Isles and Spurr
[2012] FamCA 22
•17 January 2012
FAMILY COURT OF AUSTRALIA
| ISLES & SPURR | [2012] FamCA 22 |
| FAMILY LAW – CHILDREN - Parenting dispute - Serious allegations of sexual abuse, child pornography possession and inappropriate adult sexual behaviour - No unacceptable risk. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Cotton and Cotton (1983) FLC 91-330 Edington and Edington (No 2) [2007] FamCA 1299; (2007) FLC 93-349 |
| APPLICANT: | Mr Isles |
| RESPONDENT: | Ms Spurr |
| FILE NUMBER: | LNC | 400 | Of | 2009 |
| DATE DELIVERED: | 17 January 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 21, 22, 23, 24 & 25 November 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fitzgerald |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Commission of Tasmania |
| COUNSEL FOR THE RESPONDENT: | Mr Copley SC |
| SOLICITOR FOR THE RESPONDENT: | Couper Geysen – Family and Animal Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | McVeity & Associates |
Orders
That the mother and the father have equal shared parental responsibility for the child of their relationship M.
That the child live with the mother at all times other than those with the father as set out hereafter.
That the child live with the father as follows:
(a)until 8 April 2012, from 4 pm on Friday until 4 pm on the following Sunday in each alternate weekend;
(b)from the next weekend in the cycle after 8 April 2012, from 4 pm on the Friday until 9 am on the following Monday morning in each alternate weekend;
(c)for one half of all school term holidays commencing at the end of the first school term in 2013 by agreement and failing agreement, the first half in odd-numbered years and the second half in even-numbered years;
(d)until the school long summer holidays commencing in or around December 2015, for a week-about arrangement during the long summer school holidays which shall not include the period 24 to 26 December;
(e)for the long summer holidays commencing in December 2015 and thereafter, for one half of the holidays by agreement and failing agreement, the first half in odd-numbered years and the second half in even-numbered years save that the period from 24 to 26 December shall not be included;
(f)during each Christmas period commencing December 2012, from 9 am on 24 December 2012 until midday on 25 December and for a similar period in each alternate year thereafter and from 12 midday on 25 December 2013 until 6 pm on 26 December 2013 and for a similar period in each alternate year thereafter.
That all weekend and weekday time shall be suspended during school holidays once the child commences school or kindergarten and shall resume when the terms resume as if the orders had not been so suspended.
Save when the child commences school, all handover points for the child for the purposes of these orders shall be a contact centre nearest the residence of the mother and notwithstanding the times set out in these orders, the handover time shall be as close as that so set out as can be accommodated by the contact centre. When schooling begins, the handover shall wherever possible be the school.
That the Independent Children’s Lawyer be discharged from the proceedings from 30 November 2012.
Each of the mother and the father is restrained by injunction from denigrating or criticising the other parent to or in the presence of the child or from permitting the child to remain in the presence of any person so doing.
Each of the mother and the father is restrained by injunction from applying physical discipline to the child.
The mother is restrained by injunction from taking M (or permitting any other person in her place) to any health professional associated with or concerned about issues of sexual abuse of M without first giving notice to the father and the office of child protection of the Department of Health and Human Services.
That until 31 December 2012, the mother is hereby restrained by injunction from leaving the child alone in the care of the maternal grandparents or either of them.
That the Independent Children’s Lawyer provide a copy of these orders and the reasons for judgment this day to the relevant officer of the Department of Health and Human Services.
That all extant applications be otherwise dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Isles & Spurr is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: LNC400 of 2009
| Mr Isles |
Applicant
And
| Ms Spurr |
Respondent
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The decision has to be made about which parent should have the primary responsibility for the daily care of four year old M who was born in April 2007.
The complexity of the case arose from child abuse allegations around which these reasons revolve. I am satisfied they have no substance.
The parents
The parents are Mr Isles (“the father”) and Ms Spurr (“the mother”). Both are 27 years of age. The expert psychologist described them as “unsophisticated”. I agree.
The parents have a highly conflictual relationship where there is no communication or trust between them at all. When they do need to pass messages, they do it either through the contact centre or the local police. My concern in these reasons is about whether or not the focus of each of them is really on M.
The father’s proposal
The father’s case was essentially that unless M lived predominantly with him, she would not come to have a proper relationship with him and worse, could suffer traits of what he thought were the mother’s mental illness.
The mother’s proposal
The mother’s case was that she had been M’s primary carer since her birth and had done a good job. Her case documents oozed concern about the father’s sexual proclivities which involve possessing child pornography, inappropriate electronic communication over the internet with a fifteen year old male cousin and the fact that he was in a strained relationship (as she saw it) with his fiancée to the extent that the relationship required police intervention. However, it was conceded by the mother’s Counsel that M was not at risk in the father’s care. Until the commencement of the hearing, the mother had largely represented herself and had prepared all of her own affidavit material.
All members of the extended families of both sides had roles in this dispute but none so much as the maternal grandmother. Her dominance was as unpleasant as it was unnecessary.
Whilst there are concerns about both parents, of the two, the mother impressed me as more stable and child focused. Whilst her history of mental illness may be questionable, I am satisfied there is not sufficient evidence upon which I could conclude that M is at risk in her care in the future. During the hearing, the mother’s stability was carefully scrutinised.
The case changes after commencing
It also has to be said that events altered the focus of the case almost as it went along. The single expert witness psychologist shifted his position after being made aware of further evidence. The stability of the father’s new relationship altered with previously unseen family violence occurring only the weekend before the hearing started. It was therefore understandable why the parties could not resolve the dispute themselves.
The father was the applicant, the mother was the respondent and M’s interests were represented by an Independent Children’s Lawyer pursuant to an order of the Court. Each party was represented before me by experienced Counsel.
The documents each party relied upon are set out in the annexure to these reasons.
Each of the parents gave evidence and was cross examined. Each of the parties was given leave to lead extra evidence.
The parties as witnesses
The father appeared candid. He was questioned about his sexuality about which I consider he gave honest answers. He readily conceded that only days prior to the hearing beginning, he had been arrested by the police upon a complaint by his fiancée in the middle of the night. When arrested, he was intoxicated. He has now been charged with assaulting his fiancée and breaching a Family Violence Order. His fiancée is the mother of his twelve week old child. He was candid about his parenting limitations impressing upon me that there were certain tasks undertaken by his fiancée rather than him. She corroborated that, confirming that in respect of parenting, she did most of the traditional tasks and he “played”. As I said, the single expert witness described both parties as unsophisticated but he also described the father as immature. He has not worked for most of his life and seemed to think the welfare system could look after him. He has no concept of a career. He is however intelligent. He represented himself in the Supreme Court of Tasmania before a jury on criminal charges to which I shall turn and subsequently argued his own case before the Court of Appeal where he was successful.
There were aspects of his evidence that were confusing. He and his partner deliberately did not tell their correct address even to the extent of describing their accommodation but it related to an old address. When questioned about the lie, each said that they wanted to protect their privacy from stalking by the mother’s family and simply did what their lawyer had told them. The consistency and plausibility of the answers satisfies me that they were not intending to mislead the Court. Having said that, there were many questions about the father’s relationship with his cousin which he could not answer giving the impression of being deliberately evasive. I found his evidence otherwise truthful in the sense that he endeavoured to be helpful.
Like the father, the mother’s evidence was vague as to events. She is a quietly spoken person and deflected responsibility for many of the problems to her own mother. Were it not for her new partner who was subjected to careful cross examination, I would have given her evidence little weight. I think however as an unsophisticated person, she tried to be truthful.
Background
The background of this relationship is simple and short. In isolation, it perhaps explains why both parties present as unsophisticated, immature, angry and untrusting of each other. I would describe them as largely having no direction in life. Much of that seems to emanate from their background.
The parties met in early 2005 at a party which the mother held at her home. The father’s evidence was that the mother was known to have sex with persons at these types of parties and that ultimately formed his belief, no doubt prompted by his own mother, to seek parentage testing procedures to clarify the paternity of M. Ironically, he did not seem troubled that he had participated in an unprotected sexual relationship with the mother at a very early stage of their friendship. He promptly described that step as the relationship progressing beyond a basic friendship in or around 2006. The mother fell pregnant at about September 2006 and the parties moved in together. Even shortly thereafter, disputes unsurprisingly occurred. There were disputes about an abortion which the father said he opposed on philosophical grounds and there were arguments about who was to care for the about-to-be born baby. On no account do I find that M was being brought into the world in a loving, stable family of two mature parents.
The relationship only lasted a few weeks. In January 2007, the mother found child pornography on the father’s computer and then pursuing his computers further, found a transcript of a chat conversation between the father and his cousin. At first blush, her affidavit material suggests this find came as a shock but as the evidence unfolded, it was clear that not only was she aware that the father had been “chatting” to his cousin but she had been as well. Only the “transcript” of the controversial conversations was reproduced. The full extent of these conversations remains a mystery but I find both parents acted immaturely. All of the “chatting” occurred whilst the mother and father were living together in September 2006 and thereafter. The “transcript” of the chat between father and cousin was examined by the police.
A child is born
M was born in April 2007 and the father was present at the birth. The parties were separated at that stage. The father was encouraged by the hospital staff to be involved and remained in the hospital after the birth to assist the mother with M. The parties left the hospital together and moved in to live together.
I will turn to the issue of family violence below but the evidence shows that the birth of M was traumatic. The mother lost a lot of blood. She blamed the father because she said that he had perpetrated an assault on her two days before M’s birth. The inference I was asked to draw was that the assault precipitated the breaking of her waters and brought on the birth. There is no evidence that would enable me to conclude that from a medical perspective. Whether the assault occurred is a matter to which I shall later turn.
Having returned to the home together, the parties only remained in the same house for about two weeks. Thereafter, the father set himself up in a shed at the back of the home for what he described as intending to avoid conflict. During those weeks, the mother was struggling with feeding M. There were visits from a community nurse and it would appear on the evidence that the father was involved in the various tasks.
The parties separate
When M was six weeks old, the father left the property and went to Hobart. This was at a time when the mother was struggling with a new born infant, the father was indicating he wanted to be involved and the relationship between the parties was fractious.
Subsequent to the father moving out of the shed, it was a long time before any real contact with M occurred such as to develop a reasonable attachment with her. During his absence, the mother successfully undertook the primary caring role. Between May 2007 and March 2008, the father’s time was limited to about two occasions during which the mother was present but refused to speak to him. At a Legal Aid Conference, agreement was reached and the father’s time began with M but it was limited and supervised.
The accusations against the father
Almost as soon as the agreement was to begin, the mother accused the father of being a paedophile and the fledgling contact ceased.
Parenting cases are about an examination of competing proposals for the future interests of the children. In this case, before one can undertake that task, the fog needs to be blown away about some very controversial issues that affect both parties. In turn, I deal with the question of whether M is at risk in the care of either party on the basis of the allegations raised.
The father and his cousin
The father’s relationship with his cousin was controversial. The question was whether the nature of it was inappropriate. Its importance was said to be that it explained the mother’s concerns about the father spending time with M bearing in mind the concession that the mother made that M was not at risk in his care.
The issue arose because at the time of separation, the mother found a “log” on the father’s computer of a variety of conversations in 2006 and 2007 with his then fifteen year old cousin. She saved the document and gave it to her mother in July 2007. In turn, that material was given to the police. There was no suggestion in the proceedings that the police did anything further about it.
The mother and the maternal grandmother said the printed version was authentic and had not been tampered with. The father said that some of the conversations occurred but as to others, he had no recollection of them. However, to the extent that they showed any impropriety on his part, he said they were fabricated.
The other participant was the father’s cousin. He also gave evidence that he had no knowledge of the controversial parts of the conversation and emphatically denied that there was any sexually explicit impropriety involved between he and the father.
The intrigue widened because the maternal grandmother produced an email dated 19 March 2008 at 11.14 a.m. which she said she sent to the father’s cousin’s known email address. The cousin in evidence acknowledged that it had been his address. The email from the grandmother said that she had possession of the “chats” and then set out her belief that the father’s cousin needed to see himself as a victim and to get counselling. The grandmother then produced an email purporting to be a reply from the cousin sent one hour later. That email acknowledged by inference that there had been a problem but went on to demand that the grandmother not involve him.
The dilemma was that when put to the cousin, he emphatically denied he sent the email. He was cross examined about the “chats” recalling some but not others. Some of these conversations included chats with the mother about the relationship between the father and the mother. He was emphatic in his denial about having been involved in any sexually explicit written conversation with the father.
The onus of proof as to the meaning to be given to this evidence lies with the mother. I have applied s 140(2) of the Evidence Act 1995 (Cth) because of the seriousness of any type of finding in this case.
The printed document does not show sequential conversations and there are chronological overlaps. The controversial parts of the chats are interspersed with general discussion about things which might have interested people involved in computers. The chats included an acknowledgement by the father that the mother was pregnant and some form of medical testing was about to take place. That conversation however revealed excitement in the father about becoming a parent yet there is also an insinuation of the father’s being interested in the cousin for sexual gratification. A reference is made to self masturbation but that would not entitle me to conclude the father was involving the cousin inappropriately.
The nature of the computer language including acronyms and words such as “nudge” and “luvu” could be seen as sexual in content but I am cautious in attributing that meaning when it could also be cryptic or sarcastic. I am more so where there is a denial by both the father and his cousin of any impropriety and some uncertainty as to whether the exchanges occurred at all.
There is also a conversation recorded as indicating the cousin had spoken to the mother by telephone even in the middle of one of these computer chats with the father and the record purports to show an argument between the father and the cousin in which the father claimed the mother had just told him that the cousin had asked her for sex.
Another conversation shows that in the middle of a discussion about computer equipment, the father asked why the cousin was half naked to which the response was “cuz why not”. The conversation then immediately rolls on about computers and other innocuous things.
The mother acknowledged also having confided in the same cousin about the problems in the relationship. Doing the best I can, her concerns related to the father’s selfishness and moodiness. The fifteen or sixteen year old cousin took on a role of counsellor. That too must be seen as inappropriate or at best unwise, on the part of the mother.
The maternal grandmother’s affidavit noted that the mother had known the cousin because she “often” “spoke” to him on this chat program. None of those conversations were reproduced yet if the one to which I have just referred was, what type of relationship was she having with the cousin and was it inappropriate too?
All of this is too confusing to draw any conclusion. I am not able to find the conversations were fabricated. I do find they reflect a degree of immaturity on the part of all participants even excluding the contentious parts that are not accepted as having taken place.
In essence therefore, this issue which initially upset the mother and took on a life of its own with the grandmother, is of no relevance to this parenting dispute.
The police charges against the father
The mother’s discovery of child pornography on the father’s computer at the time of separation ultimately led to a police investigation and the father being charged. Curiously, the mother isolated what she found and placed it on a computer record under her control where it remained for some time before it was given to the police. On the evidence, it was the maternal grandmother who took the initiative and contacted the police.
The father was interviewed by the police, charged and ultimately prosecuted in the Supreme Court of Tasmania before a jury where he was convicted.
The maternal grandmother annexed the judgment of the Court of Appeal of the Supreme Court of Tasmania presumably for a purpose. That purpose could only have been to show that the father admitted involvement in child pornography. The view of a number of people who gave evidence was that a reading of the Court of Appeal judgment showed that the father was “let off on a technicality”. I disagree.
The police had seized the father’s computer equipment and found twelve video files depicting children in sexual activities. In their examination, the police noted that there were deleted files. It seems common ground that computer experts can retrieve the details of deleted files.
The father was charged with the offence of possessing child exploitation material. He was convicted and sentenced to six months imprisonment which was suspended. He then appealed successfully.
In a unanimous decision, Crawford CJ, Evans and Blow JJ said that the offence required the Crown to prove that the accused knew or ought to have known that the material was child exploitation material. Their Honours specifically referred to the requirement of proving that the father “knew he had the twelve video files” and that the files were child exploitation material. The father’s case had been that he bought the computer hard drive second-hand and that he did not know the files were there. Their Honours noted the father had acknowledged finding other pornographic files but had deleted them. The Crown had contended that the father was admitting to knowledge of the files that were the subject of the charge. That was not the father’s contention. Having reviewed the evidence, their Honours said it was consistent with the father having innocently purchased the hard drive and having not known about the files until after the police had completed their search. Their Honours said that in the police interview, it was not sought to establish whether admissions by the father about the images which were put on his server related to the twelve video files or to the ones that he had deleted. Their Honours then quashed the conviction. This was not a technicality. This was a clear case where the Court found the Crown had not proved its case to the requisite standard.
In his affidavit in the proceedings before this Court, the father said he found the offensive material and after transferring it to the hard drive, was going to report it to the police but did not get around to it. He said the files might have been moved a few times because he had a number of hard drives. In cross examination by Counsel for the Independent Children’s Lawyer, the father acknowledged that he viewed and moved the files twice. Curiously, he said that he moved them so that they would not get deleted presumably so that he could hand them into the police.
On the evidence, there can be no doubt that he did know the material fitted a description of child exploitation and that he possessed it. He described the material as disgusting.
It seems obvious that had the investigators put their questions directly and succinctly about the twelve video files, a different result might have occurred. As the Court of Appeal pointed out, proof had to be satisfied beyond reasonable doubt and that did not occur.
My task is not to deal with the criminal law. The question for me is what relevance does the possession of child pornography have in this particular case? Three important observations must be made. First, the mother conceded at the commencement of the case that the father posed no risk to M. Secondly, the unchallenged evidence of the father and his mother is that there were large numbers of computers purchased. Thirdly, there is no suggestion by the mother of the father downloading, looking at or otherwise possessing any pornographic material other than in the circumstances referred to. Having regard to the fact that the parties lived together for a limited period of time, she would have known something about his sexual proclivities.
It is therefore open for me to find that the offensive material was present when the computers were acquired and they were not kept by the father for sinister purposes.
The father said he did not report the offensive material to the police for fear of getting into trouble. That might have a hollow ring about it having regard to the serious nature of the material and the fact that it is common knowledge within the community that possessing pornography relating to children is an offence. However, I note that the maternal grandmother made a similar observation that she and the mother had not wanted to keep the illicit material on their computer in case they got into trouble for possession.
Having regard to the seriousness of the offence, the disgust with which the community regards this behaviour and the condign punishment which follows, I am not at all surprised by these events. However, on the evidence, I would not draw any adverse inference in this particular case against the father.
The father creates a problem in his new relationship with Ms B
In February 2010, the father commenced a new relationship with Ms B.
In January 2011, a temporary separation occurred because Ms B thought that the father was behaving in an “over-friendly way” with a friend of hers. The evidence remained silent about the incident until the Independent Children’s Lawyer cross-examined the father. It seemed the friend was a male. Counsel put to the father that he was bisexual and his response was that he “would not go that far” but he did agree that he engaged in sex with both males and females. That description simply clouded the picture of an otherwise stable relationship between the father and Ms B.
The events that upset Ms B led to a temporary separation. She was at pains to point out that she accepted that there was no sexual relationship with her friend. This separation however led to Ms B confiding her concern in a person who took advantage of the situation to contact the maternal grandmother. A meeting between Ms B and the maternal grandmother was arranged and the details were set out in the evidence of the maternal grandmother. They were controversial.
Ms B denied she told the maternal grandmother that the father had been violent to her. That was clearly the focus of the investigation by the maternal grandmother. I accept Ms B’s version because it is consistent with her evidence about why her relationship broke down. However, immediately after this meeting, the mother’s extended family members contacted police who, despite protestations from Ms B, took out a Family Violence Order against the father on her behalf. Ms B’s evidence was that she was confused, had not complained nor had ever sought such an order. She immediately went back to live with the father.
The meeting between the maternal grandmother and Ms B was unashamedly a fishing expedition into which Ms B was drawn for the purposes of endeavouring her to take sides with the mother. Its purpose was to not only preclude the father from having any role in M’s life but also to prove that the father had sexually abused M. The meeting says more about the maternal grandmother than it does about Ms B.
In his trial affidavit, the father said that he had never been violent or abusive to Ms B whom he said he loved very much. He went further and said that she was the woman that he was going to spend the rest of his life with. In her trial affidavit, Ms B said that she and the father had worked through the issues and had a strong and stable relationship. Each of those versions was current in October when the affidavits were sworn and filed but unfortunately, not quite the situation in November at trial.
The incident between the father and Ms B immediately before trial
On the very weekend before the trial began, the father, in the company of friends at his house became very drunk. He argued with Ms B. In evidence, he had no recollection of the events at all so the only reliable recorder of the facts was Ms B. I have no reason to doubt her version.
Ms B said there was a dispute about where their newly born son would remain whilst each of them was in Launceston for the hearing before me. On any view, the dispute was modest but it blew out to a violent confrontation in which Ms B slapped the father’s face and he responded by punching her in the arm, pushing her to the ground whereupon he punched her a number of times, possibly up to five. It frightened her sufficiently to call the police who attended, arrested the father and placed him in the cells overnight where he remained until he was released by a Court.
Single expert witness Mr J was questioned about whether this incident would enable a conclusion to be drawn about the father being violent. He described it as “situational” violence. Mr J was given all of the facts leading up to the incident including the stress that the parties were under, the fact that the father had not been able to see M that day, the alcohol use and the argument. Although Mr J said that research showed that there were categories of violence, I found this troubling. The facts as to why it happened may explain it and as Counsel for the father said, certainly not justify it. It might be said that parties have vociferous arguments even to the extent that they abuse one another. It might even be said that parties push and shove one another when they are in close proximity to each other in an argument. However, I do not accept that there is any basis to minimise the seriousness of a situation in which a man the size of the father, punched Ms B the number of times that he did. I find the father does have a propensity to violence although it may be latent.
Equally troubling was the fact that Ms B said that she felt “guilty” about what had occurred but when asked why, she responded that it was because she missed the father. Ms B is a 21 year old mother of a twelve week old baby. I accept that she is in a vulnerable position. She made her position abundantly clear to the Court. She now faces a prosecution hearing in which she proposes to decline to give evidence against the father. She does not want the police to prosecute him. I question her wisdom. This evidence was very damaging to the view that the father has a stable environment for M.
In her evidence, Ms B said that only a couple of weeks before this incident, there had been an argument with the father and she went to her mother’s house for three to four hours. It is significant that she took a nappy bag with her infant. Her explanation as to why she went to her mother was that she felt she needed a break. When leading her evidence, Counsel for the father asked whether the father had ever screamed at her. Almost innocently, her response was that it occurred only when they were both arguing. When she went to her mother’s, the father pursued her and convinced her to return.
This relationship, despite the professed undying love of each party to the other, has a long way to go before I could be satisfied that it is stable. That is particularly significant in this case where I am being ultimately asked to determine where M lives to provide her with the greatest stability for the future.
Despite the concerns I have just expressed, there is much to commend Ms B if she and the father can establish that stable relationship. Ms B is clearly carrying out the primary domestic responsibilities for their family. In respect of the parenting of their twelve week old child, the father plays a significant role. However, whilst Ms B said that he undertook such things as bathing the child because that was his time with his son, she smiled and said his role was to play while she does the washing and more mundane chores.
Ms B saw M as a happy child who was not affected by uncontrolled rages which was the impression the father created. She acknowledged M got upset if she did not get her own way. Ms B’s evidence was important because it was she who has fulfilled many of the roles such as bathing and toileting M when the child has been in the father’s care predominantly to protect him from allegations of sexual impropriety.
One telling fact remains. Ms B acknowledged that she was worried about her own emotional capacity to manage with “someone else’s” child. It concerns me to place the parenting burden on her on a full-time basis.
Is there evidence of risk of physical or emotional harm to M in the father’s care despite the mother’s concession about no such risk?
The risk assessment of the Department of Health and Human Services was undertaken in 2010 pursuant to an Order made under s 91B of the Family Law Act 1975 (Cth) (“the Act”). The Department was invited to intervene. The responsible officer declined the invitation but in accordance with a protocol between this Court and the Department, it engaged its Protective Services Division to undertake a risk assessment. That assessment was undertaken by Ms S in September 2010.
Ms S holds the qualifications of Bachelor of Social Work and has been a Child Protection Worker since 2004. In her comprehensive report, Ms S spoke to both parents and observed M. Because of what she was told by the parties, her own inquiries of the contact centre and the various criminal proceedings judgments relating to the father, she formed the view that the history of family violence in the father’s family together with the father’s interest in child pornography, placed M at risk if visits were to occur. She was referring to unsupervised time.
Ms S acknowledged that her observations would not have led the Department to have intervened in the proceedings and remove M but it was clear that suspicions were heightened because of the family violence, the criminal proceedings and the various transcripts of conversations said to have involved the father’s cousin.
About the mother, Ms S had no apparent concerns. All of the reports suggested that she was coping appropriately as a parent.
This evidence was clearly of limited value because it was obtained at a very early stage of the proceedings when, untested, the natural and appropriate concerns of the Child Protection Workers were heightened. Ms S had noted that the father had poor understanding of M’s needs. That is hardly surprising having regard to the limited and restricted role he had played in her life to that time. Ms S also observed that the father had a limited understanding of the impact on M of a shared care arrangement which was what the father was then pursuing. Bearing in mind the time this assessment was undertaken, Ms S’s evidence was understandable.
The real issues between the parties were still unfolding at that time.
As the Department saw no role for itself however, its file was closed. That unleashed a plethora of concerns from the mother’s family and what were described as “notifications”. The Department undertook a careful investigation, but its focus turned to the mother or more particularly, the maternal grandmother. Again, having heard all of the evidence and had it tested, I can understand why.
THE EVIDENCE OF Ms R
Ms R is the Team Leader of the Child Protection Service of the Department in Town 1. She was called as a witness by the Independent Children’s Lawyer.
I carefully observed Ms R. She was a calm and authoritative witness. She did not appear to have any ulterior agenda. I found her objective.
Having regard to what Ms R has personally been through in these proceedings, she could understandably have been frustrated. She has been the subject of questions by the relevant Ministers of the Tasmanian Government to which she calmly and professionally responded. She pursued investigative leads appropriately. She answered questions from all Counsel and it was clear that she knew this case extremely well. Having said that, Ms R was of the view that there had been too many attendances of M upon doctors for examination. The evidence of the general practitioner does not bear that out. There can be no doubt that there were monthly visits by M but it was with the maternal grandmother where the subject of sexual abuse was discussed. Much of that concern however related to the maternal grandmother’s complaints to the doctor of lack of action by the authorities and her own rejection of medical opinion. The ultimate diagnosis of what seemed to be the basis for the maternal grandmother’s accusation of sexual impropriety on the part of the father was a urinary tract infection. The pursuit of the urinary tract infection justified the visits by M to the doctor. However, the maternal grandmother seemed to reject the medical explanation of it being a natural bodily function or as the general practitioner described it, a hormonal issue.
It was not the examinations that were of concern but the fact that the maternal grandmother kept raising the subject of the sexual abuse in the presence of M. Ms R acknowledged that there could be no concern if the visits had simply related to the urinary tract infection.
When succinctly asked whether she had any concerns about the mother, Ms R said she did not. The departmental spotlight was clearly on the maternal grandmother. Ms R was questioned about the mother’s behaviour in being rude to departmental officers. As an indication of her professionalism, she accepted that people struggling with these sorts of problems (and dare I say unsophisticated people) were often upset with the department workers who were charged with an onerous responsibility. I commend her for that approach because the evidence was led by the father as an indication of the mother’s attitude to the investigations and to people in responsible positions. Most right-thinking people would have been insulted and offended by the mother’s conduct but Ms R took it in her stride.
Ms R has been vilified by the maternal grandmother. I have read the email which emanated from the maternal grandmother. I have heard all of the witnesses upon whose evidence the vilification might have been based. I have no doubt that the maternal grandmother has an obsession which was not founded in any fact. The very evidence which would have supported the maternal grandmother’s conclusion would have come from general practitioner Dr T. Dr T gave evidence and did not support the grandmother’s position.
DR T
Dr T is a general practitioner. He saw M on 7 February 2011 with the maternal grandmother. The maternal grandmother said she was frustrated and unhappy because M had just a day or so before been in the company of her father.
There was considerable confusion in the evidence about the sequence of events but I am satisfied that an incident to which I shall later refer occurred on 9 January 2011 when M made reference to a screw driver being inserted in her bottom. One month later when the maternal grandmother brought M to Dr T, the doctor was told of the screw driver incident. Whether Dr T understood the time sequence or not I am unsure but what he was asked to observe was the anal area of M. Before he did so, the maternal grandmother told him that the Department, the police and the hospital had already spoken to M. He was told those organisations did not believe M and in turn, the grandmother did not like their investigation.
Dr T observed some bruising in M’s anal area. He was asked by Counsel for the Independent Children’s Lawyer what he had concluded as a result of what he was told and what he saw. He said that he and most general practitioners were not qualified to diagnose such things as sexual abuse. He said the bruises could be from a variety of things including a blunt instrument. Importantly, he said he explained to the maternal grandmother his reticence about a diagnosis and that M should be examined by a paediatrician.
Dr T called the Department but was unable to talk to them so he called them later.
On 18 February 2011, Dr T made a note that he spoke to the Department and was asked by them to send a letter setting out the details presumably for the purposes of his mandatory reporting obligations. He said he asked them to send him a letter so that he could respond to them in official terms. In her evidence, Ms R said that a letter had been sent to Dr T but he had not responded to it for some eight months. Ms R had a copy of the letter in her file.
There is a clear conflict in the evidence about this incident but in my view it does not affect the determination I have to make. Ms R said that there was no record of Dr T contacting them by telephone but that seems inconsistent with the sequence of events to which Dr T referred. Dr T denied that he ever received the letter from the Department and as months went by, nothing happened. All of this contributed to the confusion but it certainly did not mean that the Department was not following its protocols or carrying out a very careful investigation.
Almost one month after the first visit in February, the maternal grandmother again brought M to Dr T. She again complained nothing had been done by the relevant authorities. This visit was presumably about the referral to the paediatrician earlier mentioned. Only a few days later, both the mother and the maternal grandmother attended with M and that was after a contact visit. M had been distressed about a burning sensation when urinating. Dr T undertook some tests but found no infection.
A month later, the mother alone brought M because of the burning sensation. This time a test disclosed infection and a paediatric referral followed.
In June 2011, the maternal grandmother brought M and complained about the fact that a court had made an order precluding medical assessments being undertaken on M. She was also there to find out about the paediatric assessment.
By July 2011, the paediatric assessment confirmed urinary tract infection and the maternal grandmother returned to Dr T unhappy with that diagnosis. Dr T noted her unhappiness about the suggestion of there being a need to be careful with M’s hygiene.
When M was brought to the medical practice in August M had an ear ache. Sexual abuse was not mentioned. What is striking therefore is that in the two visits by the mother, sexual abuse was not raised. However, in each of the visits where the grandmother attended, it was. In October the maternal grandmother came back with M to Dr T and complained about a vaginal discharge. When questioned about what he observed, Dr T said he observed the discharge but felt that such things were most likely to be normal or hormonal. As a precaution, he took a swab which showed there was nothing to worry about in any event. That clearly did not satisfy the maternal grandmother.
Even as late as the days before the trial commenced, the maternal grandmother took M to another doctor in the clinic and the sexual abuse issue was at the forefront of her concern.
I am satisfied that Dr T did his job thoroughly and professionally. I accept his evidence. I am convinced that the maternal grandmother had not listened to the advice of Dr T but if she had, she was not accepting it. I am quite satisfied that the mother has a slightly different view to her own mother.
All of this evidence focused attention on the maternal grandmother.
January 2011 and M makes a complaint about a screwdriver
In January 2011 a contact visit occurred with the father. It occurred at his house and Ms B was the supervisor.
After the visit was over, witnesses described M as quiet. M said upon arriving home that a man had put a screwdriver in her bum. I am not able to find whether that statement was in any way prompted by a leading question or indeed how it arose. There is evidence from the mother that it was volunteered but I have hesitation about accepting that. A similar statement was made by M at the hospital.
What remains critical is the fact that M did not refer to her father as the perpetrator of any such crime. One of the most objective witnesses in the proceedings, the mother’s new partner, said that M always referred to her father as “Daddy [abbreviation of the father’s first name]”. It seems inconceivable that M would not have specifically complained about her father particularly if those who were endeavouring to achieve an outcome would have had the perfect opportunity to plant that seed. At no stage has any such specific complaint been made.
The maternal grandmother
The screwdriver complaint immediately attracted the ire of the grandmother. From what M said, the maternal grandmother concluded that the father had perpetrated a gross act of sexual assault on his daughter. She told anyone who would listen that her beliefs were corroborated by medical opinion. They were not. Her beliefs were said to be supported by the evidence of Ms B. They were not. Those same beliefs were said to be consistent with those of the mother. They were not.
The mother not only distanced herself from the maternal grandmother’s views, she positively acknowledged frustration at her mother’s dominance and interference. There was a palpable sense of relief in the mother that she had moved over an hour away from the maternal grandmother so that contact was to be reduced.
The mother’s counsel led evidence about her view as to what restrictions she would agree to in relation to the contact between M and the maternal grandmother. That included not leaving the child unsupervised with the grandmother and not letting the maternal grandmother take M to doctors for examinations.
The maternal grandmother is Ms L. Senior Counsel for the mother conceded that there was much material in Ms L’s affidavit which was of little probative value but he produced her as a witness for cross examination because of the seriousness of the allegations involved.
Ms L was evasive and seemed to have a poor memory for events. She was unaware of her daughter’s concession about the father not being a risk to M. She denied saying the father was a paedophile. She said she may however have said he sexually abused M. Her view was apparently underpinned by what a Dr Y told her just before the hearing began. I do not have any evidence from Dr Y although I have seen what the maternal grandmother says about that visit.
In cross examination, the maternal grandmother said she did not know what to believe any longer and she may not be involved any more. She concluded that she had the feeling that there was a need for her to “stay out of it”. She said she had consulted with her husband and was just going to “walk away from it” and she wanted nothing more to do with “it”. She proffered that she would not be anywhere near M.
All of this came as something of a revelation to the parties and unsurprisingly so.
On 13 November 2011, the maternal grandmother wrote an email to a number of people including a Commonwealth Senator and a State Parliamentarian and a person by the name of Ms F. I do not propose to set out the entirety of the email but its contents do not appear consistent with any apparent change of attitude.
The maternal grandmother said that the day before she had written the email, she had seen Dr Y. Dr Y is in the same clinic as Dr T. She said that all of M’s injuries had been recorded. The only “injury” to which my attention was drawn was the anal bruising noted by Dr T in February 2011.
The email went on to say that Dr Y had had a letter from a paediatrician and that with Dr T’s medical observations, there was enough medical evidence to show that the child had been sexually abused. She referred to the fact that M had been openly screaming at changeovers and that her father had been hurting her bottom. No such evidence was led before me to that effect.
The email said that M had been crying to her maternal family that the father was putting objects and fingers in her anus. No such allegations were led before me.
The email said that M had told “us all” that the father had been getting into bed with her to read her stories at night and rubbing her vulva hard and hurting her. No such evidence was led before me. None of these accusations appears anywhere in any of the Departmental investigations either.
The maternal grandmother said that in February 2011, there was a very painful anal fissure evident immediately after a contact visit. When cross examined about the use of the word “fissure”, the maternal grandmother conceded that it was her word and not that of Dr T. In the email, she said the child had an anal fissure which was confirmed in the doctor’s records. It was not.
The email further stated that she had never seen a little girl with such an offensive green discharge that the child still had. Her view was that she had never seen anything like this that could be described as normal. That view conflicts with the evidence of Dr T.
For reasons which are not clear, in the email, in bold, the maternal grandmother said that this was not a Family Court matter but a State child protection issue. She pointed out that the Court does not have investigatory powers and relied on the State Departments to do that work.
The maternal grandmother stated that the matter had not been investigated at all because the Department had not contacted the doctors nor seen M’s records. She said they had not investigated the case and that someone had lied. Unfortunately, she used words such as that M had been exposed to disgusting distress by being forcibly handed to her abuser “like candy”. She described the emotional and physical damage to M as irreparable and immeasurable. She was adamant (by placing the words in bold type) that the child had been sexually and emotionally abused.
In a clear reference to the fact that the Court case before me was about to start, she said that Ms R was going to take the stand and lie under oath about not having spoken to Dr T. She asserted that Dr T had attempted to make a report and that Ms R had “blocked” his report. That was just untrue.
The email ended with a bold statement that the maternal grandmother had finally found the reason for the “corruption”. She asserted that the paternal grandmother was good friends with Ms R and a State government employee whom she claimed had been helping Ms R by giving her information. These accusations were scurrilous. All parties had possession of this email and not one person put that accusation to any of the witnesses.
The email sadly ended with the words “sexual abuse of a child is never tolerated by me and I will fight this to the end”.
The email was the subject of cross examination of the maternal grandmother. When questioned about the use of the expression “anal fissure” she denied that it was factually false. She conceded that Dr T did not use that expression but said she had “assumed” he saw the “split” in M’s “bottom”. In my view, that was a lie. No such evidence was given by Dr T. It was not that such an assumption was made at all, the maternal grandmother has always factually portrayed the existence of such a medical finding.
The complaints to and about the Department to which I have referred in the email were not isolated. The maternal grandmother has been a strident critic of the Department but more importantly, made it clear that she believed that M had been sexually abused and that the culprit was the father. It was put to her that she was fixated that the father had perpetrated this abuse. Curiously, she responded that she was not fixated. If not, she has had a sudden conversion.
The maternal grandmother’s views did not just focus on the father. Ironically, she was also critical of the mother. The mother gave evidence about concerns of her own mother’s controlling behaviour. It was put for example to the maternal grandmother that she had complained about her daughter to a physiotherapist over not completing a set of exercises that M was to undertake for a hip problem. The grandmother denied she had made those complaints. The 2008 records of the physiotherapist which were produced clearly show that she did express concerns about the mother’s parental capacity.
In my view, the maternal grandmother has no credibility and I could not accept any evidence that she gave. She participated in a campaign to denigrate the father even to the extent of actively pursuing Ms B in January 2011 which was prior to the screw driver incident for the purposes of showing that he was an inappropriate father. She had possession of the transcripts of the chats and she had documents of the criminal proceedings of the Supreme Court of Tasmania. In my view, a Court would have to be very careful about accepting anything she said without corroboration.
Sad as it may be, all of the evidence points to it being in M’s best interest that there is limited contact with the interfering maternal grandmother.
The maternal grandfather
Mr L also gave evidence. He gave evidence before his wife. As Senior Counsel for the mother said before he went into the witness box, I would find that there was little in his affidavit of relevance to the dispute but Mr L was made available because of the nature of the allegation that he made about the father.
The maternal grandfather has taken less of a high profile position than his wife but he made no secret of the fact that he thought M was at risk from the father. He made that statement apparently without knowing of the concession made by the mother that there was no such risk.
He was cross examined about stalking the father and he denied it. I do not consider it necessary to make a finding about that.
There would appear to be no similar conversion in the maternal grandfather as there had been in his wife. It remains a mystery why he did not indicate that he had changed his opinion if in fact that was the case. His evidence did nothing to assist me.
The evidence of other witnesses however showed that M has a good relationship with the maternal grandfather. To all intents and purposes he was portrayed as being responsible with the child and she loved being with him. It is extremely sad therefore that objectivity went out of the window and this child may very well lose a relationship to which she was otherwise entitled.
The evidence of Ms G
Ms G is the paternal grandmother. The relevance of her evidence was confined to two issues. First, she confirmed her son’s evidence about trading and renovating second hand computers. Secondly, to the extent that she could provide an opinion, she said she had never observed any aberrant sexual behaviour in her son. Her observations of the relationship of her son with M were extremely limited because of the tyranny of distance between she and her son.
Ms G confirmed that the father was not alone with M on the weekend after the main allegation of sexual abuse in January arose. She saw no incident that could have resulted in injury to M.
Ms G presented as a balanced and concerned witness. She had strong concerns about the maternal grandmother’s behaviour which she said went beyond the allegations of abuse of M to an accusation that the father was involved in a family murder. I share Ms G’s concerns about the grandmother’s objectivity.
The second contact visit in 2011
The maternal grandmother must be seen to have been accusing the father of sexually abusing M after the weekend involving the screw driver incident. The father had taken a most unusual step on the second weekend by having a child protection worker present throughout the entire time he had M. The Department was sufficiently concerned about what was happening to agree for that to occur. There was no possibility of any impropriety of the father on that weekend. The mother was not aware that it was happening. Despite that protection, the maternal grandmother continued to make the allegations that the abuse was ongoing.
The evidence of Mr K
Mr K is a 24 year old scientist in employment. He has tertiary qualifications in science with Honours.
Mr K has been with the mother for over two years. He and the mother are expecting a child in April 2012.
Mr K said that he had never observed any violent or abusive behaviour from the mother towards M nor heard her say anything negative or hateful about the father. He gave unchallenged evidence about the fact that the mother tried to encourage M to go to her father and that M was, at times, resistant.
In daily life, he said that M was excited when he met her after work and they spent time together. He was able to set out the activities that he and the mother had undertaken with M including teaching her to count and spell and write the names of herself and family members on a blackboard. He described M as an intelligent and curious child. He had been involved in M’s physiotherapy exercises as well as the problems that she had with her eyesight which required a patch and then glasses.
Mr K gave evidence about what he observed in January 2011 and I find he was an objective reporter.
An incident which was not referred to in any of the evidence was that in August 2011, Mr K said that M told him that the father put a knife handle in her bottom. Rather than reacting the way the maternal grandmother had, he said that he told M that if it happened again she was to immediately go and see Ms B.
It was noticeable that Mr K said that M called her father “Daddy [abbreviation of the father’s first name]”. When questioned about the reference to the man with a screw driver, he said he presumed it was the father. I am satisfied however that thereafter, he did not question M or put ideas into her head.
Of the maternal grandmother, Mr K said she was prone to exaggeration and misinterpreted things and whilst he accepted the maternal grandmother interpreted all of the events of January to March 2011 with sexual abuse by the father, he said he and the mother did not. He said when there was urination distress, he put it down to dehydration or that in toileting herself, M may have damaged herself in some way.
Psychologist Mr J spoke of Mr K as having reasonable insight in a man of high cognitive ability but average social ability. He described him as competent but very introverted. I observed Mr K as a calm and thoughtful man. The word used by Counsel was “diplomatic” in relation to the maternal grandmother. Having regard to the tasks he took on and the people he had to deal with, he needed to be diplomatic. What impressed me was that his unchallenged evidence was that he had a very significant involvement in the parenting of M but that he had also taken on a large financial responsibility. His evidence disclosed parental insight. He approached problems rationally. The absence of a biological child in his case should make no difference because he has taken on the tasks whilst showing a responsible attitude towards things such as employment. Mr K comes from a steady and secure family with no history of family violence. In comparison with Mr K, the father has a very lazy approach and in terms of role models, the father could learn much.
In my view, the influence of Mr K in the future is critical. If he remains in the relationship as he proposes and takes on the responsibilities of assisting the mother, there is every probability in my view, that M will be in good hands.
It goes without saying that I accept Mr K’s evidence.
The allegations of family violence
There is a discrete issue which affects parental responsibility and the presumption of equal shared parental responsibility.
In her affidavit, the mother deposed to an incident occurring two days before the birth of M. The father denied the incident occurred at all. The mother conceded that no complaint was recorded anywhere specifically about the incident. The expert psychologist had made a specific inquiry about family violence but no indication was apparently given of this incident.
The mother expanded on the incident in cross examination. She said she was a passenger in the car with the father. He was screaming at her and she wanted to get out of the car but he refused to stop. She opened the door and the father stopped the car whereupon he “smacked” her across the stomach. She then got out of the car followed by the father and they “cuddled”. These specific details of the allegation were not put to the father. On the evidence of both parties, they were not living together at that particular time.
The expert psychologist’s consideration of the father’s profile indicated no propensity towards violence. On the other hand, the mother’s presentation caused him to doubt her veracity.
When challenged about not reporting this event to someone, the mother’s response was that she did not want someone to tell her to leave the father. On any view of the state of the relationship at that time, that was an implausible answer.
The mother’s evidence was non-specific but she said that the father screamed at her. Albeit non-specific, Ms B referred to the father screaming in arguments. Despite all of that, on the balance of probabilities, I do not accept the incident occurred as described by the mother. There are too many inconsistencies.
There was a related incident which was also non-specific. The mother said that the father had thrown dirt in her face, spat at her and called her “terrible names”. The names were later described as “fucking fat bitch”, “slut” and “whore”. The detail of the incident was also not put to the father in cross examination. The mother said that whatever it was that gave rise to the incident was “petty” and in the argument, she said she could not take it any longer and went out of the door whereupon the father followed her screaming and yelling. She said he called her names and she agreed that she called him names. It is clear that neither party has any sensitivity to the ears of those who surround them. The language, albeit from unsophisticated people, was base.
Having regard to the absence of the complaint, the poor recollection of both parties about specific things and their joint contribution to the melee, I would not attribute specific portions of blame to either. I have no confidence that I have the full picture of what occurred. On the balance of probabilities, I therefore do not accept the mother’s evidence on that issue.
After M’s birth, the relationship between the parties was no better. At best, the mother described it as the father “instantly” going off into violent screaming behaviour and he scared her. The father was more precise. He said it was the mother who was behaving aggressively and started to kick and punch him while he was on the ground. This resulted in him calling the police but the mother grabbed the telephone, hit him over the head with it and jumped on the “phone base” breaking it. In cross examination, when given an opportunity to respond to the father’s evidence, the mother said there were two lines at the house but she agreed she threw the cordless telephone at the father. This type of behaviour seemed common rather than the exception.
Importantly, the police intervention occurred and mutual family violence orders were made in the local court. The father’s evidence about that was not disputed by the mother. In his evidence, the father said he was annexing to his affidavit, a copy of the order against the mother but an examination of the document shows that it is directed to him not her.
In evidence, both parties admitted to name calling usually when arguments occurred.
Family violence in any parenting dispute requires careful consideration. The community will no longer tolerate it as being simply a fact of life. All of the common sense understanding of family violence shows that it must have an adverse effect on children.
Family violence is defined to mean conduct, whether actual or threatened, by a person towards, relevantly, another person such that it causes that person to reasonably fear for, or reasonably to be apprehensive about, that person’s personal wellbeing or safety. That is, what would a reasonable person in those circumstances feel about their personal wellbeing or safety? In relation to the question of the phone incident, neither party seemed to be particularly fearful of the other and having regard to the arguments which included screaming and name calling, it seems the only conclusion I can draw is that neither was apprehensive about his and her personal wellbeing or safety. Whilst the mother clearly indicated fear of the father, her conduct would suggest otherwise.
Family violence orders are made by courts authorised by State Legislation to intervene in the private lives of persons who need protection from family violence. In this case, the police took steps against both parties.
Pursuant to s 61DA(1) of the Act, when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for parents to have equal shared parental responsibility for that child. That presumption is rebutted where there are reasonable grounds to believe that a parent has engaged in family violence. Notwithstanding the making of the Family Violence Order, I am not satisfied that the presumption should be rebutted here having regard to the definition to which I have referred.
Is there evidence of a risk of physical or emotional harm to M if she was in the care of the mother?
It was the father’s case that the mother had a personality disorder and associated depression which could impact on her capacity to parent M. The nub of this concern came from the investigative work of psychologist Mr J.
Mr J was the single expert witness appointed by court order. He is an experienced court report writer and had a background in child protection. He is a clinical psychologist. No-one challenged his expertise save as to one issue and that was whether a psychologist as distinct from a psychiatrist, could diagnose borderline personality disorder. In my view, it is unnecessary for me to make that determination here.
Mr J had voluminous material including a whole raft of affidavits from the parties. It is questionable how that assisted when he did not have the most important affidavits which were the parents’ final trial documents. He formed his conclusions based on the material he had read and the interviews he conducted but it was the events subsequent to the completion of his report prepared in August 2011 that ultimately altered his conclusion.
In respect of the mother’s mental health, Mr J had a plethora of health professionals’ materials at his finger tips. He examined the history of the mother’s childhood, viewed from the observations of the mother. He noted that in 1995, a consultant psychiatrist “attracted” a diagnosis of attention deficit disorder to the mother. Who diagnosed that condition was not known. Subsequent correspondence between consultant psychiatrists showed a diagnosis of oppositional defiance disorder. This was when the mother was only a child. Later, in 2004, when the mother was seen by a mental health team, a psychologist diagnosed borderline personality disorder. Senior Counsel for the mother put to Mr J that only a psychiatrist could make that diagnosis but the expert said that it was a mental disorder not a psychiatric condition and as such, a psychologist could make the diagnosis.
Mr J qualified that somewhat by saying a psychologist with sufficient experience could diagnose the disorder. He pointed out that there was no strong evidence of a benefit of medication in such a situation. If there were, only a doctor could have prescribed it. The notes read by Mr J suggested that the mother was non-compliant with prescribed medication but his view was that she was disinclined to resort to medication. This, he ascertained from what the mother volunteered and from what questions he asked.
Mr J conceded that the mother may have been reticent about the issue of conceding any disorder on the basis that she could have thought that he was going to prescribe medication. There was no specific evidence about that issue from the mother but I again note that Mr J had a view that the mother was an unsophisticated person.
Mr J confirmed that he relied upon the diagnosis of borderline personality disorder to form his opinion about the mother’s mental health. He also said that he formed his opinion from his own observations. His analysis included that the mother had a sensitivity to emotional deprivation, abandonment, feelings of failure and depression. The mother told Mr J of the difficult dynamics of her relationship with her own mother.
Mr J said the mother had “most difficulty in the context of primary support relationship (parents and partners)”. He gave an example of her comment to him. However, all of the evidence points to a very supportive and stable relationship with Mr K. Having regard to my earlier observations about the maternal grandmother, the difficulty that the mother might have in the relationship with her is unsurprising. Withdrawal from the scene by the maternal grandmother may assist in the future but that also depends on whether the mother is dependent upon the maternal grandmother.
Mr J observed depression and said it, along with borderline personality disorder, was likely to adversely impact on the mother’s capacity to provide for M. It meant emotional reactivity and angry outbursts were likely and those would be confusing and distressing for M. It was likely that the mother would be overwhelmed by her own intense emotions and be preoccupied with her own needs. Mr J observed a blunted affect in the mother which included no facial expression and hesitancy before answering questions.
As Mr J pointed out though, if all the mother had was depression, it was difficult to say whether it would affect the care of M.
Much then depends upon whether there is a borderline personality diagnosis. On the evidence, particularly having regard to the seriousness of the finding of borderline personality disorder, I would not be prepared to find that the mother does suffer from it.
Absent borderline personality disorder, the concerns I have about the capacity of the mother to care for M become less significant. The Departments workers had no concerns. M is bright and intelligent and progressing well. Against that is the observation that M played happily, oblivious to the presence or absence of the mother. That was said to raise questions about her attachment to the mother.
I have balanced all of these factors in taking into account that this child has been seen by doctors, police, protective workers and then the single expert witness. One wonders whether this is all becoming a bit passé for M.
Having regard to the mother distancing herself from the maternal grandmother and her behaviour, and the evidence of Mr J, I do not accept that M is at risk emotionally in the care of the mother.
General parenting and the parties’ proposals
Despite their opening positions and the absence of any meaningful communication between them, the father and the mother both sought orders that there be equal shared parental responsibility. That was also urged by the Independent Children’s Lawyer.
The mother and the father each sought orders that M live with them. That remained the position throughout the proceedings. Each also said that if M lived with them, the other parent should spend time with M on an alternate weekend basis. Neither sought that the other parent be supervised.
In concluding final addresses, the Independent Children’s Lawyer urged orders be made that M live with the mother and putting aside special occasions, she spend time with the father overnight for two nights per fortnight until April 2012 and then there be a build up from Friday through to Monday in alternate weekends once school began. Special occasions were otherwise not controversial.
In respect of ancillary orders, the Independent Children’s Lawyer sought:
· Save for special days, the written permission of the father or the Independent Children’s Lawyer or an emergency, the mother not bring M into contact with the maternal grandmother for a period of three months from the making of an order;
· M not to be left with the maternal grandparents for a period of 12 months;
· Changeover between the parents was to occur at M’s school or at the contact centre or as otherwise agreed;
· The father be restrained from denigrating the mother or her family;
· The mother be restrained from denigrating the father or his family;
· That the mother be restrained from making statements to M or in her presence that the father has harmed M;
· Each party be restrained from physically disciplining M;
· The father be restrained from drinking alcohol to excess whilst M is in his care;
· The father enrol in an anger management course;
· Each of the parents attend Relationships Australia to improve their communication;
· The mother attend upon a psychologist or psychiatrist for therapy and follow the advice as to treatment and medication;
· That the mother be restrained from presenting M to a health professional for a physical examination relating to any allegation or suspicion that a third party has sexually abused M save with the father’s consent, the Independent Children’s Lawyer’s consent or the consent of a child protections authority.
The mother largely adopted the position of the Independent Children’s Lawyer.
The father largely sought what he had always wanted but said that if he was unsuccessful, he desired orders that he have alternate weekends with M, half school holiday periods and the various special occasions.
In final submission, counsel for the father said that until M went to school, there was no reason why that alternate weekend could not be extended to commence on Thursdays.
Apart from the issues to which I have earlier referred, neither parent suggested the other could not care for M’s physical needs. The father’s capacity to interact with M has been corroborated by the children’s contact centre, by the Department of Human Services and by his own partner Ms B. Although reservation was expressed about the attachment between the mother and M, all of the evidence of the Department of Human Services and Mr K suggest that she too is a competent parent.
The father’s evidence was that when M is in his care they provide her occasionally with fast food from McDonalds but otherwise nothing unusual. Ms B has a nephew with whom M plays. The father set out the various activities which are tantamount to M having a good time. He was able to describe those activities.
The father said that he wanted to maintain a relationship between M and his extended family noting that his mother lived some distance away. The paternal grandmother visited reasonably frequently and M enjoyed the time with her.
The father described his home in which M has a bedroom. There is a large backyard in which to play and that he was purchasing some play equipment. He said the home had all of the modern amenities. I have already mentioned the fact that the father is dependent on Centrelink payments but he said that he was attempting to find part-time work but desired not to do so because he wanted to be a very involved parent. I have already addressed that issue earlier.
In relation to schooling, the father proposed to enrol M at a local primary school which was close to their home. Having regard to the orders that I make, that will not be necessary.
The father gave no indication of how significant a role he saw the mother as having in M’s life. The evidence of both he and Ms B showed a complete mistrust of the mother and her family even to the extent of masking their address to avoid being stalked. However, there seems no reason why an approach could not have been made through Mr K to reduce the tension he having been a conduit for the handovers involving M.
The mother’s evidence described a similar home where M has her own bedroom. She described the residential area which is close to the sea and noted that M loved the beach and going swimming. I heard Mr K’s evidence about his security of employment and the hope of the parties that they will purchase a home of their own in the future. The mother described the school which is close to where M lives and there is a hospital only some 10 minutes drive away.
The mother set out the extended family members who live nearby and with whom M has a good relationship. She said, and this was confirmed by Mr K, the mother’s sisters will provide babysitting assistance which may be necessary because of her pregnancy complications.
The mother was able to comprehensively describe M’s eye problems and how she has dealt with those issues. Unfortunately, she has neglected to involve the father. That becomes an important issue in the future if M is to travel between the two homes.
In the affidavit which the mother drew herself, she said she wanted the father’s time with M supervised because of the matters she set out but that could no longer be relevant having regard to her counsel’s concession. The mother recognised the need for M to have ongoing contact with the father’s child and whilst the statement was made in her affidavit, it has a hollow ring about it because nothing has been done by the mother to commence any relationship with Ms B. In answering my question about how there might be a communication line in the future with Ms B, the mother was unable to indicate other than by correspondence how any such relationship could occur. It is hard therefore to see how there would be any enthusiasm in the mother’s household to discuss the father’s child. Ms B too has a similar problem but obviously she has the child in her care all of the time.
The mother said that she did not want M to have a “welfare mentality” which was a swipe at the father for not looking for employment. Whilst the mother has had some employment, I am not entirely confident that she sees the situation much different from the father. What I am encouraged about however is that her partner Mr K seems to have a very strong work ethic and a desire to improve his family.
On the balance of probabilities, I find the mother has done a reasonable job in caring for M and I see no reason to find that it will not continue. On the other hand, the father was absent for a large portion of M’s life including when he was directly excluded. His relationship with M is now only beginning to develop and his parenting role can only increase in the future.
The best interests of M are the paramount but not the sole consideration. The findings of fact assist in the determination of what is in the best interests of the child. Each of the parties has set out their proposals indicating what they see is in M’s best interests. This litigation has been through a horrible and traumatic phase with allegation and counter-allegation. It was only at the hearing that the issues were clarified and the findings that I have made focussed on M’s best interests. The Court is not bound by the parameters of the dispute because it is a function of the Court to determine what is in the best interests of M. It is to that end that I am obliged to draw orders.
The proposals of the parties including the Independent Children’s Lawyer must be seen in the context of the findings. Absent all of the major problems which I have earlier set out, there is little dispute in this case. The mother has been the predominantly responsible parent and the father is now endeavouring to develop a relationship which will benefit M in the future. The mother’s position is that she has altered her view about the father and now has a positive view about his involvement in M’s life. I accept that is the position now that she is distancing herself from her mother and step-father.
To guide the Court in terms of the analysis of the proposals affected by the findings, the Act requires the Court to look at s 60CC. This is a mandatory set of considerations.
It is important to note however that when contemplating s 60CC, the Court must reflect on the matters set out in s 60B. That provision describes the principles underlying the legislative objects. It includes that children have the right to know and be cared for by both parents as well as the right to spend time on a regular basis with and communicate with, both parents. That right of children should only be denied in the rare circumstance that it is not in the clear interests of the child for the relationship to be effected. Having regard to the concession of the mother and the determinations to which I have earlier referred, this is not one of those cases.
Section 60CC requires the Court to consider two primary considerations. One of those considerations is the need to protect the child from harm in its various forms. Having regard to the findings I have made above, I am satisfied there is now no concern for M. Ironically, all parties thought that non-denigration orders should be made. If the parents have not by now learned that the damage that they have done to M by their constant war, I think non-denigration orders will do little. Because of the lack of trust however, I propose to make the orders to give comfort each to the other but in the event that there is any such behaviour, it may form the basis of future proceedings to alter the residential arrangements for M.
The second consideration of importance is that M is entitled to have the benefit of meaningful relationship with both parents. That has been described as a chance to have that relationship such that it is beneficial for the child in circumstances where the parents have something to offer (see Cotton and Cotton (1983) FLC 91-330). A meaningful relationship must obviously be a positive one from which the child draws all of the necessary opportunities to be protected from harm, to have an enjoyable existence and to develop as a worthwhile member of society. As I pointed out to the parties, the continuation of conflict and the denigration both directly and indirectly of the other parent can only lead the child in the end to see one or other of the parents as bad. Instability in the respective households may lead to insecurity. M deserves better than that. She deserves role models with her parents and their partners who treat each other with respect and who accept that each has an important role in the education and development process of growing up. All of that seems to me to have been absent particularly with M being taken to health professionals by her grandmother and the constant interruption in her life of various investigative bodies. It is time for her parents to be responsible.
As the Full Court said in Edington and Edington (No 2) [2007] FamCA 1299; (2007) FLC 93-349:
Clearly the amount of time which children spend with the parent potentially impacts upon the quality or significance of that time.
There is a nexus between the substance and the significance of the time which the children would spend…beyond noting that the legislative requirements are conjunctive, we need say no more, other than to stress that each case turns on its own particular facts and circumstances.
The Court perceives that an abundance of substance can compensate for a deficiency of significance and vice versa.
There is much to be said for that philosophical approach. It is important that the Court consider how the relationship will develop with both parents and what positive impacts the various orders will have.
In this case, the parties live a considerable geographic distance apart. Sadly, they have to use the contact centre as a handover point. The distance may not be a problem from a travelling perspective but this child is about to start kindergarten and ultimately school. To have a meaningful involvement in her life so that she can benefit from having the input of both families, it is important that the duration enable the father to do more than just be a parent who plays games with his daughter. M is entitled to have a relationship with her sibling in the father’s household in the same way that she will grow and develop with the child that the mother is now expecting. All of those issues affect time into which the travel considerations have to be met.
Section 65DAA of the Act provides that if a parenting order is to provide that a child's parents are to have equal shared parental responsibility, mandatory questions have to be asked and considered.
If such an order is made, the Court must consider M spending equal time with each parent. Equality of time does not mean week-about or any specific combination of time other than whatever it is, it must be equal. The first consideration however is whether such an order would be in M's best interests. I find it would not be having regard to her age, stage of development and the differing roles that the parents have thus far played in her life. Such an order here would not work without a modicum of co-operation, trust and goodwill. It would require frequent communication and handovers. All of those requirements are absent.
The second question requires a consideration of whether it would be reasonably practicable for there to be an equal sharing of time. That determination requires the Court to have regard to a number of factors including geographic distances between the parties and their capacity to implement such a regime. The distance and lack of communication mean that such an arrangement would not be reasonably practicable.
The provision then requires an application of the same factors in relation to not equal time but substantial and significant time. The same problems arise. Until M is able to navigate the turbulent waters between her parents, I could not find that such an arrangement as defined in the Act could be in her best interest or reasonably practicable.
In final submissions, the Independent Children's Lawyer submitted that the simple order for equal shared parental responsibility should be made subject to specific provision about consultation. I do not propose to do that here having regard to the complexity which I think that would create. The parents have to learn to communicate about important decisions.
Having rejected the preparation of orders on that basis, I turn then to what is in M's best interests.
Section 60CA requires the Court to regard the best interests of the child as the paramount consideration. That best interests principle is guided by the mandatory consideration of the matters in s 60CC. I have already dealt with the primary considerations. I turn then to the additional considerations.
M is too young to have her views seriously affect this determination. No party suggested otherwise.
Another consideration is the nature of the child's relationship with her parents. The mother clearly has a close, secure and protective relationship which is enhanced by her involvement with Mr K. The relationship with the father is different but equally important. It is one which is still developing and will be strong if M is protected from the sort of behaviour sadly exhibited by the father in the weeks before this hearing began. The relationship with Ms B is sound enough for the Court to have her supervise the father's time with M. Ms B has performed all of the significant parenting tasks when M has been in the father's care and no complaint was made about her skill. I have expressed my concern about the added burden she faces with a child of her own.
Equally important is a consideration of parenting responsibility. I have expressed concern about the mother's abrogation of responsibility for the medical care of M to her own mother. Hopefully that lesson has been learned. The father has shown some ability to act as a responsible parent but there is a long way to go. He was drunk and abusive to his new partner when he was supposed to be thinking about his own 12 week old child. What general sense of responsibility does that show? Cases such as this cannot be seen in some vacuum of clinical examination; these are real people and real children. The Court cannot make parents what they are not. It is the function of the Court in its determination to point out to parents what the law expects of them. I think the best I can say is that the expert psychologist was generous when he described these parents as unsophisticated. As I said in the hearing, if after days of hearing, the parties had not learned of the deficiencies in their own make-up as parents, there was little this Court could do for them. Suffice to say, I have concerns about both parties as parents.
The good news for M is that there is no practical difficulty in her parents sharing in her future despite the distance between them.
I have no concerns about the mother's capacity to provide the necessary physical supports for M. I am comforted by Mr K's commitment. His stance was not only diplomatic, it was commendable. Similarly, with Ms B at the side of the father, M will have a responsible person who is cognisant of what a child needs.
The Court is required to consider the attitude to parenting demonstrated by the parents. I think my findings above and the views earlier expressed set out sufficiently my concerns that these parents have not been child-focussed.
I have made findings about family violence and the existence of the relevant orders. The separation of the parties and the distancing of each from the other along with each of them starting new lives should reduce the prospect of a repetition of family violence.
Although M is young, there is little prospect that her life is going to alter in the immediate future. She will start school and her father will either be a significant part of her life or he will fade out leaving the role to Mr K. It is important that she have certainty and therefore, I propose to make these orders final.
For the purposes of s 60CC (4) and (4A), I have contemplated all of the things that the parents have done since separation and made findings about them. The parties must learn from those matters and move on for the sake of M.
I shall make orders accordingly.
I also propose to direct that the Independent Children's Lawyer provide a copy of these reasons to the Department having regard to their concerns and involvement.
In addition to the main parenting orders, I was also asked to make orders relating to injunctions which were not opposed. There was a request to make orders that the father be restrained from drinking alcohol to excess when he had M in his care. I do not propose to make that order on the basis that it is difficult to enforce. Further, the evidence is that the father normally is not a big drinker and save for the incident immediately before trial, there was nothing to suggest concern. I will presume that the father has learned a lesson about alcohol, violence and children.
It was also suggested that I make orders about the parties attending various courses about anger management and parenting relationship improvement. As I pointed out, if the parties have not learned about their deficiencies now, there is little I can conceive they would learn from such courses. To order them to undertake such courses may have the effect of them begrudgingly attending simply to comply. What they need is do is acknowledge their failings as parents not just in respect of M but also the child that the father has and the child the mother is currently carrying.
It was also urged that I order the mother to attend a health professional about her own mental health. There are two reasons why I find that impracticable and unnecessary. First, I am not satisfied that the diagnosis previously given to the mother is justified. Secondly, I am sufficiently confident about Mr K to think that if there was a health concern, he would ensure that his own future child's interests would be protected by taking the mother to such a professional.
Each party proposed a variety of orders some of which carried explanations and definitions. I take the view that the law is clear. Parental responsibility is defined in the Act to means all of the duties, responsibilities and obligations that the law requires of parents. An equal sharing of that responsibility requires them to consult about major long-term issues concerning their daughter. Common sense dictates after all of the things mentioned above that unless they begin to talk as adults to one another about the smaller things concerning M, they will never learn to consult one another about the major issues. They must learn to discuss medical issues and tell each other what is affecting M. They must learn to consult one another about medical appointments so that they can both attend and understand what ails M. They must keep each other informed of their respective living conditions because otherwise M becomes the conduit and messages become confused. That must include explaining developments in their new relationships including new arrivals. M must have an opportunity to enjoy her siblings and not have to worry about being excited about such developments for fear of an adverse reaction. The parents must have health professionals, teachers and kindergarten staff provide information to them both. Sooner or later the parents' partners need to be seen as important participants in the life of M to such an extent that they are treated with respect. I see little point in making orders about these things because I do not accept that the parents have accepted their important roles in M's life. To make orders without the parents accepting their responsibilities voluntarily would have little chance of success and invite further litigation.
In these reasons, I have made strong statements about the maternal grandparents. I am sufficiently concerned about the grandmother's stated change of heart to find that it is proper in the circumstances to injunct the mother from leaving M alone with those grandparents at least for the next year. Similarly, I consider it proper for there to be injunctions preventing the mother from taking M to a health professional about sexual abuse issues without at least the father and the relevant Departmental workers being made aware of what concerns her. That must be extended to allowing others to take M because of the dominate influence of the grandmother.
To see the difficult period of the next year through, I intend that the Independent Children’s Lawyer remain in place at least to assist the parties on the meaning of these orders. I do not intend to limit further applications to courts but no doubt the parties will be conscious of the finality of these orders and the matters they would need re-establish to begin proceedings.
ANNEXURE
THE APPLICANT FATHER'S DOCUMENTS
Application filed 31 March 2011
Affidavit of father filed 5 October 2011
Affidavit of Ms B filed 7 October 2011
Affidavit of Ms G filed 7 October 2011
Affidavit of Mr E filed 15 November 2011
Notice to admit facts
Various subpoenaed material identified and marked.
THE MOTHER'S DOCUMENTS
Affidavit of the mother
Affidavit of Ms L
Affidavit of Mr L
Affidavit of Mr K
THE INDEPENDENT CHILDREN'S LAWYER
The family report of Mr J
I certify that the preceding Two Hundred and Twenty Three (223) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 January 2012.
Associate:
Date: 17 January 2012
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