Hood and Curry (No.2)

[2017] FCCA 1598

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOOD & CURRY (No.2) [2017] FCCA 1598

Catchwords:
FAMILY LAW – Parenting – relocation – father diagnosed with bipolar and possible narcissistic personality disorder – child to live with mother – relocation permitted.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B(1), 60CC, 61DA

Applicant: MR HOOD

Respondent: MS CURRY

File Number: ASC 23 of 2013

Judgment of: Judge Young

Hearing dates: 22, 23 & 24 March 2016, 23, 24 & 25 May 2016 & 29 August 2016

Date of Last Submission: 15 September 2016

Delivered at: Darwin

Delivered on: 7 July 2017

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondent: Ms Collier

Solicitors for the Respondent: Collier Lawyers

Counsel for the Independent Children's Lawyer: Ms Romeo

Solicitors for the Independent Children's Lawyer: Margaret Orwin Barrister & Solicitor

ORDERS

1. That the mother have sole parental responsibility for the child X born (omitted) 2010 (“the child”).

2. That the child live with the mother.

3. That the mother is permitted to relocate from (town omitted) with the child to a location not to be disclosed to the father.

4. That the mother is to engage with a child and adolescent mental health service with a view to counselling for the child after relocation.

5. That the father may send to an address of a third party to be nominated by the mother:

   (a)written correspondence to the child once a month; and

   (b)gifts for the child on special occasions.

6. That once the child is twelve years of age the father may provide to the mother a psychological report to the third party address that includes the following information:

   (a)information about the father’s engagement with a psychotherapist or similar specialist familiar with adjustment or personality disorders;

   (b)consideration of the matters raised in the family report of October 2015, psychological report of 17 August 2015 and the court’s reasons for judgment.

   (c)an assessment of the risk of psychological or physical harm the father poses to the child.

7. The mother must then engage with an experienced psychotherapist or similar specialist to assess whether reconnection with the father is appropriate, including a consideration of the child’s wishes.

8. That the mother is to advise the father of the outcome of that assessment.  

9. That the father be restrained from being within 200m of the place of residence of the mother and child, any other place or area where the mother or child have entered or remain, including the school the child attends.

10. That the independent children’s lawyer be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Hood & Curry (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ASC 23 of 2013

MR HOOD

Applicant

And

MS CURRY

Respondent

REASONS FOR JUDGMENT

1. This is a parenting case about a child, X, who is six years old. X lives with her mother who seeks to relocate to another city to a place not to be disclosed to the father. She seeks orders that the child not spend any time with the father until she is 12 or 13 years old and subject to the father providing evidence from a psychotherapist or similar specialist attesting that the father’s mental state is stable and does not pose a risk to the child. She seeks orders that the father may write to the child once a month and may send gifts for the child on special occasions to be sent through a third party.  

2. The father opposes the mother’s relocation and seeks orders to spend unsupervised time with the child.

3. At the conclusion of the trial of this matter, which extended over seven days, I made interim orders permitting the mother to relocate. I made no order for the child spend time with father.

   Background

4. The father is 44 years old. He was born in (country omitted). There is no evidence that he is presently employed although he asserts he was previously employed in the insurance industry. The mother is 34 years old. She apparently is not presently employed but was previously employed as a (omitted). She was born in Australia. She met the father in (country omitted) in about 2008 while visiting relatives and commenced a relationship with him. They moved to Australia soon after. The child was born in 2010. The parties separated in January 2013 in (town omitted). The mother and child then returned to live in (town omitted) where the mother’s family lived. In October 2013 interim consent orders were made for the child to live with the mother and spend two nights a fortnight with the father should he be living in (town omitted). These orders were varied by consent in March 2014 to provide for the child to spend some hours during the day with the father on each Monday and Thursday. An order was made for the preparation of a family report.

5. The family report completed in April 2014 described the history of the father’s hospital admissions for mental illness. The father gave a history of being admitted to hospital in (country omitted) in 2004, in 2008, apparently before he met the mother, and again in 2012 in Darwin. The diagnosis, according to the father, was bipolar disorder. There were elements of grandiosity and fabulation in the father’s presentation to the family consultant, including a claim that his first wife was a “millionairess”, that he had previously been employed in a job with a salary of $150,000 a year with benefits including a car and an aeroplane and that he had been running for election to the local council in (town omitted) and, as a result of the mother’s lies about him, he had been deprived of a “big political career”. The family consultant examined police documents produced on subpoena. Those documents included comments that the father was considered as “mentally unstable” and was of interest to police in Tasmania. There were documents suggesting that the father had attempted to present himself as a lawyer in his correspondence with the police. The family consultant also observed the child with each of the parents.

6. The family consultant spoke to the father’s brother, Mr R, who lives in (country omitted). He provided a history of the father’s mental health issues, including an assertion that the father held his sister hostage for four days in (location omitted) during a manic episode and berated her with biblical verses and a claim that the father had stalked his first wife when their relationship ended.

7. The family consultant concluded that the father was not realistic about his mental illness and displayed grandiosity in his presentation and that he failed to take responsibility and showed no remorse for highly offensive Facebook posts about the mother. She observed that the child displayed some signs of stress in her relationship with the father. She recommended that the mother have sole parental responsibility for the child and that the child live with the mother, that the child spend supervised time with the father on one day a week and that the father immediately undertake a psychological/psychiatric assessment.

8. On 15 April 2014 another judge of this court made orders for the psychiatric assessment of the father and the psychological assessment of the mother and the matter was set down for trial in June 2014 in (town omitted). The trial did not proceed. On 11 November 2014 orders were made by consent restraining each party from approaching the other unless invited to do so for the purpose of making parenting arrangements. The child was to spend one overnight with the father prior to the mother leaving for Christmas in (omitted). On 23 March 2015 the earlier time orders were discharged by consent and the child was to spend three hours on each Wednesday, alternate Fridays and overnight on alternate Saturdays with the father. The father was to provide blood tests to the mother showing his lithium levels every three months. Further restraining orders were made. On 10 June 2015 the hearing dates for the adjourned trial set for 21 July 2015 were vacated. In July 2015 the father’s grant of legal aid was discontinued. On 14 July 2015 orders were made for the parties to attend on Mr A for a psychological assessment. (There had not been compliance with the earlier orders for psychiatric assessment of the father and psychological assessment of the mother). In August 2015 the psychological assessment of the parties was completed. On 31 August 2015 an updated family report was ordered and completed on 20 October 2015. On 16 November 2015 I set the matter down for a trial commencing on 22 March 2016 in (town omitted). The trial ran for 3 days from that date but was not completed. It was adjourned part heard for a further three day hearing in May 2016. Dr U, the father’s treating psychiatrist, who the father wished to call as a witness, was not available in May and the trial was further adjourned until August 2016 when he was expected to return from overseas. The evidence was completed on 30 August 2016 and I made an interim order permitting the mother to relocate. The parties were ordered to make written submissions within 14 days. The father failed to comply with that order and he was excused from compliance. On 16 December 2016 he applied to the court claiming that it had failed to deal with his contravention and contempt applications in the trial and sought a transfer of proceedings to the Family Court. His application was dismissed on 16 December 2016. 

   The issues at trial

9. The issues at trial centred on the father’s mental health, his behaviour generally, including his involvement with an apparent vigilante group in (town omitted) espousing violence, his behaviour towards the mother, including what were alleged to be vexatious and harassing applications for domestic violence restraining orders, a breach or breaches of domestic violence restraining orders against him, break-ins to the mother’s home, and other issues including his capacity to care for the child and his behaviour towards two other women who obtained restraining orders against him.

10. The father made various allegations against the mother including that she was a heavy marijuana user to a degree that she could not properly care for the child, she was short tempered and used excessive discipline on the child and suffered from depression. He asserted that she also suffers from bipolar disorder. She told Mr A, the psychologist, that she and the father had both been habitual users of marijuana during their relationship but that she had ceased using the drug in 2013. The mother was not cross-examined in relation to her marijuana use. She was not cross-examined about excessive discipline. It was suggested to her that she suffered from bipolar disorder but there was no evidence to support that claim and, having regard to the psychologist report, I am satisfied that claim is without basis.

11. The father also gave evidence about his diagnosis of bipolar disorder. He said that he took his mental health very seriously and that he followed “all instructions and advice of the doctor”. He asserted that he could:

    “work, socialise and raise children and lead a normal life as long as I stay on top of my medication and follow guidelines regarding stimulus. It is a shame that the stigma of having bipolar is not seen in this light by many, especially [the mother].”

12. The father gave evidence about his involvement with something he called the “(omitted)”. In 2015 the father gained local, national and, it appears, some international attention by claiming to have founded a (omitted) group, the “(omitted)”, which he refers to as the “(omitted)”, in order to (omitted). In a media article in evidence he is reported as having said that the model for the (omitted) was a (omitted) called the “(omitted)” or “(omitted)”. In the article the father was reported as speaking approvingly of (omitted) which included (omitted). The father confirmed in evidence that he had been correctly quoted on this aspect of the article.

13. The article reported the father as claiming to have connections with both (omitted) and (omitted) in (country omitted). When asked by the reporter whether he was the same Mr Hood imprisoned in (country omitted) for attempted murder in 1993 the father reportedly said he would “not comment on my past in (country omitted)”. The father subsequently denied that he was any relation to that Mr Hood and this was confirmed by information obtained by the family consultant from the father’s brother. According to the media article the father posted a recruitment notice on the Facebook page of an (omitted) inviting those with a (omitted) and “(omitted)” to join the (omitted).

14. The father downplayed this and attempted to suggest that it was something of a media “beat up”. He asserted that in April 2015 he had formed a group called the “(omitted)” in (town omitted) which was intended to lobby the government to act on issues of (omitted) in (town omitted). He said that he was subsequently commended for his actions by (omitted), local residents and “people around Australia”. He asserted that (omitted) in May and June 2015 in (town omitted) as a result of his actions.

15. I asked the father in evidence about his involvement with the (omitted). He said that he had simply acted as a spokesman for the group after he was approached by two men named “B” and “D”. He did not know their surnames or any other information about them.

16. These events, attracted the attention of the (town omitted) police. The police apparently queried the father’s mental health with Dr U, his psychiatrist. This resulted in an involuntary admission to the (town omitted) Hospital in June 2015. He was released after about four days.

17. The mother in her evidence referred to the father having claimed some knowledge about the death of a young (omitted nationality) in (omitted) in 2011 as a result of an (omitted). The mother said that the father implied that this was a (omitted) execution and, although he was not directly involved, he knew those who were. She said he also claimed to have (omitted) in (country omitted) and to have been involved in (omitted).

18. I accept the mother’s evidence about this issue but I am satisfied that the father had no connection with the death of the young (omitted nationality).   In my view, the father’s evidence about being the “spokesman” for other people in the (organisation omitted) is likely to have been untrue. I think it is probable that there was no such group and the father was the only person involved. In both cases I think it is probable that the father was seeking attention, possibly as a manifestation of an underlying mental health condition.

19. The effect of the father’s fabulation is to terrify the mother. She said in evidence that she often did not know whether he was telling the truth or not and did not know what to believe when he told her things. The mother struck me as a somewhat naive person. The father is ostensibly plausible and it is likely that she has been particularly vulnerable to his fabulation.

20. There are other examples of disturbing behaviour by the father. She gave evidence that in January 2014 the father posted derogatory Facebook posts about her. These were annexed to her affidavit. The father referred to the mother as “CUNT”, “fuckface” and “CUNTFACE (omitted)” and at other times declared that he still loved her.

21. In January 2014 the father moved into a unit two doors away from the mother’s home. She said that he began stalking her. He would send her texts confirming that he knew her movements. She also believed he had entered her home without permission. The mother said that he was evicted from this unit in January 2015.

22. The mother claimed that the father entered her home without permission in February 2014 and read and made notes in her personal journal or diary. As far as I can see from the bundle of domestic violence restraining orders that were tendered the father was not subject to a domestic violence restraining order at that time. The father asserted that he had been present in the house with the mother’s permission during a visit to the child. He said he was playing with the child in a bedroom in the mother’s home and he found the journal in a wardrobe. The journal entry made by the mother was headed “my soulmate relationship”. It listed the ideal characteristics of a prospective partner. The father made a note against each one. They were generally derogatory. For example, after the characteristic “be attracted to me” the father wrote “anyone can be attracted to a slut”. The father evinced no sense of regret or shame at his conduct.

23. In November or December 2014 the father sent a SMS text message to the mother indicating that he had read and made a photocopy (using a photocopier in the mother’s home) of a letter that the mother had written but not sent to a former boyfriend. He threatened to send the photocopy to the former boyfriend. The father was cross-examined about this and said that he had found the letter in September or October 2014 in a drawer in the mother’s bedroom, allegedly while looking for tobacco. The father said that he had been there with the mother’s permission. When I pointed out to the father that in September or October 2014 he was subject to a domestic violence restraining order preventing him from having contact with the mother he said that he was aware that there was a restraining order in place at that time but he considered that the mother’s agreement to his presence would “override” the restraining order.

24. I am satisfied that the father was present in the mother’s home in breach of a restraining order that was made on 17 March 2014 and which remained in force until 23 March 2015. Furthermore, the mother denies that the father was present in her home with her permission on either of these occasions. I accept that evidence. I am satisfied that on both occasions the father was a trespasser in the mother’s home and on the second occasion was in breach of a domestic violence restraining order.

25. The mother also alleged that the father had threatened her by parking his car near to hers in (town omitted). She said she had come back to her car and noticed an open gun catalogue in the front seat of the father’s car with pictures of guns pointed at her car. She said she was frightened. The father’s response to this was confusing. He appeared to say the mother had parked her car next to his usual parking spot and, if there was an open gun catalogue, it was not intended to threaten or frighten the mother.

26. I find that the father lacks credibility. I am not prepared to accept anything he says unless it is not in dispute or corroborated by independent evidence. I find that the mother is generally a credible witness. Nevertheless, I also find that some of the mother’s fears are strongly influenced by her distrust of the father rather than resting on solid basis. While I suspect the father is capable of such threatening behaviour I do not feel that I can make a finding about this incident.   

27. The mother gave evidence that she complained to police about the various breaches of domestic violence restraining orders by the father. There was no certificate of conviction in evidence but the father accepted that he had been convicted of a breach of domestic violence restraining order in December 2015. As I understood his evidence he said the breach was “technical” and he was fined $100. The mother accepted that that was the penalty. It was unclear what this related to but it may have been related to the father sending a text message in breach of the order. The father also gave evidence that six other breach prosecutions were withdrawn by the police. There was no evidence about the reason for that.

28. The father’s response to the mother’s applications for domestic violence restraining orders was to apply for his own orders. The father applied for domestic violence restraining orders against the mother on three occasions, at least, in 2013, 2014 and 2015. On each occasion the application was dismissed by the magistrate.

1. There is evidence of similar conduct by the father in his relationships with other women following his separation from the mother. Ms L gave evidence that she began a short relationship with the father in late 2014. She was not an entirely satisfactory witness but her evidence of the father’s stalking behaviour was not challenged. She said that she went on a business trip to (omitted) outside (town omitted). The father had wanted to accompany her but she had refused. Despite this the father collected her dog from the pound in (town omitted) and drove to (omitted) without telling her. As her accommodation did not permit her to keep a dog she was forced to move to other, unsuitable, accommodation. She said she found the experience very stressful. On another occasion, in December 2014, she travelled to (omitted) in New South Wales to visit her sick mother. Again the father asked to accompany her and she had refused. She said she went for a swim one morning and found the father sitting on a park bench near her parent’s home. She said this continued for a week and the father waited for her every day. She said the father had camped under a storm water bridge and busked during the day to earn money. She said the father followed her and suspected her of sleeping with other men.

2. She said she lent the father money so he could stay in a hotel and, she says, to get him away from her. She said the father subsequently refused to repay this money once they were back in (town omitted). This led to an unpleasant altercation. She said the father subsequently continued to telephone her and apologise and seek to re-establish the relationship. She said that the father left a message for her saying that if she did not speak to him or go to dinner with him he would go to the police. She refused and was served with an application for a domestic violence restraining order a few days later. She said that in March 2015 it came to her attention that photos of her had been posted on Facebook by the father. In some of the photographs she was in her underwear and in one photo she was topless. She said she had not agreed to the father taking the photos or the posting them on Facebook. This was not challenged. She later obtained a domestic violence restraining order against father.

3. Another woman, a Ms I, also obtained a domestic violence restraining order against the father around this time in (town omitted). The details of the circumstances are not in evidence. The subpoena for police documents also disclosed that on 23 December 2013 a restraining order was made in Tasmania under the Justices Act restraining the father from threatening, harassing or abusing a Ms O. No further evidence was available.

4. There were other aspects of the father’s behaviour that were the subject of evidence. It appears that the father had difficulty finding and keeping appropriate accommodation. At one point the father was living at an address that was a designated “drug premises” under the Northern Territory Misuse of Drugs Act 1990. The mother gave evidence that on attending for changeover of the child she saw the sign giving notification at the front of the building. She refused to permit the child spend further overnight time at the address. The father said that he was not living in the house but in a caravan on the property. He said that he was not aware of drug use at the property. His evidence about this matter was generally unsatisfactory. In July 2015 a trespass notice under the Trespass Act1987 was served on the father directing him to leave the property. The police records in relation to the matter said that the father had retained a key from the period of the previous tenancy and was not entitled to occupy the premises.

5. As late as March 2016 the father’s trial affidavit referred to his address for service as the same address subject to the trespass notice notwithstanding that he said that he had been living with a friend since July 2015. The father said he merely attended at the premises to retrieve mail from the letterbox. He was unwilling, for some unspecified reason, to use a post office post box. The father’s evidence was unsatisfactory but even if true would reinforce the impression that the father’s accommodation arrangements were unstable.

6. At the time of trial the father was living with a Mr F who gave evidence. The father’s proposal was that the child would spend time with him at the residence shared with Mr F. Mr F said that the father had not discussed this proposed arrangement with him.

7. There were other concerning aspects of the father’s behaviour.  The Tasmanian police corresponded with the father, presumably in relation to the restraining order application in 2013 referred to above. He replied under a purported letterhead of a firm called “(omitted)” which included a fee schedule for various items such as “To attend a police station”. The purported fee was “$1000 per visit”. The (town omitted) postal address given in the letterhead was that of a (town omitted) police officer. I asked the father whether he was having a joke with this fee schedule. He said he was not.

8. The father also corresponded by e-mail with the solicitors in this case describing himself as the “director” of “(omitted)”.

9. The father made a statutory declaration on 19 June 2015 saying he renounced the use of his former surname “Hood” and would use the surname “(omitted)”. He styled himself “(omitted)” and stated that he intended to “authorise and require all persons at all times to designate describe and address me by the surname of (omitted), addressing me as (omitted), or (omitted) (sic)”. The father explained that he was descended from the (omitted).

10. The father called four lay witnesses. Ms G, the father’s sister who resided in (country omitted), gave evidence intended to undermine the reliability of the information gathered by the family consultant from the father’s brother, Mr R, about the father’s history of mental health and family violence in (country omitted).  There is evidence of family conflict between members of the father’s family in (country omitted). Given that Mr R was not available for cross-examination I do not propose to give the information provided to the family report writer any weight. The conclusions I have reached do not depend upon acceptance of the reliability of the information given by Mr R and I found the evidence of Ms G of limited usefulness. Ms H was called to give evidence about some events at a child care centre concerning disagreement between the parents leading to the centre deciding it did not wish the child to attend. She was not able to give relevant evidence. Mr F gave evidence about the father’s living arrangements. He said the father had shared a unit with him for the past eight months. He said that on the few occasions he had observed the father with the child they looked happy and contented. He said he found the father to be “steady, honest and reliable”.  Although I have no reason to doubt that Mr F was intending to give truthful evidence I do not accept his assessment of the father. Mr J also gave evidence for the father. He is a minister at the (omitted) Church. He said that on the occasions he had seen the father and the child at church or Sunday school he had observed the father to be a “loving devoted and responsible parent”. I consider that the evidence of Mr J is based on a limited number of observations and is superficial.

11. Dr U, the father’s treating psychiatrist, was also called by the father and gave oral evidence pursuant to the summons to attend. Dr U summarised the father’s psychiatric history and confirmed his diagnosis of bipolar disorder. He said that bipolar is an illness manifested by periods of elevated mood and periods of depressed mood. It is characterised by periods of hypomania or mania, possible impulsivity or debility and elevated mood. In cases of mania, as well as those symptoms, people may be increasingly grandiose, have delusions, hallucinations or disorganisation of thought. He said that if these symptoms are sufficient to warrant hospitalisation for an elevated mood status that would generally be called a manic episode rather than a hypomanic episode. One such episode would merit the diagnosis of bipolar 1. In the case of bipolar 2 only hypomanic episodes are present. The father suffers from bipolar 1.

12. The father suggested to Dr U that his involuntary hospital admission in 2015 following publicity about the “(omitted)” was precipitated by “baseless” police concerns. Dr U disagreed that the concerns were “baseless” but did say that after further investigation it was concluded that any extension of the involuntary admission was not justified. The father suggested to Dr U that he was able to sufficiently assess his own mental health so that he would be able to seek help before a manic episode occurred in future. Dr U said that he could not always guarantee that would be the case but he conceded that the father had “some ability to do that”.

13. The father asked Dr U about personality disorder. Dr U said that the father had been seen by five psychiatrists over the time that he had known the father. He said two of those psychiatrists had made a diagnosis of narcissistic personality disorder. One of those psychiatrists made a diagnosis of narcissistic personality disorder which turned into mania at times. Dr U said that he had not made that diagnosis himself because he considered that many of the criteria of narcissistic personality disorder were not easily distinguished from the symptoms of bipolar disorder. He said that the criteria of narcissistic personality disorder include, at heart, a sense of entitlement, a sense of being special or deserving of special treatment and a lack of empathy for others. He also mentioned a haughty or arrogant attitude and an inflated sense of self. He said this personality disorder was distinguished from bipolar disorder on the basis of time course. He said that bipolar is by nature an episodic illness and personality disorder is by nature enduring and persistent.

14. I asked Dr U whether a person with a narcissistic personality disorder might experience difficulties in forming a meaningful relationship with a child. Dr U said that he did not consider himself an expert on parent/child relationships but he did say that people with a narcissistic personality disorder would tend to find it difficult to sustain relationships. He said there is a tendency to either idealise or devalue others and to hold strong views, positively or negatively, about others. He said there is a tendency to become angry if thwarted or opposed. He said these tendencies can cause difficulties in relationships.

15. I asked Dr U if there was any treatment for narcissistic personality disorder. He said there were some non-drug based psychotherapies used but he is not aware of any strong evidence base in support of that treatment.

16. Dr U was also asked about the father’s evidence that he occasionally did not take his lithium, for example, if he was having a night out or with a partner. Dr U said that responses to not taking lithium medication for relatively short periods varied. Some people were particularly responsive and others not so. He said he had not seen any evidence that the father was particularly responsive to not taking his lithium for short periods.

17. The father asked Dr U whether there was a risk of harm to the child as a result of the father’s bipolar disorder or whether there was any reason he was not capable of parenting the child. Dr U said there was no risk because of the “fact of the diagnosis of bipolar” but if there were recurrent episodes of elevated mood or mania then that would significantly impact on the father’s capacity to parent.

18. The independent children’s lawyer cross-examined Dr U with a view to establishing that there was evidence of behaviour by the father that was enduring and persistent which was consistent with the criteria of narcissistic personality disorder. Dr U said that the examples of behaviour were consistent with narcissistic personality disorder and that narcissistic personality disorder was his differential diagnosis. He said that, nevertheless, the behaviour he had observed such as grandiosity was at times when the father was suffering from elevated mood associated with bipolar disorder.   

19. Although Dr U’s opinion was that the father suffered from bipolar disorder it is evident that some other psychiatrists have considered that the father met the criteria for narcissistic personality disorder or narcissistic personality disorder with mania. It would not be appropriate for the court to attempt its own diagnosis but based on Dr U’s opinion I am satisfied that there is evidence that some of the criteria of narcissistic personality disorder are present with the father. There is evidence that these criteria may be enduring and persistent. There is evidence that the father has difficulty sustaining relationships in the way that Dr U described as indicative of or consistent with narcissistic personality disorder. For a court dealing with mental health issues the correct diagnosis may be less important than assessing how the behaviours of a parent are relevant to the best interests of the child. In this case I am satisfied that the father has demonstrated grandiosity or an inflated sense of self, a sense of entitlement, lack of empathy and a tendency to idealise or devalue others, most particularly the mother in this case, over a considerable period of time and which is not restricted to the occasions when the father has suffered from hypomania or mania at times of hospital admission.

20. The mother gave evidence and was cross-examined. I consider that she was a truthful and generally reliable witness. I find that she is a competent and loving parent focused on the child’s needs. She is deeply distrustful of the father and has no confidence in his capacity as a parent. As mentioned, she struck me as somewhat naive and, perhaps, gullible. She has accepted many of the father’s claims, such as his connection with (country omitted) paramilitaries, as truthful. Notwithstanding my conclusion that his claims are likely to be fabulation, the mother is deeply afraid of the father and what she considers to be his capacity for violence. In evidence she gave the impression of a person worn down and dispirited by the difficulties of dealing with the father. I am satisfied that if she is required to remain living in the same town as the father and forced to attempt to properly parent the child in the face of the father’s hostility and lack of parental responsibility her capacity as a parent will be substantially undermined.

21. A forensic psychological assessment of both parties was completed on 17 August 2015. The questions put to the psychologist by the independent children’s lawyer, who arranged the report, followed to some degree the format of a family report. The author of the report, after considering some of the father’s hostile communications to the mother, observed that:

    “the father’s capacity to cooperatively work with the mother, and his capacity to focus upon and prioritise the duties and responsibilities of parenting [the child], is likely to be greatly diminished by his hostile and bitter attitude towards the mother”.

    He observed that in his opinion “the father’s animosity towards the mother is a major driving factor behind the parental conflict in the current litigation”. He said the father appeared to demonstrate little understanding of the effect of parental conflict on the child and what might be done to alleviate it.

22. He referred to the history given by the father of his other relationships with women since separation from the mother. He observed that the complaints by these women were consistent with the complaints put forward by the mother of harassment, stalking and obsessional behaviour by the father. He said that:

    “These circumstances in my opinion call into question the father’s psychological adjustment and functioning. His explanation of these relationships tends to demonstrate a lack of insight on his part and an unwillingness to engage in self-reflection in a manner that suggests the errors of the past are likely to be repeated in the future. It is my opinion that the father’s capacity to provide for the physical and emotional needs of X are significantly compromised by his adjustment issues, and that the father is likely to expose X in the future to the instability and negativity that is often associated with such destructive relationships”.

23. In discussing family violence the psychologist said that he was not aware of any evidence to suggest that physical violence had occurred between the parents. Nevertheless, the psychologist said that the mother’s worst fear was that the father would lapse into a state of mania and may seek vengeance against her by killing the child and himself. The psychologist said that he considered that the mother’s concerns could not be lightly dismissed. He referred to the history of the matter including the father espousing violence as part of the “(omitted)”, breaches of domestic violence orders, the reported history of violence within the father’s family in (country omitted) and the family’s reported fear of the father, the allegation that the father took his sister hostage in (omitted), the alleged gun catalogue incident and the father’s mental health problems generally.

24. He concluded that the mother, because of her fears, was not willing to foster a relationship between the child and the father. He concluded that the father’s willingness to foster a relationship between the child and the mother was at best ambivalent.

25. He did not believe that there was any course, counselling or program that was likely to be effective in addressing any of the issues in the case. He recommended that the child attend counselling with an approved counselling agency for the purpose of providing her with assistance and support in dealing with any issues arising from her exposure to parental conflict.

26. I generally accept the expressions of opinion contained in the psychological report. I am unable to reach any firm conclusion that the mother or the child are at real risk of serious harm or death at the hands of the father. There is no history of physical violence directed towards the mother or the child. Nevertheless, given the duration and seriousness of the father’s conduct, including trespass, stalking and obsessional behaviour towards the mother, and an evident fascination with violence expressed through an interest in the activities of the paramilitaries of (country omitted), I agree with the psychologist that this risk cannot be lightly dismissed

27. The family consultant completed the family report in April 2014 and completed an updated report on 20 October 2015. She concluded that the mother’s presentation was consistent with someone who had been “subjected to domestic violence through emotional/psychological means”. She interpreted many of the mother’s actions as an attempt to placate or appease the father in an effort to keep the child safe. She referred to the evidence that the father continued to intimidate and harass not only the mother but other women with whom he had relationships. She referred to evidence that the child had behaved badly towards the mother, including biting and kicking her, after returning from time with the father. The family consultant interpreted this as the child being anxious or frightened with the father and then regressing with the parent with whom she felt safest. The family consultant considered that there were multiple indicators that the father poses a significant threat to the mother and the child, including the father’s lack of insight, his limited capacity for self-reflection, disregard and contempt for authority and a long standing history of mental instability combined with adjustment issues, as well as concerns about drug use.

28. The family consultant recommended that the mother have sole parental responsibility, that she be permitted to relocate away from (town omitted) to a place not disclosed to the father, that the mother engage with a child and adolescent mental health service to obtain counselling for the child when she has relocated and that when the child is 12 or 13 years old someone experienced in the area could sensitively explore the idea of reconnection with the child’s father subject to an assessment of the father’s mental health before that took place. She recommended that there be an order that the father not be permitted to bring the matter back to court (assuming such an order could be made) and that he engage with a psychotherapist or similar who specialises in treating adjustment or personality issues.

1. Although I accept many of the observations of the family consultant as valid it appears to me that her primary reason for recommending that the mother be permitted to relocate with the child is that she accepts there is a real risk of harm to the mother and child from the father. Along with the author of the psychological assessment I accept that this risk cannot be lightly dismissed. However, leaving aside this risk, I accept that the mother’s apprehension of this risk is real and deep seated. She is very frightened of the father and she has been worn down by her fear and the difficulty of dealing with the father. I have no hesitation in concluding that this will, over time, seriously undermine the mother’s capacity as the primary carer for the child should she be required to remain living in (town omitted).

2. Section 60B(1) of the Family Law Act1975 (Cth) (‘the Act’) provides that it is an object of Part VII of the Act to ensure that the best interests of children are met by:

   “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child”.

3. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations to be taken into account in determining what is in the child’s best interests are listed in section 60CC. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.

4. Section 60CC(1) provides that in determining what is in the child’s best interests the court must consider the matters in subsections (2) and (3). Subsection (2) provides that the primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. Subsection (2A) provides that in applying the considerations in subsection (2) the court is to give greater weight to the considerations set out in paragraph (2)(b).

6. In this case I am satisfied there is a need to protect the child from physical or psychological harm from being subjected to family violence. Section 4AB of the Act defines family violence to mean “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”. The section provides examples of behaviour that may constitute family violence including (but not limited to) stalking and derogatory taunts.

7. I am satisfied that the behaviour of the father towards the mother, including trespass, copying of documents, breach of a domestic violence order, derogatory taunts and stalking constitutes family violence. I am satisfied this has caused the mother to be fearful and the child has been indirectly but significantly exposed to family violence. I am satisfied this factor should be given greater weight than the benefit to the child of having a meaningful relationship with her father. I am also satisfied that there are reasonable grounds to believe that the father has engaged in family violence and that the presumption of equal shared parental responsibility does not apply under section 61DA of the Act.

8. In determining what is in the best interests of the children the court must, in addition, consider the matters set out in subsection 60CC(3).  These are:

9. (a) any views expressed by the children

   The child has not expressed any views.

10. (b) the nature of the relationship of the child with:

    (i) each of the child’s parents; and

    (ii) other persons (including any grandparent or other relative of the child)

    The child has a close and loving relationship with the mother. There is evidence that the child is anxious and fearful with the father. The family consultant has interpreted the child’s behaviour after returning to the mother in the past as “regression” once she returns to the care of the parent with whom she feels safe. I agree that there is a basis in the evidence for this interpretation.

11. (c) the extent to which each of the child’s parents have taken, or failed to take, the opportunity:

    (i)to participate in making decisions about major long-term issues in relation to the child; and

    (ii)to spend time with the child; and

    (iii)to communicate with the child;

    The mother has been responsible for making decisions about major long-term issues in relation to the child, primarily because of the inability of the parties to effectively communicate. The father’s attempts to spend time with and communicate with the child have been limited by orders of the court. 

12. (ca) the extent to which each of the child’s parents have fulfilled, or failed to fulfil the parent’s obligations to maintain the child;

    The mother has maintained the child. The father is not employed and there is no evidence that he has contributed to the maintenance of the child.

13. (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)either of his or her parents; or

    (ii)any other child, or other person (including any grandparent or other relative the child), with whom he or she is been living;

    The change of circumstances proposed by the mother will prevent direct contact between the child and the father for the foreseeable future, although there is the possibility, subject to conditions, of some reconnection in the future once the child turns 12 or 13 years old. The child is likely to be sad for some period should this occur and it is desirable that she have some counselling to help adjust. The proposal by the father which would see the child spending substantial and significant time with him would only be possible if the father were living in recently close proximity to the mother. I am satisfied that this is likely to have a seriously deleterious effect on the mother’s parenting capacity and in turn have a significantly adverse effect on the child.

14. (e) the practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

    If the child relocates with the mother to a place not disclosed to the father it will not be possible for the child to spend time with or directly communicate with the father. That will substantially affect the child’s right to maintain personal relations with the father. If the mother lives in (town omitted) the child will be able to maintain a personal relationship with and direct contact with the father. I have concluded that this is not in the best interests of the child because it is likely to expose the mother and the child to continuing family violence.

15. (f) the capacity of:

    (i)each of the child’s parents; and

    (ii)any other person (including any grandparent or other relative the child;

    to provide the needs of the child, including emotional and intellectual needs;

    I am satisfied that the mother has the capacity to provide for the needs of the child, including her emotional and intellectual needs. I am satisfied the father does not have the capacity to provide for the needs of the child, particularly her emotional needs, and her need to be protected from family violence directed towards the mother.

16. (g) the maturity, sex, lifestyle and background … of the child and of either of the child’s parents…

    This is not relevant.

17. (h) if the child is an Aboriginal child or a Torres Strait Islander child;

    This is not relevant.

18. (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

    The mother is focused on the best interests of the child and discharges the responsibilities of parenthood. The father is deeply hostile to the mother and has subjected her to family violence over a long period. He lacks insight into the effect of his behaviour on the child. He has not placed the interests of the child before his own and he has not discharged the responsibilities of parenthood.

19. (j) any family violence involving the child or a member of the child’s family;

    I am satisfied there have been episodes of family violence as particularised above and there is a need to protect the child from exposure to family violence. 

20. (k) if a family violence order applies…

    No family violence order currently applies.

21. (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

    This is not relevant.

22. (m) any other fact or circumstances that the court thinks is relevant;

    There are no other relevant factual circumstances.

23. I propose to make orders reflecting the recommendations of the family consultant and the proposed orders of the independent children’s lawyer. These are that the mother have sole parental responsibility for the child and be permitted to relocate with child to a location not to be disclosed to the father. The father will be permitted to communicate with the child once a month and be permitted to send gifts on special occasions to an address on a third party to be nominated by the mother. Once the child turns 12 years old the father may provide evidence to the mother of his engagement with a psychotherapist or similar   specialising in adjustment or personality disorders with a view to addressing the matters addressed in the family report of October 2015, the psychological report of 17 August 2015 and these reasons for judgement. The mother may then seek to engage the child with a psychotherapist or similar with a view to reconnection with the father.

24. There is evidence that the father has found where the mother is presently living so I propose to include orders restraining the father from being within 200m of the place of residence of the mother and the child, any other place or area the mother or child has entered or remains within including the school the child attends.    

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  7 July 2017