HYLANDS & COLLETTE

[2017] FamCA 46

FAMILY COURT OF AUSTRALIA

HYLANDS & COLLETTE [2017] FamCA 46

FAMILY LAW – CHILDREN – With whom the child should spend time – Where the mother acknowledges the father is an important part of the child’s life  – Where the mother’s concern is confined to the child’s safety in the father’s care – Where the father has an impaired parenting capacity – Where the single expert makes no diagnosis of a mental or psychotic disorder in relation to the father  – Where the child is exposed to the risk of the father’s unstable personality – Where the father’s personality disrupts his ability to meet the needs of the child – Where the Family Consultant predicts future conflict as the child matures because of the father’s rigid control – Where the evidence does not show the father has the ability to improve his parenting capacity – Emphasised the need for the proceedings to be decided on evidence and not speculation on a series of favourable assumptions – Concluded the child should only spend time with the father under supervision to safeguard her emotional stability – Ordered the father spend supervised time with the child

FAMILY LAW – CHILDREN – Presumption of equal shared parental responsibility – Where evidence of family violence renders the presumption inapplicable – Where equal shared parental responsibility would not be in the child’s best interests – Where the parents ability to communicate is compromised – Ordered parental responsibility allocated to the mother

FAMILY LAW – CHILDREN – Risk of sexual abuse – Where the father was long ago convicted of the sexual molestation of his step-sister – Where the single expert considered the risk of the child’s sexual abuse was satisfactorily mitigated but the Family Consultant did not – Concluded the evidence did not support finding of unacceptable risk of the child’s sexual abuse

Evidence Act 1995 (Cth), s 79

Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 62B, 64B, 65AA, 65D, 65DA, 65DAA, 65DAC, 65DAE, 69ZT

APPLICANT: Ms Hylands

RESPONDENT: Mr Collette

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2557 of 2014

DATE DELIVERED: 2 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 19 & 20 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sundstrom

SOLICITOR FOR THE APPLICANT: Todd Street Lawyer

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Rugendyke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All former orders relating to the child B, born … 2010, (“the child”) are discharged.

2. The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the child.

3. The child shall live with the mother.

4. The parties shall take all reasonable steps to ensure the child spends supervised time with the father:

   (a)Not less frequently than for two consecutive hours per fortnight; and

   (b)Not more frequently than for two consecutive hours per week.

5. For the purpose of implementing Order 4 hereof:

   (a)The supervisor of the time spent by the child with the father shall be the staff of C Children’s Contact Service, or some other person or entity nominated by the staff of that Service if such Service is or becomes unavailable (“the supervisor”).

   (b)Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.

   (c)The time that is to be spent by the child with the father shall commence at the time designated by the supervisor.

   (d)The venue at which the time is to be spent by the child with the father shall be designated by the supervisor.

   (e)The parties shall pay in equal shares any costs due to the supervisor.

   (f)The mother shall cause the delivery of the child to, and the collection of the child from, the supervisor at the commencement and conclusion of the time spent by the child with the father.

   (g)The parties shall comply with all reasonable requests and directions of the supervisor.

   (h)Leave is granted to the parties to provide a copy of these orders to the supervisor.

6. Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

7. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

8. The mother shall notify the father of any medical emergency, illness or injury suffered by the child warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the child.

9. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the child.

10. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address and mobile telephone number.

11. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

12. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

13. Costs are reserved for 28 days.

14. Any and all outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Hylands & Collette has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2557 of 2014

Ms Hylands

Applicant

And

Mr Collette

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting arrangements for the only child of the applicant mother and respondent father, who is now six years of age.

2. The breadth of the parties’ dispute over the child narrowed once the litigation was underway. The father relinquished his proposal for the child to live with him, as he recognised her best interests warranted her continued residence with the mother.

3. The parties’ dispute was ultimately confined to the manner in which parental responsibility for the child should be allocated between them and the nature of the child’s future interaction with the father. He expected the child to see him frequently and without restriction, whereas the mother could only countenance her having supervised visits with him. The mother wanted exclusive parental responsibility for the child, but the father expected to share it.

Background

1. The parties began cohabitation in 2009 and separated in June 2014.

2. The child was born in 2010 and was four years of age when the parties separated.

3. Prior to separation, the mother was the child’s primary carer and the father worked full-time. Nevertheless, on separation, the mother vacated the family home and left the child in the father’s primary care. The parties disputed why that occurred, but it is unnecessary to determine the factual dispute. The father would only permit the mother to visit the child if she would submit to his supervision of them, but she refused to do so because she felt intimidated by him. Consequently, the child did not see the mother for a while.[1]

   [1] Family Report, para 12

4. The mother commenced these proceedings in the Federal Circuit Court in October 2014 and that Court then made a series of interim orders.

5. In November 2014, the Court ordered the child to live with the father and spend unsupervised time with the mother on several occasions each week.

6. In December 2014, the Court changed the times during which the child visited the mother, by reducing the number of visits but extending their duration.

7. Following release of the single expert report, in August 2015, the Court made further interim orders reversing the child’s residence. Provision was made for the child to live with the mother and spend substantial amounts of time with the father. That arrangement remained in place until final trial.

Proposals

1. The mother pressed for a modified form of the orders set out within her Amended Initiating Application filed on 13 May 2016. She abandoned her primary proposal for elimination of the father from the child’s life and instead sought that weekly visits between them be permanently supervised. She also wanted exclusive parental responsibility for the child.

2. The father pressed for the orders set out in his Amended Response filed on 26 May 2016. He wanted the child to spend five nights per fortnight with him, without the need for any supervision, and to share parental responsibility for her.

3. Before the trial commenced, the Independent Children’s Lawyer disavowed holding any “formulated view” about the orders that would suit the child’s best interests and wanted to consider the tested evidence before committing to any proposal. At the commencement of final submissions she proposed orders that were consistent with the modified orders for which the mother advocated.

Evidence

1. The mother relied upon her affidavit filed on 20 September 2016.

2. The father relied upon his affidavit filed on 18 November 2016.

3. The parties and Independent Children’s Lawyer relied upon:

   (a)The report of the single expert psychiatrist, Dr D, dated 11 August 2015; and

   (b)The Family Report dated 23 February 2016.

4. All witnesses were cross-examined, though only the Independent Children’s Lawyer asked questions of the Family Consultant and single expert.

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

4. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. The child enjoys a meaningful relationship with the mother from which she does and should continue to derive much benefit. The father’s recognition of that fact was manifest from the withdrawal of his application for the child to live with him and his acquiescence to the child’s residence with the mother.

2. Nor was there any dispute about the quality and importance of the child’s relationship with the father, which the Family Consultant noted was uncontroversial.[2] The father’s quip to the Family Consultant in February 2016 about his bond with the child being “all gone now” should be disregarded as a dramatic flourish.[3] The mother told the Family Consultant she knew the child “loves spending time with her father” and she acknowledged he was an important part of her life,[4] which sentiments she confirmed during cross-examination. Her concern was confined to the child’s safety in the father’s care, which lack of safety she contemplated required either his elimination from the child’s life or, at the least, supervision of her visits with him.

   [2] Family Report, para 130

   [3] Family Report, para 26

   [4] Family Report, para 18

3. The concerns expressed by the mother and Independent Children’s Lawyer about the child’s safety arose from numerous facts and circumstances relevant to both ss 60CC(2)(b) and 60CC(3) of the Act. Their case was that, in aggregation, such considerations proved the child needed protection from the risk of harm to which she would be exposed in the father’s care and outweighed the desirability of her derivation of benefit from an unfettered filial relationship with him. Conversely, the father’s case was that maintenance of the child’s meaningful relationship with him was of overarching importance to her.

Section 60CC(2)(b)

1. The mother and Independent Children’s Lawyer both ultimately alleged the father posed an unacceptable risk of harm to the child, which risk could only be alleviated by her supervised visits with him. Since they advanced different reasons for that conclusion, it is necessary to separately address the submissions they each made about the child’s potential sexual abuse, physical abuse, and exposure to family violence.

Risk of sexual abuse

1. Despite the father’s denial of guilt, he was convicted of sexually abusing a child many years ago. The conviction is immutable proof of his commission of the offence, so his repeated denials of the offence must be regarded as false.[5]

   [5] Single expert report, para 160; Family Report, paras 31, 71; Father’s affidavit, para 33

2. In 1991, the father was charged with numerous sexual offences upon his teenage step-sister. At that time, he was aged 20 and she was aged 15, though the charges extended back over two prior years. The father was eventually convicted of only one of the charges, which averred his sexual assault of the victim by the penetration of her vagina with his penis. His appeal against the conviction was dismissed.[6] The precise duration of his sentence remains uncertain, but he was imprisoned in late 1993 and released from custody in early 1995.[7] The father’s protest that his conviction was irrelevant to these proceedings was plainly wrong.[8]

   [6] Family Report, paras 66-69

   [7] Family Report, paras 73, 91

   [8] Father’s affidavit, paras 37, 41

3. The Independent Children’s Lawyer submitted the single expert and Family Consultant concurred that the father posed an unacceptable risk of harm to the child by her subjection to sexual abuse, but I do not accept the opinions they expressed were either quite so audacious or so aligned. They held different views about the significance of the father’s antiquated conviction in forming their opinions about the current risk of the child’s sexual abuse by him.

4. The single expert acknowledged the risk of the child’s sexual abuse existed, but he considered the risk was satisfactorily mitigated (though not extinguished) for a number of reasons.[9] In summary, the reasons he gave were the statistically low rates of recidivism for sexual offenders, the absence of evidence of the father’s recidivism, an asserted lack of evidence of other crime committed by the father, the victim having been post-pubescent, the biological relationship between the child and father, and the child not living with him.[10] Nevertheless, the single expert acknowledged that “the best predictor of future behaviour is past behaviour” and he remained concerned the father’s sexual abuse of the young victim may have represented “an enactment of [his] lonely abstracted schizoid fantasies, with associated objectification of the victim and lack of empathy [for her]”.[11] The single expert reported the risk would be “further mitigated” by the child spending less than equal time with the father[12] which opinion he confirmed in cross-examination, despite some equivocation. The child will inevitably spend less than equal time with the father because even he proposed that outcome. The single expert’s concession in cross-examination was, ultimately, that there “may be” an unacceptable risk of harm to the child unless the time she spends with the father is “contained” in some way, which really said no more than that it was possible the child could be harmed. Such comments offered no real help in quantifying the extent of the risk.

   [9] Single expert report, paras 158-168

   [10] Single expert report, paras 161-164

   [11] Single expert report, paras 133, 162

   [12] Single expert report, paras 164, 188

5. The Family Consultant’s opinion was more forthright, though still tempered. She identified the risk of the child’s sexual abuse by the father as a concern,[13] but was careful how she expressed her opinion about it. She said she was “not confident” the mitigating factors identified by the single expert would genuinely mitigate the risk and she harboured “concerns about the general level of risk of [the child’s] harm in [the father’s] care”. She thought the risk of the father re-offending “appear[ed]” to be “reasonably high” because he was not remorseful about his conviction.[14] But several observations may usefully be made about those comments. First, the father’s denial of the offence for which he was convicted could conceivably imply his acute embarrassment just as much as his lack of contrition and, in any event, such motives are not mutually exclusive. Second, her opinion about the chance of his re-offending only “appeared” (to her) to flow directly from his assumed lack of contrition, but her own perception of such a causal link is quite different from the actuality of a valid inference. Third, it is dubious indeed to deduce that, simply because a person committed one type of offence long ago, he is highly likely to commit the same type of offence again decades later. The law recognises it can be dangerous to make that sort of generalised assumption about a person’s tendencies (Part 3.6 of the Evidence Act1995 (Cth)), even though that Part of the Evidence Act has no application in these proceedings. Fourth, there is a material difference between the chance of the father committing some further unspecific criminal offence and the chance of him sexually abusing his daughter. The real issue was the specificity of the latter, not the generality of the former.

   [13] Family Report, paras 21, 66-71, 130

   [14] Family Report, paras 136-142

1. The Family Consultant explained the reasons for her opinions. She considered the nature of the father’s sexual assault of the victim, albeit long ago, proves he was willing and able to plan the exploitation of a younger person for his own gratification. Alternatively, if the assault was not premeditated, then he had no proper ability to control his sexual impulse and was prepared to transgress established sexual norms. She considered his refusal, even now, to admit his guilt tends to suggest his lack of contrition. There is no evidence of his commission of any further sexual offence since then but, contrary to the assumption made by the single expert, there is ample evidence of his commission of other violent and anti-social behaviour on numerous other occasions over the years between 1993 and 2009.[15]

   [15] Family Report, paras 74-113

2. The Family Consultant was right to be cautious about the extent of the risk posed by the father but, objectively, the risk is not so elevated. He committed a serious sexual offence, which is an indelible stain on his reputation, but it occurred nearly 25 years ago and there was a complete absence of evidence about any libidinous impropriety in the time elapsed since. It is too superficial to simply reason that if the father sexually offended once then, irrespective of his sexual rectitude over many years since, he still represents too great a risk to allow the child to spend any unsupervised time in his care at all. His violent and anti-social interaction with other adults at times over the last 25 years bears upon his tendency to act in violent and anti-social ways, but the influence of such behaviour on the quantification of the risk that he might sexually abuse his daughter is much more tenuous.

3. Ultimately, the opinions expressed about the virulence of that specific risk by both the Family Consultant and single expert are of only limited value. Expert opinion evidence is grounded upon training, study, or experience (s 79 of the Evidence Act) and, although certain provisions of the Evidence Act do not apply in these proceedings to exclude evidence (s 69ZT(1)), established principles still influence the weight that is attributed to admissible evidence (s 69ZT(2)). The Family Consultant and single expert certainly both have sufficient experience to offer their opinions on the issue, but their professional training and formal qualifications do not separately constitute any persuasive foundation for such opinions. They did not rely upon any specialised insight into the father’s psychological or psychiatric condition to imbue their opinions about the risk of his sexual abuse of the child with any more weight so, in the absence of such professional insight, the quantification of the risk of sexual abuse is a predictive value judgment based on facts which emerge from the evidence and the opinions expressed by the Family Consultant and single expert on that issue are liable to carry no more weight than an opinion ventured by any other person with the same level of experience in litigation involving the issue of such risk.

4. The mother probably knows the father best and she was not so worried about him. She occasionally allowed the child to spend even more time with him than the interim orders made in August 2015 required, despite her knowing of his conviction for sexual assault. Surely she would not have done so if she feared his sexual abuse of the child. When she was specifically asked by the Family Consultant to articulate her concern about the father, she explained her reasons to be his labile mood and his willingness to undermine her relationship with the child.[16] It was not until she was asked a loaded question about the risk of sexual harm that she admitted her worry about it and, although she rated her worry at “about a six” on a scale of ten, she told the Family Consultant she had “not seen anything [done by the father] to worry her” and her concern was rather due to her “knowing he has the capacity”.[17] After learning of the father’s past conviction for sexual assault she must have racked her memory for any past incident that could possibly infer his past sexual abuse of the child, but could still think of none. The father alleged the mother told him it was her solicitor’s idea to limit the child’s visits with him, implying she only insists upon it because she feels bound to heed his advice.[18] When cross-examined about the truth of that evidence, the mother was very vague. She said her recollection was not good. It was not put to the father in cross-examination that his evidence about that conversation was untruthful or inaccurate. Most likely the mother did say words to that effect to the father and, upon the assumption she was not lying to appease him, it must follow that she considered the child was reasonably safe from abuse in his care.

   [16] Family Report, paras 44-45

   [17] Family Report, para 46

   [18] Father’s affidavit, para 35

5. Significantly, the mother conceded in final submissions she did not seek any finding that the father posed an unacceptably high risk to the child of sexual abuse. Only the Independent Children’s Lawyer eventually contended for such a finding. Of course, the risk of the child’s sexual abuse by the father cannot be dismissed, but the evidence does not demonstrate the risk is so potent that it can only be safely attenuated by his elimination from the child’s life or by the imposition of permanent supervision upon their personal interaction. Restriction of their visits, as to frequency, duration, and exclusion of overnight stays, could satisfactorily address such risk.

Risk of physical abuse

1. The mother alleged the father threatened to smack the child and on some occasions actually did so. On one occasion she alleged the child was left with a “large welt” on her leg.[19] She also alleged that, on one occasion in late 2014, the child’s behaviour caused her to wonder whether the child was physically chastised by the father.[20] In cross-examination, the father stoutly denied ever injuring the child and he contended both he and the mother physically chastised the child in the past.

   [19] Mother’s affidavit, paras 36-37

   [20] Mother’s affidavit, paras 69-70

2. During the mother’s cross-examination, she said that, since late 2014, the child has not complained of any mistreatment by the father and she has not seen any signs of it. She conceded she had no reason to suspect the child was at risk of physical mistreatment by the father and, furthermore, the father ensured the child was always well-fed, well-clothed, and well-medicated.

3. The fear articulated by the mother to the Family Consultant was that the father struggled to contain his anger when irritated and he had the propensity to “lash out”. Her worry was apparently not so much that the father would physically abuse the child, but more that if he was aggravated and acted that way then he would seem unpredictable to the child and emotionally disturb her.[21] The child’s perception of the father’s unpredictable behaviour is an issue properly considered under s 60CC(3) of the Act, whereas s 60CC(2)(b) is concerned with the need to protect the child from harm she may suffer from subjection to physical abuse.

   [21] Family Report, para 44

4. The mother contended in final submissions for a finding the child was at unacceptable risk of harm due to physical abuse by the father, but there was little correlation between that submission and her evidence. The Independent Children’s Lawyer made a similar submission, but at least conceded the evidence did not oblige such a finding. Notably, despite urging acceptance of the single expert’s evidence in other respects, neither the mother nor the Independent Children’s Lawyer challenged the single expert about the correctness of his conclusion to the effect the child was unlikely to be exposed to violence in the father’s care.[22] Again, that is a finding of fact for the Court to make, but the single expert’s opinion is still admissible. No explanation was offered for why the mother and Independent Children’s Lawyer would adopt and rely upon other parts of the single expert’s evidence, but not that part.

   [22] Single expert report, paras 170-171

5. The mother did not appear to entertain any serious concern about the risk of the child’s physical abuse during cross-examination and, overall, the evidence foreclosed any sound basis for an objective finding of the risk of its occurrence. The child has either lived or spent substantial amounts of time with the father since the parties’ separation well over two years ago and there is no hint of her physical abuse by the father. His past violent conduct towards other adults has never spilled into his relationship with the child and is unlikely to ever do so. As the Independent Children’s Lawyer conceded, any concern about the child’s physical discipline could be capably cured by the imposition of an injunction restraining the parties from administering it.

Risk of exposure to family violence

1. The mother alleged the father was violent towards her “on a number of occasions during [their] relationship”, which she elaborated to mean he occasionally yelled at her, criticised her, slammed his fists on a table, punched walls, and threw objects at her.[23] The father admitted to the Family Consultant he yelled at the mother and slapped their table, but he denied throwing objects at her or physically hurting her.[24]

   [23] Mother’s affidavit, paras 34, 114

   [24] Family Report, para 29

2. Neither party was challenged in cross-examination about the disparity between their versions of past events so, in the absence of the evidence being properly tested, it is unwise to reach any concluded view on the matter. If the mother wanted positive findings made about the father’s commission of “family violence” in the manner she alleged and the prospect of the child’s future exposure to family violence by the father, procedural fairness demanded that she challenge him about it in cross-examination to enable the proper assessment of his admission or rebuttal. Left in its untested state, the evidence of the father occasionally yelling and slapping his hand on a table is just as consistent with his exasperation during arguments as it is with the commission of “family violence”. As should be obvious, not every episode of intemperance in a marriage is an incident of “family violence”, even under its wide definition (s 4AB). The single expert found the father spoke about the mother respectfully and he formed an impression the father did not coerce or control her during their relationship.[25] He was not challenged about that conclusion either.

   [25] Single expert report, para 146

3. Nevertheless, there is no doubt that shortly after their separation the mother was frightened by the father’s conduct. In July 2014, he sent her a series of text messages in which he threatened to kill himself.[26] In August 2014, he forced his way into her home and took the child away from her and her new partner.[27] Until September 2014, he repeatedly called her telephone and sent her text messages, by which she understandably felt harassed.[28] It seems he treated his former domestic partner in much the same way at about the time they separated in early 2009.[29]

   [26] Mother’s affidavit, para 54.4

   [27] Family Report, paras 11, 117; Mother’s affidavit, paras 39-51; Father’s affidavit, para 18

   [28] Family Report, para 116; Mother’s affidavit, para 54.3

   [29] Family Report, paras 111-113; Exhibit ICL1

4. The father’s harassment of the mother ceased as his distress at the loss of the relationship abated over the few months following their separation, just as occurred with his former domestic partner. Significantly, the father admitted to the Family Consultant that his conduct was “stupid”,[30] which admission demonstrated some level of insight. He told the Family Consultant and he also said in cross-examination he did not really intend to commit suicide, though his text messages literally said he did. Such suicide threats probably were, as the father asserted, emotional outbursts which demonstrated the depth of his despair over their separation. The confinement of such behaviour to a relatively short period immediately following separation and the passage of more than two years since then without further incident tend to prove he was right. Although the mother had very good reason to be alarmed at the time, there is no good reason for her to feel that way now.

   [30] Family Report, para 116

5. The child is not at unacceptable risk of being exposed to family violence committed by the father and so there is no need to take protective measures. Moreover, the mother is no longer exposed to an unacceptable risk of victimisation by the father’s family violence (s 60CG(1)). Nonetheless, the father’s conduct between July and September 2014 did amount to “family violence” and, as a consequence, the presumption of equal shared parental responsibility will not apply (s 61DA(2)).

Child’s best interests – additional considerations

1. The father’s impaired parenting capacity was the most important issue to emerge from the evidence. Concern about his psychological state was the reason why an opinion was sought from the single expert psychiatrist and it was also identified as a significant issue by the Family Consultant.[31]

   [31] Family Report, paras 21, 130

2. The single expert opined the father’s presentation was “complex”,[32] but concluded he did not suffer from any current or ongoing mental or psychotic disorder.[33] His “persistent depressive symptoms” ceased about 10 years ago, though he is still impaired by “personality dysfunction”.[34] The single expert did not diagnose any “personality disorder”, but identified various personality traits which, in combination, impaired his ability to function normally as an adult and, more importantly, as a parent.[35] The single expert said the father had a “fragmented and dis-integrated personality style”[36] and found his abnormal personality traits were particularly pronounced at times when he was in crisis or stressed, which caused him to react in impulsive, aggressive, or destructive ways.[37]

   [32] Single expert report, para 19

   [33] Single expert report, paras 18, 53

   [34] Single expert report, paras 57, 60

   [35] Single expert report, paras 59, 85, 86, 87, 102, 128

   [36] Single expert report, para 136

   [37] Single expert report, paras 88-89

3. Although the father may not analyse his emotional state in psychological terms, he is familiar with the symptoms he experiences. He admitted to the single expert he gets “frustrated”, “muddle[d]”, and “annoyed” if things do not go his way and he has been told he is “anal”.[38] He also admitted in cross-examination that his mental health can be “fragile” if he is under stress. So much was obvious from his presentation at trial. He was irascible and argumentative under quite mild pressure in cross-examination, even when treated with scrupulous courtesy.

   [38] Single expert report, para 126

4. The single expert formed an initial impression that the father was a “well-functioning parent” on a day to day basis,[39] but he still considered the child was exposed to the “broader risk” of the father’s “personality instability”.[40] His opinions shifted to a more assertive position during cross-examination. He said he was worried about the father’s fluctuation between despair and defence and, rather than responding to his scrutiny in the litigation with self-awareness, he was getting increasingly defensive. The single expert considered the father’s immature behavioural strategies of the past when under pressure, such as by threatening suicide, were liable to be repeated and there was perhaps even a risk he would actually do as he threatened.

   [39] Single expert report, paras 153, 155, 176

   [40] Single expert report, para 173

5. Ominously, the single expert said the father’s personality caused him to act in ways that “disrupt his ability to meet [the child’s] emotional needs” and he said he was “inclined to agree” with the “sound conclusions” reached by the Family Consultant on the same topic. Relevantly, those conclusions were that the father was ill-equipped to meet the child’s “more complex emotional, intellectual, relational and developmental needs” and that his “personality traits and coping style” would deleteriously affect the child’s “normal emotional and psychological developmental trajectory”. The Family Consultant attributed those conclusions to the potential enmeshment between the child and the father, his poor role-modelling of inter-personal relationships for the child, and the rigidity of his parenting style. She predicted the father and child would fall into personal conflict as she matured and sought independence from his rigid control. [41]

   [41] Family Report, paras 131-133

6. The single expert said the father’s abnormal personality traits were susceptible to improvement by intensive therapy, but the prognosis about his successful rehabilitation was “guarded”, even if the father was inclined to accept therapy and apply himself to the task. It is unlikely the father is so inclined. He told the Family Consultant the therapy he briefly tried in the past, when ordered to do so, was unhelpful and his attitude betrayed general disinterest.[42]

   [42] Family Report, paras 37, 125, 127

7. The warnings given by the Family Consultant and single expert about the father’s flawed parenting capacity were well-founded on the evidence. As earlier mentioned, the mother told the Family Consultant she was concerned the father had no insight into the emotional harm he was liable to cause the child if he undermined their relationship.[43] Comments made by the child to the Family Consultant proved the father does undermine the child’s relationship with the mother and does involve her in the parental conflict, regardless of whether it is deliberate or inadvertent. For example, the child told the Family Consultant:

   (a)The mother was trying to “steal [her] from daddy”;[44]

   (b)The father informed her he was “broke” and he blames the mother for that;[45]

   (c)The father told her the “Court isn’t listening to him”;[46]

   (d)The father continually tells her he feels sad when she is not with him;[47]

   (e)The father tells her the mother is “not looking after [her] properly”;[48]

   (f)The father refers to the mother’s new partner as a “slug”,[49] though he said in cross-examination he used the term “grub” instead.

   [43] Family Report, para 45

   [44] Family Report, para 59

   [45] Family Report, para 60

   [46] Family Report, para 60

   [47] Family Report, para 61

   [48] Family Report, para 62

   [49] Family Report, para 64

8. The father conceded in cross-examination he said such things to the child, or at least words to that general effect, so her reports were accurate. Such statements made by the father only serve to burden the child with the baggage of the parties’ separation and their conflict in this litigation. The father’s boastful protest of speaking truthfully with the child only emphasised his lack of insight. He has no capacity to filter the information he imparts to her. He could not see that, by unburdening himself of such thoughts, he was simply transferring the pressure of the parental conflict to the child and treating her as an adult confidant. Responsible parents shield children from conflict. They do not share it with them.

9. As the mother and Independent Children’s Lawyer both correctly submitted, the father’s parenting capacity is severely limited for the reasons explained by the single expert and Family Consultant. Unfortunately, he seemingly has no real ability to improve it. Even if he was inclined to accept intensive therapy of the type envisaged by the single expert, these proceedings must be determined on the available evidence, not on speculation about how he might possibly improve if a series of favourable assumptions are made. There is no feasible alternative but to ensure the child only spends time with the father under professional supervision to safeguard her emotional stability, which was the strong recommendation of the Family Consultant.[50]

   [50] Family Report, para 146

1. That conclusion is reached without having to ruminate about the implications of the father’s bizarre behaviour at or about the time of his incarceration some 20 years ago, when he admitted he “said a lot of weird things and had a lot of weird thoughts”. Such evidence was comprehensively summarised by the Family Consultant, for which the father’s description was quite apt.[51]

   [51] Family Report, paras 76-97

2. The child made her views plain to the Family Consultant. She was confused by the current parenting regime and wants to spend equal time with the parties.[52] However, given her young age and relative immaturity, those views may not be truthful. She may have offered those views because she considered it would be a fair outcome for her parents, particularly when she knows the father feels the current arrangement is unfair to him. Even if her expressed views were truthful, she does not have the maturity to make those decisions because she does not understand the implications.

   [52] Family Report, paras 58, 65

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because of the family violence committed by the father at around the time of the parties’ separation (s 61DA(2)). Even if it did apply, it would be rebutted because the evidence establishes an order to that effect would not be in the child’s best interests (s 61DA(4)). The parties’ ability to communicate constructively over the child is too compromised to expect them to share parental responsibility for the child in the cooperative way envisaged by the law (s 65DAC).

2. The father described the mother as a pathological liar to the Family Consultant.[53] He asserted she was “vindictive and spiteful”, she was conducting this litigation for no purpose other than to “hurt” him, and she “yells and screams” when the child is exchanged.[54] The father said he had “given up talking” with her.[55] Although he resorted to counselling and the counsellor tried educating him about his interaction with the mother in different and more constructive ways, he has no further desire to do so. He finds it less stressful to simply not talk with her.[56] The father admitted he has “trouble communicating with people and understanding things”.[57] In light of his declared attitude, it was surprising the father advocated for an order vesting the parties with “shared responsibility” for important decisions about the child.[58] For her part, the mother found parental cooperation with the father to now be better than before, but she still found it “problematic”.[59] She consistently sought sole parental responsibility for the child from the time this litigation was commenced and her proposal enjoyed the support of the Family Consultant.[60] Allocation of parental responsibility for the child should be linked to the child’s residence and, since the child will live with the mother, she will have exclusive parental responsibility.

   [53] Family Report, para 26

   [54] Family Report, para 32

   [55] Family Report, para 36

   [56] Family Report, para 37

   [57] Father’s affidavit, para 38

   [58] Amended Response filed 26/5/16, page 2

   [59] Family Report, para 43

   [60] Family Report, para 144

3. As already explained, the child’s psychological health can only be adequately protected by the imposition of professional supervision upon her visits with the father. That was the eventual proposal of both the mother and Independent Children’s Lawyer. The mother proposed the visits occur for two hours each week, but the Independent Children’s Lawyer proposed more flexibility so that the visits of about that duration occur no more frequently than weekly and no less frequently than fortnightly.

4. I adopt the Independent Children’s Lawyer’s proposal for two reasons. First, the cost of the supervision will be borne by both parties equally and they are each likely to find it expensive to meet such recurrent cost over a long period. There is no point ordering visits more frequently than they can afford. Second, supervised visits of weekly frequency are likely to be become tiresome to the child as she matures and develops other interests in her life. Presumably the father also wants their visits to remain happy occasions and not merely represent their adherence to a monotonous regime.

5. The father proposed to the Family Consultant there should be some restraint upon the child’s interaction with the mother’s partner,[61] though he made no application for such an injunction and the topic was not raised in either evidence or submissions. There was no proper basis to seriously consider the imposition of such an injunction. On the scant available evidence, the mother’s partner is apparently regarded by staff of the NSW Department of Family and Community Services as a competent parent.[62]

   [61] Family Report, para 34

   [62] Family Report, para 55

6. The remaining orders are self-explanatory and could not be the subject of reasonable objection.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 2 February 2017.

Associate: 

Date:  2 February 2017