HANAHAN & LEWIS
[2012] FamCA 29
•3 February 2012
FAMILY COURT OF AUSTRALIA
| HANAHAN & LEWIS | [2012] FamCA 29 |
| FAMILY LAW – CHILDREN – Parenting orders – best interests of the child – where the father abducted the child in the past and took the child overseas – child was returned to the mother after the father was arrested – father was consequently convicted of criminal offences – the mother is living overseas – the child is living with the mother – the child has lived with the mother and spent no time with the father since being returned from her abduction – mother fears the father – mother lacks willingness and ability to facilitate the child’s relationship with the father – father lacks capacity to provide for the child’s needs – allegations of past family violence – no findings made about family violence – family violence is not a current issue – mental health issues – presumption of equal shared parental responsibility rebutted – mother has sole parental responsibility for the child – child will spend no time with the father – father permitted to produce written communication to the child – written communication to be kept on Court file – child may view written correspondence upon attaining 18 years of age. FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – final hearing – father’s application to adjourn final hearing – father’s bases for adjournment were that he had no opportunity to prepare his case – no opportunity to file affidavit material or expert evidence – matter adjourned on numerous occasions in the past to enable the father to prepare case and to file affidavit material and to obtain expert report – father failed to act – application for adjournment dismissed |
| Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61DA(1), 61DA(2), s 61DA(4) |
| Aldridge & Keaton (2009) FLC 93-421 Marvel & Marvel (No. 2) [2010] FamCAFC 101 Rowell & Keough [2011] FamCAFC 74 |
| APPLICANT: | Ms Hanahan |
| RESPONDENT: | Mr Lewis |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Reid |
| FILE NUMBER: | SYF | 4159 | of | 2006 |
| DATE DELIVERED: | 3 February 2012 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 29 April 2010 30 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr G. Richardson SC |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan Kelly |
| COUNSEL FOR THE RESPONDENT: | Self-represented litigant |
| COUNSEL FOR THE INDEPENDENT CHILDREN’s LAWYER: | Ms F. Reid |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Reid Family Lawyers |
Orders
All previous parenting orders are discharged.
The mother, MS HANAHAN (born … 1967), shall have sole parental responsibility for the child, H LEWIS (born … February 2004).
As part of the mother’s sole parental responsibility for the child, the mother:
(a)Shall be solely entitled to hold the child’s passports and, if necessary, apply for or renew such passports without the consent of the father; and
(b)Be permitted to change the child’s surname to “Hanahan”, notwithstanding the consent of the father has not been obtained.
(i)The Registrar of Births Deaths & Marriages is hereby ordered and directed to do all things necessary to amend the child’s details on the Register.
The child shall live with the mother.
The father, MR LEWIS (born … 1968) shall spend no time with or communicate with the child, except as provided in Order 6 below.
The father may, if he wishes to do so, send letters and/or gifts (the “information”) to the child on two occasions per year approximating with 1 July in each year and the period immediately before Christmas in accordance with the orders below:
(a)The letters may set out in written form his thoughts and feelings about the child and record some of the events that have happened to him since he last communicated in this way;
(b)Such information will be sent to the postal address of the Sydney registry of the Family Court of Australia, marked to the attention of the Registry Manager of the Sydney registry (“the Registry Manager”);
(c)The Registry Manager will keep such information in an accessible form on the basis that it may be made available to the child if she seeks such access to the information after she attains the age of 18 years;
(d)No other person will have access to the information, which will be kept segregated and sealed pending the child’s approach to the Court for access to the information.
Notwithstanding the last two suborders if, before she turns 18, the child seeks access to the information on the Court file with the written consent of her mother, the Registry Manager for the time being of the Sydney registry of the Family Court of Australia may make the information available to the child.
The Independent Children’s Lawyer shall communicate to the child by letter or by telephone or both, that the father may send letters and/or gifts to the child in accordance with Order 6 above , and that such letters and gifts may be made available to the child in the future in accordance with Orders 6 and 7 above.
The mother shall, from time to time, remind the child that the information as described in Order 6 above may be made available to the child.
The funds held in a controlled monies account by the solicitors for the mother (Barkus Edwards Doolan, as then known) and the former solicitors for the father (Gray & Perkins) on behalf of the parties pursuant to Order 6 of the Orders made on 12 October 2007 be released and returned to the mother.
The sealed envelope lodged with the Court pursuant to Order 4 of the Orders made on 13 January 2009 be forthwith returned to the solicitors for the mother (Barkus Doolan Kelly).
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
The Independent Children’s Lawyer is discharged upon the expiration of the appeal period.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hanahan & Lewis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 4159 of 2006
| Ms Hanahan |
Applicant
And
| Mr Lewis |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a dispute between Ms Hanahan (“the mother”) and Mr Lewis (“the father”) in relation to the proper parenting orders for the child, H Lewis, born in February 2004 (“the child”). The mother and the child are presently residing in the United States of America (“USA”) and the father is resident in Sydney, New South Wales (“NSW”). The parties are caught in intractable conflict as a result of the father previously removing the child from Australia without the mother’s consent or knowledge.
The mother seeks the parenting orders set out in her Further Amended Initiating Application filed 26 March 2010. The orders sought by the mother appear at Annexure “1”. In essence, the mother’s application is for sole parental responsibility for the child, for the child to live with her and spend no time with her father. The mother also seeks that, as part of her sole parental responsibility, she be able to change the child’s surname from ‘Lewis’ to ‘Hanahan’ without the father’s consent. The mother appeared in these proceedings by telephone as she was then residing in the United States of America.
The mother relies upon the following affidavits in support of her application[1]:
a)Her affidavit filed 21 April 2010;
b)Affidavit of Ms F, psychologist, filed 18 September 2007; and
c)Affidavit of Dr N, the father’s treating psychiatrist, filed 26 September 2007
[1] Applicant mother’s Outline of Case document, 1.
In his affidavit filed 11 March 2010, the father confirmed that he seeks orders as identified in paragraphs 17 through to 20 of his Further Amended Response to an Application in a Case filed 18 September 2009.[2] The orders he seeks appear at Annexure “2”. In essence, the father seeks that the parties have equal shared parental responsibility for the child “on an equal basis”, that the child be returned to Australia and complete her education in Australia. The father proposed that contact between him and the child would take place in his mother’s home, and that the child be provided with “psychiatric assessment to assist with the re-establishment of contact”.
[2] Father’s affidavit filed 11 March 2010, [6].
In support of his application, the father relied upon[3]:
a)His affidavit filed 11 March 2010;
b)His affidavit filed 21 May 2007; and
c)Affidavit of Ms Lewis, the father’s mother, sworn 3 October 2007.
[3] Father’s affidavit filed 11 March 2010, [4] and [5].
The Independent Children’s Lawyer (“the ICL”) supported the mother’s application. However, where the mother proposes no time between the child and the father, the ICL seeks an order permitting the father to send letters, gifts and cards to the child on her birthday and at Christmas each year to a postal address provided by the mother to the father.[4]
Preliminary matters
[4] Case Outline prepared by the Independent Children’s Lawyer, 1.
Proceedings continuing as defended hearing
The father was initially represented in these proceedings by Mr Dunbier pro bono, but the father terminated his services just prior to the luncheon adjournment on 29 April 2010. The father was then self-represented.[5]
[5] Transcript, 29 April 2010, 16
The father opposed the matter proceeding to a defended hearing. He complained that he had not had a proper opportunity to prepare his case, including obtaining expert reports, and to read all of the relevant material. He also stated that he had an appeal on foot before the Legal Aid Commission apropos his denial of a grant of legal aid to be represented in the proceedings.[6]
[6] Transcript, 29 April 2010, 4-15.
The father had been given considerable opportunities by this Court to file relevant material necessary for a final determination about the matters concerning the child. These opportunities are detailed at paragraphs 34 to 41. The father was given multiple opportunities to engage with the single expert witness and to provide information to the mother’s legal team in accordance with their reasonable requests. He did not do so and no proper explanation was forthcoming. On most of the procedural occasions when such extensions were granted, the father was represented by Mr Dunbier.
The father asserted that he was not in a position to pay for the services of a single expert like Dr M, who was the single expert appointed. He sought an order that a Family Consultant be appointed to perform the same role. I determined that this was not appropriate, particularly as the complex nature of the relationship between the child and the father may not be able to be properly assessed by a Family Consultant compared with an expert witness such as Dr M.[7] I note that no leave to appeal was ever sought by the father against the orders made, by consent, for the appointment of Dr M.
[7] Transcript, 29 April 2010, 34-36.
For these reasons the matter proceeded to final defended hearing on 29 April 2010.
Background
The mother was born in 1967[8], the father in 1968.[9] The mother is a citizen of the USA.
[8] Mother’s affidavit, [3].
[9] Mother’s affidavit filed, [4].
The parties first met in California, USA in 2001 and commenced to cohabit in Australia in mid-2003.[10]
[10] Mother’s affidavit, [18].
The mother contends that prior to 2004 the father engaged in excessive consumption of alcohol and binge drinking[11] but that this eased towards the end of 2004.[12] The mother also deposed that a violent exchange occurred between the mother and the father while she was eight months pregnant with the child.[13]
[11] Mother’s affidavit, [28].
[12] Mother’s affidavit, [29].
[13] Mother’s affidavit, [31].
In February 2004, the child was born. At the time of the delivery of these Reasons for Judgment, the child will be eight years old.
In February 2005, the father was admitted to a clinic for three weeks in order to be treated for dependency for prescription medication.[14]
[14] Affidavit of Dr N, filed 26 September 2007, Annexure ‘D’, Report dated 21 May 2007, 3.
In August 2005, the mother travelled to the USA for approximately 9 days to attend her 20 year school reunion. The child remained in the care of the father during that time.[15]
[15] Mother’s affidavit filed 21 April 2010, [34].
The parties separated in early 2006[16]. The mother contends that the father assaulted her on 16 March 2010 while she held the child and that this resulted in her letting go of the child and leaving the house. She returned later to collect the child.[17]
[16] Mother’s affidavit, [5]; Father’s affidavit, filed 21 May 2007, [7].
[17] Mother’s affidavit, [35]-[38]
In around May 2006, the parties agreed to shared care of the child and this arrangement continued until October 2006.[18]
[18] Mother’s affidavit,. [44]; Father’s affidavit, filed 21 May 2007, [18].
On 20 May 2006, the mother commenced to attend for therapy with her psychologist, Ms F (“the mother’s psychologist’).[19]
[19] Affidavit of Ms F, filed 18 September 2007, [2].
In around July 2006, the mother contends that the father requested she pay him a lump sum of approximately $780,000 (which was later reduced to a request for approximately $520,000).[20]
[20] Mother’s affidavit, [49].
In October 2006, the father unilaterally removed the child from Australia to an overseas country, X.[21]
[21] Exhibit ‘M1’, mother’s tender bundle 1, NSW Police Facts Sheet, 2-3.
A day later, the father contacted the mother and demanded she deposit $1.25 million into his bank account or he would not be in contact for 18 to 24 months.[22]
[22] Mother’s affidavit, [57].
On 26 October 2006, an ex parte application was brought by the mother before Loughnan JR (as his Honour then was). His Honour made orders for the recovery of the child, providing the mother with sole parental responsibility of the child and for the child to live with the mother.
In late March 2007, the father was detained in the Country X.[23] On 24 March 2007, the mother travelled to Country X to collect the child. The mother and the child returned to Sydney on 28 March 2007.
[23] Exhibit ‘M1’, mother’s tender bundle 1, NSW Police Facts Sheet, [24].
In April 2007, the father was arrested and charged which led to his detention in a Correctional Facility. An Apprehended Violence Order was issued to protect the mother and the child.[24]
[24] Mother’s affidavit [10]-[11].
On 13 June 2007, the Independent Children’s Lawyer was appointed.
On 5 July 2007, the father was granted bail.[25]
[25] Mother’s affidavit, [11].
On 8 October 2007, his Honour, Cohen J, made orders by consent between the parties. Those orders provided for the appointment of Dr M as a Single Expert Witness in the proceedings, outlined the relevant terms of reference for the preparation of a report about matters concerning the welfare of the child and that the parties would each bear the cost of the report in equal shares. The orders further provided that each of the parties would pay the sum of $3,000 into the ICL’s trust account to be held in trust for payment to the single expert. To date, the father’s share of $3,000 has not been paid. As a consequence, no report has been prepared by the single expert.
The matter proceeded to an interim hearing before Cohen J on 12 October 2007. Relevantly to these proceedings before the Court, his Honour ordered that the mother be permitted to take the child from Australia to the USA, subject to certain conditions being met. Those conditions were that the child would reside with the mother in California at the home of the maternal grandfather; that the mother would not remove the child from the USA; that the mother would return the child to Australia within 21 days if ordered by the Family Court of Australia to do so; and that the mother attend all appointments and otherwise cooperate with the directions of the single expert. His Honour also ordered that the mother have control and authority in relation to the child’s passport. His Honour’s orders were conditional upon the mother lodging as security the sum of $50,000 (in a solicitor’s controlled money account). Importantly, his Honour ordered that neither the father nor his mother be permitted to have “contact” with the child.
On 14 November 2007 the mother paid the requisite funds into the controlled money account and the following day she returned to the USA with the child. She has since resided there with the child.[26]
[26] Mother’s affidavit, [13].
In December 2008, the father pleaded guilty to the charge of “take and detain a child with intent to remove from parental control” pursuant to the criminal law of NSW, and was convicted in February 2009.
On 13 January 2009, interim orders were made by consent by Registrar George permitting the mother to move herself and the child to another residence within the jurisdiction of the USA and requiring the mother to inform her legal representatives of her current residential address and home telephone number in respect of the property in which she and the child would reside (as well as work and mobile telephone numbers). Those orders also restrained the mother from changing that address subsequently.
On 3 August 2009, his Honour, Watts J, ordered that the father file by 24 August 2009 an amended application for final orders.
On 31 August 2009, Watts J granted leave to the father to make an oral application for an adjournment. The matter was adjourned by consent to 30 September 2009. His Honour granted the father a further 14 days from the date of those orders to file an application for final orders.
In June 2009, the mother purchased her own home in the USA. In September 2009, the child commenced school in California, USA.[27]
[27] Mother’s affidavit, [149]-[150].
On 30 September 2009, the proceedings were adjourned by Watts J to 1 February 2010. Relevantly, his Honour specifically ordered as follows (in Orders 1 to 4):[28]
1. This matter be adjourned for mention to 1 February 2010 at 10am.
2.The father to do everything that he can to organise for the payment of one half of [the single expert’s] fees so that the single expert will be in a position to prepare the report that was previously ordered in October 2007. In the event the father is unable to make those arrangements or have the Legal Aid Commission fund one half of the report on his behalf then consideration will be given on 1 February to the dismissal of the father’s application.
3.In the event the father says there are valid reasons why he is unable to fund [the single expert’s] report or there is some other basis upon which [the single expert’s] fees should be paid, then he is to file and serve an affidavit in that regard by 22 January 2010.
4.Within a four weeks the solicitor for the father will provide to the solicitor for the mother details of all doctors and other professionals that the father has seen in relation to his mental status since July 2007.
[28] All quotations are made without alteration or correction to errors contained in the original text.
His Honour noted that once the mother had been advised through her lawyers of the father’s payment, or guarantee of payment, of half of the single expert’s fees, then she would be able to travel to Australian in April 2010 with the child for the purposes of participating in interviews with the single expert.[29]
[29] Orders of 30 September 2009, notation 6.
On 1 February 2010, there was no appearance by or on behalf of the father before Watts J. On that day, his Honour struck out the father’s ‘Response’ of 18 September 2009 and set the proceedings down for an undefended hearing on 29 April 2010. His Honour ordered that the mother file and serve the evidence upon which she sought to rely at that hearing by 1 March 2010. Liberty was given to the father to apply to set aside the listing for an undefended hearing within 21 days of his Honour’s orders being served upon him (with such application to be supported by any affidavit evidence upon which he relies). His Honour also directed the ICL to make necessary arrangements for the cancellation of appointments scheduled on 25 and 26 March 2010 with the single expert, with the father being liable for any and all costs thrown away by reason of the cancellation of those appointments. An injunction was placed on the ICL from making further appointments with the single expert unless and until the father had paid to the ICL his share of the fees due to the single expert.
On 25 February 2010, the matter was again brought before Watts J and the husband was represented by Mr Dunbier. His Honour granted leave to both parties to file and serve any further material upon which they sought to rely by 15 April 2010, and that the costs of the wife and the ICL of the listing on 25 February 2010 were reserved. His Honour granted leave for the father to make an oral interim application to speak to his child on her birthday which was subsequently dismissed. His Honour noted that Mr Dunbier represented to the Court that the father wished to participate in the final hearing on 29 April 2010, and that the matter would proceed to hearing on that day on the material that the father has filed at the time of the final hearing.
On 11 March 2010, the father filed a short affidavit. Relevantly to these proceedings, the father deposed as follows:
4. I refer to my affidavit sworn herein on 18 May 2007 and confirm the contents of such affidavit save to say that the affidavit was taken at a time when I was incarcerated and not completely aware of the entire situation.
5. I refer also to the affidavit of my mother [Ms Lewis] sworn 3 October 2007, in particular paragraphs 28 through to 32 and confirm the contents of such affidavit, in particular paragraph 32 and state that my financial [circumstances] have not [changed] as to that deposed by my mother.
6. I refer to the [Further Amended Response to an Application in a Case] filed 18 September 2009 and confirm that I seek the Orders sought in paragraphs 17 through to 20 therein and seek formal orders therein.
7. I am aware that the Court has invited Reid Family Lawyers to have an [independent] [psychiatric] report undertaken and that orders have [been] made that the costs [of] such [examination] and report be shared equally between the parties.. The fee which I am required to raise is $4,400.00. I have used my best endeavours to raise these funds and have not been successful. Accordingly I ask that the Court appoint a Court a Family Court appointed psychologist.
On 28 April 2010, the matter was listed before Cohen J on the mother’s application. His Honour discharged his orders of 12 October 2007 requiring that the child be required to return to Australia for the purposes of the final hearing.
The matter came on for hearing before me on 29 April 2010 at approximately 10.00 am, concluding at around 8.12 pm that day. The father cross-examined the mother extensively on this day. On 30 April 2010, the father was given leave by the Court to provide evidence orally in short form, and was then cross‑examined by Mr Richardson SC briefly. Submissions were then made by the parties.
The father’s abduction of the child
As mentioned above, the father unilaterally removed the child from Australia in October 2006. It is not my intention to conduct a roving inquiry into the matters that were canvassed before the District Court of NSW in relation to the criminal charges to which the father pleaded guilty. Mr Richardson SC tendered a “Facts Sheet” from the NSW Police which detailed the factual matters arising from the father’s abduction of the child. The father admits that he abducted the child.
To provide context to some of the matters necessary to my ultimate determination, I set out hereunder part of the “Facts Sheet” as outlined by the NSW Police[30]:
[30] Exhibit ‘M1’, mother’s tender bundle 1, NSW Police Facts Sheet; the Facts Sheet was ostensibly prepared by Detective Sergeant E of Strike Force “B”, North Shore Command.
6.On Monday 23rd October 2006, [the father] transferred $13060 from his ANZ Bank account […384] into another ANZ Bank account […852]. This withdrawal left the account balance at 3 cents.
7.Also on this date, [the father] attended the Westpac Bank at [a Lower North Shore suburb]. There he withdrew $380 cash from his bank account […003], leaving the account balance 7 cents overdrawn. [The father] then withdrew a further $1868 cash from his bank account […782], leaving the account balance at $1.67.
8.About 3:30pm on Tuesday 24th October 2006, [the father] and an associate entered [a Sydney CBD branch of the] ANZ. There [the father] added the associate a Third Party Signatory to his ANZ bank account […852] and withdrew $7000 cash from the same account. This provides the associate with access to all aspects of this account.
9.About 4:30pm the same date, [the father] attended the Flight Centre store at … Sydney. He was in possession of his and the child’s passports. [The father] purchased two return … tickets for departure from Sydney for [overseas Country Q] at 9:45pm on 25th October 2006, arriving in [Country Q] at 4:15am on Thursday 26th October 2006. [The father] only purchased ‘return’ tickets after he was told by staff that he required evidence that he intended to leave [Country Q]. [The father] paid cash and declined any accommodation in [Country Q].
10.At 2:11pm on Wednesday 25th October 2006, [the father] attended the ANZ Bank at [the Lower North Shore suburb] and withdrew a further $9800 cash from his bank account […852]. This withdrawl left the account balance at $32.
11.About 6:00pm the same date, as pre-arranged [the father] picked up the child from the … Kindergarten.
12.About 9:05pm the same date, [the father] and child passed through Customs at Sydney Airport. About 9:30pm [the father] and child boarded the … flight for [Country Q].
13.About 8:30am Thursday 26 October, [the mother] answered a call from [the father] on her mobile. During this conversation, [the father] stated he was calling from overseas. [The father] demanded that [the mother] deposit AUS $1.25 million into his ANZ Bank account […852]. [The father] stated that if this was not paid by Monday 6th November 2006, or if the police were involved, [the mother] would not see the child for 18-24 months.
14.Shortly after their arrival in [Country Q], [the father] and child cleared [Country Q] customs and entered [overseas Country Z] aboard a bus.
15.Following receipt of the threatening demands from [the father] for the return of the child, on 26 October [the mother] attended the Sydney Family Law Courts where an interim order was issued directing full custody of the child to [the mother]. This order was forwarded to various members of [the father’s] family by [the mother’s] solicitor.
16.[The mother] then reported the matter to Police and a covert investigation was commenced.
17.On 18 November 2006, a telephone conversation took place between [the father] and his brother… This conversation was lawfully intercepted during which [the father] and his brother discuss the existence and content of a family law order which related to an upcoming mention date of 22 November 2006. This matter relates to the interim order issued by the Family Law Court on the 26th October 2006. The discussion between [the father] and his brother details how the brother has the read the order to him. The two discuss how no-one would know that [the father] was aware of the order’s existence “unless they were recording this conversation”.
18.Following this conversation, on the 21st November 2006 [the father] contacted [the mother] by telephone where he re‑iterate his original demands. During this conversation [the father] demanded [the mother] pay the money before Christmas or the amount of money would have to be paid in $US currency, figuratively increasing the amount from Australian dollars to American dollars. This conversation was lawfully intercepted.
19.[The mother] has never been able to contact [the father]. [The father] dictated when communication took place between the two. On a number of occasions during calls to [the mother], [the father] demanded that [the mother] pay his ongoing rent for his unit [in Sydney] in order that the negotiations continue. [The mother] complied with these demands due to a fear that [the father] would cease contact and she would not see her child again. The rent was paid to [a real estate agent in Sydney]. [The mother] does not reside at that address and has not since the relationship ceased.
20.Throughout the five months that [the father] held the child from the mother and demanded payment of the ransom, [the mother] has lead [the father] to believe that she was willing to pay the demanded amount in an effort to maintain negotiation.
21.[The father] made a number of efforts to have family members contact both Federal and NSW Police in an effort to identify if an investigation was being conducted into the ransom demands. Police became aware of these attempts through lawful telephone intercepts. All information contained within Police databases was concealed in order that the investigation remained covert.
22.As a result of lawful telephone intercepts, it was revealed that members of [the father’s family] had received mobile telephone services in the post arranged by [the father]. [The father] directed that family members utilise these services for contact with him in order to conceal this contact from authorities.
23.On 16 March 2007, [the father] made a pre-arranged telephone call to [the mother] during which he stated that the ransom amount was now AUS $1 million, with an additional $25,000 ‘nuisance money’. [The mother] was ordered to make a decision whether or not she would comply with these demands by that afternoon. [The mother] continued to state she would comply so as to maintain negotiations.
24.About 8pm on Friday 23 march 2007, during an operation conducted by the [Country X Police] in conjunction with the NSW and Australian Federal Police, [the father] was detained in [Country X]. The child was recovered from [the father] during this operation.
25.Since [the father] has taken the child and fled the country, [the mother] has paid over $10,000 rent for [the father’s] flat in [Sydney] as a result of the ongoing demands by [the father]. These payments were made due to a fear [the mother] held that if she didn’t pay, [the father] would continue to withhold the child from her indefinitely.
Phone conversations while the father has the child in his custody after her abduction
Senior counsel for the mother tendered a summary titled “Chronological List of Telephone Intercept Product” arising from the NSW Police Force’s Strike Force “B”. That summary contained in very basic form short incomplete sentences which described the conversations between the father and various persons while he had the child in his custody overseas. The father was given the opportunity to peruse the material included in the tender bundle, in particular, the highlighted material as identified by senior counsel.
I set out hereunder part of those conversations as recorded by the NSW police. Senior counsel urged upon me in final submissions that the conversations, as recorded, were part of the explanation for why the mother is so genuinely anxious about the father, as well as the father’s attitude generally to the responsibilities of parenthood and his capacity to provide for the child’s emotional and psychological wellbeing.
On 19 November 2006, in a conversation with his sister, Ms L, the father is recorded as saying words to the effect of[31]:
Won’t come back if arrested and [the child] seized. Unravel what [the mother has] done. Had legal advice in country where [the father] is that he’s ‘safe as houses’. 22/11 date on papers that [the mother] sent. No intentions to come back. [The child] would have to be reintroduced to [the mother] over some months.
[31] Exhibit ‘M1’, tender bundle 2, NSW Police – Chronological List of Telephone Intercept Product, 3.
In a 47 minute conversation with his sister Ms L on 21 November 2006, the father is recorded as saying words to the effect of[32]:
14:30She knows when I rage there’s no holding me back. “fuck with her brain” – feel her out ‘Battle Royale’ when I get back.
20:50 – 21:02 “Want her to think I’m fuckin’ nuts. I don’t care what she thinks.”
[32] Exhibit ‘M1’, tender bundle 2, NSW Police – Chronological List of Telephone Intercept Product, 6; the references in the conversations refer to the duration in minutes of the conversation, not 24 hour time.
On 12 December 2006, in a conversation with his sister, the father is recorded as follows[33]:
5:00…[The mother] will pay his rent for next four years…
…
5:35: Doesn’t want to show he’s prepared to negotiate – sign of weakness, won’t do that, will turn the heat up on her.
6:20 “She will think [the father] is in for the long haul.
[33] Exhibit ‘M1’, tender bundle 2, NSW Police – Chronological List of Telephone Intercept Product, 15.
On 12 December 2006, in two conversations which occurred between the father and the mother, the following is recorded[34]:
5: 30: Regarding private investigator - said put [the child] in danger.
Next time tell them to bring fucking guns and bullet proof fucking vests because next time they won’t be so fucking lucky.
…
7:30: …Allowed to carry a weapon where he is and if he’s followed three people won’t end up in hospital – will end up in a morgue and endanger [the child].
…
11:53 – 12:16: Have no intention of coming back to Australia.
[34] Exhibit ‘M1’, tender bundle 2, NSW Police – Chronological List of Telephone Intercept Product, 17.
Later in that conversation between the father and the mother, the following is recorded[35]:
23:00-25:45: …. [The father] get a rap over the knuckles – invidious position totally irresponsible act of father – but at the end of the day will say … age 2 ½ to 5 ½ only person has been the father and won’t take [the father] out of life.
…
58:33: [The father w]ill go to extraordinary lengths to go have his way when he thinks his way is the right way but will back down if he’s not right.
When [the father’s] on to something – he will not let go – he won’t relent – won’t back down – won’t crumble.
[35] Exhibit ‘M1’, tender bundle 2, NSW Police – Chronological List of Telephone Intercept Product, 18.
In another phone call between the mother and the father on 15 December 2006, the following detail is recorded[36]:
32:00: [The father’s] grand plan is to wait three years until [the mother] buckles, her dad passes away, [the mother] goes stir crazy, tells his family to put his stuff in storage, now in US dollars, [the mother] has to pay [the father’s mother] for storage, pay his rent, removalist, find him a place, the whole lot…until then no budging. Bullshit no reason to trust him.
[36] Exhibit ‘M1’, tender bundle 2, NSW Police – Chronological List of Telephone Intercept Product, 26.
In another conversation on 17 December 2006, the father indicates that he will return to Australia in “3-4 years”[37].
[37] Exhibit ‘M1’, tender bundle 2, NSW Police – Chronological List of Telephone Intercept Product, 36.
Hospital records of the father
Senior counsel for the mother also tendered several documents which showed various admissions of the father to multiple hospitals at different times upon his release from jail. The father generally did not dispute the tender of these documents, but suggested that some of the notes made by the medical practitioners or hospital staff did not reflect what really happened. Alternatively, but without elaborating or providing explicit explanation, the father stated that there was “more to the story”.
Set out hereunder is a summary of the matters senior counsel singled out from the tender bundle before the Court.
G Health Services
On 6 July 2007, the father was admitted to G Health Services. The father was discharged on 24 August 2007. The principal diagnosis recorded was “major depression” and “anxiety”, with a diagnosis (DSM-IV) of “Bipolar Disorder – Depressed Phase” and “Panic disorder” and “Chronic Pain”. The notes recorded for presentation history included: “psychiatric symptoms – anxiety, depression, panic attacks since 1996(?)”[38]. The father’s discharge medications included: Zyprexa, Epilim, Efexor, Tramal, Temazepam, Osteoeze Active, Largactil, Diazepam, Nurogen and Panadeine Forte (of different quantities). The report was signed by the father’s treating psychiatrist, Dr N.[39]
[38] Exhibit ‘M1’, tender bundle 4.1.
[39] Exhibit ‘M1’, tender bundle 4.1.
a)The progress notes record that during this admission the father was not able to be located between 3.00pm and 4.15pm on 17 July 2007. The notes suggest that he left the grounds of the facility.
b)On 22 July 2007, the progress notes record an entry as follows: “Some attempts to provoke anger in staff e.g. S ‘You said for God’s Sake!!’ ‘You’re angry with me!!’”
c)On 24 July 2007, the progress notes record an entry as follows:
Requested and given PRN medication several times as below [which includes panadeine forte, diazepam, largacil, ibuprofen] …Had an argument over watching TV with another patient. The father was advised to not to confront with other patients and seek help from staff when there is any issues with other patient.
d)On 28 July 2007, the progress notes record: “Heated argument at around 2210 with 2 female [patients], arising out of the fact he also asked them to use their phone and was rejected”.
e)On 30 July 2007, the progress notes record: “Night staff handed over that [the father] had taken all nocte medication plus maximum PRN doses for the day”.
At 1.00pm on that day, a further note:
[Registered Nurse] stated that the impression was that [the father] did not have leave [to go out] by himself. When this was stated, [the father] became hostile and aggressive raising his voice at [Registered Nurse] stating that Dr [N] allows him to go out by himself.
f)On 1 August 2007, the progress notes of a Registered Nurse record: “NB [the father] is prone to involve both staff & patients in his issues & complaints…blatant techniques to split loyalties & obtain allies”.
At 10.00pm on that day, a further note:
Dr [N] was told about [patient] being aggressive towards…another nursing staff. Dr [N] was told also about his behaviour as he needs good behaviour for bail conditions. There has been concerns that he has not had good behaviour.
g)On 2 August 2007, the progress notes record: “[The father] continues to be argument[ative] when given medication”.
h)On 10 August 2007, the progress notes record: “[Registered Nurse] approached by several [patients] regarding [the father] placing inappropriate demands on another [patient]…[The father] expressed anger at ‘allegations’ and that he is ‘taking care’ of this [patient].”
On 16 January 2009, the father was again admitted to G Health Services and was discharged on 24 January 2009.[40] The DSM-IV diagnosis was “Bipolar Disorder” and “Borderline traits”. The Discharge Medications included Temazepam, Tramadol, Zyprexa, Epilim, Efexor and Panadeine Forte (of varying quantities). The report was signed by Dr N.
a)On 17 January 2009, the progress notes record an entry: “[The father] has not returned from day leave”.
b)On 18 January 2009, the progress notes record an entry: “Unable to reach a compromise with his TV viewing”.
A further note that same day: “distressing room companion (elderly). Refused to turn it off at [midnight]…there would be no compromise. Room companion given a bed elsewhere for the night as they were verbally arguing & escalating”.
c)On 19 January 2009, the progress notes record:
[The father] was called by evening [Registered Nurse] as he didn’t return to unit. …around 2230HRS was informed and advised by staff he need to return earlier for safety issues and for hospital policy requirements. ….He then started to become argumentative, trying to split in his behaviour, stating that other nurses allow him to move rooms & watch television late. Nurses + 2 – explained to him that his television is far too loud and it has caused other [patients] distressed. [The father] discussed same. Appeared to be entitled + demanding towards the nurse despite all nursing staff trying to explain to him and ask that he compromise + respect other [patients] on unit and not turn up volume of television to wake other [patients]… He was becoming increasingly agitated …[The father] continued to ask for all nursing staff names and comparing advice – and clearly splitting in his remarks saying ‘this nurse said this and that nurse said that’ staff had to disengage conversation [with] him, allowed him to settle and stated he could watch television in lounge room.
d)On 19 January 2009, in indecipherable handwriting, the progress notes record an observation that the father appeared drowsy and may be self-medicating. A more legible note that same day: “[The father] was informed that he will be discharged from hospital as self-medicating in breach of treatment agreement”.
[40] Exhibit ‘M1’, tender bundle 4.2
A Private Hospital
The father was also admitted to A Private Hospital on 13 June 2008 and discharged on 26 June 2008.[41] The records show that the “main reason for admission” was “Major Depression/Bipolar disorder” with “Co-existing Conditions” of “Narcotic analgesic dependency and personality disorder”. Of the three “Medications on Discharge” I am unable to discern what is written.
[41] Exhibit ‘M1’, tender bundle 5.1.
The father was admitted to A Private Hospital again on 7 July 2008 and discharged on 6 August 2008.[42] The records show that the “main reason for admission” was “Suicidal Ideation and Anxiety” with “Co-existing Conditions” of “Overused prescribed painkillers and Axis II traits (Cluster B)”. Of the ten “Medications on Discharge”, I can only discern Panadeine Forte.
a)The progress note for 7 July 2008 records: “…feeling suicidal and depressed. No plans”.
b)The progress note for 8 July 2008 records:
…displays nil insight re his addictive behaviour re PRN…slurring speech, eyes rolling, missing social [activities] and interrupting others…reports needing medication for back pain yet, constantly comes to nurses station (5 times in 30 minutes) to seek PRN for anxiety.
[42] Exhibit ‘M1’, tender bundle 5.2.
R Hospital
The father was admitted to R Hospital on 3 September 2007 and was subsequently discharged on 5 September 2007.[43] He was admitted to the same hospital on 22 February 2009.[44] The progress notes for the second admission suggest that the father was agitated and tried to leave the facility.
[43] Exhibit ‘M1’, tender bundle 6.1.
[44] Exhibit ‘M1’, tender bundle 6.2.
W Health Services
On 5 September 2007, the father was admitted to W Health Services and was discharged on 3 November 2007[45]. The principal diagnoses recorded were “Bipolar Disorder and Generalised Anxiety Disorder” and the associated diagnosis was “Substance Dependence”. The other associated diagnosis was “Chronic Pain Syndrome”. Of the six “Medications on Discharge” I am unable to discern what is written.
a)On 22 October 2007, the progress notes record:
“[The father] came to nurses station at 0100hrs…[the father] appeared uncoordinated, spilling water all over nurses station desk, dropping his pills, became upset when refused PRN’s, I informed [the father] that I would not give him Temazepam until he was undressed and in bed, [the father] then demanded that I ring Dr [N]…[the father] still continued to demand his PRN Medication. He then followed me up to Level II. I informed [the father] that he was not allowed on this level at this time, He continued to argue, I then contacted Dr [N] at 0115hrs, He advised me to communicate to [the father] that any misconduct would be entered into the medical file, this was done,…”
[45] Exhibit ‘M1’, tender bundle 7.1.
The father was again admitted to W Health Services on 19 November 2007.[46] It would appear that he was transferred to C Hospital on 5 December 2007.
b)On 27 November 2007, an incident report details: “Patient was given his [indecipherable] medications then as I turned to lock the cupboard [the father] put his pills onto the bench. He then stated that 10mg [indecipherable] and 200mg of [indecipherable] were missing. I KNOW THEY WERE CORRECT WHEN GIVEN. He argued they were not…”.
c)The progress notes of 1 December 2007 record:
Despite being advised on many occasions by staff that patients are expected to go to their beds or their rooms at 10 pm and not remain up and about socialising, [the father] has continued to stay awake and socialise. He has also encouraged other patients to join him and this is considered to encourage other patients to stay awake later which in some cases they may not have otherwise done. On Thursday night he knocked on the door of a female patient and woke her at 11.30pm saying that she had asked him to wake her up at that time. A nurse on another occasion was asked to wake up one of the female patients to see if they could come out and talk to him…[The father] seemed so sedated that the nurse asked him if he had taken any other medications than those prescribed to which he replied he had not.
Another note in different script records:
At 2320 [the father] had slurred speech, an unsteady gait, a lack of coordination & memory and focusing difficulty. I requested a review of [the father] by ([Registered Nurse in charge]) who concurred with my speculation that [the father] had been self medicating due to his observation of the above behaviour.
d)The progress notes on 4 December 2007 record: “Suspected overdose”.
e)A letter from Dr N to the C Hospital Emergency Hospital of 4 December 2007 records: “[the father] has suddenly become drowsy…I suspect he has taken some extra medications on drugs obtained from outside the hospital as he went shopping this morning…”
[46] Exhibit ‘M1’, tender bundle 7.2.
The father was again admitted to W Health Services on 16 January 2008 with no change to his diagnoses.[47]
a)The progress notes on 17 January 2008 (at approximately 0020hours) record:
Slipping in and out of consciousness. Denied taking extra medication except for Xanax x 1, BP 140. Pale and cold skin. Barely able to talk – slurred speech. Gait unsteady and had to be helped to a chair. …Dr [N] contacted and ambulance called on his instruction. Transferred to [Y] Hospital at 0015hrs.
b)The progress notes on 17 January 2008 record:
[The father] bought his medication into hospital in envelopes prepared by his mother – he said that Dr [N] had said to do this. Dr [N] denied this, saying that he had said to bring the medication into hospital in their boxes. …At Dr [N’s] request, [the father] was asked if he had any medication at home in boxes – [the father] said he did not have a key to the house.
[47] Exhibit ‘M1’, tender bundle 7.3.
The father was again admitted to W Health Services on 6 November 2008.[48] The progress notes of 5 December 2008 record as follows: “[The father] went ‘out’ today to the shops. He was seen picking up another patient around the corner to taxi her to [C]ampsie. …he has not been permission to do so and that there would be big trouble if there was an accident.”
[48] Exhibit ‘M1’, tender bundle 7.4.
The father was again admitted to W Health Services on 6 February 2009.[49] The medical summary (which appears to be completed by Dr N) states that the father was “Admitted due to high risk of becoming unstable in lead up to Court Sentencing hearing on …/2 on charges of kidnapping his daughter.”
a)The progress notes of 9 February 2009 record: “As on previous admissions, [the father] encourages other patients to stay up with him. In courtyard most of the night, often on mobile phone.”
b)The progress notes of 9 February 2009 also record that the father admitted to having a quantity of cannabis.
[49] Exhibit ‘M1’, tender bundle 7.5.
S Hospital
On 2 February 2009, the father was a patient in S Hospital.
a)The progress notes record: “Took 4 x Valium last night. According to brother often over medicates”.
CR Hospital
On 20 January 2009, the father was discharged and referred to CR Hospital with a principal diagnosis “Overdose of Xanax (Alprazolam), Largactil (Chlorpromazine) and Temazepam” with the Additional Diagnoses of “Major depression, Bipolar disorder and anxiety”. The “Discharge Referral” summary of patient progress contained the note:
[The father] is a 41 yr old gentleman, known to Dr [N]…He was transferred to [CR Hospital] from [G] Hospital due to an overdose of Temazepam 100mg, Chlorpromazine 600mg and Alprazolam 4mg at 0630 (medications of his own supply) on 18/1/09 following an argument with nursing staff. In [Emergency Department], patient stated that he wanted to sleep but did not want to kill himself.
The advice as outlined was: “Patient advised to disclose self-medication to staff at [G Hospital] so as to allow medically supervised benzodizapine withdrawal.”
On the issue of the father’s current mental and physical wellness, the father relevantly stated in response to a question put by me on 29 April 2010:[50]
[THE FATHER]: …My mental state – although I believe I’ve recovered somewhat greatly, not completely, but I do believe I’ve come a long way mentally, or psychologically. Secondly, I’ve got long-standing physical incapacities in regard to – not so bad in regard to eight of so operations I’ve had on my leg but more so physically in regard to two compression fractures I sustained a day after [the child] was born, which has given me a great deal of pain. Thirdly, as I said earlier, I had my gall bladder out, and that caused me to be unwell. That was – I’m not sure – maybe a fair few months ago.
My timing and recollection of time and events because of all of this is not exact, so I’m trying to be as accurate as I can, your Honour. But I have been hospitalised on numerous occasions for my back, for my gall bladder on four or five occasions. I had that removed. I also was hospitalised in [W] Hospital for my psychological condition on – I don’t know – three or four - - -
HIS HONOUR: When was that? When was the last time you were in the [W Hospital]?
[THE FATHER]: The last time was – I think I was in hospital with Mr Dunbier – was probably maybe – and again – it was maybe 18 months ago. It might have been slightly less or more, but I’ve been hospitalised in [W Hospital, [G Hospital], and also [A] Private Hospital. They’re as far as psychological hospitals.
HIS HONOUR: And when was the last time you were in one of those institutions?
[THE FATHER]: Roughly a year or a bit more ago, maybe 18 months, maybe a bit longer, but certainly I believe well over a year ago. Any treatment I’m receiving now is – I’m sure they’ve got copies of all of Dr [N’s] reports. He’s my treating psychiatrist.
HIS HONOUR: Still your treating psychiatrist?
[THE FATHER]: Yes, but he says I only need to see him once every three or four months and that I’ve greatly recovered – well, not recovered but come a long way. I’m sure they have reports of all this. I don’t. And the only medication I’m on at the moment – and I’m happy to tell you this on oath, but I take two Temazepam and one Valium at night when I go to bed, three tablets at night when I go to bed. I don’t take any other medication during the day, whether it’s pain medication for my back. I don’t take any antidepressants or any other medication. They’re the only – I take two Temazepam and one Valium at night-time.
[50] Transcript, 29 April 2010,p 36-37.
During cross-examination on 29 April 2010, the mother acknowledged that she has seen a psychologist and has been prescribed anti-depressants to treat her anxiety. The mother also admitted that the child has not been treated by a psychologist or psychiatrist.
Affidavit of the mother’s psychologist filed 18 September 2007
The mother’s psychologist was not called as a witness in the proceedings before me.
I record the following information contained in her report attached to that affidavit as follows:[51]
[51] Affidavit of Ms F, filed 18 September 2007, Annexure “C”.
[The mother] said she first met [the father] approximately a couple of years prior to coming out to Australia in January 2003. She regretted the relationship with [the father] and felt “manipulated” by him. She was previously unaware he was going through a custody battle with his ex wife, who apparently had an Apprehended Violence Order against him. Once she was here, [the mother] reported that she felt she couldn’t leave him because she felt she had to support him during his “custody battle” and she thought that once this was resolved he wouldn’t be as stressed and angry. However, she thought that once this was resolved he wouldn’t be as stressed and angry. However, she fell pregnant accidentally straight away. She “felt trapped like a prisoner here” because he wouldn’t let her take [the child] back to America once she was born.
[The mother’s] mood presentation was depressed and she suffered with symptoms of anxiety. She was clearly avoiding taking any action and struggled with low self-esteem and being assertive with him because she feared the consequences, i.e., [the father] abusing her and fighting her for custody of [the child]. She described two previous occasions when [the father] was physically abusive to her, once when she was 8 months pregnant and the second time in March 2006, just prior to her leaving him.
Just over a month after I first saw [the mother] she called me in distress after apparently receiving a telephone call from [the father] requesting her to give him $500,000 within two weeks. She told me he threatened to fight her for custody of [the child], claimed his problems were her fault and she must pay him the money he lost to his ex-wife. [The mother] was experiencing heightened symptoms of anxiety as a result of these threats. A couple of months later she informed me [the father] had taken [the child] out of the country and was holding her for ransom. She said she was not permitted to have any contact with [the child] during this time. She was extremely distressed by this and worried about [the child’s] welfare and the consequences of being separated from her mother, her possessions, and her life, as she knew it. [The mother] expressed concern about the impact of this on [the child’s] development, relationships and mental state. After [the child] was returned to [the mother’s] care she consulted a child specialist to seek advice regarding the consequences of [the child] being taken out of the country and denied any contact with her mother and for advice on how to manage this. I do not have the details of this child specialist.
[The mother’s] anxiety had observably increased and she met criteria for Generalised Anxiety Disorder. Her mood state was observably more depressed and she met criteria for Major Depressive Episode. She had ceased attending her … course. I referred [the mother] to see a General Practitioner, Dr [U] (currently on maternity leave) for anti-depressant medication, which she commenced at that time in November 2006. [The mother’s] condition improved somewhat initially after commencing anti-depressants, however with the longer period her daughter was missing the more anxious and depressed she became. Her concerns and anxiety symptoms particularly increased when she had to speak with [the father] or his mother Ms [Lewis]. At times [the mother] disclosed feeling fearful for her life, which she is currently and lives in hiding. She continues to feel like a prisoner here. She feels prevented from anyone knowing where she lives and lives in a state of constant fear. She feels unable to trust anyone, and was shocked by people she knew apparently assisting [the father] in taking and hiding [the child] from her.
In my opinion, [the mother’s] prognosis would not be positive, i.e., her depression and anxiety would continue and even increase in severity if she were made to have any contact with [the father], his mother Ms [Lewis], or any of his family. She feels betrayed by them and unable to trust they would take [the child] away from her again. She has also expressed concerns regarding the mental state of [the father] and the potential impact of this upon [the child].
In July 2007, after [the mother] found out the Family Court Hearing was not until late September, she had some suicidal ideation. She denied she would ever act on these thoughts because she loves [the child] too much and couldn’t leave her. She increased her anti-depressant dose, which helped, and later reviewed this with a General Practitioner. She said she felt more despair because she had hoped the case would be heard earlier and she would be allowed to return home to America. In my opinion, if [the mother] was not permitted to return to America with her daughter…her condition would deteriorate. She has a very limited support network in Australia and is unlikely to be able to increase this. [The mother] is petrified that [the father] would try to find her and abuse or kill her. It is my opinion that she would feel she had to continue to live in hiding, therefore making it more difficult to build a support and a social network, have any separation from [the child] to pursue vocational, recreational, and other interests. This could also have negative consequences for [the child] and her development, such as not engaging in social interaction with other children. [The mother’s] parenting capacity may also be impacted upon if she did not have any support, vocational, recreational and other interests, and if her anxiety and depression continued and/or worsened.
In my opinion, if [the mother] was permitted to return to America with [the child] particularly on a permanent basis, and even on a temporary basis, her prognosis would be more positive and her condition may start to improve.
She has more recently, reported feeling happier, more positive and had more motivation at times when she thought about possibly being allowed to return home to America. She has her family and friends network there who have children around [the child’s] age and said she would feel safer being further away from Australia and therefore [the father] and his family, to permit [the child] to engage in more social activities appropriate for her age. This would likely benefit [the mother’s] parenting capacity for the same reasons stated above.
In the event orders were made for [the child] to see her father…it is my opinion that [the mother’s] condition would deteriorate. She would be extremely anxious regarding him taking appropriate care for [the child] and possibly removing her from the country again. [The mother] strongly believes [the paternal grandmother] assisted her son in taking and hiding [the child] from her and therefore, in the event orders were made for [the paternal grandmother] to see [the child], it is my opinion that [the mother’s] condition would deteriorate and she would be extremely anxious that [the paternal grandmother] would allow her son to also see [the child]. I believe this would be the case in any situation where [the father] and / or [paternal grandmother] are able to see [the child]. This would include any unsupervised contact, whether short, overnight or long. If some contact was thought to be necessary with either [the father] or [paternal grandmother], in my opinion it should be supervised by an appropriate official and in a controlled environment. [The mother] should not be made to have any contact with either of the parties mentioned, either in person, or over the telephone. As previously stated, she suffers from a low self-esteem and struggles with being assertive particularly when scared and fearful. The result would be [the mother] suffering from more distress, depression and anxiety. If either [the father] or [paternal grandmother] were to retain the child and potentially remove the child from the country again, [the mother’s] condition would deteriorate. If she believed there was no hope of regaining [the child], it would concern me that [the mother] may become suicidal.
The above extracts also show the father attempted to manipulate and place demands upon staff when trying to obtain medication beyond that which was prescribed.
Dr N’s report of 21 September 2007 provides a more favourable view about the father’s mental health and his prognosis. He says:
[The father’s] current diagnosis is Bipolar Disorder in remission, Panic Disorder in partial remission and Chronic Pain Syndrome. [The father] has made good progress. His prognosis is very favourable. The reason for this is that he has been very compliant with his treatment, has good insight into his illness and has made good progress in his recovery.
The hospital records and Dr N’s report are from some time prior to the final hearing. At final hearing in 2010, there was no evidence about the father’s mental health at that point save for the father informing the Court that he had “recovered somewhat greatly, not completely”[102] and that he was only taking “two Temazepam and one Valium at night-time.”[103]
[102] Transcript, 29 April 2010, 36
[103] Transcript, 29 April 2010, 37.
I am unable, on the evidence available before me, to make a finding about the father’s capacity to provide for the child’s needs based on the state of his mental health.
However, the father’s removal of the child from Australia without the consent or knowledge of the mother showed a blatant disregard and lack of insight into the child’s needs, her attachment to the mother and the importance of the relationship between the child and her mother; it illustrated very poor capacity to provide for the child’s needs, particularly her emotional needs. For the reasons detailed at paragraph 103, I cannot be satisfied that there is no unacceptable risk that this conduct would not be repeated.
The father does not trust the mother and maintains her past use of drugs prior to the relationship between the parties makes her unfit in some respects to parent.[104] I note that he does, however, consider it appropriate for the mother to be the other half of a shared care arrangement. This is inconsistent. I do not doubt the mother’s ability to parent or her willingness and capacity to accept parental responsibility and provide for the needs of the child.
Maturity, sex, lifestyle and background and culture of the child and of either of the child’s parents
[104] Transcript, 29 April 2010, 65-66.
There are no particular matters under this heading[105] which seem to be relevant to my considerations.
[105] Family Law Act 1975 (Cth), s 60CC(3)(g).
Aboriginal or Torres Strait Islander child
There are no particular matters under this heading[106] which seem to be relevant to my considerations.
Attitude to the child and to responsibilities of parenthood demonstrated by each parent[107]
[106] Family Law Act 1975 (Cth), s 60CC(3)(h).
[107] Family Law Act 1975 (Cth), s 60CC(3)(i0).
I have made comments about this already, the father has demonstrated complete irresponsibility in relation to his obligations as a parent. The mother has, on the evidence before me, behaved responsibly.
Any family violence and family violence orders[108]
[108] Family Law Act 1975 (Cth), ss 60CC(3)(j) and (k)
Violence has been alleged on both sides in this matter, as I detailed at paragraphs 77 to 78 of these Reasons. I reiterate what I said at paragraph 78 that in the context of this matter, it is unnecessary for me to find positively exactly what occurred. These are not factors which affect my determination about what is in the best interests of the child. It is clear on the evidence that the parties have engaged in violence and the child has witnessed that conduct in the past. However, as the parties are no longer residing in the same country and the father is unaware of the mother’s whereabouts, it is unlikely the child will witness such conduct in the future.
The precise status of family violence orders affecting the parties is not clear. I assume for these purposes there are no immediate orders applicable. .
Preferable to make an order least likely to lead to the institution of further proceedings[109]
[109] Family Law Act 1975 (Cth), s 60CC(3)(l)
The Independent Children's Lawyer has urged upon me that I should make an order permitting the father to send letters and gifts to the child. The child does not have any memory of the father or recall anything about the time that she lived with him from October 2006 to March 2007.[110] However, in 2009 the child expressed a curiosity about the father and asked the mother “Why don’t I have a Daddy like everyone else?”[111]
[110] Mother’s affidavit, [163].
[111] Mother’s affidavit, [164].
The advantage in such communications would be to maintain some contact between the child and her father. This would enable the child to know about the father which may add to her sense of identity, be aware of his interest in her and also allow the child when she becomes an adult to attempt to create a relationship with her father if she wishes to do so. It would also have the advantage of testing the resolve of the father and his commitment to a continuing relationship to the extent that it would be possible to do so with his daughter.
The other side of such an order, however, is that the communications may be distressing to the child’s mother which may in turn impact upon the child. The evidence of the mother’s psychologist is that the mother would be adversely affected if she were to have any contact with the father. In her report, the mother’s psychologist states “the mother’s] conerns and anxiety symptoms particularly increased when she had to speak with [the father] or his mother Ms [Lewis]”.[112] It was the mother’s psychologist’s opinion that “[the mother] should not be made to have any contact with either of [the father] or [paternal grandmother], either in person, or over the telephone. …The result would be [the mother] suffering from more distress, depression and anxiety.”[113] I accept the mother’s psychologist’s evidence.
[112] Affidavit of Ms F, filed 18 September 2007, Annexure ‘C’.
[113] Affidavit of Ms F, filed 18 September 2007, Annexure ‘C’.
I, however. have no evidence about whether or not this is likely to occur in the mother’s present circumstances.
It may also adversely affect the child, although again I have no evidence that this is likely to be the case.
There are reasons why some continuing communication between the father and the child might be in her interests. There are a number of ways in which this might occur and they were the subject of discussion with the father and counsel and the representative of the Independent Children's Lawyer during proceedings. The Independent Children's Lawyer recommended that there should be communication by gift and letter from the father to the child.
The practicalities of such arrangements would involve the mother’s taking a post office box or some American equivalent and for communications to be addressed to that box which would not involve her being geographically locatable by the father.
However, it would appear to be a component to any such arrangement that the communications should be the subject of some review by the mother before being given to the child and, in effect, her having a right of veto about the gifts or communications going to the child.
Such a review or vetting process would not be capable of any review itself by any person or the Court as the mother intends to continue to live in the United States of America. Even if it were demonstrated that the mother had in some way behaved inappropriately in failing to pass on an item to the child, enforcement of the order would be difficult, if not impossible. It would also be difficult, if not impossible, for the father to be able to ascertain whether something had been given to the child.
The evidence of the mother’s psychologist is that any contact, even at this remove, would be distressing to her and I could not have a great deal of confidence that she would willingly pass over any communication to the child. Accordingly, the issue is whether it is appropriate to make an order which may not be carried out and almost certainly cannot be enforced.
Notwithstanding whatever advantages there may be for the child in making an order about communication I am therefore persuaded that such an order in that form would not be appropriate or in her best interests and at best may excite further litigation between the parties at some point in the future. This would not be to the child’s advantage.
An alternative that I raised in final submissions before me was that the father might be permitted to send communications to the Court and that those communications might then be kept on the Court file[114] or in some appropriate record keeping arrangement until the child became of age or, with the consent of her mother, sought access to it at an earlier point. This would enable the father to record on a relatively regular basis his thoughts about the child, his activities so that she would have some record or understanding of these things if she sought to find out about them when she was an adult.
[114] Transcript, 30 April 2010, 19.
There are several practical objections to this course of action as well. The first is, whether the father should be permitted to write whatever he wanted. I do not regard this as being a particular objection as once the child turns 18 years of age she is able if she wants to, to have communications direct with the father and he may or may not then say unkind or unpleasant things about the mother or misrepresent the situations that have existed in the past. The child as an adult will deal with those as best she can.
The second practical objection is how the child might find out if this information could be available to her. In this regard I am satisfied that the Independent Children's Lawyer can convey to her at this point by telephone, or by letter or both, that this information may be available to her in the future. The child is still a young person but if I were to make such an order involving the Independent Children's Lawyer and also make an order requiring the mother from time to time, to remind the child about this there is at least a possibility that if the child wishes to do so when she turns 18 she can seek access to the material provided by the father to the Court.
This is an arrangement which may also go awry but probably represents the only feasible possibility of there being some access by the child to her father and to his feelings and thoughts in due course.
Accordingly, I shall make an order in those terms, but the father should only communicate twice a year for practical reasons so far as the Court is concerned and because it means that he would need to apply himself to recording the important things for the child. While I do not propose to censor what he might say in any way, he should be aware that if he proposes to engage in some form of character assassination of the mother or to misrepresent his actions (about which he presently expresses some contrition) this may irrevocably damage any future relationship he may have with his daughter.
Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent
Section 60CC(4) requires that I consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent. No further comment is necessary in relation to this matter other than those that have been made above. I have taken the father’s actions and the mother’s actions into account. I have also taken account of the events that have occurred since the parties separated.[115]
Conclusions
[115] Family Law Act 1975 (Cth), s 60CC(4)(a)
Parental responsibility
In this matter, I conclude that it is entirely inappropriate for the parties to share parental responsibility for the child. The allegations of violence between them, and the father’s unilateral abduction of the child overseas (which showed complete disregard for the child’s needs, and lack of understanding about the importance of the child’s relationship with the mother, which destroyed the mother’s trust in the father and which caused the mother to fear the father and become anxious about him spending time with the child) necessarily preclude any reasonable likelihood of such an order effectively working between the parties and render it inappropriate for there to be any sharing of parental responsibility let alone equal sharing of responsibility.
Any presumption under s 61DA of the Act is rebutted by the evidence before the Court which, for the reasons detailed above, satisfies me 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.[116]
[116] Family Law Act 1975 (Cth), 61DA(4).
Other parenting orders
The factors which bear most strongly upon my consideration as to the best interests of the child are as follows.
a)I had no effective evidence before me at the trial of the father’s genuine contrition for his conduct. Although his apology to the mother was moving and apparently sincere, the way he conducted the litigation, as discussed at paragraph 104 of these Reasons, showed little regard to what had occurred on his part but rather it seemed to be directed to what he believed to be the mother’s short comings and failures.
b)I was unable to obtain, during the course of the hearing, any evidence about the father’s current state of mental health. This is a factor which bears upon the child’s safety. It would have been open to the father to have produced such evidence if he had considered it to be appropriate to do so.
c)As a result of circumstances, which were not designed to thwart the father as such, the child is now living with her mother in the United States of America. This imposes practical and financial impediments to any continuation on a regular basis of the relationship between the child and her father.
d)Even if such a relationship were possible and the parties were living in relative proximity, in my opinion it would be inappropriate for the child to spend time with her father for the foreseeable future. (By foreseeable future in this context I mean until she is an adult.) This is because of the actions of the father, which are so contrary to the child’s best interests, that even if I were to take the most favourable view of them, and if I were to consider they represented an aberration from the past rather than the likely actions of the future, I could never accept that there was no unacceptable risk and that the child would be safe with her father. I am entitled to look to the past to predict what might happen in the future and in this regard the father has no one to blame but himself for his actions and for the consequences therefor.
e)The child has established a life independent of her father. It is unfortunate that she is denied, because of her father’s actions, the advantages that may have flowed from her having a relationship with him in the future. Nevertheless in my opinion, on balancing the factors I am to take into account it seems to me that her best interests require that she be deprived of that opportunity.
As the proceedings have now been completed and the mother and the child will not be required to return to Australia, the funds held in the controlled money account pursuant to orders made on 12 October 2007 may be released and returned to the mother, and the sealed envelope filed with the Court pursuant to orders made on 13 January 2009 may be returned to the mother’s solicitors.
I certify that the preceding one hundred and fifty (151) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.
Legal Associate:
Date: 3 February 2012
Annexures[117]
[117] All annexure are replicated without correction to the original text.
Annexure 1: Final orders sought by the mother, Further Amended Initiating Application, filed 26 March 2010
1.That the Orders made on 26 October 2006, 12 October 2007 and 13 January 2009 be discharged.
2.That the child [H Lewis] born [in] February 2004 (“the child”) live with the mother.
3.That the mother has sole parental responsibility for making decisions about the long-term care, welfare and development of the child.
4.That the mother has sole responsibility for making decisions for non-major long term issues relating to the child.
5.That the mother shall be solely entitled to hold the child’s passports and, if necessary, apply for or renew such passports without the consent of the father.
6.That the mother has sole parental responsibility to make decisions concerning the child’s name and the mother be permitted to change the child’s surname to “[Hanahan]”, notwithstanding the consent of the father has not been obtained.
7.The Registrar of Births Death & Marriages is hereby ordered and directed to do all things necessary to amend the child’s details on the Register.
8.That the father shall have no contact with the child.
9.That the funds held in a controlled monies account by the solicitors for the mother (Barkus Edwards Doolan, as then known) and the former solicitors for the father (Gray & Perkins) on behalf of the parties pursuant to Order 6 of the Orders made 12 October 2007 be returned to the mother.
10.That the sealed envelope lodged with the Court pursuant to Order 4 of the Orders made 13 January 2009 be forthwith returned to the solicitors for the mother (Barkus Doolan Kelly).
11. That the father pay the mother’s costs of and incidental to this application.
Annexure 2: Final orders sought by the father, Further Amended Response to an Application in a Case, filed 18 September 2009
17.That the Mother return to Australia and that the parents share parental responsibility for the care of the child on an equal basis.
18. That the child’s education be completed in Australia.
19.That when the father exercise contact with the child that such contact be undertaken at the home of [the paternal grandmother].
20.That upon the child’s return to Australia the child undertake psychiatric assessment to assist with the re-establishment of contact.
Key Legal Topics
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Family Law
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Expert Evidence
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Procedural Fairness
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