Fennessy and Gregorian (formerly Sanchez)
[2007] FamCA 1574
•19 December 2007
FAMILY COURT OF AUSTRALIA
| FENNESSY & GREGORIAN (FMLY SANCHEZ) | [2007] FamCA 1574 |
| FAMILY LAW - CHILD ABUSE - Finding of, Allegation, Sexual abuse FAMILY LAW - CHILDREN - Child related proceedings - Evidence relating to child abuse or family violence FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child |
| U & U (2002) FLC 93-112 | |
| APPLICANT: | MR FENNESSY |
| RESPONDENT: | MRS GREGORIAN (formerly SANCHEZ |
| INTERVENOR: | DIRECTOR GENERAL OF THE DEPARTMENT OF CHILD SAFETY (QLD) |
| INDEPENDENT CHILDREN’S LAWYER: | WILLIAMS LAWYERS |
| FILE NUMBER: | BRF | 5353 | of | 2003 |
| DATE DELIVERED: | 19 December 2007 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | COLLIER J |
| HEARING DATE: | 18 - 22 July 2005, 25 - 29 July 2005, 1 - 5 August 2005, 26 - 30 September 2005, 3 - 7 October 2005, 10 - 14 October 2005, 30 January - 3 February 2006, 29 May - 2 June 2006, 5 - 9 June 2006, 26 - 30 June 2006, 11 and 12 September 2006 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | SELF REPRESENTED |
| COUNSEL FOR THE RESPONDENT: | MR CANNING |
| SOLICITOR FOR THE RESPONDENT: | ANDERSONS SOLICITORS |
| COUNSEL FOR THE INTERVENOR: | MR FORREST |
| SOLICITOR FOR THE INTERVENOR: | CROWN LAW |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | MR LINKLATER-STEELE |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | WILLIAMS LAWYERS |
Orders........................................................................................................................................ v
Introduction
Brief Background
The Orders contended for by the Parties
The Father
The Mother
The Intervener
The Independent Children’s Lawyer
The Affidavit Material of the Parties
The Applicant Father
The Respondent Mother
The Intervener
The Independent Children’s Lawyer
Court Orders
The Father’s Case
The Mother’s Case
The Case of the Intervener
The Case of the Independent Children’s Lawyer
Alternative Orders
The Witnesses Who Gave Evidence before Me
Witnesses in the Mother’s Case
Witnesses in the Intervener’s Case
Witnesses in the case of the Independent Children’s Lawyer
The Evidence Before Me
The Father........................................................................................................................... 14
Ms C................................................................................................................................... 20
Ms B................................................................................................................................... 21
A Fennessy......................................................................................................................... 21
Dr Y..................................................................................................................................... 22
Mrs T.................................................................................................................................. 24
Detective G........................................................................................................................ 25
Ms K................................................................................................................................... 27
Mr Z.................................................................................................................................... 28
Mr U................................................................................................................................... 29
The Mother......................................................................................................................... 30
Mr Gregorian..................................................................................................................... 38
Sergeant L.......................................................................................................................... 41
Dr J .................................................................................................................................... 43
Dr S..................................................................................................................................... 44
Ms F.................................................................................................................................... 45
Detective R........................................................................................................................ 47
Mr X................................................................................................................................... 48
Professor N........................................................................................................................ 58
Ms D................................................................................................................................... 72
Ms M.................................................................................................................................. 72
Sequence of Events................................................................................................................ 73
Observation of the Parties and Mr Gregorian .................................................................... 75
The Father
The Mother
Mr Gregorian .................................................................................................................... 83
The Evidence Concerning the Sexual abuse of the Child................................................... 85
Can I determine the Perpetrator
The Issue of Unacceptable Risk
The Law to be Applied
Discussion
The Mother’s Application Against the Father to Restrain him from Further Proceedings and for Costs
The Intervener's Application for an Order Pursuant to S 64D (2) of the Family Law Act 125
The Intervener's Application for Referral of Papers to Attorneys General.................... 127
Orders
That all previous parenting orders in relation to the child L born in December 1995 be and are hereby discharged.
That the mother, MRS GREGORIAN, have sole parental responsibility for the subject child.
That the subject child live with the mother.
That the father, MR FENNESSY, spend no time with the subject child nor communicate with the subject child in any manner or fashion.
That the father shall not without the leave of a Judge of this Court, institute proceedings under the Family Law Act 1975 (as amended) in respect of any parenting orders concerning the subject child.
That leave is granted to any party within 28 days of the making of these orders to make an application for costs in respect of these proceedings.
That subject to order (6) above all applications and cross applications be and are hereby dismissed.
That all issues be removed from the pending cases list.
That all material produced on subpoena be returned not before 56 days from today.
IT IS NOTED that publication of this judgment under the pseudonym Fennessy & Gregorian (fmly Sanchez) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: BRF 5353 of 2003
| MR FENNESSY |
Applicant
And
| MRS GREGORIAN (formerly SANCHEZ) |
Respondent
REASONS FOR JUDGMENT
Introduction
This has been an extraordinarily difficult and protracted matter. The hearing has proceeded over a number of different stanzas. During the course of the hearing a number of applications have been made to me which I have refused, resulting in appeals to the Full Court of the Family Court of Australia. Indeed following an unsuccessful appeal against a refusal to disqualify myself the father did not participate in the final two days of hearing.
At the conclusion of those days (11 and 12 September 2006) orders were made for the filing of written submissions. The first set of submissions required to be filed by the Independent Children’s Lawyer were not delivered within time. The matter came back before the court on a further occasion (20 December 2006) where apart from anything else I made further orders for the filing of the written submissions.
Subsequently the father filed a further application for me to disqualify myself. I heard this matter on 8 March 2007 and delivered written judgment on 28 March 2007 which has been the subject of further appeal to the Full Court.
The submissions of the Independent Children’s Lawyer, the mother, and the intervening Department of Community Services have been received. The Independent Children’s Lawyer’s submissions in two volumes are highly detailed and extensive in their nature and scope.
The submissions of each of the mother and the intervener are far more modest.
The father has not as yet filed any submissions and has declined to provide information as to whether or not he proposes to file and rely upon any submissions. I do not anticipate that the father, having regard to the lapse of time that has now occurred will file any submissions. The father however has not formally confirmed his position. Accordingly I do not have before me anything that tells me specifically the orders that the father seeks. I am left to speculate in this regard, having regard to the manner in which the father conducted the hearing before me. As I will set out in further detail later in these reasons for judgment the father’s position in relation to both the mother and her husband appeared to change during the course of the proceedings.
The father by his own choice refused to participate in the concluding stage of the hearing. Further he has chosen not to provide any submissions as to the orders he seeks or indeed in the manner in which I should approach this matter generally in reaching a determination. He has had the benefit of the submissions of the Independent Children’s Lawyer, the mother and the intervener. To my mind the father would find it extremely difficult to assert that he has been in any way denied natural justice or procedural fairness in respect of the various orders now sought by each of the other parties.
It is unfortunate in the extreme that the hearing of this matter was extended in the manner that it was. To my mind that was largely because the father, who is the applicant, was determined throughout the hearing to ventilate his feelings of frustration, indignation, displeasure and what he claimed was a righteous sense of injustice in relation to the way this matter and other matters involving other of his children had been dealt with.
The matter before me involves the parties’ only child L. In respect of the child the father claims to be aggrieved and disadvantaged by the actions of police officers, departmental officers of the intervener, and by this Court in the way that the matter has been handled.
I made it clear to the father on a number of occasions throughout the trial that I was not conducting a Royal Commission into the activities of either the Queensland Police Service or the Queensland Department of Child Safety. The father at times chose to ignore this advice and continued throughout the hearing to maintain his position as that of an aggrieved party. This resulted in him attacking anyone, witness, counsel or judge, who disagreed with him or refused to accept his position as being correct in all regards. If his complaints were not immediately acted upon he became argumentative and hostile.
This is a matter where the pleadings, affidavits and other documents which came into evidence before me are very extensive. I will set out later in these reasons the applications and affidavits of the parties and their witnesses. In addition there were tape recordings and videos which were tendered to become part of the evidence and were listened to and watched during the course of the trial. I do not propose to set out the list of documents which became exhibits in the proceedings. The transcript itself runs to an enormous number of pages.
It is important for me to examine the evidence of the parties and witnesses who gave evidence before me. In his highly detailed and careful submissions to me, the Independent Children’s Lawyer deals at very great length with the evidence of the parties’ and their witnesses, both oral and written, and the further evidence in the trial. Whilst this material was of real assistance it does not mean that I have accepted without equivocation or examination that which is asserted in those submissions. The ultimate decision of course remains mine as I have said. I will identify the affidavit and other materials of those who gave evidence before me. I do not propose to reproduce those materials here. Further I do not propose to set out in great detail the evidence of the parties and the witnesses before me. Transcript of the evidence will speak for itself if required.
However I believe that it is necessary for me to refer to what I consider to be relevant and important portions of the evidence of the parties and witnesses so as to be able to form an opinion of the credibility of each of the witnesses and determine what weight I can place on their evidence, and to ultimately reach a decision in this matter.
As I have already tried to indicate this trial concerns what is best for the future of the parties’ only child. The matter for a number of reasons has been wide ranging. Evidence that would not normally be heard in a case such as this has formed part of the background to the matter and has taken a very considerable period of time and made up a very large part of the body of evidence that has come before the Court. Much of the material that came into evidence before me was not of assistance in reaching a determination of the parenting issue I am required to resolve.
Brief Background
A brief background to the matter is as follows:
·1940 father born.
·1969 mother born.
·Parties commence a relationship in January 1995.
·About May 1995 the applicant left Australia and went to the Philippines returning on about 10 September 1995.
·December 1995 the subject child L born.
·1996 father sentenced to imprisonment.
·1998 application granted home detention. Parties recommenced cohabitation.
·February 2000 the applicant involved in family law proceedings between himself and his previous wife.
·13 January 2003 the parties separated. The mother left the parties’ residence and the child remained with the father.
·14 January 2003 the mother removed the child from the premises then occupied by the father and child.
·24 January 2003 the father removed the child from the mother and from that date the child remained with the father.
·August and onwards 2003 there are allegations made initially by the father of abuse of the child by her stepfather, followed by allegations by the mother of abuse of the child by her father. There then ensue police and departmental enquiries with a number of interviews of the child being undertaken at her home and at police stations. This matter was the subject of a very large body of evidence in the trial.
·On 15 July 2004 Orders were made by Justice Barry which placed the child in the care of the mother with no contact by the father.
The Orders contended for by the Parties
The Father
The father commenced the proceedings by his Application filed on 11 December 2003. In that he sought orders relating to the return of a passport for the child and her various belongings. An issue in relation to child support was raised. On that same day the father filed a Notice of Child Abuse.
On 3 February 2004 the father filed a Reply in which he sought a number of orders involving the sale of a computer, restraining the mother from having contact with the child at school, the mother to pay child support, the wishes of the child be observed in respect of where the child goes to live.
The father, as I have said, has declined to make submissions in this matter. However I can only assume that he still maintains his position at trial, and contends that the child should return to live with him and thereafter spend some time with at least her mother. For matters that will become apparent in these reasons for judgment I am not longer able to state with precision what it is the father asserts should happen so far as the mother spending time with the child is concerned. I am satisfied that the father’s last known position seems to be that he makes no complaint about the mother being able to spend time with her daughter. However I remain confused as to precisely what the father seeks in relation to Mr Gregorian. I cannot be sure whether or not the father wishes to exclude the mother’s husband from any form of contact with the child. This uncertainty arises from the evidence given by Professor N and the father before he withdrew from the proceedings and is not clarified by any subsequent submission by him.
Further I am not sure what the father seeks as to the time he should spend with the child in the event that the child remains with her mother. I am however satisfied that the father’s position quite clearly is that even if the Court was to make orders that he was to spend time with the child supervised at a contact centre he would not avail himself of any such time.
The Mother
The mother’s first proposed orders are to be found in her Response filed on 15 January 2004. She sought an order that there be no contact between the father and the child. She sought a series of injunctive orders which had the effect of restraining the father from coming into contact with her or the child.
The mother also brought an Application of 17 July 2004 in which she sought an injunction against the father from commencing further proceedings without leave of the Court.
The mother at all times in the hearing before me sought to maintain her position that the child should live with her. During the course of the hearing there seemed to be some suggestion that the mother was indicating that there should be supervised contact at some later time with the father. However in her counsel’s written submissions to me it is made abundantly clear that the mother seeks that the father spends no time with the child.
The mother continues to seek an order that the father be restrained from commencing further proceedings without leave of the Court.
The mother in her applications has also sought an order that the father pay her costs of and incidental to these proceedings. I do not propose to deal with the issue of costs at this stage. However I will grant leave to any of the parties, including the intervener and the Independent Children’s Lawyer, to make any application for costs that they wish, provided that such application is made within 28 days of the making of my orders.
The mother further seeks an order that the father, pursuant to section 118 of the Family Law Act 1975 Cth (the Act) be restrained from commencing any further proceedings without leave or until he pays any costs of the mother relating to these proceedings.
The Intervener
The intervener supports the position of the mother so far as the child is concerned. That is to say the intervener Department contends that the child should live with her mother and spend no time with her father. Further the intervener supports the mother’s application that pursuant to s 118 of The Family Law Act 1975 (Cth) (“the Act”) the father ought to be restrained from commencing further proceedings without leave of the Court first being obtained.
Counsel for the intervener, however, goes further in his submissions. He contends that in the circumstances of this case it would be appropriate for the Court to make an order pursuant to the provisions of s 64D(2) of the Act providing that an order that I might make may only be varied by a subsequent order and not a parenting plan.
Finally the intervener seeks the referral of this matter to the Commonwealth or State Attorneys General for the purpose of dealing with the father for: 1) perjury; 2) criminal activity involving damage to the motor vehicles of the mother and her husband; and 3) for impersonating a departmental officer in his dealings with Ms K.
The Independent Children’s Lawyer
The Independent Children’s Lawyer submits that the father has not demonstrated that it is in the child’s best interest to live with her father. Further he does not recommend that it is in the child’s best interest for there to be supervised time with the father and thus as I understand his position he submits that the father should spend no time with the child.
The Affidavit Material of the Parties
The Applicant Father
·Father’s affidavit filed 11 December 2003.
·Father’s affidavit filed 3 February 2004.
·Father’s affidavit filed 19 February 2004.
·Father’s affidavit filed 28 May 2004.
·Father's affidavit filed 28 July 2004.
·Father’s affidavit filed 30 July 2004.
·Father’s affidavit filed 12 August 2004.
·Father’s affidavit filed 15 October 2004.
·Father’s affidavit filed 29 November 2004.
·Father’s affidavit filed 24 December 2004.
·Father’s affidavit filed 30 June 2005.
·Father’s affidavit filed 17 July 2005.
·Affidavit of Ms A filed 25 July 2004.
·Affidavit of Ms B filed 25 November 2004.
·Affidavit of Ms C filed 1 February 2005.
·Affidavit of Mrs T filed 5 July 2005.
The Respondent Mother
·The mother's own affidavit filed 13 July 2004.
·The mother’s further affidavit filed 4 July 2005.
·Affidavit of Mr Gregorian filed 5 July 2005.
The Intervener
The intervener relied on the following affidavits:
·Affidavit of Sergeant L filed 14 July 2005.
·Affidavit of Detective R filed 14 July 2005.
·Affidavit of Dr J filed 14 July 2005.
·Affidavit of Ms F filed 14 July 2005.
·Affidavit of Dr S filed 17 July 2005.
The Independent Children’s Lawyer
The Independent Children’s Lawyer relied on the following affidavits:
·Affidavit of Mr X filed 23 June 2004.
·Affidavit of Mr X filed 7 June 2005.
·Dr N provided three reports for the assistance of the Court. The first of those was dated 27 July 2004; the second report was dated 10 November 2004; and the third report was dated 26 July 2005.
Court Orders
A significant number of orders have been made in this matter.
·On 25 February 2004 Judicial Registrar Smith made orders in respect of the father’s application of 11 December 2003. Subsequently the father sought to review and stay those orders.
·On 24 March 2004 the matter came before Justice O’Ryan where orders were made inter alia under the Magellan program.
·On 27 April 2004 the review of the Judicial Registrar’s Orders was heard by Justice Jordan.
·On that same day the father lodged an application for stay of proceedings of the Orders of Justice O’Riley of 24 March 2004.
·That application for stay was heard and determined on 6 May 2004.
·On 18 May 2004 the father lodged an appeal of the Orders of Justice Jordan of 27 April 2004.
·Thereafter on 15 July 2004 orders were made by Barry J placing the child with the mother and providing for no time with the father.
·On 3 August 2004 the matter was dealt with by O’Riley J on and exparte basis.
·On 1 December 2004 the matter was heard by Jordan J on an interim basis.
·On 8 February 2005 an appeal of the Orders made by Justice O’Riley on 3 August 2004 was heard.
·9 March 2005 an appeal of the orders by Justice Jordan on 1 December 2004 was heard.
The Father’s Case
The father’s case is that the child must be returned to him to ensure that she can be nurtured in the best possible way. As I understand the father’s case from his presentation, he seems to be asserting that the mother, whilst having some faults, is not a bad mother and has some part to play in the child’s life.
His position so far as the mother and her husband were concerned appeared to change during the course of the trial.
The father’s case at the beginning of the hearing was that the mother’s present husband, Mr Gregorian, is in effect a paedophile and has no part to play in the child’s life in any circumstance whatsoever. The father’s attitude towards the stepfather seemed to change as the hearing proceeded. This was so particularly when regard is had to the evidence of Professor N.
It is a significant part of the father’s case that leaving the child with the mother would be to compound what he sees as the wrong done him by Justice Barry in his orders. Those orders he says were based on entirely erroneous material, the blame for the compilation of which he lays at the feet of several people.
Throughout the hearing before and even after the conclusion of the evidence the father was persistent and unrelenting in seeking that he be given immediate time with his daughter. The father relied largely on the evidence of Professor N who was called in the Independent Children’s Lawyer’s case as an expert witness. I will of course return to Professor’s evidence later in these reasons for judgment.
It was the father’s case that the child must be returned to him as soon as possible. Throughout his oral and written material he was at pains to point out that he was in a superior position to that of Mr and Mrs Gregorian to care for and raise the child. His assertion was that the mother in these proceedings had health difficulties particularly hepatitis B. He criticised the mother for erratic behaviour and mood swings.
It is a fundamental part of his case that the child was the victim of sexual abuse at the hands of Mr Gregorian, who is now the mother’s husband.
He relies upon his relationship with, and care, of his three older daughters N, A and E to demonstrate, what he would assert to be his proven capacity as a parent. It is his case that following the separation of the parties the mother was indifferent in seeking time with the child and that she preferred to have him care for the child and assume responsibility for the child while she, the mother, worked.
The father seemed somewhat preoccupied in his early affidavit material to obtain the return of items of furniture and personal effects of the child or which were used by the child.
The father filed a notice of risk of abuse on 11 December 2003. In that he makes significant complaints concerning the mother’s behaviour alleging that she smoked and drank with Mr Gregorian at both the mother’s premises and the premises at F. That notice speaks of the mother removing the child’s clothing and not preventing Mr Gregorian from sexually dealing with the child.
The father was critical of the mother for removing the child from school. The father asserts he sought help and the child was returned to school on 17 February. Thereafter he says the child had contact with her mother later in February.
It was part of the father’s case that he would seek to have the mother’s bankruptcy set aside because she had committed fraud in regard to her dealings with the relevant authorities in this regard. The father asserted in his affidavit filed 3 February 2004 at paragraph 93 that he encouraged contact in the hope that the mother would wake up to herself and put the child first instead of being absorbed by chasing a stream of men.
It was the father’s contention that the child despised her stepfather. In that same affidavit the father goes on to express his reluctance for the child to have any contact with her stepfather. He asserts also that the mother is effectively a prisoner at Mr Gregorian’s property. The father seems to suggest that the mother uses the child as an emotional crutch when she is experiencing problems of her own. He seemed to suggest that the mother had contemplated suicide but that he nursed her through a period of instability and mood swings and her condition improved.
In his affidavit filed 28 July 2004 the father asserted that the child had told him that her mother had lied to her and promised her that if she wrote what she was told and spoke into a tape recorder the mother would not inform police and she, the mother, would come back and be a real mum again. The child wrote and dated a short statement thereafter.
The father throughout his affidavit material sought to stress his superiority as a parent for the child. He was given to describing himself in glowing terms whilst at every opportunity denigrating the mother and certainly Mr Gregorian. He claims that he is accordingly the superior person and parent to have the care of the child.
His position from his written material was apparent as to the disclosures he says were made to him by the child following the time spent with her mother at Mr Gregorian’s home at F.
However this was not the totality of his case.
The father is incensed at the treatment he received at the hands of police officers and the Department and particularly at the hands of Mr Justice Barry. The father in his written material, as later in his oral evidence, took every opportunity to criticise and belittle anyone whom he felt had acted contrary to his interests. Moreover it appeared to me that the father had formed a belief that as the actions that had been taken against him were unfair, unjust and improper that it was a natural consequence of him disproving the allegations against him, and demonstrating that the evidence against him was false, that the child would be restored to him. The father certainly appeared to conduct the proceedings on the basis that the persons whom he perceived had acted incorrectly, wrongly or in bad faith would be castigated for their misdeeds. Certainly he was anxious to persuade the Court that he was an innocent victim of behaviour of others designed to have a maximum detrimental effect upon him and by implication the child.
His determination to conduct the proceedings in this manner caused it to become highly unpleasant and demeaning for those the father cross examined. The father was not prepared to be controlled or constrained by usually acceptable standards of courtesy and behaviour.
More importantly it seemed to me that the father was far more concerned with dealing out what I believe he saw as proper retribution for those he believed had wronged him, and in particular establishing that he was the victim of a system which he perceived had deliberately set out to work against him.
The Mother’s Case
It was the mother’s case that she had met the father in the Philippines in 1994 and thereafter they commenced a relationship but never married. She was the father’s partner during the period of a number of the court cases involving his former wife, Mrs M Fennessy. The mother asserts that the appellant was convicted in the District Court in June 1996 of a number of offences involving his former wife. He was later sentence and appealed unsuccessfully.
She asserts that in May 1998 the father was granted leave from prison and from November 1998 had the benefit of home detention. He was released on parole in April 1999. She supported him in early 2000 in a trial in the Family Court involving his former wife, concerning their children.
The mother asserted that on 13 January 2003 she left the parties’ home. The child remained with the father. The next day she went to the home and removed the child. The father then removed the child from her on 25 January 2003. She thereafter experienced difficulty, she says, in seeing the child.
It is the mother’s case that on 26 August the father and the child attended at the … health facility. They brought the mother flowers, prawns and strawberries. The next day the mother noticed a scratch on her car. Later that day the child went to the health facility and gave her mother mail which had been opened. On 28 August the mother asserted there had been a telephone conversation with the child who asked to be picked up after school and confirmed that her father had driven to “your place” and knows where you live.
The mother says that on 29 August she attended with Mr Gregorian in the vicinity of O school to collect the child. There was then what can only be described as an incident, with the father refusing to allow the child to go with her mother. The mother says that on return to her husband’s motor vehicle it had been scratched.
On 31 August the father attended the health facility to serve the mother with a minor debt claim.
On 6 September 2003 she made a statement to police. On 11 September 2003 she was contacted by officers from the Juvenile Aid Bureau and on 13 September 2003 she made a statement to police which became an annexure to her affidavit.
That statement sets out what she asserts occurred. She says the child was never out of her sight, and she did not pull the child’s pants down. She asserts that her husband did not touch the child while she was there.
On 18 September she contacted the department of families and spoke to Ms F.
On 2 November the mother asserts there was a telephone conversation between her and the father where she alleges, after an argument, the father said that she would experience exactly what happened to …’s life (the mother says that this refers to the father’s former wife). The father then suggested to the mother that she should settle down and that he did not want to hurt her. He asked the mother to discuss her problem/s with him. She spoke of the purchase of a diamond ring.
The mother says that on 24 November she was made bankrupt on her own petition.
It is the mother’s case that on 14 December 2003 the child told her that she had been told what to say by the father. At this point the child wrote in the mother’s diary. On 15 December she contacted the department of families and on the same day attended at the NL office to provide them with a copy of the note.
She stated that the child told her that her father had questioned her.
The mother’s case as I apprehend it is that she is the person best able to care for the child. It is the mother’s case that the father should be excluded from the child’s life. To this end she submits the child live with her and spend no time whatsoever with the father. The mother’s case is based on the unacceptable risk that she says arises in the father’s household. Not only is it asserted that there is an unacceptable risk of sexual abuse at the hands of the father she contends that the father’s personality and behaviour are such that he would undoubtedly harm the child were she to live with him. She also puts as part of her case that the father has been violent to her in the past and contends that this is a matter to be taken into account.
The Case of the Intervener
In the intervener’s case, as well as extensively cross examining witnesses called by the other parties, the intervener introduced evidence from police officers (Sergeant L and Detective R), medical practitioners (Doctors J and S) and departmental officer Ms F. The police officers gave evidence of their dealings with the Fennessy family and the father. Sergeant L had been the investigating officer following Constable G. She conducted interviews with the child. Detective R had conducted interviews with the child. Her evidence was critical of the father. The medical evidence of doctors J and S was of great significance in this case and I will refer to it later in these reasons for judgment. Ms F was a departmental officer who gave evidence of her dealings with the Fennessy family. She was subjected to a paroled and antagonistic cross examination by the father.
At the end of the day the case presented by the intervener was that the child was at risk in her father’s household and accordingly there must be no order that she live with the father or indeed spend time with him. Thus the intervener supports the position of the mother in that it is the intervener’s case that the child should live with the mother, who should have sole parental responsibility for her, and the father should have no time with the child.
The intervener in submissions as I have already referred to, sought orders concerning referral of papers to Commonwealth or State Attorneys General. This related to matters that he asserts were raised during the course of the evidence. Further the intervener sought an order that prevented any orders that I might make being varied by the parties entering into a parenting plan. I will return to these matters in my reasons for judgment.
The Case of the Independent Children’s Lawyer
The Independent Children’s Lawyer called evidence of Mr X, psychologist, and Dr N who both dealt in great detail with their assessment of the father and his mental health. I will return, in detail, to their evidence later in these reasons for judgment.
The Independent Children’s Lawyer again supported in his detailed submissions the proposition that the child should live with her mother and spend no time with the father.
Alternative Orders
Having regard to the decision of U & U[1] in the High Court of Australia I am satisfied that I must not only consider the various alternatives for orders proposed by the parties, but additionally I must have regard to any other set of orders that may be in the best interest of the child. Clearly I am not bound by the proposals of the parties in the orders that I would make.
2 (2002) FLC 93-112
The Witnesses Who Gave Evidence before Me
Because of the way in which the matter was conducted I heard the witnesses who gave evidence in other than a strict order. From time to time it was convenient to interpose witnesses and not take them strictly in order. Additionally some witnesses gave evidence in a number of stanzas for various reasons including the interposition of other witnesses.
The father commenced his evidence and Ms C was subsequently interposed.
The father then returned to the witness box and gave further evidence. He returned to the box at the close of his case and then gave further evidence.
Between those two episodes of the father’s evidence I heard evidence in turn from Ms B, Ms A Fennessy (who I allowed the father to call subject to him providing a statement by her. At the time she gave evidence Ms A Fennessy was a child under the age of 18 years), Dr Y, Mrs T, Constable G, Ms K, Mr Z, and Mr U. Mr U was a witness who gave his evidence in several stanzas.
The father sought to have evidence called from his first wife. Throughout the course of the hearing the father endeavoured to put this witness before the court and was unable to do so.
Witnesses in the Mother’s Case
In the mother’s case there was her evidence and that of Mr Gregorian who gave his evidence over three separate occasions.
Witnesses in the Intervener’s Case
I heard evidence from Sergeant L and a number of tapes were played in court.
There was then evidence from Dr J, Dr S, and Ms F who gave her evidence over a number of occasions. Finally there was the evidence of Detective R.
Witnesses in the case of the Independent Children’s Lawyer
In the Independent Children’s Lawyer’s case evidence was taken from Mr X on a number of occasions, Professor N in a number of occasions, from Ms M, and from Ms D.
A thorough and exhaustive examination of both the oral and documentary evidence of the witnesses has been made by the Independent Children’s Lawyer and placed before me. I am indebted. That does not of course mean that I accept the submissions made without question. It is therefore necessary for me to examine the evidence of the witnesses to enable me to make findings upon the necessary issues in this case or put another way; the issues necessary to reach a final determination in this case.
The Evidence Before Me
The affidavit evidence of the father which I have identified earlier in these reasons for judgment mounts an attack on the mother, her husband, and departmental officers and police. In his affidavit material the father makes it clear that it is his view that Mr Gregorian should have no contact with the subject child. The father has made it clear in that material that he regards police and departmental officers as people not worthy of their respective positions.
So far as his evidence before me was concerned the father chose not to give any further evidence in chief. He was then cross examined in turn by counsel for the mother, the intervener and the Independent Children’s Lawyer. His evidence to the mother’s counsel in cross-examination was relatively short.
The father gave evidence that his relationship with Ms C was that she was his girlfriend and they were not living together but hoped to do so in the future. He said that in future it was hoped that he and Ms C would have homes in the Philippines and in Australia. He said that Ms C had not met the child.
He gave evidence that during the relationship with Mrs Gregorian the child frequently slept with them and was not discouraged. He indicated that if the child returned to live with him she would continue to sleep in his bed. He indicated that he could not effectively dissuade her.
He gave evidence about his older daughter A rowing on three occasions a week and being awake at 4am. He described A as reliable, honest and truthful.
The father had no knowledge he said of any outstanding school fees.
The father made it clear that he would not accept an order for supervised contact and that if such an order were made he would not avail himself of it.
He suggested that Mr U could be actively involved in his being reunited with the child. He believed the sooner she was received the better.
He was asked whether he would accept the situation if the child wanted to remain with her mother. He said he would not and that he would not allow the matter to rest. He said that if Professor N were to say that the child wanted to remain with the mother he would not accept that.
He was asked about a number of occasions when children had stayed overnight at his home. He indicated that he was a vigilant parent. He indicated that he believe his parenting skills to be superior. He gave evidence of his older daughter A being involved with a young man who he found with A in her room. He asked her what she was trying to do, was she intending to bring the family to the attention of DOCS again?
He appeared to suggest that the mother was using the child as some form of emotional support. He conceded that whilst they had lived together the mother was a good parent but now he had concerns in this regard. He said she had a very low tolerance for alcohol. He claimed that his parenting ability was in the top 5-10% of the population. He indicated that he had paid no monies in child support.
When the father was cross examined by counsel for the intervener he indicated that he would not pay any money to the mother whilst he was unable to exercise contact. Subsequently he appeared to indicate that he would contribute to the child’s support provided that it was on his terms.
Whilst conceding that the mother and her husband could provide the necessities of life he made it clear it was not anything like the standard he could provide.
He said that when he had met his former wife Mrs M Fennessy he was 47 and understood that she was 17. Her visa status changed in 1988 and they married in 1993. After some considerable reluctance the father conceded there was a form of domestic violence order made against him in September 1994. Notwithstanding that he had knowledge of the order he did not keep away from his former wife.
He agreed that he had selected Mrs Gregorian by means of a photograph provided by her sister. He denied that he had ever indicated to Professor N that he felt he had been suckered into the relationship with the mother. He conceded he may have been hinting at such a situation. The mother’s visa was originally a visitor’s visa changed to a criminal justice visa given to a person to give evidence in criminal proceedings. Thereafter she obtained permanent residency on the basis of her relationship with the father and being pregnant.
As to criminal offences in 1995 the father denied any wrongdoing. He suggested he did not know why he was arrested at that time. I find this highly improbable. He agreed that in March 1995 his former wife’s house was broken into. He agreed that he pleaded guilty to counts of breaking and entering and a separate count of stealing. He was again evasive as to the details of the charge to which he pleaded guilty. When he was asked about discussing a second break in with a police officer acting undercover the father indicated that it was not his idea but in some way he was enticed into it.
He agreed that he had left the country and absconded from bail.
He subsequently denied allegations that he had threatened his former wife with a knife in September 1995.
He conceded that he was convicted by a jury in March 1996 on two counts, one of breaking and entering and one of assault occasioning actual bodily harm. He agreed he was sentenced to terms of imprisonment of 15 months and three months.
In June 1996 he pleaded guilty to breaking in the night time and stealing. He defended a charge against him of stalking with circumstances of aggravation. This related to the threats with the knife. He was incarcerated from November 1995 until 1998. However he sought to assert that he was virtually out of prison for the majority of that time because his special skills were used by the Department and he was given important and significant tasks to perform. As I understood his evidence to counsel, he believes he was unjustly convicted and sentenced.
His evidence as I understood it was that he had kept the child with him when the parties separated and that the mother was content to leave the child with him so she could work.
The father maintained his denial that he had at any stage scratched the mother’s car or the car of her husband. As to the child saying that he had done so he indicated that she had been coached.
His evidence as to what the child had told him was related in terms of the child initially complaining about the mother smoking. Clearly it was his assertion the child had said the smoke was hurting her mouth and eyes and that it smelt sweet and strong.
The father spoke of the child telling him on either Wednesday or Thursday that she hated or did not like seeing mummy have sex.
He was questioned about the child seeing her mother have intercourse and conceded that he asked specific questions. He said the child said that her mother had no clothes on and her stepfather had no clothes on. This evidence is to be found at page 437 of the transcript.
The child further gave explanations concerning an incident with the child in the bath. The child alleged that her stepfather came in naked, that she had told her mother and she reassured her it was alright.
It was his evidence that the mother had undertaken she would not take the child to Mr Gregorian’s house. He reported the child telling him that her mother and Mr Gregorian were smoking and she could not breath. He took the child that night to locate where she had been taken. Thereafter he rang the police.
He agreed that he had made a search to obtain details of the property. The father related what he said the child had told him about something occurring in the bath. After some uncertainty as to whether it was bath or shower he reported the child as saying she was having a bath and the stepfather came in and we had no clothes on. The stepfather then touched her.
The father gave evidence that on the afternoon of 29 August where there was to be a rehearsal for the child’s holy Communion the mother had agreed to come and meet the child at 3pm.
The father had a tape because he said he was concerned allegations might be made against him.
The father’s evidence is that Mr Gregorian indicated that they were there to pick up the child and he (the father) replied you won’t be picking up anybody. I have heard what purports to be a tape of that episode and I find it hard to distinguish and identify the voices that I hear in the earlier exchanges. Subsequently however I have no difficulty in identifying the father’s voice as the loud and aggressive one that I hear. The father denies that he walked in the vicinity of Mr Gregorian’s car and that he caused any damage to it.
The father then involved a Sergeant V who said he would ring someone at the Juvenile Aid Bureau at NL. The father then rang Sergeant E whose name had been supplied to him by Sergeant V.
The father did not offer any real explanation as to why he had not contacted the department following the disclosures made to him. He said that he had a tape playing when he talked to Sergeant E. He said that he had a tape playing when he spoke with the child on 4 September 2003 before he was advised there would be an interview conducted.
These and other tapes became matters of significance in the proceedings. The father indicated that it was his belief that others would seek to introduce them into evidence.
The father was cross examined with some vigour as to why he had not transcribed tapes that he had made of the child making and repeating disclosures of sexual abuse. As I understand he seemed to indicate that it was probably negligence on his part.
He was asked about his belief as to what had occurred to the child. He indicated that notwithstanding he held strong beliefs there did not appear to be much he could do about following the investigations that had been undertaken by the department.
He made it clear that he believed the child had been abused but said he did not know by whom. The father as I understood his evidence made it clear that the only person he suspected of committing or perpetrating any abuse on the child was her stepfather. In exchange with me, and as I understand it, the father conceded that it had been part of his case that the child had been abused by her stepfather but when asked “is it now?” he replied “I cant press that, no.” He went on to say that he could not press it because the police had investigated it and he could go no further. Later he said that the situation was that it was not him and therefore it had to be somebody else and it is probably the stepfather.
The father accepted that he had obtained the mother’s mail from the caretaker of her previous address. On 26 August 2003 he took the mother flowers, prawns and chocolates at her work. He did not raise the allegations with her. He attended the mother’s workplace on 31 August. This was to serve a second minor debt claim on the mother.
The father was asked about a complaint to the mother’s employer concerning her being hepatitis B positive. He stated that on the advice of Queensland Health he had made contact with the head office of the health care facility. His evidence was that he had not identified the mother but believed his notification would lead to some form of random testing which would reveal her positive hepatitis B status. He also made some reference of his concerns about substantial issues not related to drugs and this he said was in respect of unsafe sexual practices.
He agreed that he had approached the mother’s trustee in bankruptcy in an endeavour to expose what he described as her fraud and misstatement.
He was asked about his dealings with a Mr H a former boyfriend of Mrs M Fennessy. He confirmed that he had raised with Mr H unacceptable behaviour in respect of his children. He told this Court that he was very clear in his criminal trial as the manner in which he had dealt with Mr H. Surprisingly he does not appear to have confronted Mr Gregorian in a similar fashion when he asserted that Mr Gregorian was the perpetrator of abuse on the child. There is however a similarity to be seen in his reaction to Mr H and his subsequent reaction to Mr Gregorian in accusing them of wrongdoing.
He was asked about obtaining a domestic violence order which did not mention Mr Gregorian. He said that it had been a matter for the court as to what protection the court was to provide.
He denied that he had contacted Mr Gregorian’s father to obtain information about Mr Gregorian.
He indicated that he wanted the Court to severely chastise the mother and threaten her and her husband and tell her she must never come back to court again. He indicated that the Court process involving the child should cease. He indicated that the child would not be distressed if she were returned to live with him. However he believed she may have in some way been affected and that the mother had filled her head with allegations.
The father was questioned about a statement reported by Dr Y that the medical examination of the child had been inconclusive. The father was cross examined regarding assertions made by him that no judicial officer had made adverse comment about him. He did accept that which was put to him, that Judge Robinson of the District Court had found him to be a liar and to have misled the jury by providing false evidence. The father indicated it had been the only occasion he had received adverse comments.
The father was asked why having regard to his strong feelings of antipathy toward the stepfather he offered him employment. He explained this by suggesting he was trying to provide a regular income for the stepfather and by inference the mother.
The father confirmed that his relationship with the Department was extremely poor. He made particular mention of a Ms O, who did not give evidence before me. He said that his attitude to the department might be categorised as open warfare. He agreed his material demonstrated contempt for the Department.
At the conclusion of the father’s evidence I was left with the clear impression that he was a man who would neither brook nor tolerate any disagreement with his views. I was however confused as to precisely what his position regarding Mr Gregorian was. He seemed initially to be abandoning his claim that Mr Gregorian was the sexual abuser but then restating that it was most probable that any abuse suffered by the child had been at the hands of her stepfather.
I was also puzzled by his apparent willingness to exonerate the mother from any responsibility or blame in respect of that which had allegedly occurred.
It was clear to me that the father was an implacable enemy of the department and officers within the Department and was determined to do all he could to criticise, embarrass and denigrate officers of the Department.
I was also satisfied from the concessions that were ultimately made that the father had resorted to criminal behaviour when it suited him to achieve his ends. What cannot be ignored is his absconding whilst on bail. To my mind and conceding that these events are now at least ten years in the past they show that, at least at the time they were committed, the father was prepared to act outside the law and to use unlawful means to obtain the results that he desired.
I found him to be an intelligent man, who seemed to understand the questions being asked of him. However throughout the hearing and on a number of occasions I became concerned as to whether the father could hear what was being said. From time to time he was provided with the use of hearing assistance, which he used occasionally. My concern however is that from time to time he did not hear what was being said and yet refused to acknowledge that was so. From time to time however the father did choose to use his poor hearing as an excuse.
The next witness to give evidence was Ms C the father’s now wife. She gave evidence on a number of occasions. She has not met the subject child. She had some contact with A. She has not met the mother.
Part of her evidence was to demonstrate the father’s humanitarian behaviour in the Philippines. She spoke of the father assisting a family or families in the Philippines. She gave evidence of the manner in which the parties met and how their relationship progressed. There was evidence about the father giving her money for safekeeping and there was some confusion about what effectively was done. Clearly Ms C dealt with the father’s money to her benefit.
The evidence of this witness all in all was somewhat confusing and left me with some concerns as to the accuracy of the version provided by this lady. I am satisfied that the witness supports the father in his endeavours to have the child live with him. I am satisfied that she has been a successful business person in the Philippines. It seems to me clear that her view is that the parties, that is she and the father, will move between Australia and the Philippines, spending periods of each year in each place.
However I am not satisfied, despite her observations of the father’s actions and activities in the Philippines, that her attempt to give evidence as to the father’s capacity as a parent can assist me in this matter.
The father called in his case Mrs B. She had sworn an affidavit in the proceedings and as I understand it was called to give evidence as to the father’s capacity as a parent. She also gave evidence which I was not able to accept concerning the care she gave the older children and how she minded the children on occasion when the father was overseas. To my mind Mrs B was a witness who was prepared to assist the father in his case, but in reality was unable to provide any real assistance to the Court.
The next witness in chronological order was the father’s child Ms A Fennessy. She is the daughter of the father but not the mother. The father had tendered a document setting out the evidence that he anticipated she would give. As she was 14 years of age at the trial leave was required for her to give evidence and this leave was granted.
It is clear from answers given that the father showed A documents relating to these proceedings. Ms Fennessy was concerned as it was asserted she was the only person who could comment on the relationship between the father and the subject child.
Her evidence established that the father had had contact with her and her sisters whilst they lived with their mother.
Overall the evidence of the child was not of great assistance to the father. She gave evidence of her growing relationship with Mrs C. On the whole I am not able to be satisfied that the witness and Mrs C were at the time of the evidence well acquainted and other than minimally involved. Of interest was the fact that at the time she gave evidence A was not aware of any details of the marriage between her father and Mrs C.
The father endeavoured to have A give evidence as to the mother’s parenting. To my mind this attempt was not successful.
A’s evidence confirmed that the father left his two elder daughters in Australia whilst he undertook a number of trips to the Philippines. The children, left on their own, lived a lifestyle moving between houses of friends. There appeared to be no form of supervision of them. The girls held a party at their home which resulted in the property being significantly damaged. I am satisfied it was as a result of this damage that the family was evicted from those premises.
Under cross examination the child was taken with particularity to where she had lived whilst her father was overseas. It was quite apparent that the child did not indeed stay where she indicated she proposed to stay.
Initially she sought to convey, in confirmation of what the father had asserted, that she had stayed with school friends. However I am satisfied that when asked by the father or rather when discussing with her father where she might stay at what she described as a family conference she said that she had asked her father if she could go away for New Year and thereafter tell him where she was staying and at that point of her evidence she said that she had never told her father that she was going to stay with the B family.
When it was put to her that she had given evidence that the father had made arrangements for her to stay with her friend … at one or other of her parents place she agreed that that was what had been said. When asked if it was true she said no. She said that to the best of her recollection her sister had indicated she would stay with friends … and ….
Later she said she did not tell her father that she was going to stay with the B family.
She also gave evidence concerning that which occurred between her father and Mr Gregorian in the vicinity of Mr X’s office. Clearly she indicated that her father had been the subject of some form of physical assault or intervention by Mr Gregorian. She gave to my mind misleading evidence about her father’s impending marriage to Ms C. She gave evidence of preventing the younger children from watching a pornographic video.
The child gave evidence that she hated her mother. The reason given was “she put us in that hole.” The witness suggested this was because she made up allegations. It was clear that the child had obtained some information from documents shown to her by the father. A sought to assist her father. However she was at best an unreliable, if not a deliberately untruthful witness. I am not able to accept her evidence in support of her father as an ideal parent. Further her evidence of the father’s relationship with the child was of little assistance to me.
The next witness who gave evidence was Dr Y. He had examined the father and produced a report dated 13 October 2004. I am satisfied that doctor was not provided with material then in the father’s possession or control that might have assisted him to obtain a better overall understanding of the father’s situation. There were reports, by then of some antiquity of Dr K of October 1997 and others that may well have assisted Dr Y.
Of significance is the statement made by the father to doctor that he had endeavoured to have the complaint involving the child investigated, but he was told the result of a physical examination was inconclusive. I accept the submission of the Independent Children’s Lawyer that it cannot be accepted that the father had any doubt that the report of doctors J and S established that the child had been sexually abused.
The father was very brief in his recounting of criminal activities on his part which led to his imprisonment.
It also appears that he told Dr Y that he was granted a degree when as I understand the father’s own evidence this is clearly not the case.
Dr Y in his report said this:
“Although I found him forthright and mildly garrulous I did not consider he showed the features of a narcissistic personality disorder during my examination of him.
He appears to be a passionate man and it would have some obsessional traits. This indicates that he would be fairly unrelenting in pursuing issues particularly when he feels he has been adversely judged. He has a tendency to dig his heels in, which is as much a feature of determination with some obsessionality as much as the alternative interpretation of narcissim.
The persistence of his personality which is driven by a sense of injustice has caused him to deal with his matters in a way which shows some lack of judgement. I particularly refer to his affidavits where he is quite strident in his criticism of the Family Court and the judgment of certain judges. In part this response is driven by frustration.”
This diagnosis is different to that of other medical practitioners who identify a narcissistic personality disorder as being a condition from which the father suffers.
In cross examination doctor confirmed to the father that he thought his (Mr Fennessy’s) judgment was impaired. Doctor indicated that the father’s belief structure was set. It would not be affected by any counselling. He indicated the father would not be affected by medication and that he had personality issues.
Doctor gave evidence that he could not explain the behaviour of the father in establishing serial relationships with younger women from overseas, in situations where he had difficulty communicating.
Doctor conceded that if various scenarios advanced to him under cross examination were soundly factually based then he would have serious concerns and reservations about his assessment. His assessment would, as I understood his evidence, become more negative of the father.
Dr Y during the course of his evidence was taken to the Diagnostic and Statistical Manual of the American Institute of Psychiatry (DSM IV). He was asked about the criteria set out in respect of both narcissistic personality disorder and the criteria for the identification and diagnosis of antisocial personality disorder.
In that respect doctor indicated that he observed some traits but was not able to make a diagnosis of a disorder. Doctor said that he did not have a sufficient number of criteria to come within the definition of either a narcissistic personality disorder or an antisocial personality disorder. Doctor said there were mixed traits of both. Doctor was then asked in detail about the criteria, three of which would support the diagnosis. Doctor accepted that the criteria put to him were accurate. Doctor agreed that his opinion that the father did not reach the threshold of the diagnosis was based on the presentation of the father on the day of the interview. Doctor went on to say that he may have been required to amend his opinion if he was to accept some of the evidence that was put concerning the father was indeed correct. He said that whilst he had made no direct observations he had heard things that could modify his opinion adversely.
Doctor described the father as a driven man who, when he takes up a course, pursues it relentlessly with a degree of stubbornness and a level of drive which could be viewed as obsession.
In my view I must have some caution in dealing with the evidence of Dr Y. Clearly and quite properly doctor made it clear that he had based his observations on an interview with the father. He conceded that his view might well have to be modified having regard to the information that he had subsequently received in the course of his time in the witness box.
I am satisfied that the father has a capacity to present material so as to portray himself in the best possible way. I am satisfied that there was at least an element of this in play at the time of his interview with the doctor.
Notwithstanding the statements of the doctor and the very careful way in which he has approached the situation, I am not able to be satisfied on Dr Y’s evidence that any diagnosis of a narcissistic personality made by other health professionals is incorrect.
The next witness the father chose to call was Mrs T. Mrs T is a retired teacher who had the child as a member of her class in the past.
Mrs T was called to assist the father’s case. I have some real concerns as to the manner in which her affidavit material was prepared. I have difficulty in accepting her evidence that she was not aware of the purpose to which any reference or affidavit she made might be put. I found that she had been influenced largely by that which the father sought to achieve.
When cross examined she was unable to explain the use of certain words such as “protect” and “console” when speaking of the father’s behaviour. She was unable to give any illustrations of any such behaviour. Her evidence such as it was, going to the issue of any sexual abuse of the child, I found unhelpful.
In the course of the hearing and on several occasions the father sought to have this witness involved as a supervisor for time with the child. I am not able to be satisfied that on these occasions Mrs T was fully aware of that which the father was seeking, and the extent to which that would of necessity involve her.
She gave some quite graphic evidence concerning the lockdown of the school that occurred as a result of information she received. The father relied upon this as another example of the way in which he was demonised by various departments and individuals at various times.
I am satisfied that Mrs T was quite sympathetic of the situation of the father and sought to assist him.
I am satisfied this lady was confused as to the reason she was present and whilst doing her best to assist the court had a limited knowledge of what was expected of her or required of her.
The next witness called in the father’s case was Detective G who was subpoenaed by the father. The father’s purpose in calling her appeared to be to introduce evidence through her that the records and information dealt with by her were inaccurate and misleading. The father following cross examination of Ms G by the other parties’ counsel then sought in re-examination to have Ms G declared an unfriendly witness. That application was refused.
Constable G gave evidence that she had been assigned the investigation into the child as part of her duties. She was then an officer attached to the Juvenile Aid Bureau at NL.
It was not raised with Constable G that the tapes described by Constable G were other than, as she described them, leading in nature and poor quality. Constable G was the person who insisted that the child be medically examined.
Much was made of the interview of 3 October 2003. A tape recording of this interview came into evidence before me.
The interview was conducted by Constable G following the police determining to conduct a check on the father’s home. Constable G attended at the father’s home on two occasions on that day. The father requested that the tape made by Constable G be played. This was done.
Constable G gave evidence that on 3 October 2003 the father appeared nervous. Constable G apparently made a decision that it would be best to try and speak with the child before she spoke with the father. The father then sought to intercept the child and his other children before they entered the house.
It is clear that Constable G attended the father’s home on that day with other police officers and officers of the department. Officers of that department had organised for an application for a Temporary Assessment Order to be applied for or sought. Constable G’s evidence is that the father behaved perfectly properly up until the time it was suggested to him that the child should go with the department officers. Thereafter it is clear that he became aggressive and abusive. I have heard the tape of this incident. Making every allowance that I can for the fact that the father was clearly distressed at the notion of the child being removed his behaviour was aggressive to a very marked degree.
Constable G gave evidence which I accept that the child appeared comfortable with accompanying departmental officers until the father intervened in the situation. Not only did the child become distressed but the other children did too.
In the course of this cross examination the father went to some lengths to suggest that the department acted improperly in seeking to remove the child before the temporary assessment order was made.
Criminal proceedings arose out of the events of that day. The father was charged in relation to his conduct. The father defended the matter and was acquitted.
The father cross examined the witness in detail over the way police acted and dealt with his former wife on 3 October. The father sought to have the witness agree that threats had been made to remove the child from her unless she left the father’s home. Constable G’s evidence was that Mrs M Fennessy wanted to leave and had been assisted in doing this by the police officers. Constable G did express that she was surprised to find her (Mrs M Fennessy) in the father’s house.
The Constable’s evidence was that on 3 October 2003 she believed there was a risk of an immediate nature to the child, due to evidence then available, of sexual abuse. It was the decision of the Department of Child Safety not to take the matter further, so as to take the child into their care.
Detective Senior Constable G conducted a recorded interview with Mr Gregorian. Her evidence was that he did not exhibit any surprise that a complaint had been made against him. He said that he had thought that something like that was likely to happen. The stepfather produced to the Detective a written statement of incidents involving himself and the father.
Constable G’s evidence was clear that the father differentiated between the stepfather and the mother as to what he wanted and/or expected done as a result of the investigation. He was far more concerned to be punitive towards the stepfather than towards the mother.
Constable G’s evidence was that she had made it clear to the father that she believed it was inappropriate for the child to be sharing a bed with him. She did however make the concession that others might have different views and a good deal might depend on family values.
It was clear from the evidence of Constable G that the father sought to obtain a report from Dr J by asserting that he had Constable G’s permission to do so.
Constable G gave evidence that when she had spoken to the father and informed him that she did not consider the stepfather or the mother to be suspects that he became aggressive.
The father spent a good deal of time attacking the documents that had been compiled and collected by Constable G. The Constable gave evidence and I accept that her notes were prepared to gain some oversight in relation to an investigation which was then ongoing. Clearly some of the material that she relied upon was not accurate and was the opinion of other officers. The father cross examined Constable G at length to endeavour to establish that there were no convictions that involved breaking of limbs.
Clearly from the evidence of Constable G she had looked at case notes involving matters that had not proceeded to hearing or trial. However the allegations underlying those matters were matters that she appeared to take into consideration.
The heart of the father’s attack upon Constable G’s performance of her duties was that she had allowed extraneous and untruthful matters to interfere with her judgment and had accordingly acted improperly towards the father. I cannot be satisfied that this is the case. Whilst, as I have said, there were inaccuracies in her materials, her conduct of the investigation was in my view quite proper.
The manner in which the father sought to have Constable G dealt with as an unfavourable witness, and the way in which he conducted his cross examination of her was intemperate and hostile. It appeared to me that he was seeking not only to diminish the effect of her evidence but to embarrass and belittle her personally.
The next witness to give evidence was Ms K. The father called her as a witness in an attempt to determine if she was the person who had made a significant notification to the department.
It is clear that on 2 January 2004 the Department’s telephone assistance line took a call from a person who said they had spoken with the child when the child said she wanted her mother to take her away because she sometimes woke up with no underwear on and found her father with his hands between her legs.
The caller went on to say that the child said that the father drank a lot. The notifier spoke of observing the child to present as a sad child.
When it was put to her that she was the notifier, Ms K denied that she was. The departmental record made reference to a name M and a mobile telephone number. There is no doubt on the evidence before the Court that the mobile number noted by the assistance line was indeed a mobile number belonging to Ms K. She has seen the child on occasions and indeed has babysat her.
Ms K said that there were at least two women by the name of M working in close proximity. Her mobile telephone was available on a table. The number was also listed at the nurse’s work station.
The witness said that she had not been threatened by the father. She said however that she was fearful of his behaviour in going to her home attempting to serve a subpoena on her. She said that the father had followed her.
It is also clear that in some discussions with her the father assumed the designation of a departmental officer.
Certainly the witness was not helpful in so far as establishing who indeed made the telephone call to the assistance line. Her evidence did not assist me in reaching a determination as to who was the caller.
None of the evidence that I have heard enables me to be satisfied that Ms K was the notifier. The father asserts through his cross examination that she was the notifier. He seems to be endeavouring to indicate that the complaint was made at the mother’s request.
The witness denied she had made the phone call when under cross examination. However it must be indicated here that in the mother’s evidence she indicated that it was Mrs K who had been the notifier. The effect of this evidence leaves me confused. I am not able to accept the mother’s evidence so as to satisfy me that Ms K was indeed the person who contacted the Department.
Perhaps the most important aspect of the evidence was the preparedness of the father to pretend to be a departmental officer when he thought that might assist him in obtaining the end he desired.
The next witness called in the father’s case was Mr Z. Mr Z had been the principal of O School for some years. He was not of great assistance to the father in establishing the father had been committed to assisting at the school apart from seeing him at one working bee. He conceded that the father may have been present on other occasions and he did not become aware of this. He gave similar evidence involving the mother.
He was asked about the lockdown that occurred at the school. His evidence was that the lockdown concerned the building containing the child’s classroom only. He indicated that the procedure did not cause any difficulty for the children. Mr Z made it plain that he knew nothing contrary about the father. Mr Z made it clear that the child to his knowledge had not complained of or presented with any significant injury.
I found Mr Z to be an honest witness doing his best to assist the Court.
The next witness called in the father’s case was Mr U. Mr U’s initial involvement with the family had been as a result of being engaged in relation to proceedings involving two of the father’s older daughters in proceedings under Child Protection Legislation. It was clear that Mr U had never interviewed the mother or the child. He had sought to dissuade the father from involving the child in the father’s sessions with him. He conceded that he was not in a position to make any recommendations as to residence or contact involving the child. Clearly however the father was proposing Mr U as a person who might be actively involved in reintroducing the child to her father.
This was something completely different to the matters that first secured Mr U’s involvement with the Fennessy family, being the matters involving the older daughters. Mr U made it clear in his report that those girls would make their own decision as to whether they remained in their father’s care. Interestingly Mr U’s assessment was that N was the more level headed of she and A.
Mr U gave evidence that it was not his opinion that Ms O had demonstrated any bias against the father. Mr U was clearly uncomfortable being placed in the situation of giving evidence in this hearing. He was unhappy giving information about his counselling of A and N. The father was however insistent that he give evidence.
Mr U gave evidence that it would be emotionally abusive were a parent to require a child to deliberately lie at the behest of that parent. He further agreed with a proposition put to him that an alternative to alienation may be that a child’s dislike of a parent is based on actual experience. Mr U said that the father had not sought any advice or counselling concerning the sexual abuse of the child.
I have indicated that I am not satisfied that the presumption for equal shared parental responsibility is operative in this case. I will deal later in these reasons for judgment with whether or not an order for equal shared parental responsibility should be made. If I do make such an order, that is; equal shared parental responsibility, then that clearly operates to bring the relevant parts of s 65 DAA into effect. If however I do not make an order for equal shared parental responsibility, it is clear from the judgment of their Honours of the Full Court in Goode & Goode[7] that application of the section is not the only route by which a court can reach a determination that there should be either equal or significant and substantial time. In paragraphs 46, 47 and 48 of that decisions their Honours said this:
However, this is not the only way in which the Court could consider equal time. Even if the presumption is rebutted or is not to apply in the interests of the child, if one or both of the parties is seeking such an order, the Court would normally consider, in the making of an order, what each party was seeking when considering the child’s best interests in accordance with the objects in
s 60B and the primary and additional considerations in s 60CC.Similarly, even if the presumption of equal shared parental responsibility is not applied and neither party seeks an order for equal time (or by implication substantial and significant time), the Court is nonetheless required to consider, in determining what is in the best interests of the child, the arrangements that will promote the child’s best interests. Subject to according procedural fairness to the parties, this could include a proposal that neither party had advanced, if it was in the Court’s view ultimately in the child’s best interests for such an order to be made (U v U (2002) 211 CLR 238; (2002) FLC ¶93-112 and Bolitho and Cohen (2005) FLC ¶93-224).
Therefore whilst the application of the presumption of equal shared parental responsibility may be the trigger for the operation of s 65DAA, it is not the only basis upon which the Court may make an order for equal or substantial and significant time to be spent by the parents with the child. However, in our view where the presumption of equal shared parental responsibility is to apply, the starting point is a consideration of whether it would be in the child’s best interests to spend equal time with both parents and the practicability of such an arrangement. When neither an outcome providing for equal time nor substantial and significant time promotes the child’s best interests, the Court determines the parenting applications in the best interests of the child having regard to the matters found in the objects (s 60B) and s 60CC.
[7] (2006) FLC 93-286
I have examined the proposals of each of the parties, in the father’s case as best I understand it. I have set out in my reasons for judgment the matters which I believe were pertinent to my examination of the issues.
In this case, for the reasons I have set out, there can be not application of the presumption so as to act as a trigger as referred to by their Honours in Goode. However what I must do is consider whether or not equal or substantial and significant time should be ordered. Consider does not amount to any form of presumption, nor is it a word that indicates a preferred result.
What I am required to do is give thought to whether or not equal shared time or significant and substantial time is in circumstances of the case in the best interests of the subject child. I must examine the advantages and disadvantages in making an order for either equal shared or significant and substantial time. If having completed the weighing of the factors it is seen that either of these alternatives is best, then I should order accordingly. However if I do not consider it appropriate then I must make the order that in all the circumstances of the case will operate in the best interests of the child.
I have endeavoured to identify the matters of concern in this case in both households. The father’s case is one where he says he must have justice, evidenced by the return of the child to him. The mother, supported by the Intervener and the Independent Children’s Lawyer, asserts the child should remain with her and have no time with the father.
Discussion
This has been a long, difficult and emotion charged case. As I have said to the point of boredom in these reasons for judgment the father has conducted his case with at least part of his intention being to embarrass the police service, the intervening department, the court and when necessary anyone else, including counsel appearing in the matter particularly for the intervener and for the Independent Children’s Lawyer. I have heard the father’s approach to matters in Court. I have heard tapes of him at his home and in the precincts of Mr X’s office when matters displeased him. I have heard the evidence of the psychiatrists in this matter.
At the end of the day I am left satisfied there is an unacceptable risk of sexual abuse to the child in her father’s household. Further I am satisfied that the father’s behaviour, conduct, belief systems and personality are such that they of themselves indicate that the child would be at risk in the father’s household.
As I have said several times in these reasons for judgment, the father was determined to conduct the matter before me to the extent he was permitted to mount an unremitting attack on offices of the intervening department and the police service. His determination in this regard and the manner in which he conducted himself reinforced all that I had heard from the experts as to his personality and behaviour patterns.
Even leaving aside the unacceptable risk of abuse which I have found made out, I have grave concerns that the father would be able to adequately provide for the emotional and psychological needs of the child in his care. The very evidence that he sought to lead from his daughter A as to his capacity as a parent, in my mind, establishes that at times in his parenting he has been self-indulgent and by no means the attentive and protective parent he asserts himself to be.
I am also concerned that having seen the father’s determination and having heard displays of his behaviour, particularly in respect of the episode at Mr X’s office and the interview at his home, I am left with a very real concern that, in the future, were the child to act or react in any way so as to displease him that he may well deal with her in an entirely inappropriate manner.
I have some concerns as to the mother. Her evidence I found at times unconvincing and confusing, particularly in regard to the evidence of the entries in her diary made by the child and the precise allegations made by the child to her. I also found myself concerned as to the evidence relating to the manner in which she left the child with the father following their separation, at which time she apparently saw the child by arrangement with the father. Certainly however there was a period of time when she did not seek, as I understand the evidence, to disturb the father’s care of the child. Indeed it was only after the allegations made by the father came to light that she reported the allegations that she asserted the child had made to her. Even then those allegations did not seem to be made in the most timely fashion.
The stepfather also left me with some concerns. However I was not convinced that he was the violent man the father would have me believe.
This is not a case where I have the luxury of determining who is the best of two good parents. Rather it is a case of determining which of the two, in this situation in which they now stand, is the least worst for the child.
Leaving aside the question of any time that the child might spend with her father, I have real concerns that communication between the mother and father, as would be required if they were to share responsibility for decisions concerning the child, would be unworkable.
Having regard to the comments that I have made concerning the father’s personality and behaviour, I am convinced that the father would use such a situation to belittle and denigrate the mother and stepfather at every turn. I am satisfied that he would seek to impose unreasonable requirements regarding the child to suit his own view of what was best. He would be absolutely unwavering in obtaining what he wanted and would brook no interference in this regard.
Such a situation must clearly have a detrimental effect on the child.
Thus I am satisfied that the mother must be given sole responsibility for the care of the child.
The next issue that I must determine then is with whom the child should live. I have found that there exists an unacceptable risk to the child in the father’s household. That of itself is sufficient to require that the child not live with her father. If it were not sufficient I am satisfied for the other reasons I have dealt with in detail in the preceding paragraphs that it is entirely appropriate and indeed inescapable that the child must live with her mother. I propose to order accordingly.
I turn then to the quantum of time that the child is to spend with the father.
I have dealt with the requirements of the Act in so far as they require me to consider whether there should be equal or substantial and significant time with the father.
I have found that the father presents an unacceptable risk of sexual abuse so far as the child is concerned. Whilst that might be seen to be an end to the matter to my view that is not necessarily so.
Additionally I have endeavoured to analyse the evidence concerning the father’s mental state. I have formed the view that he has a narcissistic personality disorder. To my mind this leads him to view this litigation not as a means of determining what is best for the child but rather for proving that he is right and all those that oppose him or seek to contradict him are wrong. I have expressed my concerns as to the father’s capacity to understand what is required of him if this child were to live with him or spend time with him in the future. For this reason independently of any other finding I have made, I am left with grave concerns as to the father’s capacity as a parent. The father, to my mind, presents a risk to the child in that he is prepared to contemplate removing the child from her mother to live with him (saying that all will be well very quickly), or in the alternative asserting that he should see the child without providing the security of letting the child know that she is to live unchallenged with her mother.
I am satisfied that I can accept Professor N’s evidence that the father should not spend time with the child until she is aware that he has abandoned his application for the child to live with him. I have no indication in any form that this is even a consideration so far as the father is concerned.
To my mind this of itself would be reason alone to consider very carefully whether or not the father should spend any time with the child. When I couple it with the other matters that I have sought to deal with in these reasons for judgment, I come to the firm conclusion that it would not be in the child’s best interests to spend unsupervised time with the child.
The father made a significant issue of Mrs T being a competent and capable supervisor. I have set out earlier my views concerning Mrs T. I do not accept, with great respect to Ms T, that she is a person who would discharge the role of supervisor. I have no evidence before me that she would be prepared to do so. She is clearly a person in the father’s camp and thus to be viewed with some concern in respect of her role as supervisor.
The father’s proposal involving Ms T was as I understood it, and in any event, of a stop-gap nature, a basis for him seeking to spend time with his daughter pending further a final determination of the matter. Indeed he put his case puts vigorously during the latter stages of the hearing was that she should be used in an intermediate step of contact until the child was returned full time to live with the father.
The father has made it abundantly clear at various stages of the hearing that he will not accept an order that time spent with his daughter is to be supervised by a contact centre. Nothing I have heard from the father indicates to me that he has changed his position in this regard. Accordingly it seems that the only person that is suggested to be capable of supervising contact is Ms T and for the reasons I have set out I am not persuaded that she is a proper person in the sense that I am not satisfied that she could protect the child in the face of determined action by the father.
I find therefore that I am unable to identify any person or institution or fashion any orders that would provide supervision of any form so as to enable the father to spend time with the child in a safe and regulated situation.
In all of the circumstances of this matter therefore I have come to the conclusion that in the child’s best interests and notwithstanding the provisions of the Act as they presently stand I am not persuaded that the best interests of this child require an order that she spend time with the father.
I have considered whether or not the father should be permitted to have communication with the child by way of letters, cards and gifts. To allow such a situation would in my view permit the father to destabilise and disrupt the mother’s household. Whilst it is tragic that as a result of my orders the father will be entirely excluded from the child’s life, that is the only conclusion that I am able to reach. Accordingly there will be no such order.
I am aware, particularly having regard to the amendments that came into effect on 1 July 2001 that it is indeed a serious and unusual step to prevent a parent having any time or communication with his / her child. However in all the circumstances of this case which I have endeavoured to set out in detail, I have come to the conclusion that that is the only appropriate order here.
The Mother’s Application Against the Father to Restrain him from Further Proceedings and for Costs
The mother by an application filed on 17 July 2004 sought that the father be restrained from commencing or maintaining applications to the Court. The mother now in her submissions proposes an order in these terms:
(1)That [the father] born … 1940 be restrained and an injunction issue restraining [the father] from bringing or maintaining any further or other application (other than an Appeal from this Order) in the Family Court of Australia;
(a) Without the leave of a Judge or Judicial Registrar first had and obtained; and
(b) Not before [the father] has paid any and all costs orders awarded by the Family Court.
(2)That [the father] pay the costs of the Respondent, of and incidental to this Application as agreed or taxed on an indemnity basis.
(3)Such further or other Order as this Honourable Court may deem meet.
I am satisfied that the father had knowledge of this application and I am satisfied that there is no denial of natural justice to the father, nor any procedural unfairness occasioned to him if I proceed to deal with and determine this aspect of the matter.
I have already dealt with the issue of costs in these reasons for judgment and indicated my intention (see paragraph 24). Thus to make an order preventing the father from commencing proceedings until he had paid all costs, without knowing if a costs order were in fact to be made and if so the quantum and terms of that order, would be in my view plainly unjust and unfair to the father. Accordingly I do not propose to make any condition or place any injunction in place involving the payment of costs.
In Bennett v Bennet[8] the Full Court examined a number of English and Australian authorities. At paragraphs 42, 43 and 44 their Honours said this:
42.We have drawn attention to this statement because in our view it illustrates the fundamental importance of the right of a citizen to bring an application to the courts. As Kirby J. observed in Re Attorney-General (Cth); Ex parte Skyring (1996) 70 ALJR 321 at 323:
“…it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction.”
43. His Honour added:
“It is a rare thing to declare a person a vexatious litigant.”
44.Thus we are able to conclude that unimpeded access to the courts is a fundamental right, which can only be abrogated or curtailed by a statutory provision, the intent of which is, in the language of the High Court judgments in Coco, “unambiguously clear”.
[8] (2001) FLC 93-088
Accordingly I am satisfied it is necessary to proceed with considerable precaution in cases such as this.
There are to my mind a number of sources of power to make an order restraining a person from commencing proceedings. These are briefly s 118 of the Family Law Act itself, the Court’s inherent power, and the Family Law Rules particularly rule 11.01 – 11.04.
It has been argued that in considering which source of power may entitle orders to be made it is preferable to rely on s 118 if it is available. If that is to be done the requirements of the section need to be complied with.
In the case of Vlug & Poulos[9] their Honours of the Full Court said this:
[9] (1997) FLC 92-278
The Family Law Act 1975 in its original form conferred the following power on the Court by s 118:
"The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious, dismiss the proceedings and make such orders as to costs as it thinks just."
Section 118 was re-enacted in 1983 (by the Family Law Amendment Act 1983) largely into its present form, although there was a minor drafting amendment made by the Family Law Amendment Act 1987. The present form of s 118 is as follows:
"118. (1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious--
(a) dismiss the proceedings;
(b) make such order as to costs as the court considers just; and
(c) if the court considers appropriate, on the application of a party to the proceedings -- order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order,
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
(2) A court may discharge or vary an order made by that court under paragraph (1)(c)."
Thus in its original form s 118 empowered the Court to dismiss proceedings which it was satisfied were frivolous or vexatious. In its present form the section confers the same power, but also permits the Court where it has dismissed, or is simultaneously dismissing, proceedings on the basis that they are frivolous or vexatious, to go further and to order that the person who instituted the proceedings shall not without leave of the Court institute proceedings under the Family Law Act (of the type specified in the order).
There was, in our view, no power conferred by s 118 to impose either of the prohibitions contained in the order made by Moss J. This is because the power in s 118 to order that a person shall not institute further proceedings without leave can only, in our view, be exercised where the Court has already dismissed or is simultaneously dismissing proceedings which it was satisfied are frivolous or vexatious instituted by the person (against whom the order is to be made). Moss J in this case had dismissed the husband's applications filed on 9 July 1996 and 29 July 1996 (both of which, including the reasons for their dismissal, have been discussed above), but he had not done so on the basis that either application was frivolous or vexatious.
We note that in O'Sullivan and O'Sullivan (1991) FLC ¶92-216, the Full Court (Barblett DCJ, Nygh and Mullane JJ) appears to have taken the view (at 78,459) that the Court can exercise the power in s 118(1)(c) at any stage of the proceedings if it is satisfied that the proceedings are frivolous or vexatious. In other words they did not suggest (as we have suggested) that it is a necessary condition precedent for the exercise of the power in s 118(1)(c), that an application had been, or is to be, dismissed on the basis that it was frivolous or vexatious. However it is unnecessary that we examine this statutory interpretation question further for the reason that it is clear that whatever view is taken of that question, the Court must be satisfied before it exercises the power under s 118(1)(c) to prevent the institution of further proceedings, that proceedings which are then before it (or have just been dismissed by it) are frivolous or vexatious. In this case Moss J never expressed himself to be so satisfied, and thus can be taken not to have been intending to exercise power under s 118(1)(c) when he prohibited the husband instituting any further proceedings without leave.
Furthermore the power in s 118 is limited to preventing the institution of proceedings. It does not extend to staying proceedings which have already been instituted (nor the bringing of an appeal in such proceedings).
The inherent power to stay or dismiss proceedings and the powers contained in Rules of Court
However it has long been recognised by this Court that notwithstanding the existence of s 118 (in its original and present form), there is an inherent power to stay or dismiss frivolous or vexatious or abusive proceedings, and also (at least in certain circumstances) to prohibit the institution of proceedings without leave. There is also now a provision in the Family Law Rules (O 40 r 6) for the making of orders to prohibit the institution of further proceedings without leave. There is a similar provision in the High Court Rules -- where there is also provision for the imposition of stays, and this Court can, where there is a deficiency in its own rules, resort to the High Court Rules.
In Tansell and Tansell (1977) FLC ¶90-307 the Full Court (Evatt CJ, Demack and Fogarty JJ) said with respect to the inherent power to stay or dismiss proceedings (at 76,625):
"It has been held that there is an inherent power in every court to stay or dismiss actions which are frivolous or vexatious or an abuse of the process of the Court. ... The clearest expression of intention to the contrary would be required before it could be held that the Family Court of Australia did not have this inherent power to stay or dismiss frivolous, vexatious or abusive proceedings."
In Wilmoth and Wilmoth (1981) FLC ¶ 91-030 Strauss J expressed the following views in relation to the prohibition on the institution of further proceedings, but at a time when s 118 was in its original more limited form and contained no provision for prohibiting the institution of further proceedings without leave (at 76,287):
"The next question which I shall consider is whether this Court has this inherent jurisdiction to prevent abuse of its process. It is both a superior court of record (sec. 21(2) of the Family Law Act 1975) and a court of limited jurisdiction. Aspects of the inherent jurisdiction of the Court were the subject of discussion in the judgments of the High Court in Taylor v. Taylor (1979) FLC ¶ 90-674; 25 A.L.R. 418 and by Gibbs J. (as he then was) in Re Bell; Ex parte Lees (1980) FLC ¶90-850 at p. 75,358; 36 A.L.R. 489 at p. 496.
[84604]
I cannot see any reason why the inherent powers of the Family Court within the ambit of its jurisdictional competence should be confined narrowly. The very fact that the Court is made a superior court of record suggests that legislature intended to confer on it wide powers to do justice within the limits of its jurisdiction. Section 34 of the Family Law Act 1975 seems to support this view. Section 118 of the Act enables the Court to dismiss frivolous or vexatious proceedings. However, that section does not limit the Court's inherent jurisdiction to prevent abuse of its process by forbidding the institution of proceedings without leave.
It is thus clear that the Court must be satisfied, before it exercises power under section 118 to prevent the institution of further proceedings that proceedings then before it, or which have just been dismissed, are found to be frivolous or vexatious. In this case and notwithstanding the incredible acrimony and vehement with which the proceedings were conducted by the father and the unnecessary and unpalatable manner in which he attacked witnesses and counsel alike, I am not able to say that I am satisfied that the proceedings were frivolous and/or vexatious. They were prolonged to bring them within the meaning of section 118 having regard to the authorities to which I have made reference above.
However s 118 is not the only way in which a decision to prohibit someone from commencing proceedings may be reached. Whilst it is accepted that it is preferable to rely upon s 118 if it is reliable, that is by no means an end to the matter. I am satisfied that independently of s 118 the Court has the inherent power to stay or dismiss proceedings or more importantly in this present case to prohibit the institution of further proceedings without leave. Reference can also be made to Rule 11.4 to the Rules of the Court which says that an order may be made that an applicant may not file or continue an application.
In his careful submissions the mother’s lawyer take me first to the decision of Zabaneh[10]. The then Chief Justice made it clear that the reason for restraining a party from instituting proceedings:
“is to prevent multifarious overlapping applications between the parties, which amount in essence to a harassment of the other party, and an abuse of the process of the court, and which involve enormous expense…”
[10] (1986) FLC 91-766
Reference was then made to subsequent cases which gave support to this proposition. In KS & DS[11] the Full Court looked with approval upon that paragraph of Zabaneh (supra) and adopted it.
[11] (1999) FLC 92-860
In KS & DS the Full Court said this at paragraph 39 of the judgment, in part quoting the trial judge:
It is difficult, in my view, to find a more suitable case for the exercise of the discretion to make an order under section 118. His Honour did so for very good reason as is set out in his reasons for judgment in this case and I can see no basis for the appellant's argument that his Honour's discretion miscarried. As his Honour said, the history of this matter is a particularly troublesome one, and is one that cried out for the making of the order of the type that his Honour did. His Honour said at page 51 of his judgment:
"I have set out the history of the applications in this matter in some detail because of the relief sought pursuant to s. 118 of the Act. In marriage of Zabeneh; (1986 FLC 91-766) is authority for the proposition that a party may be restrained from instituting unnecessary and harassing proceedings against the other party and which amount in effect to an abuse of process of the court and, which also involve enormous expense to the Legal Aid office. In this case enormous expense has been incurred by the Legal Aid office and the harassment which has been endured by the wife due to the manner in which the husband has conducted these proceedings has been substantial and is of considerable concern. It is a case where, I have no hesitation in making the order that is sought."(Appeal Book 69)
Those comments appear to me to be particularly apposite to the present case. I am satisfied that some limitation must be put in place to ensure that if there be any further proceedings commenced by the father they are brought and conducted in a proper manner.
It is put to me by counsel for the Independent Children’s Lawyer, who supports the application of the mother, that if it is more likely than not that the father, if not restrained, will continue to file applications between himself and the mother seeking parenting orders in relation to the child that are simply nothing short of a process of harassment to the mother. The intervener contends that such proceedings would amount in an enormous cost to Legal Aid authorities and by inference the court system generally if the father were allowed to continue unchecked in respect of his ongoing war with the mother and also I am satisfied his desire to involve the Department or at least individual officers of the Department and the Police Force or at least individual officers of the Police Force in what he believes to be his righteous quest for justice. As I have already said in these reasons for judgment, it occurs to me that the father’s main motivation in bringing these proceedings and prosecuting them in the manner that he has is not so as to secure the child’s return to him, but rather to present him with a platform from which he can denigrate and/or sundry in his cause to be proven right in all things.
To prevent the father from filing without leave of the Court does not mean that he has not further right or standing to bring applications. Rather it means that he must satisfy a judge of the Court that there are sufficient and proper reasons for him bringing such an application. That application can be brought on an ex-parte basis. If leave is granted then the father may file process in respect of which leave has been granted. If the leave is not granted by the judicial officer at that time then that will be the end of the matter.
In my view such a requirement is entirely appropriate in this case. I will order accordingly.
The intervener has sought additional orders in this matter. Again I am satisfied that the father has notice of these orders and has chosen not to respond to them. Again I am satisfied that to proceed to deal with and determine the application of the intervener in this respect does not in any way amount to either a denial of natural justice or denial of procedural fairness as against the father.
First the intervener seeks an order pursuant to s 64D(2) of the Family Law Act. That subsection is in the following terms:
(2) The court may, in exceptional circumstances, include in a parenting order a provision that the parenting order, or a specified provision of the parenting order, may only be varied by a subsequent order of the court (and not by a parenting plan).
That section, which came into effect on 1 July 2006, is clearly designed to prevent orders of the Court being ousted or outflanked by the provisions of a parenting plan. The rationale behind the insertion of this subsection is to prevent one party who is in a superior position to the other, for whatever reason, from overbearing the other and having that other party agree to modifications to the Court orders. If those changes were made with the use of a parenting plan there would of course be no need for scrutiny of the arrangements embodied in that parenting plan by a court.
The intervener seeks an order that would have the effect of preventing the parties entering into a parenting agreement so as to avoid or circumvent any orders that I might make.
I am mindful of Division 4 of Part VII of the Family Law Act. Section 63(B) which falls within that Division makes it clear that parents are encouraged to agree and to take responsibility for matters involving a child and to use the legal system as a last rather than first resort.
“Parenting plan” is defined in s 63 C(1) as:
(1) A parenting plan is an agreement that:
(a) is in writing; and
(b) is or was made between the parents of a child; and
(ba) is signed by the parents of the child; and
(bb) is dated; and
(c) deals with a matter or matters mentioned in subsection (2).
The meaning of “parenting plan” as set out in section 63 is clear. Subsection 1(a) is then in these terms:
“An agreement is not a parenting plan for the purpose of this Act unless it is made free of any threat, duress or coercion.”
Clearly therefore a plan entered into as a result of oppressive or overbearing conduct or behaviour by one party to it to the other would mean that the plan would not be a parenting plan so as to be capable of varying orders made by a court.
In the conduct of this matter, as is pointed out by the counsel for the intervener in his submissions, the behaviour of the father is such that he contends it is more likely than not the father will continue to harass the mother. His submission is that the mother is unlikely to be able to withstand what he refers to as any such assault on her parenting position as may be established by orders of this Court.
The expression “exceptional circumstances” which appears in subsection 2 and it is referred to and relied upon by counsel for the intervener in his submissions does not appear to be the subject of definition in any case decided under the Family Law Act. However the expression “special circumstances” which I would consider to be, if not on all fours at least approximate to this expression, is dealt with by their Honours in Ross & McDermott[12]. Their Honours dealt with the expression “special circumstances” where appearing in the Child Support Assessment Act 1989. Their Honours found that special circumstances could not be established upon mere proof of change in income, earning capacity, property and financial resources of the parties. At paragraph 34 their Honours dealt further with the matter of Gilmore. “Exceptional circumstances” is a phrase that lawyers tend to use quite freely. However it is difficult to locate and extract a precise definition.
[12] (1998) 23 Fam LR 613
Blackmores Dictionary 8th Edition 2004 does not define “exceptional circumstances”. It does however described “extraordinary circumstances” as: “A highly unusual set of facts that are not commonly associated with a particular thing or event.”
The Macquarie Dictionary defines “exceptional” as “forming an exception or unusual instance”; “extraordinary”. In its turn “extraordinary” means 1 “beyond what is ordinary”; “out of the regular or established order”; 2 “exceptional in character, amount, extent, degree etc unusual”; “remarkable”; 3 “outside of, additional to”. Thus on the best examination I am able to give to this situation I am of the view that extraordinary in these circumstances must mean something out of the ordinary and unusual.
The behaviour of the father has been such that it could induce fear and discomfort in some other person. He is, he agrees, narcissistic and I am quite satisfied he can be both overbearing and charming, depending on which of those two effects he perceives will more likely gain him the end that he desires. As I have said before I am satisfied he is a cunning, manipulative man.
Is this however sufficient to constitute a highly unusual set of facts not commonly associated with a particular thing or event. To find a party to be overbearing, rude, and absolutely committed to achieving their desired result is regrettably becoming more and more within the ordinary so far as matters in this Court are concerned.
Moreover in this particular case I am satisfied the mother has demonstrated a degree of fortitude in the face of the father’s behaviour towards her both in and out of court. In this she has obviously had support from the stepfather and also from her legal team. I am satisfied that the mother has in the past withstood the father in both charm and threat mode and has successfully resisted him. I am not satisfied that following the orders that I propose to make the father would be able to isolate the mother from her support base and persuade her or by threats make her execute such an agreement which would alter or vary the orders I propose to make.
Further I am of view that if I am wrong in this and the father were able to entice or threaten the mother to enter into an agreement that if that agreement, the mother would have very real prospects of establishing that the agreement was not a parenting plan because it was not made free from the elements of threat duress or coercion. Accordingly I do not propose to make the order sought.
The final application of the intervener for action on the part of the court is that the father should be referred to the relevant authorities to consider whether or not prosecutions should be mounted against the father in respect of what is asserted to be false evidence given by the father in relation to the arrangements he had made for the care of his daughters whilst he was in the Philippines in 2005. It is asserted by the intervener that what he describes as that “crime” was compounded by the father having his daughter A deliberately lie to the Court. It is the submission on behalf of the intervener that action should be taken to prosecute the father for perjury.
The intervener relies further on the damage to motor vehicles owned by the mother and stepfather.
To my mind, and perhaps of more significance, is the concession made by the father that he had impersonated an officer of the Department when communicating with Ms K. The father quite cheerfully and in the face of an warning that he consider his position conceded this was so.
That it is put by the intervener amounts to some form of impersonation or assuming the designation of a person in authority which, if prosecuted, may incur a criminal sanction or penalty against the father.
Whilst I am of the view that there is some prosect that in respect to each of these matters a prosecution if mounted might be successful and while the father’s behaviour in each of these three instances fell far short of what might be expected to be proper behaviour, I am of the view that to endeavour to have the father prosecuted for all or any of these offences could be interpreted as no more than a vindictive act on the part of this Court.
I have indicated throughout these reasons that the father is a person with a narcissistic personality who is, I am satisfied, absolutely convinced of the righteousness of his proceedings. As I have said perhaps to the point of boredom I am satisfied he has used the proceedings before me as a platform to air his perceived grievances rather than to really seek to recover his daughter. To forward the papers seeking out prosecution against him in respect of any of the three matters identified by the intervener would do no more than give this man another opportunity to air his grievances and to portray himself as the victim of the system. This is an opportunity I am not prepared to give the father.
Further I am concerned that any endeavour on the part of this Court to see the father prosecuted for all or any of the matters identified would be interpreted by him as an act of vindictiveness against him on the part of this Court. I am not prepared to allow that to occur.
It is a matter of discretion as to whether or not I forward the papers to the relevant authorities to consider whether or not a prosecution should be mounted against the father. For the reasons I have given, I do not propose to do so. Accordingly I will not refer any aspects of this matter to any prosecuting authority, nor make any request of either the Commonwealth of State Attorney General to give consideration to commencing a prosecution against the father.
I have made reference to U & U (supra). I have dealt with and determined the issues raised by the parties as I have identified them. I am not satisfied that there are any alternative sets of orders that I need consider to do justice to the parties or that I ought to take into consideration in the best interests of the child.
For the foregoing reasons I make orders 1 to 9 as set out at the commencement of this document.
I certify that the preceding seven-hundred-and-eighty-four (784) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier.
Associate:
Date: 19 December 2007
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