Howells and Madden
[2015] FCCA 16
•14 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOWELLS & MADDEN | [2015] FCCA 16 |
| Catchwords: FAMILY LAW – Parenting – application by the father to spend time with his daughter aged 14 – child has spent no time with the father since 2004 – mother opposed to time occurring – child opposed to time occurring – father a bombastic aggressive man with a false fixed view that the mother has mental health problems which are placing the child at risk and an obsessive desire to ensure that the child knows “the truth” about the mother and the past – no identifiable benefit to the child in an order that she spend time with the father. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA |
| A & A (1998) FLC 92-800 Howells & Madden [2005] FMCAfam 386 Hungerford & Tank [2007] FamCA 637 Mazorski & Albright [2007] 37 FamLR 518 Rice & Asplund [1979] FLC 90-725 |
| Applicant: | MR HOWELLS |
| Respondent: | MS MADDEN |
| File Number: | NCC 3075 of 2012 |
| Judgment of: | Judge Terry |
| Hearing dates: | 15 and 16 July and 27 October 2014 |
| Date of Last Submission: | 27 October 2014 |
| Delivered at: | Newcastle |
| Delivered on: | 14 January 2015 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Bates |
| Solicitors for the Respondent: | Kinnear & Company |
| Solicitor Advocate for the Independent Children’s Lawyer: | Ms O’Rourke |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
All previous orders are discharged.
The mother shall have sole parental responsibility for the child X born (omitted) 2000.
The child shall live with the mother.
The father may have telephone communication with the child on no more than one occasion each week and for that purpose he may telephone the child on the mother’s current landline or mobile telephone number.
The father may send letters and Christmas and/or birthday gifts to the child by posting them to the mother’s address.
The father may respond to any email communication received from the child.
The father may spend time with the child as agreed between the mother and the father noting that this is a permissive order which makes it clear that time can occur if the parties agree but does not place any obligation on the mother to respond to requests by the father to spend time with the child or to facilitate time between the father and the child.
The parties shall keep each other notified of their current address and current landline or mobile telephone numbers.
IT IS NOTED that publication of this judgment under the pseudonym Howells & Madden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3075 of 2012
| MR HOWELLS |
Applicant
And
| MS MADDEN |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings concern X, aged 14, and whether orders should be made for her to spend time with her father.
X has not spent any time with her father since she was recovered from him at Melbourne Airport in August 2004. On 5 July 2005 final orders were made after a contested hearing which provided for X to live with the mother and for the mother to have sole parental responsibility for her. They provided for the father to have telephone contact with X and to send her letters but any other contact was to be on such terms and conditions as may be agreed by the Mother in writing beforehand and the mother has never been willing to agree to the father spending face to face time with X.
On 12 November 2012 the father filed an application in which he sought orders that the parties have equal shared parental responsibility and that X live with the mother “working towards shared residence” and spend time with him each alternate weekend from Friday to Monday and for half of the school holidays.
He also sought an order that X’s name be removed from the airport watch list and that both parents be permitted to travel overseas with her.
The only order sought by the mother in her response was that the father’s application be dismissed. That would leave the 5 July 2005 orders in place and due to a combination of X not wanting to see the father and the mother not supporting time occurring this would effectively mean that the father would continue to spend no time with X.
The evidence
The father relied on his amended initiating application filed on 5 June 2014, his affidavits filed on 12 November 2012 and 5 June 2014 and the affidavit of Mr D filed on 5 June 2014.
The father was informed at a mention of the matter 14 July 2014 that Mr D was not required for cross-examination by the mother’s counsel or the solicitor for Independent Children’s Lawyer and that his affidavit would be admitted into evidence. When cross-examination of the father commenced the following day Mr D was sitting in the back of the court. He began making comments and was spoken to by my Deputy Associate. A few minutes later Mr D stood up and announced that the hearing was unfair and that he would be going to the media and left the court room.
The father was quick to point out that these were Mr D’s own personal comments.
Mr D’s affidavit was of no assistance in the case. Among other things it echoed the father’s claim that X was legally in his care when she was removed from him at Melbourne Airport but this echoing of the father’s claim is not corroboration of the claim.
The mother relied on her response filed on 29 January 2013 and her affidavit filed on 6 June 2014.
An experts report was prepared by Dr C, a child and family psychiatrist and was released to the parties on 6 September 2013.
The father asked me to exclude Dr C’s report. He claimed that the report was fundamentally flawed and said among other things that Dr C had:
failed in her duty as a psychiatrist [and] professionally, ethically, willingly and knowingly wrote a false, bias report, has confused the report by an attempt to reflect the diagnosed mental illness of the defendant to the applicant to deliberately evaluate the defendant. And undermine the applicant in a bias, discriminative, report that holds no credibility....[1]
[1] Father’s Affidavit filed 5 June 2014 7th page
The mother’s counsel opposed the application but to my surprise the solicitor for the Independent Children’s Lawyer said that she did not have a position.
I am not suggesting that the Independent Children’s Lawyer should necessarily have opposed the application. That was a matter for her and she would have been within her rights if she felt that the application had merit to support it and ask for another report to be prepared, because in a case where the parents were highly polarised and gave starkly disparate evidence about the views of a mature child the evidence of an expert who had spoken to the child was essential.
However I seriously question the appropriateness of a lawyer tasked to represent a child in a matter such as this simply saying that she had no position as to whether a comprehensive report written by a well respected child and family psychiatrist and which contained the only independent evidence the court had about the child and the child’s views should be excluded.
Perhaps there is some explanation for it but it had the appearance of the solicitor for the Independent Children’s Lawyer prioritising a wish to appear impartial and unbiased as between the parents over the interests of the child.
I rejected the father’s application for the report to be excluded. There was nothing on the face of the report which raised concerns about it. It was thorough and well-written with logical well-reasoned conclusions. The father was informed that the way to deal with his concerns was to cross-examine Dr C and challenge her conduct, methodology, statements and conclusions if he wished to do so.
Later in the case Dr C patiently endured over two hours of cross-examination by the father. Nothing emerged during this cross-examination which suggested that there were any inaccuracies in the report or that Dr C was guilty of any pre-judgment or bias or had incorrectly recorded facts. Dr C patiently and convincing explained over and over again the rationale for conclusions about the mother’s mental health and her recommendations.
I reject the suggestion by the father that Dr C was guilty of bias or discrimination or that she knowingly and wilfully falsified her report when dealing with the issue of the mother’s psychiatric history or that she placed undue weight on irrelevant matters such as the father’s appearance (noting that she made a brief comment about it and also made a brief comment about the mother’s appearance) or that she chose to be part of a web of deceit.
The decision in this case is ultimately mine and Dr C’s report is simply a piece of evidence but in my view it is a valuable piece of evidence which deserves to be given weight.
The father was an extremely difficult witness. He was bombastic and his answers to questions were frequently non-responsive. He repeatedly used his turn to speak as an opportunity to embark on a long monologue or diatribe about matters which he wished to emphasise rather than to answer the question he had been asked.
The father answers were often evasive. Examples were the answers he gave when asked where he was currently living, whether he had informed X that her mother was insane and the circumstances which led to X being recovered from him at Melbourne Airport.
The mother was cross-examined by the father and also at considerable length by the solicitor for the Independent Children’s Lawyer who challenged her evidence about historical matters and her willingness to facilitate a relationship between X and the father. The mother was calm throughout her cross-examination and did not once display any irritation or impatience either at the tone adopted by the father or the repetitive challenges by the solicitor for the Independent Children’s Lawyer.
Background
The mother and father met in Tasmania in about (omitted) 1999. They formed a relationship but never lived together.
X is the parties’ only child and she was born on (omitted) 2000. After her birth she lived with the mother and the mother’s older child Y who was then aged 4. The father visited them and spent time with X.
I accept the mother’s evidence that the parent’s relationship ended in April 2001.
In September 2001 the mother applied for a Domestic Violence Order against the father in the Court of Petty Sessions at Burnie. She alleged that the father had been stalking her and yelling and swearing at her. I cannot make any findings about where the truth lies about this as the issue was not explored at the hearing before me but wherever the truth lies a Domestic Violence Order was made for the protection of the mother on 30 October 2001.
The mother alleged that in late 2001 the father disappeared out of her life. She said that he re-appeared in August 2003 and in the ensuing 6 months spent time with X for an hour at a time on about 6 occasions.
The father denied that he disappeared in late 2001. I am unclear as to what alternative version he wished me to accept about his time with X in the two years between late 2001 and early 2004 but in any event nothing turns now on where the truth lies about this historical matter.
On 27 May 2004 the mother had a psychotic episode at home and was taken to hospital where she remained for 12 days. Y went into the care of his natural father and the police delivered X to her father.
The father took X to see the mother in hospital.
When the mother was released Y’s father returned him to the mother but the father refused to return X. He took X to see the mother at her home on one occasion soon after her release from hospital but alleged that the mother tried to lock him and X inside and after that he would not agree to X spending time with the mother.
On 7 July 2004 the mother filed an application for a recovery order and on 9 July 2004 filed an application for an airport watch order. The mother feared that the father, who is of (country omitted) heritage and is from (country omitted), might take X out of the country.
The orders the mother sought were made and on 12 August 2004 X was recovered from the father at Melbourne Airport. The father had obtained a passport for X through the (country omitted) High Commission without the mother’s knowledge and he had one way tickets to (country omitted).
The father was highly defensive when questioned about his actions at this time. He refused to concede that he had tried to take X out of the country without the mother’s knowledge, insisting that the mother knew that he intended to travel to (country omitted), although I am satisfied that he meant that she knew in a general sense that he wanted to take X there and not that she was aware of the specific travel plans.
The father attempted to deflect criticism of him having obtained the passport for X without the mother’s knowledge by insisting that X was a citizen of (country omitted) and would always be a citizen of (country omitted). In his affidavit he said that he only had one way tickets because his family intended helping him to pay for the return fares.
To this day the mother views the father’s actions in 2004 as an attempted abduction and the father vigorously believes that he was absolutely within his rights because X had been placed in his care by the police and mental health authorities after the mother was hospitalised.
I cannot make findings about where the truth lies about everything that occurred in 2004. However there is no doubt that the father obtained a passport for X without the mother’s knowledge or consent[2] and was attempting to remove her from Australia during a period when he was also withholding her from the mother without bothering to seek parenting orders to justify his actions.
[2] Howells & Madden [2005] FMCAfam386 paragraph 34
At best the father was the author of his own misfortune and at worst appearances mean what they seem to mean and he was intending to remove X permanently from Australia and keep her away from the mother. I can understand why the mother has an unshakeable belief that the latter was the case. It is not open to me to find that she is being unreasonable and pig-headed in believing this.
After X was recovered from the airport she was returned to the mother and she has spent no time with the father since.
On 18 August 2004 the father filed an application seeking orders that X live with him and spend supervised time with the mother and also that he be permitted to take her overseas. The mother cross-applied for residence and opposed any order which would permit overseas travel and in March 2005 amended her application to seek an order that she be “permitted to live in Sydney NSW with X.”
Judge Roberts conducted a hearing over a period of 6 days in 2004 and 2005 and on 5 July 2005 made orders that the mother have sole parental responsibility for decisions concerning X’s long term care, welfare and development, that X live with the mother and that the mother be permitted to reside in NSW with X.
Judge Roberts made the following order about X’s time with the father:
That MR HOWELLS (“the Father”) have contact with the child as follows:
(a)by letter;
(b)by telephone at reasonable times, provided that such does not exceed once per week and on the basis that the Father initiates the relevant telephone call to the mother’s mobile telephone; and
(c)on such other terms and conditions as may be agreed by the Mother in writing beforehand.
Following the making of the orders the mother moved to (omitted) in NSW. She later moved to (omitted) before settling in (omitted) in October 2006.
The mother’s moves from (omitted) to (omitted) and (omitted) to (omitted) where she had family were prompted by her belief that the father was tracking her, the unspoken finish to this being “with a view to takin X again.”
On 7 October 2006 the mother applied for an Apprehended Domestic Violence Order (ADVO) and an order was made for 2 years.
The father has always taken advantage of the order which allows him to telephone X. He alleged that he had been regular in ringing. The mother alleged that there were periods when he did not ring. I cannot make a precise finding about the extent to which he has rung; the best I can say is that I am satisfied that between October 2006 and either late 2011 or early 2012 the father rang X on many occasions but whether it was routinely or with gaps I am unable to say.
The father alleged that he asked the mother on a number of occasions prior to commencing proceedings in 2012 to allow him to spend time with X and he produced notes which he said confirmed this. The mother claimed not to have received the notes but it is really immaterial where the truth lies about this because:
i)the mother was never going to agree to the father spending time with X; and
ii)the 5 July 2005 orders imposed no obligation on her to do so.
Things heated up between the parties in 2012. At some point in 2012 the father sent the mother a message which said:
I will take that as a threat do you really think I am concerned about little boys by the way there is a few (omitted) that are on their way back and back from the (omitted) war who are related to X they may call in to see how she is and tell you so called husband and anyone else around you what the consequences are if one little thing happens to my daughter apart from the damage you have already done. I have yous all on camera so I know who everyone is. I will see you about my daughters access and financial situation. [3]
[3] Mother’s affidavit filed 6 June 2014.
The father said during cross-examination that he sent this message in response to a message from the mother saying that she would get her three sons to kill him. This is consistent with the opening sentence of the text message but the father made no mention of this in his affidavit and the mother denied saying any such thing.
I consider it highly improbable that the mother would have said any such thing. It would be inconsistent with her behaviour in keeping out of the father’s way as much as she could for the last decade and seeking assistance from the courts when she felt threatened by him to have sent him a text message which would obviously have fired him up.
Later in 2012 the father sent the mother an extremely offensive and threatening letter. It was 4 pages long and in it the father repeatedly refers to the mother as a “dickhead”, “fuckwit” and “fucking lunatic”.[4]
[4] Mother’s affidavit filed on 6 June 2014 annexure “C”.
Shortly before X’s 12th birthday on (omitted) 2012 the father sent a message to the mother through X asking if she and X would have dinner with him to celebrate the birthday. He claimed that X was excited when he proposed this. However as was repeatedly illustrated throughout the hearing the father has no insight into the impact of his behaviour on others and has a complete inability to hear anything that he does not want to hear and I do not accept his claim that X was excited.
In any event the mother would not agree to the proposal and the father began making strenuous efforts to find out where the mother was living in (omitted). He or people acting on his behalf contacted the maternal grandfather and a neighbour of the mother’s. The father also began insisting that he had a special delivery package for X that she had to sign for and he asked X repeatedly to tell him when she would be home.
The mother took fright and applied an ADVO. The father opposed this but an order was made on 20 November 2012 after a defended hearing.
On 12 November 2012 the father filed an application in this court in which he sought orders which would permit him to commence spending time with X.
The mother opposed the application and because of the history of the matter and the length of time since the father had seen X no interim orders were made for time to occur. An Independent Children’s Lawyer was appointed and in due course Dr C was engaged to prepare a report.
Dr C’s report was released to the parties on 6 September 2013 but the matter did not settle and was subsequently listed for hearing.
The Rice & Asplund issue
Judge Roberts conducted a 6 day hearing into parenting arrangements for X in 2004/2005 and on 5 July 2005 he made the orders referred to earlier.
In the 1979 case of Rice & Asplund[5] Justice Evatt expressed the view that where an application is made for parenting orders and there are already orders in place the court before making new orders should always consider the reasons why the existing orders were made and whether there had been any change of circumstances which warranted the court looking at the matter afresh. In Hungerford & Tank[6] the Full Court held that the failure by a trial judge to do this constituted appellable error.
[5] Rice & Asplund (1979) FLC 90-725.
[6] Hungerford & Tank [2007] FamCA 637.
I have the benefit of Judge Roberts’ judgment so I know why the orders were made and relevantly in regard to the issue of the father spending time with X, Judge Roberts said as follows:
In my view, one of the significant practical difficulties associated with contact is the effect on the mother of face to face contact. I have been referred to cases such as Re Andrew (1996) FLC 92-692. Given that the father's expert psychologist says that the mother's situation could be detrimentally affected by disputes between the parties, I do need to look at the effect of contact orders upon the mother. From the mother’s evidence today, it seems that she still has some very real concerns that the child may be taken away from her. In my view, the father's attempt to take the child to (country omitted) without her knowledge or consent is justification for those concerns.
I therefore propose that there be no face-to-face contact, at least for the foreseeable future. The mother's evidence was that when the child is older and is able to cope, she may be able to cope with face to face contact. However, I am quite sure that she cannot cope with it now.
There was a suggestion that perhaps there should be some supervised contact but I have nothing before me to say what supervision is available. Further, that supervision would need to be in a contact centre or something similar, and I have no evidence of whether there is a contact centre anywhere near the mother.[7]
[7] Howells & Madden [2005] FMCAfam 386
Inherent in these reasons is recognition of the fact that the order concerning face to face time between X and the father might need to be revisited when X was older. Nine years have passed since the orders were made and in my view it was entirely appropriate for a hearing to be conducted into the father’s application and it is entirely appropriate for the court to consider afresh whether it is in X’s best interests that she spend time with the father.
The father’s circumstances
An issue was raised about whether the father was 55 as his birth date on X’s birth certificate suggests or 45 as the birth date he put on his initiating application suggests or in his early 60’s as the mother suggested. Save to say that based on appearances 45 seems the least likely I cannot make a finding about the father’s age.
The father was evasive in the extreme when asked about where he was currently living.
In his affidavit he gave his address as care of (omitted) Post Office.
In the witness box he said that he was living at (omitted) but he corrected this a couple of minutes later to (omitted). When questioned about this discrepancy he said that he owned both properties. He commented that (omitted) was a block of flats and that he had Flat (omitted) set up as a home but in answer to a question by the mother’s counsel said that he had not been there for a year.
The father said that he had a semi-permanent room at the (omitted) Hotel in (omitted) which he could use as a base if an order was made for X to spend time with him.
When asked about the (omitted) address he said that he stayed in a place in (omitted) sometimes.
When pressed about the fact that the hotel room at the (omitted) Hotel would not be a suitable place to take X the father said that if court orders were made in his favour he would look at getting a house (I presume he meant renting but nothing turns on it). Where he did not say and he had clearly not thought about this in any practical sense.
The father described himself as self-employed and when pressed about what he did said that he (occupation omitted). He said that he had been (duties omitted) in (omitted) (Sydney) on the previous weekend.
The father said that he had a lady friend but was not pressed for further detail about this aspect of his life.
The mother’s circumstances
The mother is 48. She lives in (omitted) with her partner Mr B, X and Y. X is in Year 9 at a local high school.
The mother is an (occupation omitted) and is currently doing (omitted).
X’s best interests
Any orders I make about X must be determined by treating her best interests as the paramount consideration and s.60CC(2) & (3) of the Family Law Act contain the matters to which I must have regard in order to determine X’s best interests.
The primary considerations in s.60CC(2) are as follows:
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.
S.60CC (2A) provides that in applying the considerations in s.60CC (2) the court is to give greater weight to the consideration set out in s.60CC (2) (b).
The additional considerations in s.60CC(3) include such things as the child’s views, the nature of the relationship between the child and each of her parents, the likely effect of a change in the child’s circumstances and the capacity of each parent to provide for the needs of the child.
While logic suggests that findings should be made about the primary considerations first, there are occasions when it is necessary to make findings about the additional considerations before the primary considerations can be properly considered and this is such a case.
The first of the additional considerations is any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
Dr C reported as follows about her conversation with X:
Asked about her father, X said she does not know much but thought it was “crazy” he has “tried to take me out…not tell (her) his age…changed the age” of a dog he sent her as a present (without consulting her mother), as the pup was “too young”. She opined he does not sound like a normal person and “we got kind of an AVO against him”, whereby he cannot approach them.
After a discussion about contact centres and contact options, X was told spending time with her father in a centre would be a way to satisfy her curiosity and know about the Howells family without risk but she did not appear convinced or interested. She reported her mother has not said much about her father, except to tell her about being taken away when four, he does not pay maintenance, and they are going to Court.[8]
[8] Dr C’s report page 4
Dr C also said as follows:
Discussing her feelings about an Order to meet her father, X described how she “wouldn’t like it, not want to see him, scared of him as a person…gut feeling, can’t explain”. She did not think he would shout at her but opined it would “probably be really stressful.”
X’s message to the Judge was “I just don’t want to see my Dad”. Asked whether her mother wanted her to say this, X denied it, adding “she probably wouldn’t want me to but I don’t – it’s not coming from her but from me”. She reported she does “not really” like the calls from him but they do talk. [9]
[9] Dr R's Report page 5.
The father submitted that no weight should be given to these views as it was just the mother talking.
There was no evidence that the mother had deliberately set out to influence X’s views of the father and alienate her from him but the mother makes no secret of her views and it was clear enough from what X said to Dr C that the mother had spoken to her about past events.
Dr C recognised this but also recognised that the father’s past and present behaviour as well the mother’s views could be impacting on X’s views. Dr C said as follows:
X expressed her concern she could be taken away from her mother and brother by her father. While her mother’s identical anxiety would be influencing her, so would her brother’s and her own very young memories of her separation from mother, when Ms Madden was in hospital and afterwards, until her restoration to Ms Madden’s care. Compounding these fears would be any messages from Mr Howells in which he dismisses X’s objection to leaving Australia and refers to his right to take her overseas.[10]
[10] Dr C’s report page 15
In summary X is expressing a clear view that she does not want to spend time with the father. She has doubtless been influenced in coming to that view by things she has heard from the mother and her brother but she has also been influenced by her own experiences of her father; she has spoken to him on numerous occasions on the telephone over the last 9 years.
Another relevant matter is that X is 14 and however her views have been formed she may be resentful if anyone tries to force her (as opposed to persuade or cajole her) to doing something she does not want to do.
Having said that X’s views are simply one matter which I must take into account in order to determine the orders which will be in her best interests.
The next consideration is the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child).
X has a good relationship with her mother and she also has a good relationship with her brother Y who is 18.
X has a very limited relationship with her father. She speaks to him on the telephone but Dr C referred to the emotional poverty of the relationship and as the solicitor for the Independent Children’s Lawyer pointed out to the father during cross-examination he does not know much about X’s life and X does not know much about his life and they probably do not have a lot to talk about.
The father was secretive and evasive about his address and occupation during these proceedings and he is highly resistant to hearing anything from anyone which he does not want to hear. Whether X would learn much about him or he much about X if they had face to face contact is open to question.
The next additional consideration is the extent to which each of the child’s parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child or to communicate with the child.
The mother cannot be faulted in this regard.
I cannot make findings about the extent if any to which the father dropped out of X’s life between 2001 and 2004 and even if he did it would not be relevant.
The father has not spent time with X or participated in decision making about her since 2004 but this has been the result of court orders limiting his role in her life and I cannot use this as a reason to criticise him.
I must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the child.
The mother claimed that she had only received a total of about $3,000.00 in child support in nine years.
The father said that this was incorrect and that he had also made private payments although he conceded that they had not been much.
I am not aware of the child support assessments that have been in place so I cannot find that the father has failed to fulfil a legal obligation – he may have paid the amount he was required to pay.
There was a flavour in the father’s evidence of him being unwilling to pay if he could not see his daughter and the mother’s perception that the father has not contributed much has not endeared the father to her and she has not hidden this from X. None of this is helpful but the outcome in this case does not turn on whether the father has been paying an appropriate level of child support.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of any separation from a parent, any other child or other person with whom he or she has been living.
This consideration has two ramifications in this case.
First, I must consider the effect on X of making an order that she spend time with the father. I cannot make findings about this until I make findings about the remaining s.60CC(3) matters and I will return to this issue when considering the first of the primary considerations.
Second, I must consider the effect on the mother of making an order that X spend time with the father.
The mother remains fearful that the father may withhold or abduct X if he spends time with her.
The father vehemently denied that he withheld/attempted to abduct X in the first place let alone that he would do so now but in A & A the Full Court held that it was necessary to consider not only whether there was an unacceptable risk of harm to a child in spending time with a parent but also whether the residence parent had a genuinely held belief that such a risk existed and whether that belief would have a significant impact on that parent’s capacity as resident parent and so impinge on the best interests of the children.[11]
[11] A & A (1998) FLC 92-800.
The mother genuinely believes that if the father had succeeded in travelling to (country omitted) with X in 2004 the mother would never have seen her again and for reasons outlined earlier I cannot dismiss this as fanciful and without foundation. The incident has had a profound effect on the mother and over the years she has acted consistently with her fears.
The mother said and I accept that she moved from (omitted) to (omitted) because she feared as a result of things the father said to X during telephone conversations that he was trying to find them and that she felt unsafe in the small country town and felt that she would be safer in (omitted) near family.
The mother said that in (omitted) she arranged for a silent telephone number and made sure that she was never on the electoral roll.
The fact that the father is secretive about his address and that he is known to give varying dates of birth have augmented the mother’s fear that if he disappeared with X he would be hard to find.
The mother said and I accept that even though X was in high school she still drove her to school every day and waited until she went in the school gate and usually picked her up in the afternoon.
Dr C considered this aspect of the matter and said as follows:
As it is unclear to me how [the father] could abduct an unwilling adolescent X, I do not believe that [the mother’s] current fears about this possible event are rational. However feelings are often not rational and it is understandable that [the mother] has persistent anxiety about [the father’s actions].[12]
[12] Dr C’s report page 16
The mother also considers that the father’s behaviour in trying to “bully, bluff and steamroll” people who do not agree with him means that X spending time with him would be a negative experience for her. She gave evidence that the idea of X spending time with the father stressed her and affected her mood and sleep and that she had commenced taking anti-anxiety medication in 2014 and I accept her evidence.
Judge Roberts was satisfied in 2005 that the mother could be adversely affected by an order that X should spend time with the father and Dr C shared that view in 2013. She remained adamant during cross-examination that an order that the father spend time with X could destabilise the mother and it goes without saying that this would be a detrimental outcome for X.
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The father seemed to be proposing that he would come to (omitted) and spend time with X here, at least as far as the alternate weekends are concerned. In that event there would be no practical difficulty and expense in X spending time with the father provided that he were able to afford appropriate accommodation.
I must consider the capacity of each of the child’s parents and any other person to provide for the needs of the child, including their emotional and intellectual needs.
There is objective evidence in Dr C’s report supports a finding that the mother is providing good care for X. Dr C said as follows:
X presented as a sturdily built, cooperative, nearly thirteen year old of part (country omitted) ethnicity. She described feeling a “little nervous, not much” and appeared euthymic.
X described loving school, where academically she is around the middle of the class. She reported having friends and enjoying herself. If she could change one thing about her life, she would want “to be happier, not to be sad and worried about stuff”…“random things, stuff I can’t change”, such as “world hunger, animal cruelty, people raped and murdered”, all of which is “not worth thinking about, can’t change it”. [13]
[13] Dr C’s report page 4.
The mother suffered a psychotic episode in 2004 and was diagnosed with Bi-Polar Disorder. She has been on mood-stabiliser medication ever since (currently Lamictal) and said that she had never experienced another episode. She said that she was also currently also taking Loxalate, an anti-anxiety medication.
The mother’s case was that her mental health had been stable for many years and did not adversely impact on her capacity to parent X nor had it since her release from hospital.
The father does not accept this and he made the mother’s mental health a huge issue in the case. He insisted endlessly that he believed that the mother was still suffering from psychiatric problems which meant that X was at risk in her care.
To support his case the father annexed to his 5 June 2014 affidavit a report prepared by Ms R, a psychologist, which contains detailed general information about bipolar disorder under the headings Description of the Disorder, Treatment of the Disorder, Course and Prognosis of Bipolar Disorder and Disturbance to Daily Functioning, Ability to Parent Children Effectively and Risk Assessment.
The father used the report in the 2005 proceedings and Ms R was called to give evidence in those proceedings. She has never met the mother or seen her medical records and she recognised the limitations of this herself in her report where she said as follows:
The severity, course, prognosis, response to treatment, functioning, risk and parenting capacity of individuals with bipolar disorder is varied between individuals. A comprehensive assessment of the client and their family is needed to ensure the best possible care and management plan is implemented.
Dr C agreed with the general propositions about bipolar disorder in Ms R’s report but unlike Ms R she had the opportunity to talk to the mother and review her medical records.
Dr C saw no sign of any debilitating mental illness in the mother and was satisfied that the mother was appropriately medicated and that X was not at risk of harm in the mother’s care. She said as follows:
Ms Madden presented as currently having no evidence of her major mental illness, Bipolar Disorder, which has apparently been stable for at leave five years while she has continued to take appropriate medication and been reviewed by her GP. There is nothing to suggest X has been at risk of harm from her mother in many years.
Of note in Ms Madden’s psychiatric history is her single episode in 2004 of manic psychosis, at a time when she was experiencing significant interpersonal distress, used a psychoactive substance (cannabis) and was on an antidepressant, all of which could contribute to a manic episode.
While Bipolar Disorder is a chronic, relapsing illness, her abstinence from illicit substances, further use of antidepressants without relapse into mania and years of stability on mood stabilising medication suggest Ms Madden has a reasonable prognosis and may not experience further manic psychotic episodes.[14]
[14] Dr R's Report, page 15.
During cross-examination by the father Dr C re-iterated a number of times that the mother showed no signs of instability at present and that in her favour were that she was compliant with her medication (as indicated by the PBS summary the father tendered), had connections in the community and had connections with family
I accept Dr C’s evidence that the mother is not showing any signs at present of having any mental health issues which are impacting adversely on her capacity to parent X.
However the mother is taking a mood stabiliser and anti-anxiety medication and does have the incident in her past and I place weight on Dr C’s opinion as follows:
X’s mother is highly anxious about X being with her father and their contact could further undermine Ms Madden’s current reasonable mental health.
Foolishly the father feeds into the mother’s fear and distrust of him by doing things such as failing to disclose his address, being extremely abusive to the mother and seeking orders permitting him to take X overseas.
The father’s obsessive belief that the mother is currently mentally ill to the point of being incapable of properly caring for X is an issue relevant to his parenting capacity.
The father demonstrated that obsessive belief during his interview with Dr C and demonstrated it repeatedly during the hearing.
Despite being aware of the independent evidence that X was a robust healthy 14 year old who was attending school regularly and who had all the normal teenagers anxieties and uncertainties but who considered herself a much loved part of her mother’s household, when the father was told at the end of the second day of the hearing in July 2014 that the matter would have to be adjourned to a date in October 2014 because of the unavailability of Dr C for cross-examination he loudly and insistently demanded to know who was going to protect his daughter from harm between then and the adjourned date.
Dr C said as follows about the father’s refusal to adjust his beliefs about the mother’s mental health to take account of the current reality:
Mr Howells’ difficulty understanding and coming to terms with the reality of Ms Madden’s illness is his problem, not one for X in her daily life. However it has become one for her because he persists in making allegations and taking actions which creates stressful situations for X and her mother.[15]
[15] Dr R's Report, page 17.
The mother gave evidence that the father had raised the issue of her mental health with X. She said as follows:
On 10 April 2013 X had a conversation with [the father]. After the call X said to me, “Dad said ‘Your mother is insane. You are being treated by an insane person.’ I said “Don’t say bad things about Mum.”[16]
[16] Mother’s affidavit filed 6 June 2014 paragraph 32.1
The father was evasive when cross-examined about whether he had told X that the mother was insane. He initially said that he had told X the mother was unwell but when pressed about whether he had called her insane he eventually responded:
I wouldn’t like to think I said that but I might have said it.
The father not only has a false belief about the mother’s mental health he has a marked antipathy for her. This came through strongly during final submissions when he focussed almost entirely on the mother’s alleged wrong-doing and repeatedly referred to her (although not with literary accuracy) as being a Jekyll and Hyde.
The father could not think of a single positive thing to say about the mother when asked by the solicitor for the Independent Children’s Lawyer and he was vilely abusive to her in the letter he sent her in 2012.
The father has made no effort to hide his belief about the mother’s mental health from X and it is difficult to believe that he would be either willing or able to hide his antipathy for the mother from X and it would be very damaging for X to be exposed to verbal abuse or trenchant criticism of the mother.
Another issue relevant to the father’s parenting capacity, leaving aside the kind of information the father might convey to X about the mother, is that he is a very difficult person to deal with.
The mother said that during her relationship with the father he would get angry and yell if she disagreed with him or would just talk over her. She said that he recently offered to give her thousands of dollars if she would let him see X and when she tried to discuss it with him he shouted and said “Hear me out” and talked over the top of her.
The mother said that while she did not listen in on X’s telephone conversations with the father she sometimes heard part of the conversation if X was in the room. She said:
I have heard him frequently say “That’s your mother talking” or he simply talks over the top of her, saying “Hear me out.” After telephone calls, X frequently complains to me “He doesn’t listen to me.”[17]
[17] Mother’s affidavit page 5
I accept the mother’s evidence about her experiences and X’s experiences because it is entirely consistent with the father’s behaviour during the court proceedings. He always spoke at length and once he had launched himself into a speech he was very difficult to interrupt. Any attempt to stem the flow was met by responses such as “Let me finish and then you can talk (to the bench).”
The father engaged in similar behaviour during his four hour plus interview with Dr C. She said as follows:
Mr Howells was verbose, making repetitive statements, and was hard to move on – he would ask “hear me out.” When he became emotionally aroused by the subject matter, he spoke loudly and adamantly, rambling and scrambling words but not frankly thought disordered (although organic cognitive impairment was queried by me). His speech became pressured and over inclusive – at times he hardly seemed to draw breath. He once dictated what I should write.
Mr Howells’ affect was labile – he became mildly agitated and, when aroused, was difficult to contain: he repeated his definite opinions and was intense. His mood briefly became unbeat – he was overfamiliar and made a joke and patted my shoulder when he left the office to go to the toilet.[18]
[18] Dr C’s report page 11
The father was unhappy with the opinions Dr C expressed in her report and he cross-examined her repetitively for over two hours. He ceased cross-examining her only because he was told that he had twelve minutes to complete his cross-examination. Even after being told this he wasted some of that time arguing with the bench.
It is abundantly clear as a result of the father’s presentation during the hearing, his presentation when interviewed by Dr C and his cross-examination of Dr C that not only is he someone who is unable to accept that another person might legitimately hold a different view to him he takes personal offence at them for doing so.
The father amply demonstrated during cross-examination his refusal to listen to others; I wonder if he heard himself when he gave this answer about what happened during one of his telephone calls with X:
X would not let me explain the situation the mother had put her in….I have no doubt I would have mentioned that the father has tried to put this in order for a long time which the mother wouldn’t allow to take place.
She’s entitled to know the truth
From his own mouth the father confirmed that regardless of whether his daughter wants to know “the truth” or not he was going to make sure that she heard it.
The father was extremely rude to Dr C on a number of occasions during cross-examination and his manner to her and his manner to the bench throughout the hearing was bombastic and aggressive. He is oblivious to the affect that his rudeness and aggression has on others. Despite being pulled up on a number of occasions by the bench for his rudeness to Dr C and despite comments being made to him during the hearing about his overbearing and aggressive manner, during final submissions the father said that he felt that the court had taken against him because he was an expressive man who waved his hands around a lot when he spoke.
I could not possibly put a 14 year child in a position of having to deal with this.
Dr C said as follows about this concern in her report:
Does Mr Howells have the capacity to establish appropriate boundaries (a very important aspect of parenting), whereby he is able to manage his fears and anxieties and not express them/act on them in ways which distress X.
His manner at this assessment suggested he tends to control, as he spoke in a garrulous manner and was difficult to interrupt to clarify misunderstandings. He had difficulties tolerating uncertainty and ambiguity. It must be noted being able to tolerate uncertainty is very important for a parent in order to be able to assist the child to develop this capacity: otherwise one is left with maladaptive “black/white” thinking, difficulties with logic and flaws in reasoning.[19]
[19] Dr R's Report, page 17.
Dr C drew no conclusions about the father’s own mental state but she was concerned about some aspects of his presentation which seemed to suggest paranoia. She said as follows:
Mr Howells’ unwarranted preoccupation with X being at risk continues – he made a point at interview of describing his “current and ongoing past and future concern” for her in her mother’s care. While it was appropriate for him to have been concerned when she was being parented by an acutely psychotic mother in 2004, this has not been the case since Ms Madden’s rapid recovery from her psychosis.
He has raised issues with X (to be careful with strangers/having sleepovers with friends/child abduction) which present the world as being an unsafe place (as he seems to find it) and could possibly undermine her confidence.[20]
[20] Dr R's Report, page 16.
I cannot make any findings about the father’s capacity to provide for X’s day to day or intellectual needs but he clearly lacks the capacity to provide for her emotional needs.
I must have regard to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
X is 14, and regardless of the genesis of her views about her father I must take into account that she is a teenager. Teenager cannot always do as they wish (none of us can) but they can become resentful if their views are not taken into account. For this reason I must take X’s views into account in determining an outcome.
Another aspect of this consideration is that X shares her father’s (country omitted) heritage; Dr C commented that in broad general terms it would be preferable if she could spend time with her father who is (country omitted).
X currently has no contact with any of her extended paternal family and in theory contact with her father would give her an opportunity to have some contact with them but the father did not mention this aspect of the matter at all either in his affidavits or during his interview with Dr C. The father is a difficult man and I cannot simply assume that he is on good terms with his family and that if I make an order for X to spend time with him this will automatically mean that she will have contact with his family.
A third aspect of this consideration is that part of X’s background is that she is the daughter of a mother who has suffered from mental health difficulties.
During cross-examination by the father Dr C agreed that this could place X at increased risk of suffering from a mental illness herself. She said that because of this it was all the more important that X’s adolescence was not disrupted and that she developed a consolidated secure sense of self before her age put her into a risk bracket for major mental illness.
It was also all the more important that X not abuse substances and all the more important that her mother’s mental health was not jeopardised.
Dr C also expressed the view that it was not only the mother’s mental illness which placed X at heightened risk. She said that the undiagnosed parent of such a child who created stress and strain for the child’s mother was also contributing to the risk of the future psychopathology for the child.
I must consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
The mother has a good attitude to the child and the responsibilities of parenthood. It is true that she has not promoted a relationship between the father and the child but I am satisfied that is because she has a genuine fear that the father might take and retain the child and a genuine fear about how the child would cope with the father’s behaviour.
The father does not display a good attitude to the responsibilities of parenthood in being determined to reveal “the truth” to X without any regard for the harm he might cause her but I have dealt with this when considering the father’s parenting capacity.
I must consider any family violence involving the child or a member of the child's family.
The mother alleged that in 2004 the father pushed the maternal grandmother over during a dispute with the mother and that he also stalked and harassed the mother.
The mother considers that the father stalked and harassed her in 2012 by making inquiries with her family members and neighbours about her whereabouts and by trying to induce X to reveal when she would be home so that she could collect a gift.
The father denied assaulting the maternal grandmother and I cannot determine where the truth lies about this. The maternal grandmother could have been accidentally pushed for example and the incident happened a long time ago and both parties recollections about it could be skewed by their current beliefs and resentments about the other.
As for the father’s recent behaviour he claimed that he took these steps because he wanted to arrange for the mother to be personally served with documents.
A solicitor faced with the dilemma of needing to serve someone personally with documents would take other routes but the father is self-represented. It is not beyond belief that he did consider that he needed to take certain steps to ensure that the mother was personally served.
The father was not a witness of any great credit but I cannot be satisfied that his actions as described should be branded family violence.
The father was vilely abusive to the mother in his 2012 letter but no submissions were made about whether this was sufficient to constitute “repeated derogatory taunts” and on the state of the evidence I cannot be satisfied that the father has committed any acts of family violence as it is defined in the Family Law Act.
However the content of the letter referring to the (omitted) returning from the war was threatening and the contents of this letter if nothing else do constitute an act of family violence by the father
I must consider if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i)the nature of the order;
ii)the circumstances in which the order was made;
iii)any evidence admitted in proceedings for the order;
iv)any findings made by the court in, or in proceedings for, the order;
v) any other relevant matter.
There is no current family violence order. The last order was made on 20 November 2012 and expired on 20 November 2013. Police made a further application on the mother’s behalf in November 2013 but ultimately did not pursue it.
The mother applied for and obtained family violence orders in 2001, 2006 and 2012 and 2013. The fact that the orders were made on the first three occasions does not establish by itself that the father did anything wrong but the fact that the mother has repeatedly made the applications says something about the relationship between the parties and about her fear of the father and desire to keep him away from her and X.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
The orders sought by the mother are least likely to lead to further proceedings when the orders sought by the parents are compared. Given X’s age and the comprehensive consideration of the matter which has taken place as a result of this trial it is unlikely that the father will be able to re-litigate the issue of spending time with X absent some change of circumstances which seems unlikely to occur.
The orders sought by the father are most likely to lead to further proceedings when the orders sought by the parents are compared and in particular to contravention proceedings given that X is 14 and is expressing a wish not to see the father.
I must consider any other relevant fact or circumstance.
A relevant matter is that the father labours under a number misconceptions, namely:
·That because he is X’s “biological registered parent” he has rights in respect of X.
·That it is illegal for X to prevented from spending time with one of her biological parents.[21]
·That the mother was obliged (as opposed to permitted) to agree to him spending time with X pursuant to Order 4 of the Orders made on 5 July 2005 and is guilty of breaking court orders.
[21] Father’s affidavit filed 5 June 2013 page 5
I record this for the benefit of anybody other than the father reading the judgment. I doubt that the father will accept that he is wrong.
I must now return to the primary considerations.
The first primary consideration is the benefit to the child of having a meaningful relationship with both of her parents.
X does not have a meaningful relationship with her father at the moment. He is not a “significant valuable and important”[22] person in her life, a person she looks to for nurture, comfort, advice and assistance.
[22] Mazorski & Albright
Left to her own devices the mother will not do anything to ensure that a meaningful relationship develops between X and the father. She has an entirely negative view of the father and there is no possibility that she will encourage X to have a relationship with her father or spend time with her father in the future.
When pressed during cross-examinations about whether she believed that the father was a crazy person the mother said:
I think he’s barking mad. I’ve never seen people who behave like that – I think he’s absolutely bonkers
X is aware of the mother’s view of the father and of the fact that the mother fears the father and fears that he will take X away. The mother told Dr C that Y and X were aware that she had moved three times to get away from the father. She admitted telling X that if the father came to her school she was not to go to him but was to go to a teacher. The mother has allowed X to drop her surname “Howells” at school which is not conducive to X regarding the father as someone of value.
The mother did say during cross-examination that if in six month’s time X wanted to see her father then “her objections would melt into the background” but I am not convinced that this is the case.
The mother’s fear and dislike of the father is deeply entrenched. X has lived with her mother all her life save for the disruption in 2004 and I do not consider it likely at all that X will one day tell the mother she wants to see the father and the mother will passively accept it and arrange for it to happen.
The mother’s view of the father (that he is crazy and extremely difficult to deal with and that he tried to abduct X in 2004) is not going to change. She is incapable of encouraging a meaningful relationship between X and the father.
There are losses to X not knowing her father. Dr C identified reasons why it would be good for X to know him and said as follows:
Fathers who are sensitive and appropriate to their daughters are important for the development of girls’ self-esteem. Additionally, for X her (omitted) heritage comes from her father and his presence in her life would assist this aspect of her identity.
Dr C said that advantages of X spending time with her father were:
X’s knowledge of her father and the paternal family will assist her identity formation.
She will be familiar with his appearance and personality style and he will be able to affirm her (omitted) heritage.[23]
[23] Dr R's Report, page 17.
There is no chance of X ever having a meaningful relationship with the father unless she spends time with him but there is another part to this. Putting X and the father together in the same place will not guarantee the development of a meaningful relationship or even make it likely that one will develop; everything would depend on how the father behaved if he spent time with X.
And that is the concern.
It is abundantly clear from reading the father’s affidavits, reading Dr C’s report and seeing the father in court that it is inconceivable to him that anyone could have a different opinion to his own.
The father’s view is that if people do not agree with him it must be because of malice, ignorance and misinformation or incompetence and his behaviour amply demonstrates that he believes that he has every right to be forceful and use verbal aggression and verbal abuse for as long as is necessary to try and make them see the error of their ways.
The father will not listen and as long as he has an audience he will never stop arguing. I could not possibly ask 14 year old X to deal with this. Not only would it ensure that no meaningful relationship ever developed between X and the father as opposed to creating an opportunity for one to grow, it is highly likely that it would be psychologically destructive for X if she was forced to endure it.
X shares her mother’s distrust and fear of the father and she does not want to spend time with him. If an order is made that she spend time with him she is likely to be resistant and only a calm patient person would have any chance of overcoming this fear and distrust and getting things to a point where X could be brought to see the advantages of knowing their other parent.
The father is not that person. He can see nothing wrong with his beliefs or his style of relating to others. The most likely outcome of an order that X spend time with the father is not that a meaningful relationship would develop but that X would be distressed and be resistant to repeating the experience and that any spark of curiosity she did have about the father would be extinguished.
X is also at risk of suffering psychological harm if she is forced to spend time with the father. This is not specifically because he would subject her or expose her to abuse neglect or family violence as defined in the Family Law Act, although I cannot rule out the possibility of family violence occurring given the current wide definition, but simply because of the father’s personality and behaviour.
Dr C said and I accept that if X was forced to endure this it could have a negative impact on her mental health and hasten down a path which the father fears lies ahead of her.
Parental Responsibility
Judge Roberts made an order in 2005 that the mother have sole responsibility for X’s long term care welfare and development and nothing in the evidence I have heard suggests that this order should be revisited. Nothing has changed as far as the parents relationship or the father’s parenting capacity is concerned which would justify revisiting the order.
However I will in the alternative consider the matter in the context of the current provisions of the Family Law Act.
Pursuant to s.61DA of the Family Law Act I am obliged to apply a presumption that it is in the child’s best interests that her parents have equal shared parental responsibility for her absent a finding that one of them has engaged in abuse of the child or family violence.
The father has perpetrated family violence and the presumption does not apply. However I can still make an order for equal shared parental responsibility even if the presumption does not apply and this was the order the father sought.
The father argued that because the mother had bi-polar she should not have sole parental responsibility but as Dr C calmly and convincingly pointed out the mother was and had long been in a stable phase in her life. There was absolutely nothing to suggest that she had made or was likely in the future to make bad decisions for X because of her mental illness.
It would be entirely contrary to X’s best interests for me to make an order for equal shared parental responsibility. I could not possibly put the mother in a position of being required to consult with the father, given his contempt for her, his anger toward her, his absolute refusal to listen to anyone else, his propensity to try to overbear anyone who disagrees with him by engaging in lengthy diatribes and his propensity to call the mother vile names if she will not do what he wants.
An order for equal shared parental responsibility would inevitably lead to either a decision not being made, the order being breached by one parent doing what they considered best or the mother suffering a deterioration in her mental health as a result of being forced to attempt to comply with the order, and any of those outcomes would be detrimental for X.
Dr C’s recommendations
Dr C considered that X’s wishes should be respected. Having earlier identified the advantages to X of spending time with the father she summarised the disadvantages as follows:
· X states she does not want to have personal contact with her father, beyond their current telephone and written contact. She is a mature thirteen year old and, while she would not have an understanding of the long term difficulties for a child not knowing a parent well, she would certainly be aware of her own comfort levels and what she wants to participate in
· X’s mother is highly anxious about X being with the father and their contact could further undermine Ms Madden’s current reasonable mental health
· Elements of Mr Howells’ parenting style are not conducive to contact between him and X being positive for her. He
i) has no insight into the emotional poverty in their relationship – he considers they have an “excellent” relationship
ii) allegedly dismisses her wishes
iii) has fixed, unwarranted, negative ideas about the mother and said he would tell X her mother was not well
iv) is unlikely to be able to work with organisations (including police and legal systems) he does not trust and may well try to influence X to his suspicious and mistrusting way of thinking/world views
v) has persistent views X has been abused and remains at risk from her mother, which if he influences X to this way of thinking, would be extremely detrimental to her. [24]
[24] Dr R's Report, page 18.
In answers to a question from the father during cross-examination Dr C said as follows:
I sat with you for nearly 5 hours. If you had been a parent who would have enhanced X’s development and her mother was willfully withholding her from you and not allowing you to spend time with her I would have commented on that but looking at the whole picture I did not consider her lack of face to face contact with you as being a significant concern for me.
The evidence at the hearing before me did not undermine any of these conclusions and in fact amply demonstrated that Dr C’s conclusions were soundly based. Dr C is a very experienced child and family psychiatrist and in those circumstances her recommendations deserve to be given considerable weight.
Conclusion
The father considers it a travesty of justice that he is not spending time with X, and even asserted that it was illegal for her to be prevented from seeing her father.[25] What he fails to understand is that he does not have a right to spend time with X simply because he is her biological parent.
[25] Father’s affidavit filed 5 June 2013 page 5 under the heading “Bias”
The Family Law Act 1975 does not confer rights on parents. It confers rights on children and while one of those rights is a right to spend time with both of their parents this is subject to that being in the children’s best interests.
It was the father’s case that it would be in X’s best interests to spend time with him to give her some respite from living with a mentally ill parent and so that he make sure by seeing her that she was safe and was not being harmed by the mother.
The problem for the father is that I do not accept that the mother has any mental health issues which compromise her parenting capacity. The evidence establishes that X is a healthy well adjusted child who is receiving appropriate parenting. She does not need to spend time with the father to give her respite from an unsatisfactory home life with the mother.
Apart from this the father struggled to spell out the benefits to X of spending time with him and frankly it is impossible to identify any benefits and easy to identify detriments.
In theory the father should have a lot to offer X. They both have (omitted) heritage and part of X’s genetic makeup is derived from the father. For all I know X and the father may have some of the same interests and share some of the same mannerisms.
However the father is an extremely difficult person. He is belligerent, dogmatic and opinionated. He cannot brook anyone having a different opinion to him and when they persist in having one despite his protests he puts this down to incompetence, bias, malice or in the case of the mother, mental illness.
The father’s behaviour in court and during his interview with Dr C demonstrated that if given the opportunity he will spend hours butting his head against a brick wall trying to wear his opponent down.
X cannot be asked to deal with this. The father has nothing to offer X because he does not see her as an individual different to him and exposure to the father’s behaviour and personality traits in a face to face situation for hours on end could among other things cause X to become depressed or at risk of mental health problems or resistant to going to see the father which would lead to contravention proceedings.
Another problem is that he intensely dislikes the mother. He wrote her a lengthy letter in 2012 in which he repeatedly called her vile names. He does not regret sending the letter and the mother had to sit in court for three days while he forcefully outlined her shortcomings, called her a Jekyll and Hyde and railed about her mental illness. The father strongly believes that X has a right to know what the mother is like (as he sees it) and that the mother is insane.
X loves her mother and it would be fundamentally unfair to require her to spend unsupervised time with the father while he has this mindset.
Finally, X does not wish to spend time with the father. She is 14 and whether the mother has influenced her view or not given all the good reasons there are to be concerned about the father I must respect X’s view and not ride roughshod over it.
Supervised time is not an option in this case; even if the father would countenance it and I doubt that, contact centre workers would not be able to contain the father any better than Dr C or the court and X would still be exposed to the full force of his behaviour.
Spending unsupervised time with the father would not only be contrary to X’s best interests it could be very destructive for her.
The father’s application must be dismissed and this is not because of the possible impact on the mother’s mental health of me making the orders he seeks. The impact on the mother of an order for face to face contact was Judge Roberts’ principal concern in 2005 and I accept after hearing Dr C evidence that it remains a concern but it is far from being the only concern or even the principal concern in 2015. My principal concerns are the potential for X to be detrimentally affected by the father’s behaviour and style of interacting with others and the absence of any evidence that X would benefit from spending time with the father.
The mother’s counsel submitted that the existing orders should remain in place and this would leave in place the order that X can spend time with the father as determined by the mother or some variation of it. I am concerned about this because it could expose the mother to further repeated attempts by the father to get her to agree to face to face contact.
The mother has dealt with this to date by applying for an ADVO when appropriate and she has not so far suffered a relapse in her mental health as a result of having to deal with it, so with some misgivings and because the mother consented to it I will leave an order of that kind in place but I do intend to tighten up the wording to make it clear that the father can ask but that the mother is not obliged to respond and is not obliged to agree.
The mother did not seek to have the telephone communication order changed either and I have some misgivings about that as well. X could become increasingly resistant to talking to the father on the telephone which may expose both the mother and X to further stress and conflict and lead to further court proceedings.
In my view this is a case where an order for no time and no communication might well have been more appropriate and less likely to lead to further proceedings than the orders proposed by the mother’s counsel and the solicitor for the Independent Children’s Lawyer. However as they both proposed a continuation of the telephone communication order I will with misgivings continue it.
The solicitor for the Independent Children’s Lawyer proposed that an order be made requiring the mother to provide the father with a list of reasonably priced gifts suitable for the child prior to her birthday and Christmas each year. I do not intend to make this order. It would be onerous for the mother to have to do this and perhaps set up expectations in the child which were not fulfilled. I also do not intend to make an order that the mother provide the father with a summary twice a year of the child’s academic progress and her interests and studies. The father can find these things out during his telephone conversations with the child if he is interested in doing so.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding two hundred and thirty-two (232) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 14 January 2015
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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