GABALIS & AKULA
[2020] FCCA 71
•23 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
GABALIS & AKULA [2020] FCCA 71
Catchwords:
FAMILY LAW – Parenting – special needs child – where child resisting any time with father – where Court has serious reservations about fathers capacity to meet child’s needs – where supervised time on an indefinite basis is impractical – where no practical utility for further counselling – where no benefit to child of further interim orders.
Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:
MRR v GR [2010] HCA 4
Applicant: MS GABALIS
Respondent: MR AKULA
File Number: WOC 540 of 2016
Judgment of: Judge Altobelli
Hearing dates: 16 & 17 December 2019
Date of Last Submission: 17 December 2019
Delivered at: Wollongong
Delivered on: 23 January 2020 REPRESENTATION
Counsel for the Applicant: Mr Cook
Solicitors for the Applicant: Maguire & McInerney Lawyers
Counsel for the Respondent: Mr Palmer
Solicitors for the Respondent: Southern Coast Lawyers & Conveyancing
Counsel for the Independent Children's Lawyer: Mr Alexander
Solicitors for the Independent Children's Lawyer: Acorn Lawyers ORDERS
(1)Subject to Order 2, the Mother have sole parental responsibility for X born in 2011 (‘the Child’) including sole decision making responsibility with respect to but not limited to: -
(a)The education of the Child;
(b)The religion of the Child;
(c)The health of the Child;
(d)The name the Child is known by;
(e)Passports and overseas travel.
(2)In exercising her responsibility pursuant to Order 1, the Mother shall keep the Father informed by text message of all long term decisions made pursuant to Order 1 including, but not limited to;
(a)The outcome of specialist medical appointments or any hospitalisation of the Child;
(b)Enrolments of the Child in a school or educational institution;
(c)Registration of the Child in extra-curricular activities;
(d)Change of contact details including address and contact telephone numbers;
(e)Change of name, religion or location.
(3)The Child live with the Mother.
(4)Pursuant to section 68B of the Family Law Act 1975 the Father is injuncted and restrained from communicating with the Mother or the Child in any way whatsoever and from approaching the Mother or Child’s home, school, place of work or any places of extra-curricular activity they may attend from time to time.
(5)Order 4 is an order for personal protection of the Child and Mother to which a power of arrest without warrant attached pursuant to the provisions of section 68C of the Family Law Act 1975.
(6)Each parent refrain from making critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of the Child and that each parent shall do all things reasonably necessary to ensure that no other person make any critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of the child.
(7)The Father be restrained by injunction from posting on any social media platform any document, report, account of particulars of the current proceedings or account of evidence connected with these proceedings.
(8)The Father be restrained by injunction from naming or posting any photograph of the Mother on any social media platform.
(9)Within 24 hours of the date of these Orders the Father take all steps to remove and delete any social media post which explicitly references the Mother or any document, report, account of particulars of the current proceedings or account of evidence that is in any way connected with these proceedings.
(10)The Mother be permitted to apply for the issue or renewal of the Child's passport for that Child without the need for the Father's consent.
IT IS NOTED that publication of this judgment under the pseudonym Gabalis & Akula is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONGWOC 540 of 2016
MS GABALIS Applicant
And
MR AKULA Respondent
REASONS FOR JUDGMENT
Introduction
1.This case is about X, born in 2011, currently 8 years old. X currently lives with her mother, and spends no time with her father. The Court had to decide whether X should spend time with her father, and if so under what circumstances. This has been a very difficult decision to make.
Background
2.At the very beginning it needs to be acknowledged that both parents have had very difficult lives, more so the Father than the Mother. Both experienced childhood trauma, but for the Father this led to a downward spiral into drug and alcohol abuse as well as criminal activity. As with so many cases involving children, past events in the lives of their parents often cast a shadow, indeed a significant shadow, into the future, including arrangements involving the children.
3.X’s mother is the Applicant. She is 33 years old, and lives in the Region G of New South Wales. X’s father is the Respondent. He is 42 years old and lives in the Region H of New South Wales.
4.X’s parents probably commenced a relationship in 2010, and commenced cohabitation in 2011, several months after X was actually born. The relationship probably ended in September 2014. This is not a case which turns on the accuracy of the dates referred to above.
5.Whether on the Father’s account, or the Mother’s account of their relationship, it was a tumultuous one. Where relevant, details will be provided in these Reasons for Judgment. The Mother makes serious allegations about the Father’s family violence, and drug and alcohol abuse. The Father makes serious allegations about the Mother’s involvement in criminal activities involving drugs.
6.After separation, and as a result of what appear to be a number of verbal threats made by the Father to the Mother, an Apprehended Violence Order was made against him, initially on an interim basis in October 2014. Within a few months of the making of those orders, the Father had breached them and was subsequently incarcerated for one week.
7.In the period after separation, it seems as if the Father did spend time with both the Mother, and X, with the Mother supervising. In fact, this time may well have occurred in the Father’s home from time to time.
8.The Mother repartnered at some stage, probably in 2015. By about mid-2015, the Father’s contact with X started to reduce in terms of its frequency. The Mother’s post-separation relationships included what appears to have been a tumultuous one with Ms C, and even her current relationship with Ms J (47 years old) appears to have had some tumultuous times.
9.The present proceedings were commenced by the Mother in 2016. Amongst other things, orders were made for the Father to spend time with X at Contact Centre F, and for random urinalysis. Requests for urinalysis continued right up until the Hearing in 2019, and a trend readily became apparent. The Mother’s drug tests were almost always negative. The Father’s drug tests were almost always positive for cannabis. By February 2017 the Father’s supervised time at Contact Centre F had ceased because X was resistant to spending time with her Father, even at a supervised contact centre.
10.On 10 November 2017, a Dr B, a Regulation 7 Family Consultant, provided her report to the Court. This will be discussed in considerable detail below. Importantly, however, on 6 December 2017 orders were made by consent for the parents and X to participate in family counselling at Contact Centre F, Suburb K. That order is reproduced in the first schedule to these Reasons. The objective, independent records on subpoena by Contact Centre F, and subsequently tendered into evidence, confirm that both the Mother and the Father had four attendances on family counselling with Ms D from Contact Centre F between January and March 2018. Ms D also met with X in January 2018. On 9 April 2018 Ms D recommended that X attend counselling with a child psychologist to help prepare her for future contact with her father. Moreover, and in relation specifically to the Father, she recommended that the Father continue counselling with his psychologist, continue to attend drug and alcohol counselling and familiarise himself with the needs of X, who has been diagnosed with Autism. By about October 2018, and no doubt pursuant to the recommendation made by Ms D from Contact Centre F, X commenced psychological counselling with the Region H Children’s Developmental Clinic. It will be necessary to consider what took place during those sessions, in more detail below.
11.The matter had been first listed for Hearing in March 2018, but at the Father’s request the hearing was postponed to December 2018. Regrettably, the Hearing had then to be changed initially to March 2019, and then May 2019. Regrettably, this time the matter was not reached and was listed for a priority Hearing on 16 and 17 December 2019.
The proposals before the Court
12.The orders proposed by the Mother were set out as an attachment to her case outline document filed 6 December 2019. The orders are reproduced in the second schedule. By way of summary, the Mother proposed that she have sole parental responsibility, that X live with her and have no contact or communication with the Father.
13.The order sought by the Father is contained in his case outline document that was provided to the Court by way of email dated 29 May 2019.The order proposed by him is reproduced in the second schedule. In short, he sought an order for equal shared parental responsibility, that X live with the Mother and spend time with him on the following basis. For a period of three months, she would spend time with her father each second weekend from 9:00am to 1:00pm using the services of Contact Centre A, with the cost to be shared equally. For the next three months the Father would spend time with X supervised by an adult of the Mother’s choosing each alternate weekend from 9:00am to 1:00pm. Thereafter, X would spend time with her father, unsupervised, each alternate weekend from 5:00pm Friday until 5:00pm Sunday. He also proposed orders in relation to school holidays and special occasions.
14.The orders proposed by the Independent Children’s Lawyer are also reproduced in the second schedule. By way of summary he proposed that X live with her mother who would have sole parental responsibility subject to an obligation to provide information. The parents would engage in family therapy which could include X. The Father’s time with X would depend on the family therapist’s opinion about her level of comfort with this, and would commence as supervised but possibly progress to unsupervised.
The evidence before the Court
15.In the Mother’s case she relied on the following documents:
a)Initiating Application filed 1 June 2016;
b)Affidavit of Ms Gabalis filed 29 November 2018;
c)Affidavit of Ms Gabalis filed 6 March 2019;
d)Affidavit of Ms Gabalis filed 2 December 2019;
e)Notice of Risk filed 1 June 2016; and
f)Case Outline document filed 6 December 2019.
16.In the Father’s case he relied on the following documents:
a)Amended Response filed 7 May 2019;
b)Affidavit of Mr Akula filed 15 July 2016;
c)Affidavit of Mr Akula filed 6 May 2019;
d)Affidavit of Mr Akula filed 15 November 2019;
e)Notice of Risk filed 15 July 2019;
f)Case Outline document filed 25 May 2019; and
g)Further Case Outline document filed 13 December 2019.
17.The Independent Children’s Lawyer relied on his Case Outline document filed 28 May 2019 and the Family Report prepared by Dr B dated 10 November 2017.
18.The following material was tendered as evidence during the course of the proceedings:
a)Respondent Father’s Facebook post;
b)Documents produced pursuant to subpoena on New South Wales Police;
c)Documents produced pursuant to subpoena on Department of Communities and Justice;
d)Documents produced pursuant to subpoena on Contact Centre F;
e)Family Report prepared by Dr B dated 10 November 2017;
f)Child Dispute Conference Memorandum to the Court dated 20 September 2016; and
g)Documents produced pursuant to subpoena on Region H Children’s Developmental Clinic.
19.At the hearing, the Mother, Father, and the Family Consultant Dr B were all cross-examined.
The applicable law
20.The applicable law is found in Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
21.The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
22.At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
23.If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
24.Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
25.In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
26.A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
27.At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Outline of these reasons for judgment
28.Dr B’s report is, apart from the objective documents tendered in evidence, the only independent and expert evidence before the Court. Her report, and the evidence she gave in cross-examination, provides a useful template to discuss the issues before the Court, as well as the relevant evidence. After this process has been completed, the Court will then consider the evidence by reference to the primary and additional considerations set out in section 60CC, and other relevant provisions of the Family Law Act.
Dr B’s report
29.Dr B is a Regulation 7 Family Consultant. She holds the degrees of Bachelor of Occupational Therapy, Master of Science (Counselling), Master of Tertiary Teaching, and Doctor of Education. She has worked as an occupational therapist, director of Lifeline, training officer, Family Court counsellor, and academic lecturer. She has been a Regulation 7 Family Consultant Since 1991. Dr B Report was ordered on 1 February 2017, is dated 10 November 2017, and was released on that date. It was based on interviews which took place on 26 October 2017 involving both parents and X. Dr B appeared to have before her all of the documents available to the Court, as at the date of the interview.
30.By the time she met with the family, supervised time at Contact Centre F had been attempted, but failed, on the basis of X refusing to engage with her father, and the contact centre having made the decision to suspend any further visits.
31.Before considering the report in detail, it is important for the Court to make the following finding. Based on the Mother’s evidence, as well as the evidence produced on subpoena by Region H Children’s Developmental Clinic, the Court is able to find that X has been diagnosed with Autism Spectrum Disorder (level 2) and Sensory Processing Disorder. In other cases it might not have been necessary for the Court to make this finding, on the basis that it were an uncontested fact.
32.Notwithstanding what the Court considers to be the ample evidence to establish this finding, in cross-examination the Father continued to doubt the diagnosis, basing his scepticism on his own personal experiences with X, despite not seeing her since early 2017, and notwithstanding what the Court considers to be the ample opportunities he has had to engage with Region H Children’s Development Clinic, in order to satisfy himself about the diagnosis.
33.In her Report it is clear that Dr B was aware of the significant concerns raised about family violence and abuse, and about child safety and wellbeing issues including alcohol and substance abuse.
34.Dr B interviewed both parents. At paragraph 33 the Mother describes the concern she has about her relationship with the Father:
33. Ms Gabalis believes it is impossible for her and Mr Akula to have a better relationship. She claimed that he persists in harassing her and pursuing her. She commented that his behaviour when they coincidentally met as they were leaving the Court building on the day of the assessment is a clear example of what she has to contend with. Ms Gabalis stated that Mr Akula followed her and X and started yelling out to X that he loves her and that he is her father. She claimed that when they did not respond to him, Mr Akula made a comment that X was “like her f… mother”. She stated that this incident upset X who refused to look at her father and instead hid her face. The security officers at the Court observed this incident and indicated they would make an incident report.
35.The Court notes with interest that by the time of the Final Hearing, the Mother, in fact, seemed to be slightly more optimistic about the possibility of a better relationship with the Father, even though the Court comes, reluctantly, to the view that there is no basis for her optimism. The Father’s attitude towards the Mother is trenchantly negative and he ascribes to the Mother total responsibility for the breakdown in his relationship with X. Of significance is that the Father’s Counsel did not cross-examine Dr B about the basis of Dr B’s evidence about the incident at the Court building on the day of the assessment, as set out above. Indeed, Dr B confirmed that this information was provided to her by sources including the parents. The Mother confirmed this in cross-examination.
36.At paragraph 34, Dr B sets out the Mother’s description of X:
34. Both parties spoke about X. Ms Gabalis described X as a child who was angry and scared as a toddler and has now developed into a clingy child who can at times has nightmares and can be oppositional and obstinate both in the home and school environments. Ms Gabalis stated that she used to be a volunteer at school but this is no longer the case because of X’s separation anxiety. She said that X does not like to talk to strangers. She added that X thrives on a routine and finds it difficult to get used to casual teachers. Ms Gabalis reported that X also has difficulties socializing with peers and has a low tolerance when it comes to interacting with other children. According to Ms Gabalis, when X needs to be disciplined she responds to her getting down to X’s level and speaking with her and if need be time out in her room. Ms Gabalis stated that X enjoys water and sand play, riding her bike, colouring in and playing with play dough.
37.As will be seen below, the objective evidence amply establishes that X can be oppositional and obstinate both at home and at school.
38.At paragraph 36, Dr B reports on the Mother’s concerns about how the Father would cope with X’s challenging behaviour:
36. Ms Gabalis claimed that she fears Mr Akula would not have the sensitivity to respond to X’s oppositional beahviour, given that as a child when she would start screaming he would be short tempered. She added that he would tell her to shut up and on a couple of occasions hit her. She referred to X having ongoing fears that her father will hurt her as he has hurt her animals or that he will come in the middle of the night and take her.
39.As it turns out, and based on the records provided by Region H Children’s Developmental Clinic as well as the Court’s observation of the Father, he would indeed struggle should X become oppositional in his care, which is highly likely in all the circumstances.
40.The Father’s perspective is set out at paragraph 38:
38. Mr Akula stated that he finds it difficult to comment on where X is at, given that it is so long since he has spent time with her. He stated that he remembers her being a lovely child who enjoyed the outdoors and outings. He commented that when he has seen X at the Contact Centre she seemed to recall some of the activities they had done together such as fishing. He stated that X did challenge him about hurting her dog which he corrected her was false. He cited this is an example of how Ms Gabalis is undermining him. The Contact Centre reports would suggest that Mr Akula’s accounts of the visit are correct although the supervisor did have to intervene when he made certain comments. He stated that he can only imagine that the change has been brought about by Ms Gabalis planting fears. Mr Akula stated he has completed a Listening to Your Kids program through Contact Centre F.
41.It is interesting, the Court observes, that he found it difficult to comment on where X was at, but simply could not accept the diagnosis of Autism Spectrum Disorder and Sensory Processing Disorder.
42.Dr B met with X. This is discussed at paragraphs 39-41:
39. X (aged 6 years and 6 months) separated readily from her mother and initially presented as an engaging child. X spoke about her school. She commented that she dislikes school as she does not like doing what the teacher tells her. She stated she is unhappy at school and the only aspect of school she enjoys is art and play. X is in Year 1 at the Suburb E Public School.
40. X became noticeably guarded when discussing her family. When asked to nominate who she would put into her love heart, X listed her cousins. Some of them according to Ms Gabalis are members of the paternal family with whom Mr Akula has no contact. She nominated her mother as the person who gives her the best hugs and who she feels happy to be with. She stated that she feels scared of her father but did not know why. She said she feels angry when people tease her and that at times she also gets angry with her mother but had forgotten what it was about. She disclosed that she is worried when the next door neighbour yells at her and makes banging noises.
41. X was highly avoidant in her responses about her father. She responded with either “I don’t know” or “I have no idea” when asked any questions about her including, for example, seeing her father on the day of the assessment or her visits to the Contact Centre.
43.As will be seen from the evidence of both the Mother, and Region H Children’s Developmental Clinic discussed below, Dr B’s description of X’s “highly avoidant” responses about her father is consistent with the aforementioned.
44.The observations of X’s interactions with her parents are set out at paragraphs 42-45:
42. X arrived with her mother and waited with her in the safety room. As Ms Gabalis had brought no one else with her to the appointment, she was interviewed in the adjoining room to the play room where X was playing alone. X was observed motioning to her mother through the one way screen to join her. Ms Gabalis occasionally interrupted the interview to check on X.
43. When it was time for X and her mother to be observed together, X found the dolls and engaged her mother in a quiet conversation about them. Ms Gabalis followed X’s lead. They then moved to the sand pit. Ms Gabalis commented that X likes the sand because of the sensory stimulation it provides her. The interaction between X and her mother suggested they were relaxed in each other’s presence.
44. When it was suggested that X see Mr Akula, she refused. In response to encouragement, she replied “I don’t like it” and “it’s not a good idea”. Ms Gabalis also encouraged X and promised her a treat but X continued to be resistant to her mother and became quite clingy. Eventually, X agreed to separate and see her father who was waiting in the waiting room. Mr Akula was clearly excited about seeing X and tried to be affectionate with her, however, X pushed him away and he had to be told that it might be best not to insist. Mr Akula tried to engage X by speaking to her about the visit at the Contact Centre and fishing. He produced some photos of when he and X were spending time together. X was poker faced and avoidant and hugged into me. Mr Akula became quite frustrated and asked X “Is this what Mummy tells you?” He also commented in front of X “her mother has drummed into her head to go against me. What am I supposed to do, have a breakdown”. The observation was terminated at this point and X was returned to her mother.
45. Mr Akula was clearly disappointed and expressed despair that he has done all that has been requested of him and he doesn’t understand why X does not want to see him. He reiterated that he can only imagine that Ms Gabalis and her friends are undermining him.
45.The Father was cross-examined about Dr B’s observations at paragraph 44. For all practical purposes, the Father conceded that he said words to the effect of those attributed to him, and, in a rare manifestation of insight, acknowledged that it was probably inappropriate. What is palpable from paragraph 45 is the Father’s belief that he has not contributed in any way to X’s resistance in spending time with him, and that it is entirely attributable to the Mother and her friends.
46.Dr B’s evaluation commences at paragraph 46 and concludes at paragraph 56. Each of the paragraphs will be set out, but the Court will add its own observations based on the totality of the evidence after each of the relevant paragraphs.
47.At paragraph 46 Dr B states:
46. Mr Akula and Ms Gabalis reported that had a very troubled relationship that was punctuated by issues that extend beyond any relationship difficulties. The drug and alcohol concerns, involvement in criminal activity and mixing within those circles, history of assaults including several drive by shootings and alleged violence in relationships since the separation raise serious concerns about their capacity to fully protect X. Both parties minimize the chaos that has existed in their lives and demonstrated little insight into the impact of their behaviour on X. Neither of the parties assumes responsibility for the poor choices they have made and each was very keen to attribute blame onto the other. Indeed, the parties seem to still know a lot about the other’s life even though their communication capacity is in tatters. It is very likely that X is sometimes used as a pawn in payback and revenge for how the parties believe they are being treated by the other in respect of the complex adult issues which exist in their respective lives.
48.This evidence cannot be faulted. It is entirely consistent with the evidence before the Court in its totality. For example, the evidence demonstrates the Father’s long history of criminal activity, including violent offences. He himself in cross-examination seemed to boast about drive-by shootings and home invasions, including during the relationship and after X’s birth. His own evidence manifests a pattern of marijuana use, rehabilitation, relapse, use, rehabilitation and further relapse.
49.The Father’s evidence at the Final Hearing was that his last use of marijuana was two weeks before the Final Hearing. He contended that it had been precipitated by a traumatic event, but then in cross-examination it became apparent that he had been using for several months before the allegedly traumatic incident and that, indeed, he uses it to help him sleep at night, and deal with stressful situations.
50.The Father’s evidence in cross-examination was either to normalise, minimise, or defend his use of cannabis, insisting at all times that it had not, and would not impact on his ability to care for X. The Father accepted that he was still traumatised by some of his experiences as a child and as a youth, and living on the streets, and being exposed to violent incidents.
51.The Mother, also, minimised the tumultuous nature of the relationships that she had entered into after separation, and the violence that this would have exposed X to. For example, it is much more likely than not that when she ended her relationship with the person who was probably her first partner after separation, Ms C, she either exposed X to, or X was in the vicinity of, a highly traumatic incident at or outside the Mother’s home, at which the police were called, and after which Ms C was subsequently scheduled under the mental health legislation. Moreover, the Court finds that the Mother greatly minimised her knowledge of the drug-dealing activities of her friend Ms L, and the real possibility that the drive-by shooting in which she herself was injured, was probably related to that. The Court does not accept, however, that the Mother was necessarily involved in those drug-dealing activities.
52.Where Dr B, however, suggests that both parents were using X as a “pawn in payback and revenge”, the Court is prepared to accept that it overstates the situation so far as the Mother is concerned, at least at present. In cross-examination, she impressed the Court by conveying in her evidence the impression that she had moved on from her past dysfunctional relationship with the Father.
53.At paragraph 47, Dr B states:
47. Additionally the parties reported some fragility in their experiences of being parented by their families of origin and this has most likely impacted on their capacity to form secure attachments and satisfactory relationships including their parenting relationship with X. In addition, given the complexity of the compounding issues in their lives, one would have to question the emotional resources the parties have, at times, had to be present and attuned to X’s needs. Some serious concerns about the capacity of each party to be child focused and to foreground X’s needs were identified in this assessment. This is a case that borders close to requiring intervention from F.A.C.S. or at the very least some ongoing family support for Ms Gabalis especially in the light of X’s diagnosis.
54.The cross-examination of both parents confirmed some of the fragility issues identified at paragraph 47 of the Report. The Mother had some challenging childhood experiences. The Father’s childhood, and subsequent youth was nothing short of traumatic. He fell into a pattern of repeated criminal behaviour, involving several incarcerations. Dr B was correct to raise issues about parenting capacity although, on the evidence before the Court at the Hearing, the Mother’s parenting capacity issues were far less than those of the Father and, in any event, the Mother seemed better engaged in available services to assist her. Regrettably, for X, her father seemed to manifest no appreciation of how some of his present issues, and certainly his past experiences, would challenge his capacity to meet the needs of a perfectly normal child, let alone one suffering from the developmental challenges that X presents.
55.At paragraph 48, Dr B states:
48. The parties provided different accounts of the role they played as parents while they were together. They are currently caught in a web where they are intent on discrediting each other and projecting themselves in the best possible light. Each of them has very little positive to say about the other as a parent. This is a dynamic that is often observed by parties who are seeking to achieve some ascendency in their dispute and to be seen favourably by the Court. Ms Gabalis advances herself as the primary care giver who received little support from Mr Akula. She accused him of being abusive and of having placed X at risk through his physical violence to her, poor emotional regulation and threats to take X from her care. There are times when she seems to have given mixed messages to Mr Akula. It is perplexing for example, that after securing an A.V.O. protecting herself and X in December 2015, the following month, Ms Gabalis and Mr Akula arrived at an agreement for X to spend time with both parents together.
56.Both parents were cross-examined on the issue of their historical parenting. Even the Father’s case was presented on the basis that the Mother was the primary caretaker of the child. Having heard the evidence of both parents in cross-examination, the strong impression formed is that the Father was more involved in the parenting of X before separation than the Mother conceded, but much less than he asserted.
57.The Mother’s allegations of family violence and abuse are problematic, from the perspective of making findings. Interestingly, the Father’s cross-examination of the Mother on these issues was somewhat superficial, for example placing no context on the denials put to her. However, even the Father’s Counsel’s cross-examination of the Mother about verbal abuse proceeded on the basis that it had taken place.
58.As Dr B observed, the Mother’s actions in the post-separation period send mixed signals about her violence allegations. The Court is prepared to accept the Father’s allegations, consistent with the Mother’s own case, that he spent time with both the Mother and X after separation, in the context of contact, and often in his home. His contention that they were often intimate together is not implausible. Nonetheless, the Mother’s evidence about the physical violence was detailed and compelling. Notably the Father’s own behaviour in the Courtroom, both in the witness box and as he was instructing his solicitor and Counsel, could easily be experienced by the Mother as aggressive, which is entirely consistent with her case about him. It is more likely than not that the Father was not only verbally abusive of the Mother, but physically abusive of her as well. It is not possible, however, to make findings about the Mother’s allegations that he was physically abusive of X. In making findings against the Father, the Court cannot ignore the objective evidence of a long criminal history which involved violent offences. This is but one factor, however, in making the findings against him. The existence of the AVO, and the breaches of the same, is another relevant factor.
59.At paragraph 49, Dr B notes:
49. Ms Gabalis continues to see herself as the parent who is proactively trying to secure the best for X including assessments of her developmental challenges and securing appropriate interventions. She is to be commended for doing this, however, it is to the exclusion of Mr Akula. She has a significant blind spot in respect of Mr Akula being privy to information about X or X spending time with him to the point that, in her application, she sought orders for sole parental responsibility and no time. While she agreed to supervised visits at the Contact Centre, within a short space of time those visits were suspended and Ms Gabalis now expressed a sense of powerlessness of how she might facilitate the father/daughter relationship moving forward.
60.The evidence before the Court, particularly from Region H Children’s Developmental Clinic, establishes that the Mother was indeed diligent in seeking to attend to X’s developmental needs. She has been persistent in ensuring that X attends her psychologist. She is clearly involved appropriately at X’s school. It is perhaps unfair to say that she has been less than diligent in providing to the Father information about X. In fact, the evidence of the Father at cross-examination satisfies the Court that he knew of the involvement of Region H Children’s Developmental Clinic for a considerable period of time but took no steps to inform himself, or involve himself, or contribute to the cost of this service.
61.From the Court’s perspective, the Father conveniently played the role of the excluded victim but did nothing in practical terms to seek information or involvement. Moreover, insofar as Dr B inferred that the Mother was not supportive of X’s relationship with her Father, this is not consistent with her presentation and evidence to the Court in cross-examination. Even though it was inherently inconsistent with her proposal to the Court of no contact or communication between X and her Father, she consistently asserted in cross-examination that it would be better for X to have a relationship with her father, provided there was no risk to her.
62.Furthermore, insofar as Dr B was suggesting that the supervised visits failed for reasons attributable to the Mother, the evidence does not enable such a finding to be made. The records of Contact Centre F, in evidence, suggest that the assessment made by experienced case workers resulted in their decision that contact should not take place. The precise reason for X’s resistance at the beginning of 2017 is unclear. It is unfair to attribute her resistance entirely to the Mother.
63.At paragraph 50, Dr B notes:
50. Mr Akula portrays himself as having been a much more involved father than is suggested by Ms Gabalis. He recounted playing a significant role in caring for X prior to the separation and taking her on outings alone. He expressed considerable frustration that Ms Gabalis has acted as a gatekeeper since the separation as he perceives himself as having done no wrong as a parent and therefore sees no reason why he needs supervision. Certainly if Mr Akula is to play a role in X’s life, it is important that he be kept informed of her diagnosis and recommended strategies for managing X’s behaviour.
64.The difficulty with accepting the Father’s assertion as to his involvement in X’s life is the concern that the Court has about his credibility. He insisted, for example, that cannabis is not a drug at all and that, in fact, it cures all cancers. When confronted with quite clear and damning evidence of his repeated breach of orders in relation to publication on social media, he firstly claimed that he did not know about the order, then that he did not understand the order, then made the assertion that the Mother had his Facebook password, thus insinuating that she, in fact, was the author of the offending posts, and then ultimately accepted that he did put the posts up on Facebook.
65.Again, the Court cannot help but form the impression that the Father deliberately presented himself as the victim before Dr B, eg, “as having done no wrong as a parent”, despite the clear evidence of the abusive Facebook posts. In relation to the importance of the Father continuing to play a role in X’s life and being provided information about her diagnosis, in cross-examination the Mother conceded that she did not oppose the provision of this information to the Father.
66.At paragraph 51, Dr B focuses on the Father’s capacity to self-regulate:
51. Mr Akula is even more exasperated now that his visits with X at the Contact Centre came to a halt after what he thought was a successful first visit. His capacity to manage dissatisfaction with Ms Gabalis who he perceives as sabotaging his relationship with X only serves to reinforce the image of him as having poor boundaries and being emotionally dysregulated and aggressive. This was evident yet again on the day of the appointment where in the very short window of time the parties accidently came into each other’s space, Mr Akula used that as an opportunity to approach Ms Gabalis and berate her.
67.The Father demonstrated his inability to self-regulate his emotions in cross-examination. He was angry, aggressive, and dismissive at times. He was unresponsive to inconvenient questions such as driving whilst under the influence of cannabis. The interview that he gave to a television station about the drive-by shooting, and the threats to kill the perpetrators, or at least hire a hitman to achieve this, manifested his inability to control the conversion of what he was thinking into what he was saying. He accepted that the Contact Centre F records of him becoming increasingly angry and not listening to the case worker were probably correct. Moreover, the Father manifested the trenchant belief that the Mother and her friends were entirely to blame for the problems in his relationship with X, until the closing stages of cross-examination. The Court indeed finds, based on the Father’s own evidence, let alone Dr B’s opinion, that the Father does have poor boundaries, and is emotionally dysregulated and aggressive.
68.At paragraph 52, Dr B notes:
52. To the credit of Mr Akula, he has earnestly committed to fulfilling the expectations of the Court and has engaged with a number of parenting programs. He also seems to be making progress in managing his marijuana use notwithstanding this has been a chronic and long term concern and he has demonstrated he is prone to relapses. It is concerning that at the Contact Centre visits and in the short interaction he had with X on the day he saw her for the preparation of this report, he appears to find it difficult to contain his resentment towards Ms Gabalis for the role he perceives her to have played in undermining his relationship with X and his emotional needs override those of X who is left exposed to his despair by hearing inappropriate comments about her mother.
69.At paragraph 53, Dr B focuses on X:
53. There is no doubt that X has been exposed to trauma and conflict over the years and that both parents need to take some responsibility for the role they have played in allowing that to happen. The parties need to be mindful that children such as X who are exposed to family conflict are prone to suffer adverse consequences in their emotional and cognitive development. Depression, anxiety and temperament problems are not uncommonly seen in such children. They also sometimes manifest disorganization of planning and organizing functions, hypervigilance, poor inhibition of inappropriate responses and attention to distractions resulting in symptoms not unlike ADHD already X, has been identified as having behavioural and emotional symptoms which are consistent with children who have experienced developmental trauma. She has been given a diagnosis of high functioning A.S.D. and Sensory Processing Disorder and is receiving treatment. While X may well have some genetic developmental psychopathology, the parties cannot not be exonerated from the role they have played and possibly continue to play in adding to her difficulties. It is impossible to extrapolate how much of X’s condition is contributed to by environmental stressors which contribute to childhood trauma, such as exposure to violence and adult conflict, parental drug use, abuse and neglect, however, almost certainly any continuation of hostility in the family environments does little to allay X’s developmental concerns.
70.At paragraph 54, Dr B opines that X presented as a child who echoed many of her Mother’s concerns about the Father:
54. X presented in this assessment as a child who has echoed many of her mother’s concerns about Mr Akula. Ms Gabalis manifests a high and palpable level of anxiety in respect of Mr Akula. In turn, X is mirroring her mother’s behaviour. In addition to identifying with her mother’s anxiety, there are most likely a number of factors that contribute to X’s anxiety about seeing her father including her memories which might be reinforced and massaged by significant others, the conflict she observes between the adults, her temperament and some developmental psychopathology. It is not unusual for children to identify with their parents’ fears and to manifest that in symptoms of anxiety.
71.After observing the Mother in cross-examination, a number of things became apparent. Firstly, even the Mother seemed to concede that it was possible that X picked up on some of her longstanding anxieties about the Father, whether or not anything was actually said to her by the Mother, or in X’s presence by someone else. Nonetheless, and in the Mother’s defence, she is the one who has been most proactive in seeking to address X’s anxiety through Region H Children’s Developmental Clinic.
72.Secondly, however, the strong impression formed by the Court is that the Mother has played a role in either encouraging X’s anxieties, or failing to mitigate those anxieties about her Father. For example, it is highly unlikely that X became aware of her Father’s Facebook posts but for the agency of her mother. The Mother’s explanation for how X became aware of the Facebook posts was simply implausible.
73.Thirdly, Dr B’s opinion in cross-examination was that it was quite possible, indeed possibly likely, that X’s memories of her Father were not original in the sense of direct recollection of events, but based on events recounted to her by her mother. Now, this does not necessarily mean that the recount of the events was inaccurate, or embellished, but it does suggest, if true, that X’s anxieties could have been mitigated by her mother, but were not. This no doubt reflects the Mother’s own anxiety.
74.At paragraph 55, Dr B continues with the theme of anxiety:
55. Anxiety which is borne out of the emotions of fear and worry needs to be addressed. It is often tempting for parents who are anxious themselves to encourage children to use avoidance as a coping strategy when their children are confronted with difficult situations. Moving forward with anxious children such as X involves encouraging them to face their fears and difficult emotions by stepping out of their comfort zone into uncomfortable spaces in a supportive and safe but developmentally challenging and appropriate way. There is a concern in matters such as this that children who maybe have some positive experiences with a parent but then feel they need to negate those experiences because they are incongruent with the child’s lived experience come to distrust their experience. It is therefore important, if this matter is to progress that X receives the message that both her parents are in accord in encouraging her and not behaving in ways that pull her back if she voices irrational fear. It is unclear whether Ms Gabalis and significant others in her circle have the ability to do this for X.
75.Dr B clearly had some concerns about the Mother’s capacity to encourage X’s relationship with her father. That is not the impression that the Court formed of the Mother during cross-examination. The Court accepts that it could well be wrong in this regard but in any event, whatever the Mother’s real attitude is about X’s relationship with her father, there are other important issues such as the Father’s own capacity to parent X on an unsupervised basis, and what needs to happen in a therapeutic sense before that stage can occur.
76.At paragraph 56, Dr B concludes:
56. Unless there are some significant changes in this matter, the hope for X to have a relationship with her father is dismal. Beyond the Contact Centre, all that could be recommended with the family engaging with a family therapist who specializes in family law. The parties need to be mindful that children who are denied the opportunity to have a relationship with both parents often do not fare so well in their emotional and psychological development. At the same time, exposure to protracted litigation is also harmful for children especially when they already have special needs. The history of this matter not only in the family law proceedings, furthermore, raise issues about the capacity of the parties to comply with agreements and Orders which is likely to added an additional complication.
77.By the time that Dr B was cross-examined at the Final Hearing, a number of matters were clear to the Court. Both parents had in fact engaged in family counselling with Contact Centre F, but with limited success. Supervised contact was a pathway for X, but after she had successfully attended counselling with a child psychologist to help prepare her for future contact with her Father. It is unfortunate that the records of the family counselling produced by Contact Centre F did not include notes of what took place during the sessions. Nonetheless, what is known is that pursuant to the recommendations made by Contact Centre F, the Mother engaged X with Region H Children’s Developmental Clinic.
78.The records of Region H Children’s Developmental Clinic were in evidence. These records produce the clearest and most reliable evidence about the developmental challenges confronting X and, peripherally and secondarily, the relationship with her Father. By way of overview of these records, it is clear that their view was that the priority was to address X’s emotional regulation and anxiety first, and then to discuss family relationships.
79.What is clear from this evidence is that there were at least two occasions, one in 2018 and one in 2019, when the psychologist working with X had raised the subject about X’s father, but her response was that she had nothing to say. The Mother’s evidence was that X “shut down” whenever the issue of her father was raised in the psychological sessions. It is not an unfair characterisation. When the records are closely examined, however, the Court finds that it was raised twice with X, and that on each occasion she did shut down.
80.The first occasion was probably reported in three separate reports, but there is nothing to suggest that there is more than one incident. The last record in evidence is dated 19 November 2019, and the observation was that: “A [became] withdrawn when the topic of family and her Father was brought up.” It is interesting to note, however, that at the end of the preceding session on 5 November 2019, the Mother had asked if the topic of X’s father could be explored in a session. The inference is that the Mother, probably appreciating the potential significance of this evidence at the forthcoming hearing, wanted it raised. That does not necessarily detract from the Court’s conclusion that on 19 December 2019 X “shut down” at the mention of her father.
81.From the Court’s perspective, however, there is a risk in overlooking the real significance of the Region H Children’s Developmental Clinic records. In reality, these records demonstrate the profound vulnerability of X in the complex circumstances of this case. For example, it is clear from the 2019 records that one of the major foci of the psychological intervention was to develop within X the capacity to regulate her emotion, to manage her anger triggers, and to instil calming strategies.
82.The reason for this is clear from the records. On 10 September 2019 X reported that when she was playing with her mother’s partner she had wanted to stop playing and stabbed her with a pen in her hand, because she was angry. The Mother raised concerns about X’s quick reactions and impulsivity when she does not get her way or wants something to stop. On 16 July 2019 the Mother reported X calling her grandmother a bitch and swearing towards her. On 18 June 2019 X told the psychologist that she often says mean things to herself, including calling herself a “prick” when she is very angry at herself.
83.In the same session the Mother expressed concerns about her defiant and aggressive behaviour at home, and that X can become rude in public when she is overwhelmed, such as swearing at people. On 21 May 2019, when X asked to play a game that was not available the psychologist recorded that X became defiant, non-compliant to complete with any session activities, and non-communicative. On 26 February 2019 the principal concern was about defiance at school, and at home.
84.The Mother reported X having a tantrum the night before a session when X threw a book at the wall in response to not liking the story. When the Mother told X this was unacceptable behaviour, X began to cry and told the Mother she is the worst mother and hated her. On 9 October 2018 the Mother’s concern was X’s lack of empathy and ability to perspective-take. The Mother expressed surprise in that she had not realised how cruel X could be to other children, and how aggressive she could be to others.
85.The most recent record of X’s progress in her sessions appears to be dated 25 June 2019. The therapy goals are described as diminishing the level of anxiety that X experiences, improving her emotional regulation and overall defiant behaviour and building on X’s social skills particularly focusing on social initiation, social filter, empathy-building and problem-solving. Under the heading of Anxiety Management, there is reference to X exhibiting “anxiety in new and unfamiliar environments…as well as during tasks that X perceives to be difficult. X’s anxiety often presents as defiance, or meltdown behaviour.”
86.Under the heading of Social Skills, it was noted that “X continues to require assistance with perspective-taking, initiating and maintaining reciprocal conversations and flexible thinking as well as demonstrating appropriate use of her social filter.” Under the heading Behaviour Modification it was noted that “X continues to display defiance, and aggressive behaviours in the home, school and community environments.” This is particularly evident when “X perceives that a task is too difficult to complete for fear of failure.”
87.Under the heading of General Description of How She is Functioning and the Impact of Their Difficulties on Day-to-Day Life, the record states that:
X’s diagnosis of autism spectrum disorder means that she has limited social awareness which significantly impacts her ability to engage successfully in social groups and initiate and maintain lasting and meaningful friendships…X also demonstrates significant difficulty with changes in routine and managing new and unfamiliar situations which often result in aggressive behavioural responses. At home X continues to be have defiantly and often aggressively. Triggers for these responses include asking her to complete homework, or getting dressed of a morning. X will often begin to scream, hit, push and kick her mother, as well as throw objects.
88.It is important to note, in considering what weight to place on this evidence, that whilst some of it based on the Mother’s reports to the psychologist, much of it is based on what X has said and done in her sessions with the psychologist. From the Court’s perspective, there is no reason not to place significant weight on this evidence. It presents a disconcerting picture of the challenges confronting X in new situations. Spending time with her Father would be a new situation. When X’s vulnerability is considered in the light of the concerns that this Court has about the Father’s capacity to deal with such challenging behaviours, the Court becomes seriously concerned about the challenges of any order for X to spend time with her father, until these issues are satisfactorily addressed.
89.Returning to paragraph 56 of Dr B Report, it is quite possible that whilst Dr B explores in general terms the challenges associated with X’s emotional and psychological development, she may well have not fully appreciated how deep those challenges actually are. Indeed, the documents produced by Region H Children’s Developmental Clinic were received on 17 December 2019, the second day of the Hearing, and in response to a subpoena issued on 16 December 2019 at the Court’s request. It is highly unlikely, therefore, that Dr B had any opportunity to study these records, let alone to fully assimilate their implications in a case like this. This is no criticism of her, given the circumstances.
90.Dr B’s recommendations are found at paragraphs 57-63:
57. It is recommended that the parties work on a more collaborative relationship if that they can share parental responsibility. They may need to avail themselves of a family therapist who specializes in family law.
58. It is recommended that X lives with her mother.
59. It is recommended that the parties work together with a family therapist to help repair X’s relationship with her father. It would be recommended at that point that supervised time be reinstated and this progress be reviewed before any unsupervised time is introduced.
60. It is recommended that the parties not come into each other’s space unless for the purposes of therapy.
61. It is recommended that there be no denigration of significant others or any discussions pertaining to the adult dispute with X.
62. It is recommended that Ms Gabalis receive intensive family support.
63. It is recommended that Mr Akula be informed of any diagnosis or interventions that are pertinent to managing X’s behaviour.
91.The Court finds the recommendation found at paragraph 57 was actually implemented by the parties but without success over two years later. The family therapy resulted in the referral to Region H Children’s Developmental Clinic. The work of Region H Children’s Developmental Clinic is ongoing. The Court has studied their records carefully and forms the impression that there is much, much more work to be done in addressing the issues of anxiety, emotional dysregulation and anger that X experiences, probably attributable to her diagnosis of Autism Spectrum Disorder. The impression created is, from the Court’s perspective, realistically not optimistic.
92.In terms of the parents working on a more collaborative relationship, that is highly unlikely on the evidence. With the greatest respect to the Father, if he was unable to regulate his criticism of the Mother in front of Dr B, and in the same room as X, in the context of the forensic assessment, there is little hope in any other context. Moreover, when in cross-examination, the Father could be so dogmatic in his blame of the Mother and her friends for the breakdown in his relationship with X, that there is no prospect of developing a more collaborative relationship.
93.Paragraph 59, with its recommendation of further work with a family therapist, is consistent with the Independent Children’s Lawyer’s recommendation. However, the Court is of the view that it would take so long, with such low prospects of success, that it is not a realistic prospect for X, whose interests would be greatly assisted by the conclusion of these proceedings. Moreover, how could X’s relationship with her father be improved when the Father is so disconnected from X’s developmental and emotional challenges, and has failed to avail himself of the opportunities to find out more, and become involved? In any event, how could the parties work together on anything, without actually talking to each other?
94.The Father’s evidence in cross-examination about this is revealing. The context was about his proposal for equal shared parental responsibility. Firstly, he accepted that he did not know what that meant. Secondly, he responded affirmatively to the proposition that he thought that the Mother and he could have a conversation about X. When asked, however, when was the last civil conversation he had with the Mother, he was unresponsive. When it was put to him by Counsel for the Mother that in fact their relationship was non-cooperative, he said words to the effect: “Exactly. The last conversation was at Suburb E and it resulted in the cops coming around to speak to me. I can’t have a civil conversation with the mother as she won’t do it with me.”
95.Regrettably, when all of the evidence is viewed in its entirety, there is no prospect for the parents to work together with, or without a family therapist. Moreover, the Court cannot be reassured that if supervised time was reinstated that it would work. The Father’s proposal that supervised contact commence whilst therapy is ongoing was plainly unrealistic in the circumstances. If X “shuts down” about her Father, in the safe environment of a session with her psychologist, then what realistic prospect is there of successful supervised contact with her Father until all the underlying issues have been addressed?
96.Dr B’s recommendation at paragraph 61 is significant because of the clear evidence before the Court of the Father’s continued denigration of the Mother on social media. The Father’s actions in 2019 alone were deplorable. Between June 2019 and August 2019 the Father made 30 Facebook posts about parenting, father’s rights and custody matters that could only be understood in the context of the present proceedings. He named X’s school on social media. X was specifically mentioned in a video that was shared on Facebook in July 2014. Moreover, the Father’s attitude about compliance with the social media orders was problematic indeed, and will be discussed below.
Statutory considerations about the best interests of X
97.X does not have a meaningful relationship with her father, at this time. In a prospective sense, there can be no doubt that there is a benefit to her of having a meaningful relationship with both her mother and father. The Mother accepts this, and the Father desires this. Even if the Court orders there to be no time between X and her father, a matter which the Family Consultant alluded to in her evidence is that X could seek her Father out as she becomes older. In that sense, there is still a prospect of a meaningful relationship. Nonetheless, that meaningful relationship cannot be attained at any cost to X. The legislation makes it clear that the benefit has to be weighed against the potential harm to X.
98.The difficulty in this case is that the Court believes that there is a need to protect X from harm, this harm being derived from the risk that her father will either neglect or abuse her, or expose her to violence. The Court doubts very much that he would do this intentionally, but the Father’s chaotic lifestyle suggests that it is not an infrequent phenomenon for him to be exposed to violence. For example, in cross-examination he sought to explain his most recent relapse back into cannabis use by reference to having to intervene in a violent incident involving a neighbour which resulted in that person being stabbed, and, according to the Father himself, he being nearly stabbed himself.
99.The Father was quite open about the number of drive-by shootings and home invasions that he had been involved in, as a victim or bystander the Court is prepared to infer. The Father continues to struggle with an addiction to cannabis which he himself accepts is used to “block out traumatic stuff..”. He has no insight into the potential adverse impact on X of his addiction to cannabis. To the extent that the Father’s case inferred that he was no longer using cannabis, the Court does not accept this. The history he himself gave to the Court was one of continual relapse. In cross-examination he also accepted that he drinks “a few cans a day” of bourbon and coke. When pressed in cross-examination, he explained that it can be “..between two and four per day, but sometimes nil depending on whether I have money to pay for it.”
100.In addition to these matters, perhaps the greatest harm for X coming from her father has to do with her own vulnerability as a result of the Autism Spectrum Disorder and Sensory Processing Disorder. The impact of these conditions on X’s daily life was graphically portrayed in the Region H Children’s Developmental Clinic documents, discussed above. This makes X a highly vulnerable child. When her vulnerability intersects with the Father’s own vulnerabilities due to the matters described above, it places X in a highly dangerous situation. Both, for example, struggle to emotionally regulate themselves. For X this is understandable given her age and diagnosed conditions. For the Father, this is less understandable at least in the sense that one would hope that as an adult he had developed the skills to manage his own emotions.
101.The Court is not convinced that at any time in the foreseeable future both X and her father would be able to manage unsupervised time with each other, even putting aside the necessary family therapy that even the Father accepts is necessary.
102.The Court does not accept that the risk to X could be managed through long-term supervised contact. This is unworkable. The Father’s belief, expressed in cross-examination, that he could somehow contribute to half the cost of ongoing supervised contact is an unrealistic one. He gave evidence that he receives $350.00 per fortnight net after deduction of rental, child support etc. That means that he has $175.00 per week to live on. He agreed that his share of two hours supervised time would be $120.00 per week. It is simply unsustainable, even before considering whether the Mother should have to, let alone could afford to, contribute to a share of the cost of ongoing supervised contact. The Court would not be prepared to make an order for use of a publicly funded facility on an ongoing basis.
103.In any event, the risk of emotional harm to X spending time with her Father, supervised or unsupervised, in circumstances where the evidence so clearly indicates that she is resisting and/or refusing a relationship with her Father, is another important factor. The evidence already demonstrates how anxious she is and the relationship between her anxiety, and her behavioural problems both at home and at school.
104.Thus, and the Court must say regretfully, the evidence leads the Court to conclude that there is the need to protect X from the risk of harm of spending time with her father, and this risk cannot be managed through supervision.
105.The Court must take into account X’s views. Her actions at Contact Centre F, City A during the attempts at supervised contact, and her behaviour during the family report interviews, communicate a view that she does not want to spend time with her father. There was no challenge to the Mother’s evidence that X tells her that she is anxious and afraid of spending time with her father, but the Court accepts that some of this anxiety could easily have been transmitted to her through her mother, who is herself anxious about the Father. X’s views are not, however, a determinative consideration in this case. Nonetheless, it is another factor pointing towards an order for no physical contact with her father.
106.The evidence suggests that X has a very good relationship with her mother who is her primary attachment figure, as well who has been her primary carer for all of her life.
107.The Court must consider the likely effect of change in X’s circumstances. The order proposed by the Mother means no change. The order proposed by the Father means significant change. The order proposed by the Independent Children’s Lawyer means the possibility of change but, unfortunately, at the cost of the prolongation of these proceedings with its incipient impacts on X’s mother, and X. What is clear from the evidence, particularly from Region H Children’s Developmental Clinic, is that X's Autism Spectrum Disorder, and Sensory Processing Disorder, makes her particularly vulnerable to changes in her life, and daily routine. All of the above contraindicates making an order for X to spend time with her Father.
108.There are no issues of practical difficulty and expense in this case if it were possible for X to have unsupervised time with her Father. As foreshadowed above, however, the cost of ongoing private supervised contact would, on the evidence before the Court, be prohibitive for the parents.
109.Issues of parental capacity abound in this case. Whilst the focus of the evidence has been, quite appropriately, on the Father, it must also be recognised that the Mother is vulnerable. She has had a number of ill-advised relationships and friendships with persons who have probably contributed to X being exposed to risks of violence and drug-dealing. Nonetheless, in terms of the Mother’s capacity to meet X’s physical and emotional needs, she has been exemplary, particularly in terms of addressing the consequences of X's Autism Spectrum Disorder and Sensory Processing Disorder. Even the Father, quite appropriately, conceded that X should remain living with her mother, and he had no concerns about her capacity to care for her.
110.The Court must consider the attitudes of the parents to X, and to their responsibilities as parents. Many of the relevant considerations here have been discussed elsewhere in these Reasons for Judgment. There have probably been times in X’s life when her mother has, sometimes, and for short periods of time, allowed other things and people to have priority over X. That is no longer the case and, indeed, there is no evidence to suggest it has been the case for a considerable period of time.
111.There is so much more the Father could have done and, in particular, the Court is critical of his failure to engage more fulsomely, if at all, with Region H Children’s Developmental Clinic in recent years. The Father’s attitude of resistance to authority is deeply disconcerting. His blatant breaches of the orders in relation to social media speak of an attitude suggesting indifference to compliance with court orders. There is, regrettably, elements of a deep anti-authority attitude in the Father which means that the Court could not be satisfied that he would comply with orders of the Court governing his conduct around X.
112.The Mother makes serious allegations about family violence and whilst the Court is prepared to give her the benefit of the doubt on balance, that is not to say that the Court unequivocally accepts all of her allegations. Ultimately, it is not a determinative consideration.
113.It is not in the best interests of X for her parents to have equal shared parental responsibility. Their relationship is a toxic one. Whilst the Mother has moved on somewhat, the Father has not. He blames her entirely for the breakdown of the relationship, without being able to understand the role he has played, and the many opportunities he has missed to potentially change things.
114.The parents cannot communicate. They do not trust each other. There has, in any event, probably been violence in the relationship that would provide another explanation for an order for sole parental responsibility. This was the Mother’s proposal. The Court will nonetheless make orders requiring her to give the Father information about X, and decisions made in relation to her, without necessarily having to consult with him. The Mother indicated in cross-examination a general willingness to accept this.
115.The Court does not accept the utility to X of the proposal of the Independent Children’s Lawyer which was, in effect, to try once again family therapy. To be fair to the Independent Children’s Lawyer, whose optimism and hope for this family is something to be commended and admired, it is possible that inadequate consideration was given to the late-produced documents by Region H Children’s Developmental Clinic which portray a poignant picture of the challenges that X confronts in her daily life. In an event, the Court has grave reservations about the capacity of her parents to gainfully participate in family therapy.
116.It is interesting, and disconcerting, to observe that the Father in cross-examination did not even recall attending a family therapy session, even though the Contact Centre F records demonstrate that he attended four times. The benefit to X of, in effect, having another go at repairing relationships, is less than the emotional cost to her of the prolongation of these proceedings.
117.In short, X already has too much on her agenda and she should be allowed to grow up dealing with the developmental challenges she already confronts without other challenges associated with her relationship with her Father.
118.The Court believes that the orders proposed by the Mother are in the best interests of X, subject to the matters described above about the provision of information.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 23 January 2020
Schedule One
Orders of the Court made 6 December 2017
THE COURT ORDERS BY CONSENT AND PENDING FURTHER ORDER THAT:
1.Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, Orders be made in accordance with the document marked “A” dated this day 6 December 2017 and attached hereto.
2.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders
3.The Solicitor for the Applicant is to forward an electronic typescript of the document marked “A” to the Court within seven (7) days.
“A”
THE COURT ORDERS THAT:
1.That the parties and the child participate in Family Counselling at Contact Centre F Suburb K jointly and/or individually as recommended by Contact Centre F.
2. That for the purposes of Order 1, that within 7 days of the date of these Orders each party must;
2.1 Contact Centre F Suburb K and arrange an appointment for Family Counselling;
2.2Attend the appointment and comply with any appointments made by Contact Centre F;
2.3 Comply with all reasonable rules of Contact Centre F;
2.4 Comply with all reasonable requests and directions of the staff at Contact Centre F including to participate in a program or programs.
2.5 Pay the costs of such counselling equally.
3. If after the parties have participated in Family Counselling pursuant to Order 1 and Contact Centre F makes an assessment that it is suitable for the father to spend supervised time with the child then, the parties will complete all necessary assessments and attend all appointments made by Contact Centre F for supervised time.
4. If after the assessment referred to in the preceding Order, the parties are accepted by Contact Centre F as suitable for supervised time, the father is to have contact with the child each alternate weekend for two hours at times nominated by Contact Centre F and such contact is to occur at Contact Centre F Suburb K.
5.The mother is to deliver the child to and collect the child from Contact Centre F Suburb K at the time specified by Contact Centre F and on each occasion promptly leave the building and vicinity.
6. In the event Contact Centre F offers supervised time only at times which are less regular than specified in these orders then, contact shall occur at the times that are offered by Contact Centre F.
7.The time the child spends with the father under these orders is to be supervised by Contact Centre F Suburb K and the initial costs of supervised contact are to be borne by the father.
8.The father must not attend Contact Centre F Suburb K or its vicinity before the time with the child is to commence and must promptly leave the contact centre and the vicinity at the time his time with the child is to end.
9. The period of contact provided in these orders may vary by reason of the closure of the contact centres services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the contact centre.
10. Each parent shall ensure that the other parent is kept informed as soon as is reasonably practicable of:
(a) Any medical problems or illnesses suffered by the child which require medical treatment.
(b) Any medication prescribed to the child that needs to be taken while the child is in the other parent’s care.
11.That the mother and father shall not denigrate, belittle and/or insult each other, or persons the other party is in a domestic relationship with or members of the other party's family in the presence or hearing of the child or on social media and each party shall use their best endeavours to ensure that no other person denigrates or insults the other party, or persons the other party is in a domestic relationship with or member of the other party's family in the presence or hearing of the child or on social media.
Schedule Two
Orders proposed by the Applicant Mother
12.The child of the relationship, namely X born in 2011 live with the Applicant Mother.
13.That the Applicant Mother have sole parental responsibility for the child including sole decision making responsibility with respect to but not limited to:
a) The education of the child;
b) The religion of the child;
c) The health of the child;
d) The name the child is known by.
e) Passports and overseas travel.
14.Pursuant to section 68B of the Family Law Act 1975 the Respondent Father is injuncted and restrained from communicating with the mother or the child in any way whatsoever and from approaching the mother or child’s home, school, place of work or any places of extra-curricular activity they may attend from time to time.
15.That Order 3 is an order for personal protection of the child and Applicant Mother to which a power of arrest without warrant attached pursuant to the provisions of section 68C of the Family Law Act 1975.
16.That each parent refrain from making critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of the child and that each parent shall do all things reasonably necessary to ensure that no other person make any critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of the child.
17.That the Respondent Father be restrained by injunction from posting on any social media platform any document, report, account of particulars of the current proceedings or account of evidence connected with these proceedings.
18.That the Respondent Father be restrained by injunction from naming or posting any photograph of the Applicant Mother on any social media platform.
19.That within 24 hours of the date of these Orders the Respondent Father take all steps to remove and delete any social media post which explicitly references the Applicant Mother or any document, report, account of particulars of the current proceedings or account of evidence that is in any way connected with these proceedings.
20.That the Applicant Mother be permitted to apply for the issue or renewal of the child's passport for that child without the need for the Respondent Father's or consent.
Orders proposed by the Respondent Father
Parental responsibility & parenting
1. That the mother and father have equal shared parental responsibility for the care, welfare and development of the child of the relationship namely; X born in 2011 (the Child)
2. Each parent will be responsible for day to day decisions concerning the care of the child when the child is living with them or spending time with them.
3. That the child will live with the mother.
4. X spend time with the father as follows;
a) Every second weekend at Contact Centre City A from 9am to 1pm the cost to be shared equally, for three months.
5. That after a period of 3 months the father is to see the child supervised by an Adult of the mothers choosing every second weekend from 9am to 1.00pm.
6. That after a period of 3 months as per order 5. The child spend time with the father unsupervised every second weekend from 5pm Friday until 5pm Sunday.
7. That the child spend time with each parent as follows for School Holidays during the School year:
a)The mother have the child for the first week of the school holidays from 9am Monday to 5pm Sunday of the first week.
b)The father have the Child for the second week of the holidays from 5pm Sunday to 5pm Sunday the following week.
8. That the child spend time with each parent as follows for School Holidays during the Christmas Break:
8.1 Even Years:
a)the mother have the Child from the end of school term to 12pm Christmas day.
b)the Father have the Child from 12pm Christmas day to 9am 7th January.
c)the mother then have the Child until the final week of the school holidays, where they will then be with the father from 9am Monday of the final week, to 5pm Sunday.
8.2 Odd Years:
a) the Father have the Child from the end of school term to 12pm Christmas day.
b) the Mother have the Child from 12pm Christmas day to 9am 7th January.
c)the Father then have the Child until the final week of the school holidays, where they will then be with the father from 9am Monday of the final week, to 5pm Sunday
9. That the father’s time with the Child be suspended:
(a)If Mother’s day falls on a weekend when the Child are to be spending time with the father, from 9:00 am to 5.00pm.
10. That the Mother time with the Child be suspended:
(a)If Father’s day falls on a weekend when the Child are to be spending time with the Mother, from 9:00 am to 5.00pm.
11. In the event either party is unable to care for the Child during their respective periods pursuant to these orders, then the other parent is to be given first option to care for the Child.
12. That changeover take place as agreed between the parties, and unless otherwise agreed to, the parting coming into care of the Child will pick them up from the parties care they are living with at the time of change over.
13. That each parent encourages and facilitate telephone communication between the Child and the other parent whilst the Child is in their care or as requested by the Child. The mother will provide a phone number to the father for the Child for that purpose.
14. That each parent keeps the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
15. That in the event of childhood illness or emergency the parent with whom the child or Child are with, contact the other parent forthwith to inform them.
16. That both parents be permitted to liaise directly with the Child's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the Child’s progress.
17. That each party is at liberty to attend at the said Child's school for the purposes of any function or activity normally attended by parents.
18. That each party be at liberty to attend the said Child’s sporting and extracurricular activities.
19. That the parties establish and use a communication book and record, if there is a breakdown of communication, for the information of the other, issues that are limited to the Child’s care and that the communication journal accompany the Child between the parents’ homes.
20. That both the applicant Mother and the Respondent Father are to refrain from making critical or derogatory remarks about the other parent, or members of his or her family, in the presence or within hearing of any of the Child. Both Parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or member of his or her Family in the presence or within hearing of the Child.
21. That both the applicant mother, and Respondent Father encourage, promote and take and do all things reasonably necessary to foster a healthy relationship between the Child and both parties.
Orders proposed by the Independent Children’s Lawyer
1.That all previous parenting orders in relation to X born in 2011 ("X") be discharged.
2.That the Mother have sole parental responsibility in relation to X.
3.That the Mother keep the Father informed by text message of all long term decisions made pursuant to Order 2 including, but not limited to:
3.1 The outcome of specialist medical appointments or any hospitalisation of X;
3.2 Enrolments of X in a school or educational institution;
3.3 Registration of X in extra-curricular activities;
3.4 Change of contact details including address and contact telephone numbers;
3.5 Change of name, religion or location.
4.That within 14 days of the date of these orders, the Mother and the Father take all steps necessary to engage in family therapy, such therapy to deal with:
4.1 The relationship between the parents: and
4.2 The relationship between the father and X
on the following conditions:
4.3 The parties may agree which therapist to engage but, in the absence of agreement, the therapist will be the person recommended by Dr B or, in the absence of such recommendation, the therapist nominated by the Independent Childrens Lawyer after consultation with Dr B or other qualified person;
4.4 The parents may, but are not obliged to, attend such therapy together;
4.5 If the therapist requires X to attend, the Mother will facilitate the attendance of X at the offices of the therapist at the time and on the date requested; and
4.6 Such therapy to continue for the period recommended by the therapist.
5.That X live with her Mother.
6.That the Father spend time with X as follows:
6.1 If, after 5 or 6 sessions of therapy, the therapist is of the opinion that X will feel comfortable about being in the same room as her Father, for two hours each fortnight with such time to be supervised by Contact Centre A and with the Father to bear the cost of such supervision;
6.2 If, after 5 or 6 sessions of therapy, the therapist is not satisfied that X will feel comfortable about being in the same room as the Father, then such therapy will continue until the first to occur of:
(a)The therapist concluding that X should not spend time with her Father; or
(b)The therapist being satisfied that X will feel comfortable about being in the same room as the Father, in which case time will be supervises as set out in 6.1 above..
6.3 If X spends supervised time with her Father pursuant to these Orders, such time will be unsupervised after 6 occasions of supervised time and shall occur on each alternate Sunday between 10.00 am and 2.00 pm
7.That the parents are restrained as follows:
7.1 From contacting each other, other than as required by, and in the form set out in, these orders;
7.2 From discussing these proceedings with X or in a manner likely to come to her attention and from providing documents related to these proceedings to X or leaving them in a place from which they are likely to come to her attention; and
7.3 From criticising the other parent in the presence or hearing of X or in a manner that is likely to come to X's attention or from permitting X to remain within the presence or hearing of any other person who is being critical of the other parent.
NOTATION:
A.That both parents engage in life coaching with a view to supporting their relationship with X and the relationship between X and the other parent.
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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