorder, she blames others for events to which she is a contributor.
One element of that assessment by me, is that the mother did not include her diagnosed condition in her Parenting Questionnaire but faithfully included anxiety and depression which were as she explained in the witness box, “the medical aspects which affected my parenting”.
Another is an incident in August 2016. On that occasion the mother had a telephone conversation with the father, the outcome of which was unsatisfactory to her. She drove, unannounced, to the home of the father and banged on the door in a state of angry distress. The father answered the door but would not let her come into the house. He took her by the upper arms and guided her backwards away from the door. He brought her a jumper to wear, it being a cold night. He allowed her time to calm down, then encouraged her to leave.
The mother was offended and incensed by his attitude and reported his conduct to police. It was that incident which lead to an interim AVO being put in place.
I am satisfied that the mother did not see her own agency in that outcome in terms of attending his home in an angry state without notice. Rather she believed she was doing no more than defending herself against the father’s efforts to encourage her to leave his property.
I am confirmed in that view by the account of the maternal aunt of that incident.[12]
[12] Affidavit of Ms H Dannel filed 20/12/2018, par 8
The mother rang from the father’s home and expressed to her sister her fears and sense of feeling trapped and threatened there. There is no reference to the mother having gone there voluntarily, without notice or invitation.
The mother has a tendency to omit information which would detract from her being the wronged person. This an example of that tendency.
Ms H Dannel - The Maternal Aunt
Overall the maternal aunt spoke critically of the father. The maternal aunt was present at the contact centre visits and that must have been permitted, although it is hard to understand why.
The father was a new parent who benefited from kindly prompts by the supervisor about what the child was or was not capable of doing and how to manage some activities. The father was clearly put off by criticisms and impatient directions from the maternal aunt.
The maternal aunt was very supportive indeed of the mother whom she described as her best friend. On her own evidence her intrusive behaviour at changeovers and visits extended well beyond what was required. She did not hide her opinion that the father was incompetent at caring for the child.
The maternal aunt does not report any sinister conduct by the father which has some significance given that she was prepared to accuse him by saying, “I know that you molested X” during a period when the child was spending time with his father, supervised by the paternal grandmother, at the pool. The mother and the maternal aunt chose to attend uninvited.
The Family Consultant
In her oral evidence the Family Consultant described the relationship between the two parents as “toxic and dysfunctional”. It certainly has been. It has also been one of intense mutual attraction.
The Family Consultant also described the mother as “wracked by fears and uncertainty” which accorded with my own observation.
Importantly, in the Family Report, although she went on to say that both parents alleged that there were longer term risks for X in the care of the other parent the Family Consultant noted “as at this time all agree that X’s development is progressing well”.[13] X was at that time about 18 months old.
[13] Family Report dated 1/08/2018, par 132
The report from the family day care service was confirmatory.[14]
[14] Exhibit 27
It must be the case that the mother be given most of the credit for that sound developmental progress. The father too, but the child was mostly in his mother’s care.
The Family Consultant during her evidence said words to this effect about the mother:
The mother is a loving mother and protective but the things she wants to protect the child from are her fears, such as:
- That the father has molested the child;
- That the father drugged the child;
- That the father is [in her opinion] an inept parent.
The mother is devoted to the child. She takes him to daycare twice per week. They go to Gymbaroo, singing, swimming.
The mother needs ongoing therapeutic treatment to re-inforce the “Hold Pause Think” therapy (to reduce emotional dysregulation).
The Family Consultant then gave evidence about the child. She said that he was “about two thirds of the way through attachment”. She stated that the disruption of that attachment process would be “severe”.
Conclusion
That passage of evidence in my view encapsulates very well the problem for decision making in this case.
The mother is attuned and loving with this very young child. She is also over-reactive. There is a very real risk that the mother will fiercely protect the child from risks which are apprehended by her rather than subjectively established by herself and/or others. Such reactions would potentially cut the child off from other people he loves, and from experiences from which he would benefit.
I am confident that mothering the child would be much easier for the mother if the father agreed to withdraw from the life of the child. The mother would worry much less.
I am equally confident that the child would experience an immediate loss and a long term disadvantage if his father disappeared from his life.
If the mother can, alone or with professional help, contain her fears in order to support the child in the joyful loving relationship he has with his father and paternal grandmother, the child will thrive.
If the mother cannot do that the child may too become fearful, over reactive and suspicious.
With those factors in mind; the risk of disrupted attachment and the benefit of healthy development to date, I have concluded that the child should remain living with his mother.
That is not to disregard the risk of the mother being unable to reasonably contain her fears around the child. Rather that given his age the balance of risks favours in my view maintaining with his current arrangements.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests (s 60B(1)(a));
b)Children are protected from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60B(1)(b));
c)Children receive adequate and proper parenting to help them achieve their full potential (s 60B(1)(c)); and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children (s 60B(1)(d)).
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(1)). The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question (s 61DA(2)).
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between the child and each parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
I conclude with confidence that the child has a meaningful relationship with each of his parents which should be preserved.
The evidence of the benefit is clear. He is a well-loved and happy child developing appropriately.
The need to protect the child from physical and/or psychological harm or from being subjected or exposed to abuse or family violence
There is no evidence to support a finding that the father represents an unacceptable risk to the child.
He suffers from a mental illness in remission, namely PTSD. Fortunately he has sought appropriate medical advice and has co-operated to his own benefit, from the therapeutic recommendations and treatment of his psychiatrist.
The father is an inexperienced parent who has learnt as he has gone along, as all new parents do.
To the extent that the mother alleges that the father molested the child the evidence does not support such a finding to any extent. At its highest the allegation of the mother is that the father touched the child’s genitals as a newborn and in his early infancy. Whatever the father was doing, it happened in front of the mother.
Undoubtedly the mother too, regularly touched the child’s genitals during nappy changes and when bathing and clothing the child.
The difference is that the mother feared there may have been sexual motivation by the father. The touching was described as “stroking”.
The mother’s oral evidence is illuminating on this topic, “I don’t know if it was sexually motivated but I know what I saw.” The mother told the Family Consultant that “the father had a fixation with seeing the child naked”.
The mother also conceded that she had sent photographs of the child naked and that there was nothing wrong about that.
I asked the mother about her interpretation of seeing the father touch the child’s genitals and whether she accepted that other people might interpret the scene completely differently.[15]
[15] Transcript 21/02/2019 at 12.05 pm
The mother said she thought “some people of a certain era” might think like that, that her own mother might think that something like that was ok for a parent to do. She then went on to make the following remarks which appeared to me to be a revelation of the mother’s reasons for her protective stance which she knows can be perceived negatively:
[THE MOTHER]: I have firm views about it, because of my education and working with children...and from … one of the causes of BPD and my experience …was that I was sexually abused and it is one of the, sorry, one of the causes of BPD amongst other things,…and so I have quite strong views about, yes and about crossing those boundaries. I think only a child should, and that even their peers shouldn’t, be allowed to touch even if they are not trying to you know, another two year old isn’t trying to sexually…you know molest another child but it is touching another child inappropriately.
HER HONOUR: So children in the bath for instance will often touch each other’s genitals.
[THE MOTHER]: Yeah
HER HONOUR: That is something that you wouldn’t want to happen if you had another child the same age?
[THE MOTHER]: Yes I would discourage that.
This passage of evidence explained the mother’s obviously strict policy on boundaries for children and her reasons for that. I am not in a position to know with any certainty but it seems likely that the mother is suspicious of adults who do not share her view.
Unfortunately her ideas on this topic extend to the conduct of the father handling their very young infant son in her presence. The mother presumably knows herself to be a safe parent to change, bath and clean the child but could not extend that knowledge to include the father or at least not all the time.
Additional Considerations
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
The child, at two years, is too young to express any views.
His relationship with each parent is revealed in observations by the Family Consultant:[16]
X presented as comfortable and relaxed. He and the mother interacted in a warm connected and engaging way.
X immediately smiled at the father and began interacting with him…He sought the father out for activities played directly with him and sought incidental affection from him-at one point putting his face out for a kiss. Later he engaged in a game where he ran up to the father and hugged him repeatedly.
[16] Family Report dated 1/08/2018, pars 128-130
The child was assessed to be primarily connected with his parents. Friends and family members were also present.
I conclude that nobody means more to the child than his mother and father.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The father pays child support in the sum of $288 a month.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The proposal of the father is that the child move to live with him and spend time with the mother, progressing over 18 months, from short visits up to substantial periods.
Given that the child has not had any overnight time at all with the father nor any unsupervised time with him, such a change would most probably be distressing, disruptive and confusing for the child unless sensitively managed by both parents. There is no evidentiary basis for assuming that would happen.
In the longer term the proposal of the father could deliver a benefit in terms of certainty that the relationship between father and child would continue and deepen, and that a relationship with the mother would be preserved.
The proposal of the mother is that that the child continue to live with her and spend time with the father supervised by the paternal grandmother, or others by agreement.
The pattern of time proposed is for six hours on two days per week for the next three years. After the child starts school (2022) for eight hours on both days of alternating weekends.
This would be a continuation of current arrangements, so in the short term not at all unsettling.
In the longer term supervision would not only be restrictive in terms of activities and the inability to have holidays with the father but would inevitably raise questions in the mind of the child as to why he was never left alone with his father. There is a very real risk that if the child asked his mother she would tell him that he had been handled inappropriately as an infant by his father.
The practical difficulty and expense of a child spending time with and communicating with a parent
The parties live in close proximity; each has a car and can drive. There are no practical difficulties involving travel and changeovers.
The child is already enjoying video calls with his father at least once per week.
It is difficult to predict how beneficial telephone calls would be if ordered to start at once. He is more likely to be able to sustain a conversation once he has started school.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Capacity of each of the parents to meet the needs of this very young child is a central issue.
The Father
The father suffers from PTSD which was diagnosed in 2015. His own view is that he had all the symptoms which gave rise to the diagnosis for at least a year prior. He had a long career of 20 years with a public service agency and prior to that with another public service agency. The father was medically discharged from work in September 2017. He has engaged with medical treatment from a psychiatrist and consulted a psychologist. His mental and physical health has improved.
In addition to illness, the year 2017 was a particularly eventful year for the father commencing with the birth of the subject child in January, separation of the parties in March, and then mid-year allegations raised by the mother that the father had molested the child. In August 2017 the father initiated these proceedings. Soon after, supervised time with the child began. The father’s work ended.
There is ample evidence put forward by the father himself and from records produced in response to subpoena that he has been very ill, suffering anxiety, depression and at least fleeting thoughts of suicide. He continues to be symptomatic of PTSD but now has good control over his own physiological and emotional responses.
My impression of the father is that he has delighted in his time with the child, providing activities and experiences which have been suitable and fun for him. He has established rapport with the child. He has been able to meet the physical needs of the child with some advice and assistance from his own mother as well as friends and neighbours. He has met the emotional needs of the child in two ways. First, by love and affection. Next, by maintaining a respectful relationship with the mother despite his distress and dismay over the allegations of sexual misconduct she raised on behalf of the child.
The mother
There was no medical evidence on behalf of the mother. It would have been of great assistance to know what the therapeutic goals for the mother were.
The mother terminated her relationship with the psychologist she consulted for treatment sought by her over time for her diagnosed BPD.
In March 2018 the mother told her therapist, Ms B, that she did not want further appointments with her.
The mother conceded that she had asked Ms B for a report to the effect that seeing the father increased her anxiety. It is to the credit of Ms B, with respect, that she did not move from her therapeutic role to a forensic one in this way.
The mother could return to that relationship or to another clinical therapist for the support she knows she needs when fears arise that she is inclined to act on impulsively rather than objectively with clinical assistance.
To the credit of both, the two parents have had conversations in person and by text, have sent each other photographs of the child and in the father’s case, at the request of the mother, photographs of himself for the benefit of the child.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The child is a two year old boy. He is effectively an only child in both households. He does have an adult sister, Ms D, the child of his mother’s earlier relationship but she ceased being a member of the mother’s household before he was born. Ms D now lives in Queensland.
The child does not presently have much contact with other children his age.
He is the adored focus of both his parents.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
There has been one interim AVO. That was in August 2016 made after the mother attended the home of the father uninvited. She was pregnant at the time and very much disappointed that the father wanted to end the intimate relationship between them.
The mother agreed that she had hoped the relationship would continue and that the parties would be a family when the child was born.
The mother went to police and reported the incident. The mother agreed with counsel that she had made the report to police both to keep herself safe and to keep the father away.
The application for a final AVO was repeatedly adjourned between September 2016 and May 2017.
The mother when challenged about non-attendance by her at relevant court events stated that police had told her not to come again until further notice from them.
Ultimately the application was dismissed in May 2017. The mother was not present. Her evidence is that she did not know the hearing was on and would have gone to court if she had known.
That could be so. What is certain is that the mother was strongly ambivalent in her communication with the father throughout that nine month period. She sent text messages and intimate photographs inviting and encouraging restoration of their sexual relationship. When challenged that her behaviour was inconsistent with fear the mother’s explanation was “I was pregnant and hormonal”.
The mother conceded that some messages were “inclusive and affectionate” others “angry and rejecting”.
The mother conceded that she lied to the father about “dropping the charges”.
My overall impression is that the mother worked hard on reconciliation but kept the option of a final AVO open in case that did not occur.
I also conclude that the mother was indifferent to the impact on the father of the mixed messages she sent. She saw the father as the powerful one. In messages to him she described herself as “powerless against the Kavorka” (meaning powerless against his charms). She regarded him as manipulative because he knew she wanted a sexual relationship with him and would not give in.
That is not to say the mother was unaware of her impact on the father:
Q. You’re being so provocative but pursuing the AVO?
[THE MOTHER]: I can understand his confusion.
After the birth of the child, the father came to the house most days. He assisted with all aspects of the child’s care. This continued for several months without incident until the mother became concerned that the father had abused the child.
I conclude that this was a relationship of strong conflicting emotions but not characterised by violence by the father towards the mother.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
There is a very real possibility that further proceedings will be instituted.
An order could have been made for the child to live with the father as the ICL submitted should happen. The Family Consultant considered the possibility commenting that it would be hard to predict how the child would react. She concluded that if the father was attuned to the needs of the child and could meet them the child would develop a primary attachment to him.
I have decided not to risk the inevitable disruption of the attachment of the child to the mother against the possibility or even probability that the child could develop a primary attachment to the father.
I have concluded that the father himself does not represent an unacceptable risk to the child in any way. It follows that supervision is not necessary and should not continue. The child should not develop the idea that he cannot be alone with his father.
Unless the mother connects to professional help she is likely to dwell on the absence of supervision and generate fears about the safety of the child.
One future outcome is that the mother will become non-compliant with orders and withhold the child on the expressed basis that the father has harmed him in some way.
The father is likely to bring the matter back to Court in those circumstances either in respect of contravention or a fresh application for residence. It would be the appropriate course.
There is a real possibility that the mother especially if she does not have therapeutic support will react unhelpfully to the child in response to perceived threat.
There have been instances where the mother’s untested fears have driven her behaviour. Two of those are:
First her belief that the child was sexually abused by the father at a contact centre in October 2017.
On that occasion the mother had seen the child (then aged 10 months) sitting with his back to the father between his legs. The mother later rang and “asked if there was any way the service could enforce a different way [the father] could sit with [the child]. Mother expressed concern about past sexual abuse issues and felt that putting X in that area was grooming for future events.”[17]
[17] Exhibit 21
The worker reassured the mother both that she [the supervisor] was watching and that the position was a common one for infants who might topple over.
When taken to that report during cross-examination the mother was somewhat dismissive, “that was her sentiment.”
When squarely asked if the mother thought the sitting position of the father and child was sinister her response was “disconcerting”.
There is nothing in the material at all which supports the mother’s fears. I conclude that this is the mother applying her own standard of what should be permitted around a child and feeling disappointed by “third party slackness” as perceived by her.
It is also possible that the mother was deliberately making complaints to strengthen her case at that time which was for the father to have no time or communication with the child.[18] This was the first visit pursuant to interim orders made four weeks prior.
[18] Response of the mother filed 12/10/2017
The second example in November 2018 is that the mother took the child to hospital concerned that the father may have drugged the child during a four hour visit supervised by the paternal grandmother.[19]
[19] Exhibit 23
The child was examined by a triage nurse and assessed as “Alert. Nil on exam”.
The mother would have preferred blood testing for the presence of drugs. The hospital did not consider it necessary. The mother did not feel reassured.
Such reactions by the mother are unhelpful to the child. The need the mother feels to be protective is helpful, the extent to which she goes based on idiosyncratic interpretation or fear alone is not.
Parental Responsibility
The father proposed that the parties have equal shared parental responsibility although he accepted the recommendation of the ICL that he alone should have parental responsibility.
The mother proposes sole parental responsibility for herself.
The recommendation of the Family Consultant was that whichever parent the child lived with should have sole parental responsibility. It is fully comprehensible as a means of protecting the child from regular bouts of conflict.
I have concluded that the child should continue to live with the mother.
However there is a risk if the mother has sole parental responsibility that she will exclude the father from all decision making and information, that she may feel authorised by the Court to protect the child from the father in this way. That would lead to a poor outcome for the child. One consequence could be medical testing of the child for the reassurance of the mother. The child needs exposure to the best of each of his parents and protection from the matters which hold each of them back.
The parties are well capable intellectually of making decisions for the child. Certainly on a day to day to basis each should have sole parental responsibility for decisions about activities, clothes, food and contact with others.
I have taken the course of making orders about health and education which enable each party to have input on long term issues but restrain either from acting peremptorily.
Conclusion
Each of the parents, as set out above, has frailties which may, at times, adversely affect their capacity to meet the child’s needs.
However, in 2016 they together made a commitment to providing a good life for the child within the context of their own personal relationship having ended before his birth.
By these orders both parties have the opportunity to maintain a meaningful relationship with the child.
If the mother feels overwhelmed by fears about the safety of the child with the father it will be crucial that she seeks help to manage her emotions and reactions in order to protect the child.
I have found that the mother has cared for the child very well and he is flourishing.
However if there is a return by the mother to suspicion without professional reality testing, reactive confrontation based on fear not facts, and hostility towards the father, the child will be very badly affected.
He could lose trust and confidence in both his parents or just his mother if his own positive experience of the father does not fit with what the mother is telling him.
Provision will be made for the mother to provide the Family Report and these orders and reasons to a clinical psychologist/psychiatrist who she consults for therapeutic reasons.
The worst outcome for the child would be further litigation but that would be the inevitable result if the mother became emotionally uncontained and again decided to exclude the father from the life of the child.
The father is already established as a loving parent just as the mother is. The child needs the best of both his parents
Orders are made accordingly.
I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 13 September 2019.
Associate:
Date: 13 September 2019
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Injunction
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Procedural Fairness
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Expert Evidence
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Remedies
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