Hadley and POCK
[2011] FMCAfam 117
•17 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HADLEY & POCK | [2011] FMCAfam 117 |
| FAMILY LAW – CHILDREN – Whether parents should equally share parental responsibility – whether time to be spent with mother should be overnight and/or supervised – whether there should be DNA parentage testing. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA |
| Aldridge & Keaton (2009) FLC 93-421 Brianna & Brianna (2010) FLC 93-437 Carpenter and Lunn (2008) FLC 93-382 Champness & Hanson (2009) FLC 93-407 Chappell (2008) FLC 93-377 Duroux v Martin (1993) FLC 92-432 F and R (1992) FLC 92-300 F & Z [2005] FMCAfam 394 Mills & Watson [2008] FMCAfam 2 Mulvaney & Lane (2009) FLC 93-404 Stirling & Dobson [2011] FMCAfam 52 |
| Applicant: | MR HADLEY |
| Respondent: | MS POCK |
| File Number: | MLC 3517 of 2009 |
| Judgment of: | Roberts FM |
| Hearing dates: | 18 & 19 March; 24 & 25 May 2010 |
| Date of Last Submission: | 25 May 2010 |
| Delivered at: | Launceston |
| Delivered on: | 17 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robinson |
| Solicitors for the Applicant: | Plaza Legal |
| Counsel for the Respondent: | Ms Jenkins |
| Solicitors for the Respondent: | Maria Barbayannis & Co |
ORDERS
That MR HADLEY (“the father”) have sole parental responsibility for the children [Y] born [in] 1995 (“[Y]”), [X] born [in] 1996 (“[X]”) and [W] born [in] 1998 (“[W]”).
That the children are to live with the father.
That [Y] and [X] are to spend time and communicate with MS POCK (“the mother”) in accordance with their wishes.
That [W] is to spend time with the mother as follows:
(a)each alternate weekend from 4.30 p.m. on Friday until 6.00 p.m. on Sunday, commencing on Friday 25 February 2011;
(b)each Wednesday from 4.30 p.m. until 7.30 p.m, commencing on Wednesday 23 February 2011;
(c)from 6 p.m. the night preceding Mothers’ Day until 6.00 p.m. on Mothers’ Day if she is not otherwise spending time with the mother;
(d)on [W]’s birthday from 4.30 p.m. until 7.00 p.m. if on a weekday and from 12.00 noon until 5.00 p.m. if during a weekend; and
(e)such further time as may be agreed between the mother and the father.
That for the purposes of Order No. 4 changeover is to occur at a place to be agreed between the father and the mother, but failing agreement outside the [G Police Station], Victoria.
That [W] is to communicate with the mother by telephone as initiated by [W].
That the father and the mother are to each keep the other advised of their current residential address and contact telephone numbers and each is to advise the other of any change within 24 hours of such a change.
That, subject to her first obtaining the father’s agreement in writing, the mother may attend the children’s school and extra curricular activities including but not limited to school concerts, parent/teacher interviews and sports days.
That the father and mother each keep the other advised of any serious medical condition or hospitalisation affecting any of the children while they are in his or her care and provide details of any medical treatment, including the names and contact details of doctors or hospitals responsible for treating the children and authorise such doctors or hospitals to provide information to the other parent if such authorisation is required.
That the mother’s application for DNA parentage testing in relation to [W] is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hadley & Pock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3517 of 2009
| MR HADLEY |
Applicant
And
| MS POCK |
Respondent
REASONS FOR JUDGMENT
The applicant is MR HADLEY and the respondent is MS POCK (also known as HADLEY). For convenience I shall refer to them as “the father” and “the mother”.
The parties were married in 1994 and separated in 2008. They were divorced in 2009.
These proceedings were started on 24 April 2009 when the father filed an application seeking orders in relation to children and property as follows:
1. That the children of the marriage namely [Z] born [in] 1992, [Y] born [in] 1995, [X] born [in] 1996 and [W] born [in] 1998 live with the husband.
2. That the husband have sole-responsibility of the children.
3. That the wife spend time with the children at a supervised contact centre.
4. That the former matrimonial home situate at [Property K] be transferred to the husband by the wife.
5. That the wife pay the legal costs of the husband incidental to these proceedings.
6. Such other and further orders as this Honourable Court deems appropriate.
On 1 June 2009 FM O'Dwyer made various procedural orders, including orders for the preparation of a Family Report and requesting that Victoria Legal Aid appoint an Independent Children’s Lawyer (“ICL”). Unfortunately, an ICL was never appointed.
On the 4 June 2009 interim orders were made by consent providing for the mother to have supervised time with children, and on 15 July 2009 an order was made for the mother to attend upon a psychiatrist (Dr K) for an assessment.
The mother filed a response on 20 July 2009, seeking orders only in relation to the children. (It is not necessary to detail those orders here because her counsel provided a Minute of Proposed Orders at the start of the hearing and I shall provide details of those below.) At that time the mother did not respond to the property order that the father was seeking. She explained that in her supporting affidavit as follows:
48. That I am in receipt of Legal Aid funding with respect to Children's Issues. Unfortunately, Victoria Legal Aid does not provide funding for my lawyer to act for me in relation to property matters. I propose to file a Financial Statement which will be prepared by me and not my lawyer. Further, I propose to attend the Conciliation Conference in this matter as a self represented litigant.
The mother filed a Financial Statement on 1 February 2010 (and later filed another on 21 May 2010).
On 5 March 2010 the mother filed an amended response in relation to children’s matters only.
The matter came on for hearing before me on 18 March 2010. It quickly became clear that I could not deal with children’s matters and property matters at the same time. Not only had the mother not filed any material setting out what she was seeking in relation to property, but more importantly, her counsel was only instructed in relation to children’s matters, essentially because Legal Aid Victoria had not granted aid in relation to property matters. (I must confess that, in a matter where the father had applied for orders relating to the parties’ children and property in the same application, I do not understand why Legal Aid Victoria would fund one aspect of it but not the other. Similarly, it was very disappointing to find that Legal Aid Victoria had not funded the appointment of an ICL, as this case cried out for one.)
As a consequence, it was determined that the children’s matter should proceed first and the property matter proceed at a later time. The children’s matter was heard on 18 and 19 March and 24 and 25 May 2010. The competing property applications were heard on 13 and 14 September 2010 but that will be the subject of further Reasons at a later time.
The orders being sought by the mother, as set out in the Minute of Proposed Orders provided by her counsel, are as follows:
1. The husband and wife have equal shared parental responsibility for the children ….
2. The children live with the husband.
3. The child [Y] spend time and communicate with the wife subject to her wishes.
4. The child [W] and the child [X], subject to [X]'S wishes, spend time and communicate with the wife as follows:
a. Each alternate weekend from the conclusion of school Friday until the commencement of school Monday;
b. Each Wednesday from afterschool until 7.30 p.m;
c. From 6 p.m. the night preceding Mother's day until the commencement of school Monday;
d. On the children's birthdays from the conclusion of school until 7 p.m. if a weekday and from 12 noon until 5 p.m. if a weekend;
e. For one half of all school holidays, in default of agreement, the first half;
f. By telephone on a regular basis;
g. Otherwise as agreed.
5. That save for the changeovers that occur at the children's schools all changeovers occur at the [omitted] Library, [W].
6. That the husband and wife sign all documents and do all acts and things necessary in order to undertake DNA parentage testing in respect of the child [W].
7. That the husband and wife keep each other advised of their current residential address and contact telephone numbers at all times and advise each other of any change to these details within 24 hours of said change.
8. That the husband and wife be entitled to attend all of the children's school and extra curricular activities including but not limited to school concerts, parent/teacher interviews and sports days.
9. That the husband and wife keep each other advised of any serious medical condition or hospitalisation affecting the children whilst they are in their respective care and provide details of any medical treatment, including the names and contact details of any health professionals, including counsellors, treating the children and authorise said health professionals to provide information to the other parent if such authorisation is required.
10. That the husband be restrained by injunction from bringing the children into contact with the following persons::
a. Mr G and/or;
b. Mr M.
11. The children continue to attend upon their respective counsellors.
12. The wife and children together attend family therapy, as recommended by the children’s respective counsellors.
13. Such other orders as this Honourable Court deems fit.
In his opening, counsel for the father indicated that the father would consent to orders in terms of paragraphs 2, 3 (but [X] should be included), 7, 8 (provided that it was subject to the children’s wishes), 9 and 11. He also gave a good summary of the main areas of dispute between the parties. They are:
·whether there should be equal shared parental responsibility;
·what time the mother should spend with [W];
·whether particulars of time to be spent with [X] should be specified;
·whether the time spent with any of the children should be supervised; and
·whether there should be DNA testing in relation to [W]’s parentage.
Legal principles
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). Section 60CA provides that the court must consider the best interests of the child as the paramount consideration.
Section 60B sets out the objects of Part VII of the Act and the principles which underlie those objects. It provides:
60B(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.
60B(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).
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The court must also take into account those of the “additional considerations” set out in section 60CC(3) that are relevant.
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. That debate may continue from time to time. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case. Indeed, I am fortified in that view by the judgment of May and Thackray JJ in Mulvaney & Lane,[1] in which their Honours said:
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
[1] (2009) FLC 93-404. Also see Aldridge & Keaton (2009) FLC 93-421 and Champness & Hanson (2009) FLC 93-407
Section 60CC(4) provides that the court must also consider the extent to which each parent has fulfilled his/her parenting responsibilities and has facilitated the other parent in fulfilling his/her parental responsibilities:
Section 60CG provides that the court must, to the extent that it is consistent with the child’s best interests being paramount, also ensure that any order that is made is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.
Section 61DA provides a presumption that it is in the best interests of the children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence. Sub-section (4) provides that 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”.
In a 2008 decision[2], FM Walters said the following in relation to terminology:
Although the law now refers to a child “spending time” with a person (usually a parent) with whom the child does not live, I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[2] Mills & Watson [2008] FMCAfam 2
For the same reasons I will also use the superseded term “contact” from time to time in these Reasons.
Brief background
Where I refer to any fact in these Reasons, it should be regarded as a finding of fact unless a contrary intention is clear from the context.
The parties were married [in] 1994. The mother’s son, [Z] had been born in 1992, but he is not the father’s son. The three girls were born on the dates set out above.
The parties separated [in] 2008 and, while the parties do not agree about exactly what happened, there was an altercation which resulted in the mother being arrested and charged by Victoria Police.
In the months that followed the Department of Human Services (“DHS”) was heavily involved with the family.
The mother frequently attended at mental health institutions and, effectively from the date of separation, the three girls have remained living with the father.
[Z], who is now 18, was initially the subject of DHS order but he now resides independently of the parties.
The girls have spent time with their mother, initially supervised by DHS or their nominees. However, DHS ceased their involvement in mid-2009 and since then the interim orders made by consent on 4 June 2009 have effectively governed time between the mother and [W] mainly, but also [X] occasionally. Those orders provide as follows:
1. That the wife spend time with the children of the marriage as follows:
(a) supervised by Ms R at the Salvation Army [G] … each Wednesday from 4:00pm until 5:00pm commencing 9 June 2009 for a period of six weeks;
(b) supervised by Ms C subject to her undertaking given to the court on 1 June 2009 each Monday from the conclusion of school until 5:30pm commencing 9 June 2009. Ms C to collect the children from school and return them to the father's residence.
2. For the purposes of the children spending time with the wife on Wednesdays referred to in paragraph 1(a) herein that the paternal grandfather will deliver the children to and from the venue.
3. That the husband will notify the supervisors in a timely manner if the children are unable to attend spending time with the wife pursuant to paragraphs 1(a) and (b) herein.
[Y] has elected not to have contact with her mother and the parties are respecting her wishes.
The mother’s supervised time with the [X] and [W] has not always gone smoothly.
The evidence
Oral evidence was given by the following (in the order that it was given):
a)The father;
b)Ms S, a Senior Mental Health Clinician with [omitted] Health Child and Adolescent Mental Health Service (“the Mental Health Clinician”);
c)The mother;
d)Ms N, the mother’s treating psychologist (“the mother’s psychologist”);
e)Ms R, a Salvation Army worker (“the Salvation Army worker”);
f)Dr H, the author of the Family Report and who is also a psychologist (“Dr H”);
g)Ms C, who had been the “cottage mother” of a family group home attended by the mother for approximately six years when she was a child (“the cottage mother”); and
h)the psychiatrist, Dr K.
With the exception of Dr H, affidavits by those listed in the preceding paragraph had been filed, but Dr H's Family Report of 6 August 2009 was admitted into evidence.
Is the presumption of equal shared parental responsibility applicable?
The presumption in section 61da is clearly not applicable in this case because there is evidence that the mother has been the perpetrator of both family violence and abuse of the children. I will refer to some particulars below, but it is sufficient to say at this stage that, if there is to be equal shared parental responsibility, I must conclude that it is in the children’s best interests having regard to the provisions of section 60CC of the Act.
I am of the view that I must consider what is in the children’s best interests (and therefore the section 60CC considerations) in relation to all of the parenting matters in dispute. Although a child’s best interests may not always be the paramount consideration in relation to applications for parentage testing,[4] it is clear from Brianna & Brianna[5] that I must take the children’s best interests into account in relation to that issue also.
[4] F and R (1992) FLC 92-300, Duroux v Martin (1993) FLC 92-432 and F & Z [2005] FMCAfam 394
[5] (2010) FLC 93-437
I will therefore consider the evidence in this matter in the light of section 60CC. However, before I do that I should set out some of the evidence in relation the mother’s mental condition in order to explain some of her behaviour.
The mother’s mental condition
Dr K provided two reports that confirm that the mother has a Borderline Personality Disorder (“BPD”). It is sometimes referred to as Emotionally Unstable Personality Disorder and can co-occur with other disorders, such as Post-traumatic Stress Disorder (“PTSD”).[6]
[6] Source: >
The latest edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV-TR”), the widely-used American Psychiatric Association guide for clinicians seeking to diagnose mental illnesses, defines BPD as: “a pervasive pattern of instability of interpersonal relationships, self-image and affects, as well as marked impulsivity, beginning by early adulthood and present in a variety of contexts”. A diagnosis of BPD requires any five out of nine listed criteria to be present for a significant period of time. The criteria are:
1. Frantic efforts to avoid real or imagined abandonment. [Not including suicidal or self-mutilating behavior covered in Criterion 5]
2. A pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation.
3. Identity disturbance: markedly and persistently unstable self-image or sense of self.
4. Impulsivity in at least two areas that are potentially self-damaging (e.g., promiscuous sex, eating disorders, binge eating, substance abuse, reckless driving). [Again, not including suicidal or self-mutilating behavior covered in Criterion 5]
5. Recurrent suicidal behavior, gestures, threats, or self-mutilating behavior such as cutting, interfering with the healing of scars, or picking at oneself.
6. Affective instability due to a marked reactivity of mood (e.g., intense episodic dysphoria, irritability, or anxiety usually lasting a few hours and only rarely more than a few days).
7. Chronic feelings of emptiness, worthlessness.
8. Inappropriate anger or difficulty controlling anger (e.g., frequent displays of temper, constant anger, recurrent physical fights).
9. Transient, stress-related paranoid ideation or severe dissociative symptoms
Dr K said on 8 September 2009:
The implications of Borderline Personality Disorder are that she will demonstrate disturbed behaviour; most likely have chaotic relationships; be inclined to periods of depressed mood; suicidal behaviour; not function well in employment or relationships and generally behave in a rather inappropriate and largely self-centred way.
In an earlier report of 18 August 2009, he had said the following about the mother and a diagnosis of BPD:
I have to say I think that is an appropriate descriptive label to use for this lady’s presentation. It is certainly consistent with her having had a chaotic background; is consistent with her unstable and inappropriate relationships; her unrealistic ideas; having periods of depression; having threatened self-harm behaviour and problems with impulse control.
In the Family Report, Dr H said this:[7]
Ms. Hadley’s personal life includes numerous episodes of difficulties in coping with situations in which she has become frustrated and resorted either to attempts to suicide, or appear to have been ready to suicide, physical fighting, or otherwise losing control herself in ways that are socially unacceptable. Ms. Hadley says that she has been diagnosed with Borderline Personality Disorder and possibly Post Traumatic Stress Disorder. “The essential feature of Borderline Personality Disorder is a pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity ... that occurs in a variety of contexts”.[8] Such a diagnosis explains something of the history of incidents in which Ms. Hadley has found herself, which, while important in themselves, need to be considered in the light of her responsibilities to her children.
[7] Paragraph 18 of the Family Report
[8] American Psychiatric Association, (2000). Diagnostic and Statistical Manual of Mental Disorders, 4th Edit. Text Revision, p. 706
He went on to say:
The writer is inclined to believe that she is not a very compliant person as the day prior to the interview she rang the writer's office to enquire if she could bring snacks for the children and was told food and drinks were not permitted in the writer's consulting rooms and she ought not bring any with her. Notwithstanding the clear message she had been given she brought packets of McDonald’s cookies for all the girls and without checking with the writer's associate opened and distributed them. This is clearly not a major infraction but is considered indicative of an attitude that pays attention only to what is impulsively and self-centredly desired without consideration of wider social mores or common decencies. The writer has not had the opportunity of learning what a psychiatric assessment may provide.[9]
[9] Paragraph 35 of the Family Report
To illustrate how serious the mother’s behaviour has been at times, it is worth noting that the subpoenaed DHS records reveal that the mother attempted suicide nine times during a period of less than four months in 2008,[10] and on each occasion she was transported by police or ambulance to a hospital emergency department.[11]
[10] 20 June to 1 October 2008.
[11] See Exhibit “F10” - DHS Addendum Report to the Melbourne Children’s Court of 29 October 2008
The mother’s behaviour has also put others at risks at times. In this regard, an earlier DHS report stated:[12]
(The mother) has a significant history of aggressive behaviour that has resulted in a criminal history that includes theft, recklessly cause serious injury, intentionally cause injury and make threats to kill. In addition to this, (she) has pending charges for assaulting police on the night of the reported incident.
[12] DHS Report to the Melbourne Children’s Court of 3 April 2008
Credit
In his closing submissions, counsel for the father urged me to find that the mother was simply not a credible witness, and that where her evidence conflicted with that of the father, I should prefer his evidence.
During the hearing the mother said that she had exaggerated on numerous occasions when she was giving information to her own psychologist. On a number of those occasions the exaggerated information related to the levels of prescription drugs that she had taken during suicide attempts. When she was asked why she would exaggerate in that way, she said it was “attention seeking behaviour”.
When she was cross-examined about an occasion when she had told her psychologist that she was worried about being pregnant, she said that she had been testing her psychologist to see what her reactions were like.
When it was put to her that she enjoyed playing games with her psychologist and enjoyed lying to her to see what her response was, she answered: “That’s right.” Further, when she was asked if she enjoyed exaggerating to her psychologist, she made the somewhat silly comment: “Yes. That’s part of the counsellor/client relationship.”[13]
[13] Transcript 19 March 2010 at page 18.
There was also an occasion when the mother was quite happy to be un-truthful in the information that she provided to DHS about where she was living, because it clearly suited her purpose at the time.
When I take these matters into account, I cannot help but come to the conclusion that the mother was prepared to resort to fabrication if it suited her case. One example of such fabrication relates to the altercation that precipitated the parties’ separation. The mother said much later that the father was threatening her with a knife on that occasion yet, somewhat strangely, she had not mentioned a knife to the police at the time. I can only conclude that the father was the victim in that incident, and not the aggressor as the mother subsequently claimed. I am quite satisfied that he was not holding a knife (and although it is not particularly important, I am also satisfied that he did not tear his own shirt).
Consequently, I have little hesitation in accepting the submission put to me by counsel for the father that, where the parties differ in their evidence, I should prefer the evidence of the father.
I now propose to consider the evidence in the light of the matters referred to in section 60CC.
Primary considerations
The benefit to the children of having meaningful relationships with both parents
It is clear that the father has a loving and very meaningful relationship with all three girls. I have no doubt that that will continue.
Currently, [Y] does not have a good relationship with her mother and she does not wish to have any contact with her mother. I shall refer to that more below.
Dr H said this about [X]’s relationship with her mother,:
Notwithstanding some of [X]’s more outrageous comments about her relationship with her mother the writer believes there is still a bond between them that if left to continue without the constraints of her father's, or [Y]’s, attitudes will develop further. [X] is inclined to hide her feelings behind a facade of bravado even though, as [Y] says, she is a very independent person in her own right, it would not be in her best interests to allow her to break off her relationship with her mother whom, despite it all, is [X]’s mother and for whom she still holds in some regard.[14]
[14] Family Report at paragraph 27.
It was clear from his evidence that Dr H was pleased that [X] had chosen to see her mother on occasions even if it was not as frequently as [W] had seen her.
Dr H had said this in relation to [W]:
That [W] enjoys being close to both her parents was obvious when observed together at the consultant's rooms where [W] wanted to sit near her father and when her mother arrived sat on the arm of her chair as close as she could get.[15]
[15] Family Report at paragraph 30.
Earlier in the family Report he had said:
[W] is a cheerful young … girl who loves her father and her mother in about equal amounts. She has a fairly straightforward approach to her family’s problems but does not identify herself as being either a cause or a victim of any of them. She is able to readily talk about the fact that they all had to change schools because of [X] getting bullied when she was in Grade 5 and of the fight that her mother had had with a neighbour that had led to a move from another school. She very clearly did not allow any of these issues to affect her view of her mother claiming that they had a special bond noting at the same time that it would be difficult to keep that bond if she was not able to have anything to do with her. [16]
[16] Family Report at paragraph 28.
It is clear that the special bond between [W] and her mother must be maintained, provided that the Court is not otherwise of the view that such is not in her best interests.
The need to protect the children from harm from abuse, neglect or family violence
The concerns of DHS in relation to the protection of the children were detailed in their report to the Melbourne Children’s Court of 3 April 2008 under the heading “What evidence is there of the parent's capability to protect the child from harm and promote their development?”. It said the following:
There have been eighteen previous reports in relation to the … children, which demonstrates an entrenched pattern of abuse and harm to the children. Concerns have been raised in relation to both (parents) physically harming the children, both in previous and the current intervention. Both (parents) have reported that the majority of the reports are likely to be malicious, and this demonstrates their inability to acknowledge the concerns raised by DHS. Given this, it is likely that the protective concerns will be ongoing.
Ongoing concerns have been raised in relation to (the mother)'s mental health and its impact on her ability to parent and also on the safety of her children. (The mother) has failed to complete the psychological assessment ordered by the court, therefore a thorough assessment of (the mother)'s mental health is yet to be completed. Ongoing concerns have also been raised in relation to (the mother) presenting as suicidal and given (the mother)'s reluctance to complete the assessment, it is likely these issues will be ongoing.
(The father) has presented, throughout current and previous DHS intervention as ineffective in enacting positive change in the family environment and in relation to addressing issues with (the mother). (The father) has at times in the past, spoken with Protective Workers, without the knowledge of (the mother), however has historically been unable to make positive changes that ensure the safety of his children. In saying this however, (the father) has maintained to DHS that he does not wish to continue his relationship with (the mother) and has sought an Intervention Order in relation to himself and the children.
(The mother) presents as minimising of the protective concerns relating to her and has continued, throughout DHS intervention to raise concerns regarding (the father)'s care of the children. This increases the likelihood of harm to the children, as (the mother) presents as unwilling to address issues related to her and is unable to accept responsibility for the harm caused to her children. (The mother)'s reported possible diagnosis of Borderline Personality Disorder is likely to impact on her ability to make positive changes that will ensure the safety of her children. Borderline Personality Disorders are reported by Dr Spiers to be untreatable, and therefore the protective concerns are likely to be ongoing.
(The mother) has reported having been sexually and physically abused during her childhood and also growing up in the care of DHS. These experiences are likely to impact on (the mother)'s parenting.
(The mother) has a significant history of aggressive behaviour that has resulted in a criminal history that includes theft, recklessly cause serious injury, intentionally cause injury and make threats to kill. In addition to this, (the mother) has pending charges for assaulting police on the night of the reported incident. This demonstrates a pattern of behaviour for (the mother) and increases likelihood of future harm to the children.
(The father) and (the mother) have both at times been unable to prioritise the needs of their children above their own and have become embroiled in their relationship breakdown. This has been typified both (the father) and (the mother) giving differing accounts of events and contacting DHS constantly to express concern regarding the other parent. Whilst it is important for DHS to be informed of concerns relating to the children, it demonstrates that (the father) and (the mother) are at times not prioritising the need to address issues within the family and make positive changes that will ensure the safety and well being of their children.
I am of the view that that report was a little unfair to the father because I am satisfied that, at least from the date of their final separation, he has been very protective of the children. Indeed, I would suggest that perhaps he may have been a little overprotective of them, especially in relation to contact with their mother. However, that is not a criticism of him, just an observation.
From the evidence, it seems to me that possible threats of harm to the children could come from three sources. Possible harm could come from:
·the mother herself ;
·Mr G; and/or
·Mr M.
Possible harm from the mother
In relation to the mother herself, I am quite certain that, in her calmer moments, she would never deliberately do anything to harm children. She loves them dearly. However, she has BPD, and history has shown that there have been times when she was not fully in control of her actions. I must therefore seriously consider:
a)how much time the mother should spend with the children; and
b)whether any of that time should be supervised.
It is very clear that [Y] is declining to have any contact with her mother, and the mother is sensibly not pursuing any contact with her at this stage. There is no doubt that [Y] has been seriously affected by her mother’s mental state and behaviour. The Mental Health Clinician reported as follows in December 2009:[17]
I have seen [Y] since 4/9/09 for assessment and six individual therapy sessions. [Y] has a diagnosis of Post traumatic stress disorder. She has made allegations that her mother has perpetrated verbal, physical and emotional abuse of her and her siblings, including implied threats to kill her and her siblings. [Y] also alleges that her mother has been complicit in the sexual abuse she has suffered. [Y]'s post traumatic stress symptoms are centred around her mother and to a lesser extent her sexual abuser. These symptoms worsen significantly with contact or the thought of contact with her mother, including seeing photos of her mother. This leads to an increase in significantly disturbing nightmares, hypervigilance/increased arousal, and a sense of detachment or dissociated state at times. She has ongoing sleep issues. She has ongoing anxiety about contact with her mother and wishes to avoid this contact. These symptoms are consistent with abuse and trauma. [Y] has had some individual therapy, but at the present time does not wish to work on these issues further, which would perhaps require her to feel safer and more supported, less anxious about court proceedings/outcomes, and could require more intensive, longer term work.
[17] See Annexure WS1 to her affidavit.
I should say immediately that, on the evidence before me, I do not find that the mother has been complicit in the sexual abuse that [Y] has suffered. However, I repeat that the mother is sensible in not pursuing contact with [Y] at this time.
It is clear that the father is of the view that the mother should have no overnight contact with the other two girls and that any contact should be supervised.
In his second report, Dr K addressed both issues when he said this about the mother:
I don’t see the need for her to have supervision on a moment-to-moment basis but she should not have prolonged contact with the children and probably not overnight contact until or unless the older children decide that they want to so do.
In the Family Report, Dr H had said:
The writer does not see the need at this time for the children to be supervised while with their mother in that there has not to his knowledge been any concern that (the mother) will not always do her best for [W] and he believes that [X] is sufficiently mature to be able to react appropriately to any events that may not be to either child’s advantage.
Dr H had recommended:
That the children reside with their father and spend time with their mother as follows:
a. [Y] and [X] as and when they determine but that both be encouraged by Mr. Hadley to go as often as possible
b. [W] on alternate weekends from 7.00 pm Friday until 6.00 pm Sunday and one night during each week from 4.30 pm until 7.30 pm for an evening meal.[18]
[18] Paragraph 38 of the Family Report
The father’s counsel asked Dr H if he found “a tension between Dr K’s recommendation of no overnight contact and (his) suggestion of the weekends”. To that he replied:
I think I’ve tried to be clear in my report there’s never really been any indication that I could see that the children were in any danger per se, and I have had the advantage of seeing [W] with both mother and father, and also talked to [X] who’s a very straightforward young character. The sort of person that was a joy to meet really once she settled down and talked sensibly. I still do not feel and did not feel, even after reading Dr K’s report, that there was any danger attributed to [W]’s position should she stay overnight with the mother. It is of course always a slight risk, a known factor, but I was fairly confident that she would do something or say something. I mean she’s now 11, isn’t she? When I saw her she was only just 10 years, 10 months, and now she’s 11 years, 6 months I think. She’s getting a bit of age on her, but she really does love her mother and she really loves her father too. That was one of the most clear pictures I have of them, of the various combinations I saw. [W] is close to both and enjoys being close to both. I am prepared to say that I think she would be quite safe with her mother for those short periods, and I also think that she’s forward enough to make a comment to her father or to one of her sisters if she had any concerns. I would actually hope that [X] would go with her because [X] is no one’s fool, to use an expression, and she would speak up.[19]
[19] Transcript 24 May 2010, pages 40 and 41.
I accept Dr H’s opinions that:
·[X] is “no one’s fool” and she will speak up if she is concerned about her mother’s behaviour in any way; and
·[W] is “forward enough to make a comment to her father or to one of her sisters if she had any concerns”.
The mother accepts that [X] should be able to decide whether she has contact with her mother. I am sure that it was very difficult for the mother to come to that decision, but she is to be congratulated for it. However, she would prefer me to make orders that provide for both [X] and [W] to spend time with her, but that should be “subject to [X]’s wishes”. I can see no reason why there should be an order specifying the time that [X] may spend with her mother if it is to be subject to her wishes. The reality is that [X] clearly has a forceful character and if she wants to see her mother she will make things very difficult for the father if he opposes that. Consequently, I will only make specific “contact orders” in relation to [W], and [X] and [Y] can determine their own contact with their mother.
Based mainly upon the evidence of Dr H, I have formed the view that it is not necessary to restrict the mother’s contact with [X] or [W] to daytime contact only, and further, it is not necessary for there to be any supervision of time with their mother.
Dr K freely admitted that he had not seen the father or any of the children. I therefore prefer the evidence of Dr H (but without any criticism of the evidence or expertise of Dr K) and come to the conclusion that the mother would at least be able to spend unsupervised overnight time with [W] (and with [X] if [X] so chooses).
Possible harm from Mr G
The mother wants me to make an injunctive order specifically naming Mr G, whereas the father would prefer that I not do so, because seeing his name in an order would be a constant reminder of Mr G’s abuse of [Y]. However, it is his position that if such an order is necessary, it should be a mutual order.
In relation to Mr G, the father’s evidence was:
Mr G was a long-time family friend and shortly after proceedings started with DHS the wife made it known to DHS that Mr G was a paedophile and had been molesting [Y]. That came out as news to myself. Throughout the proceedings - or since DHS contacted me and let me know that, I immediately contacted the children and said, “If he comes around, don’t let him around to the place.” He has never been around since then, nor do we wish to have any contact with him. I think I only saw him once on the road as we were driving down the road - once saw him and I’m just glad that we went separate ways and as far as I am aware he didn’t see us. … We wish nothing to do with him. Nothing at all. [20]
[20] Transcript 18 March 2010 at page 11
I have no doubt at all that the father meant exactly what he said.
I conclude that I should only make such an order if I consider that there is an unacceptable risk that either parent will allow Mr G to have some contact with any of the children.
Lindsay and Baker [21] was a case that went to appeal. However, Bryant CJ quoted with approval some of what the trial judge had said. At paragraph 80 of his decision, he had said the following:
80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.
[21] (2007) FLC 93-347
The same must apply if the chance of an occurrence is very slight, even though the consequence could be serious.
In this matter it is very clear to me that:
·neither parent would willingly allow Mr G to have any contact with the children; and
·each would each immediately remove the children from Mr G’s presence if they should come upon him accidentally.
Consequently, the chances of any serious consequences occurring are very slight indeed, so I do not see that an injunctive order against either parent is necessary.
Possible harm from Mr M
Mr M is the mother’s brother-in-law. He and his wife (the mother’s sister) live in Queensland.
The mother’s evidence about Mr M was:[22]
15. That when I was a child, I was sexually abused by my sister’s husband, Mr M. I never made a complaint about Mr M and have had significant difficulties dealing with the sexual abuse. I am aware that Mr M has had contact with the children. (The father) remains in contact with Mr M and Mr M's children …. I am extremely concerned about my children having any form of contact with Mr M.
16. That my sister … is around ten years older than me. Mr M began sexually abusing me from the time I was 12 years of age. He had sexual intercourse with me on around ten occasions from the time that I was 12 years of age until I was 16 years of age. I was first married when I was 16 years of age. I recall that Mr M had sexual intercourse with me after I was married when we were at my father's home….
[22] Mother’s affidavit affirmed 17 July 2009.
In relation to that, the father’s evidence was:
Mr M is - is (the mother)’s brother-in-law. We have spent many, many times at his house with his family, with his children over many, many years and never has there been any inkling of any issues in the past. It was only when his daughter, who was living with (the mother) at the time, had a falling out with (the mother) that then she made allegations both against Mr M and also against his daughter and that to DHS, which DHS did make some inquiries about and just decided to go no further with.
When the father was asked by his counsel what he had to say about any order in relation to Mr M, he said:
I find it strange, in light of what’s happened in the past but if an order needs to be made then I’d have no issue if that order were to say, you know, provided I don’t leave the children alone with him. But I do believe that the children should still be involved with (the mother’s) family, as I’ve tried to keep them in with all the other brothers, sisters, cousins, et cetera.[23]
[23] See transcript for 18 March 2010 at page 11
I note that the mother does not say that Mr M has ever abused any of the children and I am not prepared to make injunctive orders about him on the unsupported evidence of the mother alone. I accept the father’s evidence that the mother has made her unsupported allegations against Mr M only after she has had a falling out with members of his family.
I am of the view that, given the fact that the mother has raised these allegations, both parents will be vigilant in Mr M’s presence. Consequently, I do not find that there is an unacceptable risk that requires injunctive order to be made.
Relevant additional considerations
The children’s views
[Y]
I have commented above about [Y]’s attitude to contact with the mother. It is clear that for the time being [Y] will not have contact with her mother and she does not want the Mental Health Clinician to provide information to her mother.
In his oral evidence, Dr H said this about [Y]:[24]
Now, I’ve said about [Y] that she’s anti-mother or was when I saw her, and I’ve expressed the view in my report that with development and maturity and once she gets over this madness of adolescence, then one hopes that there will come a time when she will be able to reflect on her mother’s situation and recognise some of the behaviours as reflecting who she is and what she is, but without necessarily building up tension or antagonism towards her. But if she can understand maybe not forgive but at least accept and move on. Now, I’m hoping that will happen in the case of [Y]’s situation because this is her mother we’re talking about and she recognises that she is her mother.
[24] See transcript for 24 May 2010 at page 50
Later in his oral evidence, he said this:
([Y]’s) a very bright teenager. Chronologically speaking she may be only fourteen and a half; intellectually I think she’s in the fifteen and a half, sixteen year old. She’s not a child like that any more and she’s old enough to make up her own mind and her own perceptions, and if - and if the history is built that she doesn’t want her mother involved, well, there’s nothing you and I can do about that right now. We have to let time go and, as I say, [Y] to grow up and start to see things from an adult point of view as she develops. I would not force anything upon [Y] at this stage.
Let us hope that [Y] can reconcile her feelings about her mother, but as I have also noted above, the mother is sensibly not pursuing contact with [Y] at this time.
[X]
Dr H made these comments about [X]:[25]
[X] has very clear ideas about her mother and her role in the children's lives. That is, she believes that with their father they are doing well and although she has underlying, and some not so underlying, concerns about her mother she is able, where [Y] is not, to interact with her and talk and joke and chat as if all is well. During the observation session with their mother [X] sat and chatted, involved her mother in a game of UNO, and made sure there were no awkward silences or embarrassing episodes.
[25] Family Report at paragraph 26
The evidence is that [X] has been seeing her mother when she has chosen to do so. At her age, it would be difficult to get her to see her mother if she did not choose to do so. Again, the mother recognises this and I will comment on that further below.
[W]
It is quite clear to me that [W] wishes to continue seeing her mother. As I have quoted above from the Family Report, it is [W]’s view that she and her mother have “a special bond” which “would be difficult to keep … if she was not able to have anything to do with her”.
The children’s relationships with the parents and other people
I have said enough above about the children’s relationships with the parents.
The willingness and ability of the parents to facilitate and encourage the children’s relationships with the other parent
I do not have any concerns about the father’s willingness and ability to facilitate and encourage the children’s relationships with their mother in appropriate circumstances.
While I accept that at this time he is not willing to encourage the mother’s relationship with [Y], that is just a realistic reflection of [Y]’s attitude.
The father has been promoting the relationships of [X] and [W] with their mother, but that has been on the basis that their time with her is supervised. I do not see that as being suggestive of a lack of willingness on the part of the father to encourage their relationships; it is instead a desire on his part to see them protected.
On the other hand I have some concerns about the mother’s denigration of the father to the children.
For example, I accept the father’s evidence that she told [W] to “tell dad to get fucked” and to “tell dad he’s a dickhead”. Further, I accept that the mother wrongfully attempted to persuade the children that the father was the sort of person who would assault her. However, I hope that the mother listened carefully to the evidence of Dr H, especially when he said:
If the mother keeps on doing that of course, and they know from their experience that it’s not necessarily true what she's saying, then they're going to turn against their mother. I mean she’s the one that's running the risk here of losing her children. If she persists in that sort of talk then sooner or later they'll see through, they'll just ignore her and push her right out, and she will lose them altogether.
The likely effect of any change in the children’s circumstances
If I was to order that [Y] and [W] were to spend specific time with the mother, they would be extremely likely to rebel and resist their mother completely. That is especially true of [Y].
I repeat that I can see no reason to specify particular times when [X] should see her mother if her attendance is to be subject to her wishes. The simple fact is that [X] will come and go as she chooses and specifying particular hours could very well be counter-productive.
In relation to [W], I am concerned that if there is no increase in the time that she spends with her mother, or if her time is closely supervised, her relationship with her mother may “wither on the vine”.
The practical difficulty and expense of the children spending time with and/or communicating with a parent
This factor does not appear to have been one of particular significance to date, other than in relation to supervision. However, especially after hearing the evidence of Dr H, I conclude that supervision is no longer necessary.
The capacity of the parents to provide for the children’s needs
I have no concerns about the father’s capacity to provide for the physical and emotional needs of all three children. He was doing that before the parties separated (in conjunction with the mother) and he has been providing for those needs on his own since the parties’ separation.
However, because the mother suffers from BPD, it is clear that at times she has not been able to fully appreciate the children’s needs, especially their emotional needs. For example, it is clear to me that at times she has not appreciated their emotional need for a loving relationship with their father. If she had, she would not have denigrated him in the manner set out above. However, I can only repeat what I set out above about the risk that the mother runs if she continues with such conduct.
I am satisfied that many of the mother’s actions are the result of her BPD, which is clearly not easily treatable. The mother says that she is better off without medication and that may well be so. Her psychologist gave evidence that she appeared to have been more stable off her medication, especially in the preceding 12 months.
I had the advantage of seeing the mother represent herself in relation to property matters some time after the case in relation to children’s matters had been heard. I am neither a doctor nor a psychologist, but the mother appeared to be much more emotionally stable and in control at that time. However, I acknowledge that parties’ emotions are usually more to the fore in children’s matters than they are in property matters.
The attitudes of the parents to the children and to parental responsibilities
The father has demonstrated a good attitude to the children and to his responsibilities as their father, particularly since the parties separated.
The same cannot be said about the mother.
One example is the fact that during a period of supervised contact she played a game with [W] in which she gave her a paper “chatterbox” that she had made. On the chatterbox she had written the words “asshole”, “you are a shit”, “you kiss dog’s bums” and “your gay”.[26] That was hardly the action of a responsible parent. Indeed, the mother compounded the irresponsibility of that action when she was cross-examined by suggesting that [X] may have written those words. It was only when I suggested that she look at the chatterbox in the witness box that she conceded that she may have written them.[27] I am satisfied that she wrote those words.
[26] Paragraph 25 and annexure “GSH1” to the father’s trial affidavit.
[27] Transcript 19 March 2010 at page 81
I am also satisfied that the mother behaved so irresponsibly at the children’s school on a number of occasions that it was necessary for the principal to place strict bans upon her and for several parents to obtain restraining orders against her.[28] I have no doubt that her behaviour caused significant embarrassment to the children.
[28] See transcript 18 March 2010 at page 35.
While the behaviour described in the two preceding paragraphs hereof is probably a direct result of her BPD, it gives me considerable concern in relation to the mother’s wish to share parental responsibility.
Family violence
I have commented above about family violence and I have no doubt that in most instances the mother was the aggressor. This is also probably a direct result of her BPD. I am hopeful, however, that because the parties are separated and are likely to remain so, there will be little opportunity for the children to witness any aggression between the mother and father in the future. I am also satisfied that the father would avoid any situation that provided any such opportunity.
Whether it is preferable to make an order that is least likely to lead to further litigation in relation to the children
Clearly it is highly desirable for the sake of the children to avoid future litigation. It is also not in the interests of the parties to continue litigation. I will therefore endeavour to craft orders that the parties can obey but still leave some “wiggle room” to enable the parties to agree upon what is good for their children.
Should the parents equally share parental responsibility?
As I have stated above, there is no presumption of equal shared parental responsibility in this matter.
It is clear from what I have set out above that, as a result of her BPD, the mother has behaved irresponsibly on numerous occasions.
In the past the mother has embarrassed the children as a result of her conduct at school. That conduct has led to the principal banning her from being present at the school and has led to other parents having to seek protection from the mother’s behaviour at the children’s school.
I also accept the father’s evidence that the mother has been less than co-operative in relation to a change of school for [X].[29]
[29] See transcript 18 March 2010 at page 32.
When I weigh up all these matters, I am not satisfied that the mother will be responsible enough to make important decisions with the father about the children’s welfare. It is inevitable therefore that the father should have sole parental responsibility for them, and that will enable him to continue making important decisions about their education, health, etc.
What time should the mother spend with [W]?
I was impressed by Dr H's Family Report, and even more impressed by his oral evidence. As a result, I accept his opinion that the mother can spend time with [W] overnight. Consequently, I am satisfied that [W] will be able to spend weekends with her mother, but that should only be every second weekend because she should also spend some weekend time with the father.
I note that the consent orders of 4 June 2009 provided for contact twice per week so I conclude that [W] spending time with her mother weekly for an evening meal as recommended by Dr H is also in her best interests.
However, I am not satisfied that the mother is sufficiently responsible at this time for [W] to spend longer periods of time with her than is referred to in the two preceding paragraphs hereof. I am therefore reluctant to make orders about holiday contact and will simply order alternate weekend and mid-week contact that will continue during school terms and through the school holidays.
Having said that, I am satisfied that the father is sufficiently responsible to extend the time that [W] spends with her mother if he is reassured by improvements in the mother’s mental state and behaviour. I will therefore order that [W] also spend such further time with the mother as may be agreed between the mother and the father.
Should particulars of time spent with [X] be specified?
It should be apparent from what I have said above that I can see no reason why [X]'s time with her mother should be specified. The parties agree that (like [Y]) [X] can decide for herself what contact she will have with her mother, so that is all that needs to be ordered.
Whether time spent with any child should be supervised?
I repeat what I said above about Dr H’s evidence in relation to any need for supervision, and note that he and Dr K appeared to be in agreement that supervision is not necessary.
I accept that if the mother attempts to undermine any of the children’s relationships with the father, the mother is likely to be the loser because these bright children will see right through any such attempts.
I conclude that supervision is not necessary but note that the evidence of the Salvation Army worker and the cottage mother suggested that continuing supervision would be difficult, in any event.
Should DNA testing be ordered?
The mother said the following in support of her application to have DNA testing:[30]
6. That (the father) and I separated for a period of two weeks in late 1997/early 1998. During this period I had sexual intercourse with (the mother’s first husband) on around two occasions. The relationship between (the father) and I was strained at the time. (The father) and I did not have sexual intercourse for a period of at least two to three months during that period. I strongly believe that [W] is not the biological daughter of (the father). I have raised this issue with (the father) in the past, however, he has refused DNA parentage testing. I seek an Order that (he) and I sign all documents and do all acts and things necessary in order to arrange DNA parentage testing for [W].
[30] See the mother’s affidavit filed 17 July 2009 at paragraph 6.
She added that she believed it to be important “that [W] is aware of who her biological father is”.[31]
[31] See paragraph 7 of that affidavit
In her opening remarks, the mother’s counsel said that her client believed it to be in [W]’s best interest to know who her biological father is “if only for purposes of knowing important genetic information or anything she may need in the future”. She also said that the mother believed that it would be in [W]’s emotional best interests to have that knowledge and that the mother had “no intention of using that to drive a wedge between the father and [W]”.[32]
[32] Transcript 18 march 2010 at page 69
As I understand it, the father’s opposition to DNA testing is essentially because testing him cannot possibly prove anything about the mother’s first husband; it can only determine whether he is [W]’s father or not. It is also his position that the mother is trying to drive a wedge between him and [W], because the mother clearly hopes that he is shown not to be her father.
The mother was cross-examined about why she did not get her first husband to do the test. Her response was:
Because if he does the paternity test it then leaves him open to pay maintenance.[33]
[33] Transcript 19 march 2010 at page 63
She conceded that her first husband does not want the responsibility of being shown to be [W]’s father, and I gained the very clear impression from the evidence about her first husband that he is a person who is not used to taking parental responsibility seriously.
The father’s counsel asked the mother how it could be of any benefit to [W] to find out that the person who has always been “treated by her as her father” and “has always treated her as his daughter” is not in fact her father. To that the mother responded simply:
Because she’s entitled to know the truth.[34]
[34] Transcript 19 march 2010 at page 63
When Dr K was cross-examined in relation to DNA parentage testing of [W], he said:
I must say that I personally don’t think it’s a particularly appropriate thing to be doing, but I don’t take strong exception to it. [35]
[35] Transcript 25 May 2010 at page 79
When questioned by the mother’s counsel, the mother’s psychologist had said:
In terms of (the mother) wanting to have [W] DNA tested, my understanding is that [W] believes that (the father) is her father and that at her stage it wouldn’t be appropriate for her to be told otherwise.
In the Family Report, Dr H had said this about the issue:
[W] spoke about her family as if (the father) is her Dad and she loves him as much as she loves her Mum. It is not at all clear that there will be any advantage for [W] of raising this as an issue at this time …[37]
[37] See paragraph 32 of the Family Report.
When he was cross-examined by the father’s counsel, Dr H agreed that if it is the mother’s intention simply to prove that the father is not actually [W]’s father, then that could destabilise [W].[38]
[38] Transcript 24 May 2010 at page 42
When I consider all the evidence, I find that the mother has a penchant for making things up when it suits her. I therefore conclude that there must be a reasonable chance that the father is [W]’s father. However, even if I am wrong, simply knowing the truth for sake of knowing the truth is not a reason to subject a child to DNA testing, especially when it cannot prove what the mother hopes to prove. Further, I have not been provided with any medical or genetic reasons for there to be an enquiry into [W]’s paternity. As a consequence, I cannot help but conclude that an order for DNA testing as sought by the mother would only do more harm than good.
The orders
Some of the orders that I will make are adequately explained above, but some require a little more explanation.
The mother’s time with [W] will start at 4.30 pm each second weekend, and not after school as sought by her. That is because I propose to order that the mother not attend the children’s schools without the written approval of the father. I do not need to repeat what I have already said about the mother’s behaviour at school in the past, but I accept the father’s evidence that he has no objection to the mother attending special events at school if that is what the children want.[39]
[39] Transcript 18 March 201 at pages 10 and 11
The mother would like all changeovers that do not occur at [W]’s school to be at the [omitted] Library, [W]. The father is opposed to that because [Y] regularly uses that library after school. I find that to be a very good reason for changeovers not to occur at that library. In the circumstances, I will order that changeovers occur at a place to be agreed, but failing agreement outside [G Police Station], Victoria. That appears to be the nearest police station to the father’s residence (and I obtained details from Google Maps and the White Pages on the internet).
I will order that [W] is to communicate with the mother by telephone as initiated by [W]. This is because [W] is growing up and she may wish to telephone her mother quite often in one week but then hardly at all in the next. That is the way of things with children on the cusp of teenage-hood. However, I am confident that the father will facilitate such telephone calls at reasonable times.
In my opinion there is no need for an order that the children continue to attend upon their respective counsellors. The father is to have sole parental responsibility and I am confident that he will continue whatever counselling is necessary.
Comment
Finally, I would like to thank both counsel for the very helpful way in which they conducted the hearing, sometimes in difficult circumstances.
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 17/2/11
[3] See also Carpenter and Lunn (2008) FLC 93-382, Chappell (2008) FLC 93-377 and Stirling & Dobson [2011] FMCAfam 52
[36] Transcript 24 May 2010 at page 22
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