Kalmar and Kalmar
[2018] FCCA 2375
•28 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KALMAR & KALMAR | [2018] FCCA 2375 |
| Catchwords: FAMILY LAW – Parenting. |
| Legislation: Family Law Act 1975, s.60CC |
| Cases cited: Richards & Whipp [2011] FamCA 141 |
| Applicant: | MR KALMAR |
| Respondent: | MS KALMAR |
| File Number: | SYC 2393 of 2013 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 26, 27, 28, 29 March 2018 |
| Date of Last Submission: | 29 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | Eddelbuttel Law |
| Counsel for the Respondent: | Mr Tockar |
| Solicitors for the Respondent: | Barkus Doolan |
| Counsel for the Independent Children's Lawyer: | Mr Longworth |
| Solicitors for the Independent Children's Lawyer: | Armstrong Legal |
ORDERS
That all previous parenting orders in respect of the child [X] born 2011 (“the Child”), are discharged.
That the Mother have sole parental responsibility for the Child.
That the Mother provide written notice to the Father within 14 days of her making a decision in relation to the child’s education or place of education, extracurricular activity the child is involved in or any significant decision affecting the Child’s health including the name of any treating health professional and their contact details ;
The mother to immediately notify the father of any emergency admission to hospital or intended surgery and to provide the date, location and nature of the surgery.
That the Child live with the Mother.
That the Father forthwith enrol in, complete and provide to Independent Children’s Lawyer and the mother’s solicitors certificates evidencing his completion of the following courses:
(a)Taking Responsibility operated by Relationships Australia;
(b)Circle of Security.
(c)In the event the father has failed to enrol in and complete the above courses within 6 months of the date of these orders his time with the child is suspended unless the service provider has been unable to provide a course to be completed within this time frame and the father has enrolled in the relevant course.
That the Child spend time with the Father as follows:
(a)For a period of 6 months supervised by a Professional Parenting Supervisor (“the Supervisor”) each alternate Saturday or Sunday for a period of 2 hours from 10:00 am to 12:00 noon. The mother to determine which day of the weekend time is to occur.
(b)Thereafter for a period of 6 months on each alternate Saturday or Sunday for a period of 4 hours from 10:00 am to 2:00 pm supervised
(c)Thereafter, until commencement of 2020 school Term 1, each alternate Sunday for a period of 7 hours from 10.00 am to 5pm.
(d)Thereafter from the commencement of 2020 school year in Term 1 from after school Friday until 6:00 pm on Saturday each alternate week and this time is to continue throughout all school holidays and to be extended to 6.00pm Monday in the holidays.
(e)From the commencement of term 3 of the 2020 school Term from after school Friday until 6:00 pm on Sunday each alternate week and this time is to continue throughout all school holidays and to be extended to 6.00pm Tuesday in the holidays.
(f)Thereafter from the commencement of the 2021 school term from after school on Friday until 6:00 pm Sunday each alternate week.
(g)In 2021 the Child have block periods of time with the father during school holidays as follows :
(i)During the Term 1, 2 and 3 school holidays for the first half of the school holidays from after school the last day of Term to 6:00 pm the middle Saturday of the holiday period.
(ii)during the Term 4 school holidays:
a.in the Christmas holidays 2021/2022 and each alternate year thereafter for the second half of the school holidays commencing at 6:00 pm on the second Tuesday in January and concluding at 6:00 pm on the Saturday before the child returns to school and
b.in the Christmas holidays 2022/2023 and each alternate year thereafter for the first half of the school holidays commencing on the last day of Term 4 to 6:00 pm to the second Tuesday in January.
Notwithstanding any other Order, the Child shall spend time with the parents on the following special occasions as agreed and failing agreement as follows:
(a)Commencing in 2020 – on Mothers' Day and Fathers' Day
(i)If Mothers' Day falls on a day the child is to be in the father's care, then the father's time for that weekend is suspended and shall be made up the following weekend and
(ii)If Fathers' Day falls on a day when the Child is to be in the mother's care, the child shall spend time with her father and in accordance with the regime of time then operating.
(b)The Child spend time with the father at Christmas as follows:
(i)In 2018 on a day closest to Christmas Day which the Supervisor is available to facilitate for the period of time operating pursuant to Order 7 and
(ii)In 2019 on Christmas Day from 9:00 am to 1:00 pm and
(iii)In 2020 on Christmas Eve from 1:00 pm to 6:00 pm and
(iv)Thereafter whenever the Child is with him for the first half of the relevant school holidays.
That in the event the father fails to spend time with the child pursuant to these orders, except in the event of a vehicle breakdown or traffic incident of sufficient magnitude to interfere with his time and for which objective independent documentation to support same is provided to the mother, or his ill health and for which a specific medical certificate is forthwith provided to the mother, orders for time with the child shall be suspended.
It is noted that an application for resumption of the time with orders shall not invoke any threshold issue.
That in relation to changeovers:
(a)Whilst time with the child is supervised the mother is prohibited from accompanying the child to changeover and is to ensure a responsible adult familiar with the child accompanies the child to and from that time.
(b)Once time is not supervised the parents shall collect and return the child from and to school, if a school day otherwise the parents shall collect and return the child at McDonald’s Town A or as otherwise agreed in writing between them.
The parties shall use email or text message to exchange information about the child's education, health and extra-curricular activities. To bring this order into effect the parents shall provide each other with an email address and mobile phone number.
Upon the father’s time with the child commencing he is at liberty to attend all events involving the Child including:
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance; and
(c)School functions and events that allow for parental attendance including, but not limited to concerts, school assemblies, sports days, parent and teacher interviews canteen duties and social functions.
(d)The father is to notify the mother by SMS or text that he will attending the child school
In the event that the child suffers a serious medical condition or requires urgent medical attention whilst in the care of either of her parents, that parent will notify the other parent as soon as practicable.
These Orders constitute authority for the mother and father to each receive copies of school reports, newsletters, notices and school photograph order forms. In the event that the child's school requires written authority by a parent, the parents shall do all acts and things within seven (7) days to facilitate this Order.
These Orders constitute authority for the mother and father to each liaise with the child's treating medical practitioners and obtain information about any treatment of the child and any other medical issues.
That each of the parties be and are hereby restrained from:
(a)Denigrating the other party or any members of their family or household to or within the presence or hearing of the child and they shall use their best endeavours to ensure that no other person does so;
(b)Discussing these proceedings with the child or within the child's hearing or presence;
(c)Showing the child any document pertaining to these proceedings; and
(d)Recording on any electronic or other device conversations with the child in relation to the allegations made in these proceedings.
Pursuant to the provisions of s 13C(1)(c) of the Family Law Act 1975 (Cth) the Mother shall participate in counselling with a therapist/clinical psychologist (“the psychologist”) nominated by the Independent Children's Lawyer and in consultation with Dr Q, the Family Report writer.
For the purposes of the above order :
(a)Within seven (7) days of the Independent Children's Lawyer nominating a psychologist, the mother is to contact the psychologist to arrange an appointment with that service;
(b)The mother shall notify the other parent and the Independent Children's Lawyer by email of the date of her scheduled appointment within 48 hours of making the appointment;
(c)Leave is granted to the Independent Children's Lawyer to provide the psychologist with a copy of the Family Report released on 10 March 2016 and a sealed copy of these Orders and the Courts judgment ;
An application that the parties pay the costs of the Independent Children's Lawyer of and associated with these proceedings in equal shares assessed in the sum of $11,055 is reserved for written submission by the parties :
IT IS NOTED that publication of this judgment under the pseudonym Kalmar & Kalmar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2393 of 2013
| MR KALMAR |
Applicant
And
| MS KALMAR |
Respondent
REASONS FOR JUDGMENT
In this matter the father Mr Kalmar is seeking time with his daughter, [X], born 2011.
Mr Tockar of Counsel represented the mother. Mr Betts of Counsel represented the father and Mr Longworth of Counsel represented the child.
The father’s application was that time with his daughter be reintroduced on a slow basis as it is going on for 2 years since they have spent time together. He ultimately sought orders for significant and substantial time and an order for equal shared parental responsibility. There is no contention other than [X] living with her mother.
Not only does the mother strenuously oppose this application, her orders, if made would have the effect of excising the father from the child’s life as she sought he have no time or communication with the child.
Making an order which, effectively, excises a parent from a child’s life is one that the Court does not make without the most cogent of evidence. The evidence must not only be cogent but also of sufficient weight, going to the risk of harm to a child from time or communication with a parent, that the court’s discretion can be exercised on a sound basis after weighing up all the risks. The risk of harm to a child must be grave indeed before the Court would make an order effectively excising a parent from a child’s life.
Neither the Independent Children’s Lawyer nor the expert who prepared a report in this matter, Dr Q, whose report was marked court exhibit 1 and was released in March 2016, supported the mother’s orders.
The mother’s case is based upon her own observation of the father, his behaviour towards her and his daughter, together with her observation of behaviour towards his son, Mr A, who is now 30 years of age, the evidence of the father’s second wife, Ms L and Ms L’s evidence of the father’s behaviour towards her, their son and his eldest son Mr A.
The mother is the father’s 3rd wife and [X] his 3rd child.
The father has spent no time with, or had any communication with, his son [A] born 2017 since 2012. [A] lives in (country omitted) with his mother Ms L. Ms L came to court to give evidence in the mother’s case. It was apparent that she and the mother have an entirely consistent and similar view of the father as a man and a parent.
They each assert he is a risk of harm to their children based upon their observations and recollections of the father’s behaviour and conduct during both of their unhappy short marriages to him.
The documents relied upon at the trial were as follows:
a)The father’s documents:
i)Father’s initiating application filed 13 May 2014;
ii)Father’s case outline together with a minute of the orders he sought;
iii)Father’s affidavits filed 14 February 2018;
iv)Affidavit of his de-facto wife, Ms S sworn 12 February 2018;
v)Affidavit of his adult son, Mr A, filed 9 February 2018; and
vi)The father, Ms S and Mr A were cross examined.
b)The mother’s documents:
i)Response filed 5 November 2014;
ii)Mothers’ affidavit filed 9 February 2018;
iii)Affidavit of Ms L sworn 7 February 2018; and
iv)Both the mother and Ms L were cross-examined.
The family report writer, Dr Q, was also cross-examined at the trial.
The father’s exhibits:
a)Exhibit 1, a photograph of injuries he said he sustained at the hands of the mother in November 2012;
b)Exhibit 2, was proof of payment of arrears of child support paid just prior to the trial;
c)Exhibit 3, the binding financial agreement the parties entered into to resolve their financial dispute;
d)Exhibit 4, a letter dated 10 October 2014 from the mother’s lawyers to the father’s lawyers complaining of the father’s failure to give his consent to allow contact centre’s records to be accessed by the mother and to agree to the mother continuing to be present with the child whilst he spent time with her at the centre;
e)Exhibit 5, a letter of 10 October 2014;
f)Exhibit 6, notes of the contact Centre from 30 August 2014 up to 11 October 2014 showing that the child enjoyed her time with the father;
g)Exhibit 7, a letter dated 19 March 2018 from Ms L requesting the father sign a consent for their son, [A], to travel from (country omitted) to Australia, which the father immediately complied with;
h)Exhibit 8, an email from the father to the contact centre notifying of his inability to attend contact in November 2014 due to a prolapsed disc in his neck and an operation;
i)Exhibit 9, enquiries by the father to Ms L in relation to her unilaterally changing [A]’s surname;
j)Exhibit 10, notes of the Catholic Care contact centre from 13 November 2014 to 22 July 2016 when time with the child ceased. Those notes reveal a significant delay by the mother in having [X] commence spending supervised time with her father despite orders made by this court in October 2014. One matter both the parents agree is the time with [X] and her father at this Contact Service did not progress well and that [X] was stressed from those visits ;
k)Exhibit 11 the father’s proposed minute of Order; and
l)Exhibit 12, letters dated 18 October 2012 to the father concerning time with [A], maintenance to be paid and an e-mail from Ms L dated 29 June 2011.
Mother’s exhibits:
a)Exhibit 1, an affidavit of the father filed in proceedings between he and Ms L, in proceedings Ms L brought for what in Australia would have been a domestic violence order. This affidavit was sworn on 20 January 2011.
The father’s affidavit was responding to allegations in Ms L’s affidavit that she had observed him hit Mr A, whilst he and she were in a relationship. In this affidavit Ms L says the following:
Mr Kalmar has another child, Mr A, from a previous marriage. Mr Kalmar has hit Mr A with a fist in his face and split his lip in public at a restaurant. He also beat up Mr A in front of [A] shortly before I left the marital home. He tried to break the door down and broke a rib. Both his son and he received medical attention following the incidents. Mr Kalmar’s son, Mr A, an Australian adult, attends a private school in (country omitted) which the father and his – and Mr A’s grandfather had a history of attending. He trafficked drugs on a school (sports) trip. The headmaster will supply info from himself and the school psychologist if subpoenaed.
The father says in answer to that allegation at paragraph 10.1.21 of his 2011 affidavit:
I had Mr A’s sole custody. I raised him on my own. We have always had a close relationship. Mr A has excelled as a sportsman throughout his career and it is clear that sporting is a very important connection to and important part of Mr A and his father’s life. I was forced to enrol Mr A in the boarding school because he could not form a relationship with Ms L.
Whilst at School 1 Mr A was suspected of smoking marijuana and I went to meet the headmaster. The urine test came back positive.
At a restaurant at (location) with the family I was discussing these findings and these issues with Mr A, told him the test results were positive. We had a heated argument about his sporting career and the effect marijuana would have on that. Mr A became aggressive and cheeky. I slapped him across the face. I did so in the heat of the moment. This was not usual behaviour on my part.
Mr A was penalised for the drug incident at school. He was able to remain at the school and his sporting achievements were again recognised by the school.
He was caught a second time using marijuana and he had to move to School 2 in order to prevent him from being expelled. I, once again, confronted Mr A about his drug use and he lied to me. We were at home. We argued. He raised his fist and attempted to hit me. I slapped Mr A again. He ran to his bedroom and locked himself inside.
Knowing he was upset and concerned about the drug abuse when he refused to come out of his room I tried to force the door open with my shoulder. This resulted in my damaging my cartilage on my rib cage. I break ribs or break the door down.
b)Exhibit 2, a copy of the father’s attendance at a doctor following the breaking down of the door referred to in the 2011 affidavit. The father admitted he went to the doctor as he had injured his chest;
c)Exhibit 3, a WhatsApp messages between the mother and Mr A prior to the parties separating;
d)Exhibit 4, Facebook messages between the mother and Mr A from 27 June 2013 to 5 October 2013;
e)Exhibit 5, evidence of the payment of child support arrears and other expenses paid by the father. The father paid a lump sum $11,198 just prior to the hearing;
f)Exhibit 6, Ms S’s bank statements;
g)Exhibit 7, father’s advice to the mother’s lawyers on 6 March 2015 that he was unaware making recordings of conversations was illegal in New South Wales. He will cease forthwith and delete any recordings made. That did not occur, apparently;
h)Exhibit 8, an application for a credit card by the father showing a gross monthly income of $13,750. The application was made around January 2018;
i)Exhibit 9, a letter dated 18 December 2014 to the Bank 1 from Merrell & Associates confirming that the husband is paid a consulting fee of $8000 per month and receives bonus-based performance payments;
j)Exhibit 10, a letter dated 11 December 2014 to the father from the mother’s lawyers in relation to retaining Dr Q, as the joint expert. The father has not repaid the mother one half of this fee as he agreed he would; and
k)Exhibit 11, a letter from the father’s lawyers in March 2012 to Ms L about time with [A], and a letter dated 19 November 2014 from the mother’s lawyers to the father concerning an appointment with Dr Q.
The Independent children’s lawyer’s exhibits:
a)Exhibit 1, letter from the mother dated 9 March 2012 to DFAT withdrawing her sponsorship of the father remaining in Australia; and
b)Exhibit 2, minute of the orders sought by the Independent Children’s Lawyer.
The court exhibits were as follows:
a)Exhibit 1, family report prepared by Dr Q released on 10 March 2016, and
b)Exhibit 2, child dispute memorandum dated 7 November 2014.
One highly relevant matter is that [X] has not spent time with her father since approximately September 2016. In the event an order is made for time to resume, and whatever regime of time is ordered, this will be the third attempt to have time with [X] and her father commence, continue and grow.
Chronology
The father is 53 years of age, and the mother is 44.
The father’s first marriage was to Ms M, the mother of Mr A which occurred in 1991 in (country omitted).
Mr A was born on 1992. The father becomes the primary carer of Mr A in 1992 when he and Ms M separate.
In 2001 the father commenced a de-facto relationship with Ms L and they were married on 2007.
Their son, [A], was born on 2007. [A] and his mother currently reside, and will always reside, in (country omitted).
In 2009 there were incidents alleged of family violence between the father and his son, Mr A. This is denied by the father and Mr A.
On 6 April 2010 the father and Ms L divorce.
In mid-2010 the father and, the mother Ms Kalmar meet.
An interim protection order is made in favour of Ms L in (country omitted) in 2010.
The mother and the father marry on 2010 in (country omitted).
The father agrees to pay child support and medical and educational fees for [A] on 25 January 2011.
On 2011 the father and mother move to live in Australia.
[X] is born on 2011.
The father says the parties separated in November 2011. The mother says separation occurred on 21 January 2012. Nothing turns on that difference.
The mother says there is an incident of verbal and physical abuse when the father grabs her by the arms and hits her across the face and she calls the police in January 2012.
The father asserts the mother punches him in the face when they arguing about how or who is to push [X] in the pram.
The mother says the father kicks her in the leg and is verbally abusive to her in March 2012.
The father says the mother refuses him time with the child in the park and grabs hold of his arms so strongly that her nails cause damage to his skin shown in father’s exhibit 1.
The father says the mother smashed his phone and glasses, and refused him time with the child on Christmas Day: slapped him, hit him with the car door, threw his bags on the ground and dug her nails into him.
On 9 March 2012 the mother revoked her support of the father’s residence in Australia and unilaterally removed herself and [X] to the Region A in 2012.
Mr A moves to Australia in 2013.
The father commences the proceedings in May 2014.
The father ceases making payments for [A]’s education in 2014.
In July/August the 2015 the father attended an orientation day for [X] at school and it is reported [X] is happy to see him and interact with him.
Interim consent orders are made by the court on 11 August 2014 for time at a contact centre to occur each alternate weekend. This is to occur at Contact Centre.
On 15 November 2014 orders are made for time to resume at Suburb P Contact Centre and for the father to complete various courses.
Time at Suburb P Contact Centre does not commence on a regular basis until July 2015.
The family report interview is conducted in September 2015 and [X] is reported to be pleased to see her father and greeted him warmly. [X] engaged with Ms L.
On 14 November 2016 the supervised visits at Suburb P contact centre cease.
The father brought his significant child support debt of $11,198 as at December 2017 up-to-date just prior to the Court hearing.
Evidence
Ms L and the mother agree that the global financial crisis had a significant impact on the father’s business.
Whatever decision the father made in 2011 namely whether to stay in (country omitted) to spend time with his two children or remove himself to Australia permanently to support his wife in her pregnancy it was always going to have difficult consequences for him and his children.
I do not criticise him for the choice he made, nor do I accept the mother’s allegations that in some way he abandoned Mr A or [A] by his choice. The facts and reality do not support this accusation.
The father has raised in correspondence being mother’s exhibit 10 and to Dr Q issues about the mother’s mental health and her behaviour whilst pregnant. The mother has no mental health issues. That is as clear as a bell. The mother may be a difficult, and at times histrionic woman, but that does not mean she has mental health issues.
Interestingly, the mother and Ms L were very similar women in their physical appearance, colouring, stature and demeanour. They had a similar and consistent negative attitude to the father. Both were strident in their belief that the father is a significant risk of harm emotionally, physically, and psychologically to their children, that he abandons his children when he moves on to a new relationship, and that the risk of harm to his children from any time with him outweighs any benefit they would receive from spending time with him.
Evidence of Ms L
Ms L’s evidence was given in a strident, confident manner. I formed the view that from her perspective her view of the world was the only view of the world and that there was little room for a differing position.
The email dated 29 June 2011 being mother’s exhibit 1 sent by Ms L to the father in relation to their son, [A] is not an email of a woman who is cowered, frightened or bowed down by coercive behaviour of a husband. It is, to the contrary.
The father stated in his affidavit, being part of mother’s exhibit 1, that Ms L was a difficult woman and the difficulties he had in spending time with [A]. Importantly that father referred to the difficulties he had then in spending time with [A] in 2011 and this is repeated in his current affidavit and this is correct. Ms L is resistant to [A] spending any time with or knowing his father or even his brother Mr A.
Mr A confirms Ms L was a difficult woman and that all he knows is that 2 weeks after she moved in he was sent to boarding school where he remained.
The mother was not as strident and made concessions at times when it was clear that her behaviour had been less than child-focused or supportive of the child’s relationship with her father. Nevertheless, the allegations both women make that the father overbore them, behaved poorly in their presence, perpetrated domestic violence upon them and that they were fearful of him, was consistent. It is somewhat difficult for me to accept that the father overbore or controlled either woman having regard to their demeanour, behaviour and attitude in the witness box.
In relation to the father having outbursts of anger the evidence is clear he has behaved in that fashion at least in 2009. His affidavit of 20 June 2011 confirms this behaviour which was akin to a raging bull and would have been most frightening. However, the mother’s allegations of his behaviour to her or in the child’s presence do not come anywhere near his unacceptable behaviour in 2009 and described in his affidavit of 2011.
At [X]’s birth the parties had an argument. Their relationship was clearly in trouble. The mother alleges the father abandoned her in hospital. The father says he left the mother due to an argument and he walked home. This was to allow the mother to have the car to drive herself home. Either way this happy event was marred.
The decision by the mother to remove the child a significant distance from her father at age 12 months is consistent with her position that, “I know what’s best. My decisions are what’s best for the child.” This is a consistent theme and attitude in the mother’s evidence and her decision making patterns. This is how [X] has been parented no matter the father’s position.
It is also consistent with the father’s case and the mother’s now orders that the father be excised from [X]’s life. This was not always her position however.
Evidence of Ms S
In November 2012 Ms S observes, and the father asserts that the mother smashes a TV at the father’s home, was verbally abusive in front of the child. Ms S said the father is calm in the incident. Ms S was an impressive witness, she did not embellish, attempt to protect the father, and gave her evidence calmly, quietly and with an air of truth.
Ms S says she had observed the mother behave very poorly in her presence in her home earlier in July 2012.
The mother asserts the father threatens to take the child in December 2012 and grabs the mother by the arm. Ms S supports the father’s position that he and the mother had an agreement for him to see the child and the mother would vary this agreement at short notice.
On all occasions that [X] saw her father prior to the end of the last contact centre visits, and even where she may not have seen him for some months it is reported that she is happy, comfortable and pleased to interact with him. This was observed by Dr Q in her interviews.
[X]’s reaction to her father is entirely inconsistent with the mother’s allegations of the child being frightened of the father, witnessing poor behaviour in her father’s presence or being resistant to spending time with her father because of his behaviour. The objective evidence is to the contrary of the mother’s allegations save for the final few visits at Suburb P contact centre.
On 11 August 2014 I ordered that the mother could be present at the visits for the first three occasions at Contact Centre as follows:
The mother would be present at the first three occasions of the father’s time with the child at the contact centre.
The mother did not accept this apparently and although the first three visits went well she insisted on being present for the fourth visit. The father agreed to that occurring, albeit reluctantly and somewhat churlishly, as the contact centre notes refer.
The mother continued to insist the she be present at the visits and the father agreed this occur on 11 October but not thereafter. The father was foolish to do this as the matter was back before me in November when these issues would have been ventilated. The father made a very poor decision. The fact that the mother was not obeying court orders is irrelevant. The father’s decision to terminate all future scheduled visits at Contact Centre resulted in [X] not spending time with her father from October 2014 until a one off occasion in March 2015 and regular time not commencing until late July 2015.
Upon the matter returning to Court in November 2014, I ordered time re-commence without the mother’s presence at Suburb P, an expert report be prepared and that the father attend an anger management and a circle of security course as soon as possible and provide the mother with a written confirmation of enrolment.
The father’s time with his daughter was conditional upon him complying with orders that he enrol in these courses.
What does the father do? The father registers interest in attending Taking Responsibility course with Relationships Australia and does not undertake the course. The father attends Keeping Kids in Mind. He completed that course. He registered an interest in attending a Circle of Security course. The course is delayed for various reasons and ultimately he says cannot attend due to distance. The father says he registered with Taking Responsibility course, but did not undertake it because it was for parents of children aged zero to five and by the time he was able to take the course [X] was older than five. That evidence was wrong.
The father had ample opportunity to complete a circle of security course and the other courses ordered to be completed before [X] turned 5 and he did not.
Thus both the mother and father have failed to carry out the Court’s orders.
This bespeaks a non-child-focused approach, given particularly that he knew his time with this child was conditional on complying with these orders.
The father’s time with his daughter at Suburb P Catholic Care did not commence on a regular basis until 25 July 2015 despite my having made orders on 10 November 2014 that it commence as soon as possible. The delay was not due to the unavailability of the centre. The delay is due to 2 factors:
a)The first is that the father’s failure to undertake the courses he should have undertaken. He only completed Keeping Kids in Mind. He did not complete anger management /Taking Responsibility or Circle of Security.
b)The second factor is the mother’s clear resistance to time commencing at the centre. The mother was happy with Contact Centre not so with Suburb P.
This was the second time the court endeavoured and parties endeavoured to resume the father’s time with the child. Time proceeds well initially. [X] tells the workers she is looking forward to seeing her father and she loves him all the time. This is inconsistent with a child who has been exposed to poor behaviour at the hands of a parent.
The mother alleges the child wet herself after the first visits and subsequent visits, and after FaceTime contact with the father.
Both parents agree that by June 2016 [X] was over the supervised time. [X] wanted something different.
[X] says to her father around August 2016 at a contact visit, “I’m sorry, daddy”. He says “why?” and she says “My mummy doesn’t want me to see you any more.” Both parents used the words “the toll” supervised time was having on her.
It is clear that FaceTime calls are problematic for the child. The mother alleges the child wets her pants after spending time with the father and at FaceTime.
Contact Centre Notes
Father’s exhibit 6 and 10.
The first contact visit on 30 August 2014:
The mother managed to successfully, keep herself scarce and not interfere with time during all the visits. The contact went smoothly. [X] and the father appeared comfortable in each other’s company and interacted well. Initially she called him Mr Kalmar but by the end she was calling him daddy. Initially her responses were one word, but towards the end of the visit she was speaking in sentences and chatting with him. She kissed him on the cheek unprompted.
The natural mother was very conscious of not interrupting [X] and the father. She sat quiet looking on but at times [X] engaged her mother and it was impossible for the mother to refuse.
[X] was attending day care at this stage and has been used to being separated from her mother and is well able to be independent from her mother at day care. However in her relationships with her father the mother made no such concession.
The second visit on 7 September 2014:
The child played with her father very well on this visit and only went to her mother once, but, again, the mother was there. She responded in a positive way towards her dad. She appeared to enjoy playing with him, content and happy. Responded well with physical contact. She presented relaxed and comfortable. The father he was appropriate. Always gave her a choice. Never pushed her for cuddles or kisses or crowded her space. She would walk over and give him a cuddle and a kiss. They sat on the floor and played well together. She said, “I love you. I will see you next time.”
Third contact visit 20 September 2014:
She called her dad “daddy” during the visit. He was punctual, polite and attentive to his daughter’s needs. Offered her water and food throughout the session. Engaged in educational play with her: colours, numbers, sounds and letters. And, like all children, she was playing with Play-Doh licking it and her father endeavoured quietly, politely and correctly, not - “Don’t eat the Play-Doh” and she did eat the Play-Doh in defiance.
She became very distracted when asked to put toys away when the visit was to end and tried to prolong the visit, indicating a child is very comfortable with her dad, happy and wanting it to progress longer. She enjoyed physical play with her dad. She went to the toilet herself. She directed her father in play which he engaged in. Asked her dad to protect her from monsters.
The fourth visit 11 October 2014:
The father agreed she, the mother, could be at the visit.
The father doesn’t press his daughter. Doesn’t overbear her for kisses and cuddles and he waits for her to come to him.
Although the child was grumpy her dad distracted her. And she hit herself twice on her head and her dad comforted her not her mum, despite her mum being there. She was a bit tired on this event. The mother interfered in the fourth contact visit by asking if the child wanted to go to the toilet by speaking. And, again, when asked to start tidying up because the visit was to end [X] began stalling again, indicating the child wanting to continue to spend time with his father.
[X] used several stalling tactics when it was time to end the visit. Naturally the father required a little help from the worker to convince [X] it was time to go home.
This stalling and wanting to spend more time with her father is at odds with the mother’s evidence of the child being frightened of her father.
However, the time stops due to the mother’s unjustified insistence on continuing to be present and the father’s decision in not agreeing to her unfair request. Both parents put their needs before their child. The fathers’ decision is all the more confounding when the matter was back in Court within a month.
Catholic Care Notes
On 13 November 2014 intakes were organised. On 4 December 2014, the mother rang to say she could not make the intake organised.
A further intake session was scheduled and again, on 28 January 2015 the mother says that she is unavailable and a fourth intake is scheduled by letter.
The father attends an intake on 11 February 2015. In answer to the question at intake the father said:
There was family violence in the relationship and that the mother hit him in front of the child on occasions.
When asked which parent was the child closest too he said “equal”. That could not possibly be right. He had not seen [X] for seven months.
The mother completes intake a month later on 5 March 2015. The first letter scheduling intake was sent out in November 2014. The mother said:
She and her daughter had been exposed to family violence. They separated because of abuse and violence. That the father exposed the child to family violence in May/June 2013 when [X] was unwell.
The mother agreed that the father only attended four out of the 12 prescribed visits at Contact Centre.
The mother did not tell the centre that the reason for this was her insistence on being present. However, this consequence was also as a result of a poor decision by the father.
The mother said she did not complete the goals that she was asked to complete in the information she was sent. Had not thought about how she would manage her emotions. Had not thought about how she would help her daughter with contact because it can be a stressful time. Had not thought about what the child want to get out of the contact visits. Had not thought about how she could support her daughter in building relationships with the father.
This otherwise extremely vigilant and competent mother had not turned her mind to any of these important factors for her daughter’s relationship with her father. It is clear from these comments that the mother was opposed to time commencing and saw little benefit for [X].
The mother said she did not want Mr A to see [X] because of his misuse of drugs and alcohol. This is despite her lovely messages to him when he was still in (country omitted). I simply do not understand the mother’s position on this relationship now other than Mr A and his father are now close and perhaps not so close when Mr A was living in (country omitted).
On 18 March the mother rang and said she had difficulty with the proposed visit on March 2015.
The centre attempted to contact the mother on 18 March 2015 about these issues and left a message.
19 March attempted to contact the mother because there had been no response and left a message.
20 March 2015 another letter to the mother about the lack of contact with her and her response to them.
The visit for 20 March 2015 was cancelled because there had been no response from the mother whatsoever.
27 March 2015:
An unidentified female left a voice message on behalf of the father. The father contacted the centre on 27 March 2015 about his ongoing visits. The mother still had made no contact with the centre The centre rang the mother on 8 April 2015 and left a message. There was no response.
14 April 2015 the mother finally calls the contact centre.
The father became angry when he was told visits were not going to go ahead until further notice due to a need to prioritise other clients.
the mother was asked on 14 April to call the centre back on 17
The mother rang back on 17 April 2015 and left a message
On 22 April the contact centre rang the mother, “Please call me back.”
The mother rang back and cancelled visit on the coming Sunday as she said she had commitments and gave no further information.
The mother wanted to know if this was a one-off visit. Complained that one off visits for [X] were not good. That given her age it was better for her to have consistent days and times. That while she agreed in principle with the contact she had not anticipated the slow progression of families through the service.
Given the slow progress of this matter lay entirely at the mother’s feet this was bold comment indeed.
Time was to commence on a Saturday despite the father having arranged to have time off work on Friday. The father has been mucked around by the mother well and truly by this stage.
By 18 June 2015 [X] has not spent any regular time with her father and this is due solely to the mother’s intransigence.
25 June: The mother’s lawyers calls and says the mother can’t make a scheduled visit this Saturday. Time will commence on 11 July 2015
That was not suitable as the father had a holiday booked. The date was changed to 25 July 2015.
The mother rang back on 26 June saying she wanted to change the dates as “The child had (hobby) lessons on Saturday and she had been looking forward to them.” It was explained to the mother that her refusal of dates would be documented.
The mother became angry at this point and stated that she and her solicitor had been informed that a list of dates would be sent to her so she could choose.
The mother angrily indicated that 25 July would have to be the start date and she wanted to book in for the child, or 24 July was the only other time. She had an hour’s drive and it was ridiculous to expect a young child to get up that early and that the service was supposed to be child focused.
The mother then says:
What’s going to happen then? Are you going to rip my child from me?
The mother said she was angry with the service due to unavailability of times and she was sick of being told what to do by Jason ( her lawyer )and [X]’s father.
On 16 July a letter is sent to the mother concerning orientation for the child the mother responds: I have to change it.
At the first visit it is noted:
24 July 2015 the child left her mum easily. Her mother was calm at the first contact visit. The mother was annoyed that the father had bought gifts for his daughter for her birthday.
And the mother said:
I’d rather you contribute financially to her education rather than giving her presents. Being a parent is not about buying a child chocolate ice cream in the park on a Sunday. The next visit will be cancelled due to a reunion.”
The centre notes state:
The mother appeared irritated and stated, “It couldn’t be helped.” The father agreed it wasn’t good for his daughter’s time to be stopping and starting.
In August it is noted that both parents are angry and unhappy with the Service.
The mother’s behaviour in relation to a red mark on the child’s cheek after a visit on 17 October 2015:
a)The mother called to say she had noticed a red mark on [X]’s right cheek. She wasn’t rubbing, but it was sore. She didn’t know how it had happened. The contact worker said she had not observed it. No one saw anything occur. The mother had her lawyer complain about this red mark on the daughter’s cheek.
b)This event, if it can be called that, is totally blown out of all proportion:
The father when confronted with this said that his daughter had bumped her cheek on the slippery dip and he had kissed it better. That’s all he could explain.
By 14 November both parents were reporting the child is unhappy.
This is not surprising given the hostility and unhappiness of both parents and the mother’s carping and over anxious behaviours. I accept that the contact centre did not handle the mother or father well and the difficulty in time starting was unforgivable. The mother took every opportunity to ensure these visits did not progress.
Evidence of the Father
The father agreed that his evidence in these proceedings of never physically harming Mr A was inconsistent with his affidavit sworn in 2011. Mr A’s evidence was that his father had never hit him. They had always had a good relationship. That he had been on drugs at this particular time. That his father took it very hard and was very disappointed in him because there was a tradition of his family being at that particular school. They were into sport and that he had disappointed and let his father down, but denied his father ever hitting him.
That evidence was also inconsistent with the father’s 2011 affidavit. Mr A was not on trial. Who was on trial was the father and the mother. Mr A may have blotted out this memory. His evidence may now be recollection.
It is clear that at this time Mr A was behaving poorly and was taking drugs jeopardising his education and sporting achievements. I find his father did likely hit him on two occasions, did ram his door and injure himself in so doing and that this would have been frightening for Mr A, [A] and Ms L. His behaviour is and was unacceptable and it would do the father well to have come clean about that situation.
I do not accept that when the father rammed Mr A’s door, that he did so out of concern for his son as he said. He was acting like a raging bull, so upset he was at what his son had done to the family name and putting his sporting career in jeopardy.
The father’s behaviour was inappropriate and totally unacceptable. However, these are one-off incidents in an extremely difficult situation. Living with his son and his new wife who his son did not like, and who did not like his son. These are one off incidents and do not bespeak of a pattern or consistent behaviour from the father. This event occurred in 2010, eight years ago. Ms L has never reported that the father behaved like this to [A] nor has the mother reported that the father has behaved like this to [X].
Mr Tockar made much of the father minimising Mr A’s issues, that he had a relapse on drugs. I do not criticise the father for that. At that time Mr A was an adult, the father was living in Australia supporting his wife in the birth of their child.
Mr A and his father have a good close supportive relationship now. On his sole parenting of Mr A, Dr Q said:
You could take comfort from the fact that up until a particular age, when teenagers become difficult to handle and he was taking drugs, Mr A admitted that, and he admitted a relapse, things were difficult and tense that the father parented Mr A well.
These incidents occurring some 8 to 10 years ago have been given life by Ms L and the mother. However, there is no other evidence of such poor behaviour recently, or when the parents were together, or in his treatment of [X] that would lead me to conclude that there is a risk of the father reacting in this way towards [X]. The father should have admitted this behaviour and not exposed his son to cross examination.
The father said he was aware his son was still struggling with drugs in 2013 and that this is one of the reasons he came to live in Australia.
Since coming to Australia Mr A says he has been clean. He is a (occupation omitted). He and his wife run a business. They appear to be model citizens. However, Mr A’s evidence that he has a drug test so he is clean was clearly wrong as he has not yet had a drug test, rather he has the spectre of a drug test as he is trying to become part of the (sports) team.
The father commenced these proceedings in 2014 and it is now 2018.
The first 4 periods of time went well at Contact Centre. The father’s decision to not proceed with this time and permit the mother to be in attendance has had serious ramifications for [X] and the success of his application given that the mother is now implacably opposed to time.
Dr Q said:
The child is getting the anxieties from her mother forcing her to wet her pants and perhaps resist attending time rather than what she has experienced herself.
Her mother has very little capacity to understand this reaction. Her mother struggles to separate her needs from [X]’s needs and understand that [X] is not her. Or that [X]’s needs and experiences of people, places and events may be entirely different to her own particularly her experiences of her father.
I accept the father has been in arrears of child support for [X] and [A], but they are not matters that mean he is a risk of harm to his child or that [X] ought not to spend time with him. This is an assessment of the risk of harm to [X] in spending supervised and unsupervised time with her father and whether that is an acceptable or an unacceptable risk.
The father was clearly in a very difficult financial position in (country omitted) and likely did not tell the mother his true position. That the father has let the mother down at every level from her perspective is abundantly clear. Financial matters play a huge role in both Ms L’s position regarding the father and the mother’s position regarding the father. The women have been let down by the father and they believe he does not support them, or their children appropriately.
Much was made that the father paid joint rent with Ms S and costs of accommodating himself with Ms S rather than paying child support. That may be correct however this does not result in a risk of harm to [X] from her father. The father is not contending [X] live with him rather that she spend time with him and the financial matters raised are irrelevant.
This matter is about protecting [X]’s right to a relationship with both her parents.
Part of the mother’s case is that what the father says he will do or has done cannot be relied upon. There is some force in that submission. What he says is not what he does.
11 October 2017 I recall saying to the father, “You would walk over hot coals to spend time with your child, wouldn’t you?” “Yes, I would.” Clearly that is not the case because he:
a)Did not complete the parenting courses ordered;
b)Refused to allow the mother to be present at contact when it was going well. I accept the mother had no right to continue to be present;
c)Cancelled the remaining 7 visits at Contact Centre when he was back before the Court within the month; and
d)Has not paid for his half of Dr Q’s report by adhering to the repayment schedule to repay the mother. The order is clear he was to pay her $100 a week.
In an attempt to resolve issues in relation to Ms L and [A], the father went to (country omitted) in 2012. This was around the time the mother sold her home in Suburb Q. The father thought that upon his return to Australia the relationship may be back on foot as the mother said to him:
We’re getting on well. We’re working through issues I think we’d be better able to resolve our problems if we live in the same house.
Let’s move in together.
Whilst in (country omitted) the father reconnected with Mr A and decided he should live in Australia after he had finished his drug treatment. The father said he told the mother of this plan and that she responded:
I don’t think that’s a good idea. If he comes over here we will need to get a divorce. When you come back to Australia don’t contact me.
The father regarded the marriage as over shortly after his return from (country omitted) in 2012.
The mother withdrew her sponsorship of the father’s residence in Australia, offered him a one way ticket back to (country omitted) and $6,000. That conduct is entirely consistent with the father’s position that in 2012 she wanted him out of the child’s life.
The mother’s allegations that the father in some way abused the child in 2012 when she spilt her milk. The father says they were together at the home. He had slept in the spare room. They had breakfast. They were trying to give their daughter her medication in a milkshake. [X] held the cup up, shook it and spilt the contents. Rather like her eating Play-Doh when being told not to at the contact centre.
The father said he said to her:
[X], don’t do that.
At paragraph 204 of his affidavit her reports the mother said:
Don’t speak to her like that. You’re behaving in an abusive manner.
The father said that the mother crushed his glasses, put them in the bin, took his phone and smashed it on the floor and repeatedly asked him to leave and that [X] was present at the time. This was the last time the father spent time with the child at the mother’s home.
The mother’s responded to this incident in an email sent to the father on 30 May 2013:
I haven’t called you back, I was in the middle of cleaning up vomit and bathing [X] when you called. She’s not up to a phone call, she has been sick all night. Considering how sick [X] is I thought you would have been concerned enough, at least, to call at the agreed time. Perhaps I should not be surprised at your apparent lack of regard for her wellbeing given the cruel and abusive manner in which you terrorised and frightened [X] yesterday. That is just totally SK.
This incident ceased the prior co-operative and somewhat supportive behaviour of the mother in ensuring [X] had time with her father. The mother had previously driven to Sydney to collect the father so that he and the child could spend time together. The mother allowed the father to use her car when he had time with [X]. The mother arranged outings such as breakfast, lunch in cafes in Suburbs and Region A. I accept the mother paid for everything.
The father said, in evidence that the last time they had a civilised conversation was on 28 May 2013. He used the phrase “pleasantries exchanged”. That may be correct however even after the May 2013 incident the mother sent beautiful emails to the father on behalf of [X], for example 9 June 2013:
Mummy’s helping me write my first email. I was a bit sick at the week, I’m good this week. I’ve been reading lots of stories with Mummy. I’m doing painting, I learnt a new trick on the slippery-dip. My favourite food this week was Atlantic salmon with sweet potato and broccoli. I’ve been a good girl going to bed, almost time to clean my teeth.
There are a number of similar quite lovely emails from the mother. Thus, it is wrong to suggest that the mother did not continue to contact the father or keep him informed of how the child was progressing. The mother endeavoured to maintain some sort of a relationship even after the ugly incident at her home.
The father conceded that an open honest discussion with the mother was impossible to achieve in the future. He showed insight into [X]’s needs which are love, care, attention, security and financial support.
The father’s failure to attend the course as he was urged to attend does him no credit and further supports the mother’s anxieties and the mother’s view that he simply won’t obey court orders and is not to be trusted. That is the mother view, “this man is not to be trusted” and certainly that failure supports her position.
The father’s presentation to staff Catholic Care on 5 March 2016:
the father appeared emotional and teary stating that he had full custody of and been sole parent for many years to his son and it was not good to find himself in the reverse situation. He should not have need to use the services of the contact centre. He should not have need for future supervised visits.
The father said:
Honestly, I didn’t think I needed to do an anger management course and I wanted to have this ruling overturned.
The father’s position is clear. He did not need to attend the courses ordered or have supervised visits. He has no insight into why these events are ordered by the Court, for the benefit of [X].
The father agreed that starting off time with his daughter would need to be a very gentle process. He did not think that his daughter would think he had abandoned her and believes that the mother has told [X] she does not want her to see her father.
The father said what he could provide for his daughter was love, generosity, stability, honesty, give her completely different outlook on life. That it is the child’s right to have involvement with both parents, and teach them different things.
When asked, “What qualities does her mother offer her?” He answered “A lot of love, stability, even when she’s sick, she cares for [X]. I just want to share in [X]’s life.”
The father agreed that if the time the court ordered was much lower than he wanted, he could work with that.
Evidence of the Mother
The mother was cross-examined on 27 March. The mother agreed that if her orders are made it is her view that it is [X]’s best interest to not have her dad in her life.
In relation to the 2012 one way ticket to (country omitted), the mother said this reflected an agreement they had reached. I reject that evidence.
The mother said she had significant morning sickness when pregnant and was not well. Yet maintained that the father had abandoned [A] in coming to Australia and would not accept that, by this decision, he was supporting her.
The mother responded “On the surface it did but there were a lot of other things going on as well. He had debts in (country omitted), his son, Mr A, was having difficulties, he and Ms L had an acrimonious relationship.”
The mother has convinced herself that in coming to Australia with her, the father was escaping difficulties in (country omitted) and not supporting her in a difficult pregnancy.
The mother denied that when she and the father were together she supported his endeavours to spend time with [A]. Annexed to the husband’s affidavit, is a letter from the mother to the father dated 23 March 2011:
I consider it amazing that Ms L wants to have your passport retained whilst you’re in (country omitted). No basis to surrender it. Unreasonable infringement of your rights. There’s no legal requirement obliging you to pay [A]’s school fees. It’s irrelevant you haven’t paid them previously. You are not legally obliged to pay them, end of story. It’s clearly obvious that your rights to have access visits with [A] is not dependent upon you complying with the terms of the deed of settlement. Her request you comply with these orders before Ms L permits access is a nonsense and a potential breach by Ms L, herself, of the orders. The proposed orders that the wife wanted to amend the deed of trust are inappropriate. I would not cooperate with Ms L in this regard. The trust should be dissolved and the assets disposed of. Given your current financial situation, propose ….. and instruct you to inform Ms L that you won’t be signing the documentation provided, end of story, re (fuck off). Good luck darling, talk soon.
That is a supportive email to the father in his insurmountable difficulties and travails in dealing with Ms L, who is now the mother’s friend.
I accept post separation the mother was facilitating [X]’s time with her father. It is clear the father was pressing the mother to spend time with his daughter and the mother’s assertion that this was a one sided endeavour is wrong. The mother asked me to believe that any time was totally at her insistence when it was not. Time the father spent with [X] was in line with how the mother said it should be, namely she was to be present. To this day the mother refuses to allow the father and child to spend time alone.
The mother says the father agreed to her moving to the Region A, I reject that evidence. He was in (country omitted) when she made that decision.
There is not one positive in the mother’s affidavit about the father’s parenting or his behaviour at any level, man, husband or father. The mother says she does not want to provide her address for fear for the father, I reject that evidence. I saw no evidence of the mother being fearful of the father and I have formed the view that, as with Ms L, the mother, who has a temper as evinced from the contact centre notes, would be a force to be reckoned with when aroused. This does not mean I do not accept the mother’s evidence that at times the father’s behaviour was poor, frightening and inappropriate, as it clearly was. The mother has also stood up to the father and is well capable of doing so.
The mother’s affidavit was a litany of headings of her concerns of the father and child spending time together.
The headings are as follows:
a)Mr Kalmar’s application and my concerns;
b)Physical abuse and violence by Mr Kalmar;
c)Mr Kalmar’s previous history of violence;
d)Emotional and verbal abuse by Mr Kalmar;
e)Mr Kalmar and matters of responsibility;
f)Mr Kalmar’s abandonment of and failure to care for [A] and Mr A; and
g)Mr Kalmar and matters of a sexual nature.
A heading is not evidence. It is clear that the father has been pressing for a regular relationship with his daughter since separation. The mother’s position, that the father is not genuine in his endeavours, is simply not accepted by me and is contrary to the evidence.
The mother gilded the lily when she completed an intake form in 2014 as set out in her affidavit filed 5 November 2014, annexure 3. In that form she said no one but Mr Kalmar was to be present, and she had to be present on three occasions. That there was an AVO against the father that was clearly in relation to Ms L and [A]. That there were alcohol and drug issues: that was clearly in relation to Mr A.
The mother was asked by the Independent Children’s Lawyer why did she mention drugs and alcohol. The mother replied said “I was not sure if Mr A would be there or not. And I was concerned.”
That is a fabrication. This is a woman who is writing lovely, charming, supportive emails to Mr A in 2012 and yet in 2014 says he is a risk to her child.
The mother stated her concerns were moderate to high of emotional and physical neglect of [X] by her father. The mother was asked, “how would the father neglect her at the contact centre:” “Well, he has never had experience at a contact centre. And I was concerned about her safety.”
“What do you mean by neglect?
“It takes many shapes and forms … it is not related to time … he may be unable to address her needs.”
The mother had to agree she has never alleged nor has the father even raised a finger to the child. The mother would not agree she was being dramatic however I find she was and was endeavouring to paint the father in the most poor of lights.
Her comment at the Suburb P Contact Centre was what are you going to do when I bring my child in? Rip my child from my arms? , was highly dramatic.
The mother agreed the first four contact visits went well at Contact Centre yet did not say so in her affidavit.
At paragraph 50:The first visit was understandably awkward … [X] starts shouting, “I want my mummy” … refused to share her afternoon tea.
Father’s Day visit: [X] was forceful and assertive … refused to do what her father asked … pushing him out of the room … “stay out”.
Only on the third visit does the mother report in her affidavit that it went well. The mother is not an accurate historian either.
The mother told Dr Q the visits did not go well. That was false. At paragraph page 15, she reports to Dr Q:
Orders were made for supervised contact with Contact centre and I was permitted to be present for the first four visits, (she was not only 3 were provided for). [X] seemed disturbed after the visit, was wetting her pants. So she asked to remain for the fifth.
They will resume it in July in Catholic Care because it was less expensive, but it took Mr Kalmar months before he registered with them. So it was his delay. [X] is still wetting and doesn’t show a lot of interest in contact.
That reporting by the mother is inaccurate. The mother focuses on the negative and sees no positives in these contact visits, despite the many positives. Her evidence on these issues is completely tainted by her view of the father. The mother did not tell Dr Q that [X] was content and happy and the visits went well as they did. The mother’s view of the visits is inconsistent with the Centre’s notes.
The mother’s evidence as to why it took her so long to finally accept a visit for her daughter at Catholic Care did her no credit. The mother’s failure to even think about what her daughter would get out of contact, how she would deal with contact or her daughter’s emotions, and her own emotions, indicates a parent not interested in contact happening and that is what happened. It did not proceed well. It was a disaster. The mother said in evidence that she did think about goals for contact, but she did not share her thoughts with Catholic Care.
The mother said she believes children should have a relationship with both parents, and it would be important for [X] because he is part of her DNA, but he has to be a positive influence on her life.
There is nothing more important to the mother than [X]’s wellbeing, and it is clear [X] is her life. However, it does not necessarily follow that [X] is at a risk of harm in other people’s care. The mother makes considered decisions. I accept that.
It became apparent the mother kept a running sheet, a document she entitled schedule of communication, whereby she wrote down every single communication that she had had with the child about her father and updated this document consistently since the inception of the proceedings.
Thus on every occasion when the children spent time with the father, had FaceTime communication with the father, or said something about the father, the mother would keep a schedule of what she called “communication.” The mother agreed she closely observed her daughter on 5 March 2015 and that she had recordings of conversations, yet the mother made a criminal complaint to the police about the father recording conversations between him and her. The duplicity in this was not lost on the Court.
This was particularly relevant evidence in relation to the difficulties the mother said the child was having with Skype calls with her father. The mother kept a schedule of the comments the child made such as:
I do not want to speak with him. Mummy, I do not want to go to that place anymore. I do not like daddy. I did not want to talk to daddy so he chased me and kept chasing me and I bumped it on the slide. I don’t want to talk to him.
Do not show me him, mummy. Do not show him. Yukky, daddy. Go away.
The mother said she spoke to [X] and chastised her for using mean words but this did not help.
On 28 November 2015 the mother says the child is crying and begging the mother: Do I have to go and see him? I have a stomach ache. I am too sick to go. I do not want to see him anymore. I hate him.
This is consistent with the stress the child was exhibiting at the Contact centre and observed by the father.
The mother agreed that [X]’s behaviour with her father may be very different when the mother is not around her daughter. Her mother accepted that [X] would pick up on her anxieties and would not want to upset her by talking positively about her dad. The mother accepted that [X] may have a very different opinion of her father than she has.
The mother then said she was of the view that Mr Kalmar had the ability to charm people and she was worried about the time he spent talking to supervisors when she, the mother, apparently viewed that she did not have that same time with the supervisors and thought that his charm, and extended time as she saw it, might have influenced the reports written.
I reject that assertion and it merely confirms that the mother believes only she can protect her daughter, that all others are suspect and that other professionals would not act in the same professional manner that the mother would. The best she could muster on this was: I believe the contact visits were reasonably successful.
That is an understatement. They were entirely successful, given the amount of time this child had not spent with her father previously.
The mother reported in her affidavit and to Dr Q that the father delayed time starting when clearly she dragged her feet.
The mother was cross-examined on her complaint that one-off visits were not good for [X]. The mother’s absolute intransience and failure to get back to the centre, or make herself and the child available for times that were offered is the reason time did not start when it should have. Her own words in notes on 26 June 2015 would indicate that [X]’s (hobby) lessons were more important than resuming time with her father.
The mother could not recall what her commitments were on 20 April 2015 that caused her to reject yet another offer by the centre for time to start. The mother’s solicitor’s letter to the centre raised every single issue she possibly could as to why this child should not start time with her father at Catholic Care Suburb P.
The mother did not accept schedules of times and events that were sent to her. The mother said:
“The child was exhibiting problems after the four visits at Contact Centre: bedwetting, she was not sleeping in her own room and she was having nightmares.”
It is a conundrum for the Court that [X]’s care and welfare is most important to the mother in every aspect of her life, other than her important right to a relationship with her father, a father who has never hurt the child. In regard to [X] having a relationship with her father the mother’s behaviour is markedly opposed to her thorough, supportive and focused attention on [X]’s best interests. Clearly the mother does not want [X] to have a relationship with her father and sees no benefit in her so doing, despite the mother hearing in open Court the possible negatives for the child in such a scenario as Dr Q so clearly spelt out.
The mother’s evidence that she would get help for her child in the future if these symptom and behaviours described by Dr Q manifested, is of no comfort as Dr Q was clear once the symptoms become evident it is too late to assist the child.
One question for the Court is what is the risk of harm the mother sees to the child from a relationship with her father?
The child was not going to be harmed at the contact centre. The mother’s behaviour and conduct was what caused the child emotional harm by being stressed. It was nothing the father or contact centre did or said.
The mother could not put her feelings aside for her daughter and make this as easy as possible. Time only started when the contact centre contacted the mother’s lawyer, as their contact with her on 24 June 2015 or 27 June 2015 was not responded to.
The mother under cross-examination finally agreed she was the reason time was so delayed in starting. That is not what she says in her affidavit.
The mother chose the start date of 25 July 2015. The mother denied she became angry with the contact centre, yet she did and behaved poorly. The mother can be very difficult, very forceful and very fierce when it comes to issues of her child. She had histrionic reaction when her child first spent time with the father saying at the contact centre: Are you going to rip my child from me?
The mother said she would not have used those words. I reject that evidence. The mother says she was not angry with the service. She was. The father was also angry and frustrated by the mother’s antics he, however, apologised later.
The mother could not recall [X]’s words about her dad: I love him all the time.
However, agreed [X] has said, “I love my dad.” That was not put in the mother’s affidavit, nor was it put in the running schedule of comments that she has kept and placed in her affidavit.
On 25 July 2015 the mother was vehemently opposed to the father providing gifts for the child for her birthday and was annoyed at him. This was parsimonious and mean for her daughter, and the mother agreed in retrospect that was poor behaviour by her. The mother uses the phrase, and used it on many occasions, to contact centre workers; welfare of the child, as a reason for kyboshing the father’s time.
The next visit with the father on 8 August 2015 was cancelled because the mother had to go to attend a reunion. The mother criticises the father if he cannot take up scheduled time due to personal, events, however, it is perfectly all right for her to cancel.
The child missed visits on 8 August 2015 and on 19 August 2015, and the child was ill. On 21 August 2015 the father became extremely upset about these missed visits and his behaviour to the contact centre workers was poor, however, he did ring the next day and apologised.
On 17 October 2015 the mother wanted to reschedule a visit because the child had a play date. The mother said “I was caring for another woman’s child and I did not want to disappoint my daughter with her play date.”
The question I ask: “But she can be disappointed in not spending time with her father?”
The mother’s behaviour regarding the red mark on the child’s face was histrionic and her conduct made a mountain out of a mole hill. The mother agreed that when she took photographs of [X]’s face [X] may have thought there was something wrong or became scared.
Paragraph 85 of the mother’s affidavit refers to the red mark incident and that is all it is, a red mark on the child’s face. Not a bleeding wound, a gash, a puncture wound. It is unsurprising that the child begins to arc up at spending time with her father at the contact centre given the mother’s behaviour in relation to the events that occurred. Children do get marks on their face. These things do happen. The child said she hit her face on a slippery dip. I do not know why the mother was not satisfied with that comment. It would be clear the child thought there was something wrong. She would have picked up that her mother was upset, anxious, taking photographs of her, asking questions, the mother’s whole body language would have told [X] that there was concern.
[X] had bruises on her arms and legs, and some scratches on 28 November 2015. This is a common occurrence with children. The mother made much of that without any justification. This would have raised [X]’s anxieties.
The mother cancelled visits on 9 June 2016 and 23 January 2016, and potentially on 16 April 2016 as she was going on holidays. The mother decided to have a holiday in (location omitted) in the later weeks of January rather than when the centre was shut in the early part of January.
It is clear that any goodwill that the parents had exhibited, and was evident because of [X]’s happiness and progress at her time with her father at Contact Centre in 2014, had well and truly dissipated by 2016.
It is clear from the evidence, and despite the mother’s best efforts to convince me otherwise from the witness box, that the mother, was highly resistant to time at the contact centre and as night follows day so was [X] as she picks up on what her mother is feeling. Her mother is her closest and effectively only emotional attachment at this time.
The mother could not attend a makeup time on 29 July 2016 yet proffered no reason. The father said [X] said to him around this time: “So sorry, daddy, mummy does not want me to see you.” I do not say that that is what the mother said to her child, but I do say that is the message the child was receiving from her mother.
It was clear that Ms L and the mother have a good relationship. Their children have regular Skype and telephone conversations, and at the hearing Ms L was in Australia and [X]’s maternal grandmother was caring for both [X] and [A]. It is a pity that both [A] and [X] did not spend time with their older brother Mr A.
The Independent Children’s Lawyer cross-examined the mother and she agreed that [X] does love her dad and that her dad loves [X]. The Independent Children’s Lawyer said that the Contact Centre records showed that [X] appeared fiercely independent and quite determined, engaging in physical play, robust and she ran around. She had scrapes and bruises like all children do. The mother agreed with this.
[X] is at school now. She has been at preschool for most of her life. The mother does not work. She is exploring part-time employment: “I haven’t found anything suitable.”
The mother pays her bills by being supported by her family, surplus money from the sale of her home in Sydney and has had assistance with legal fees. Her parents help her financially. For example, paying Ms L’s airfares to Australia.
The mother spends her time studying (subjects omitted) when her child is at school. That is hard for her to become a (occupation omitted) in the Region A and she does not know when work will occur. [X] has lots of activities: (hobbies), play dates, friends, going out on weekends, gardening and food. The mother has no personal relationship.
“[X] has regular time with her Uncle Mr L who is someone who is a father figure to the child and my stepfather Mr C and my parents come down frequently. They live in Suburb R and we visit each other.”
As the Independent Children’s Lawyer noted, the mother complained bitterly about the trip from Region A to Suburb P, however, happily goes to Suburb R regularly to see her parents. The mother said “there’s no difference in the trip, but Suburb R is child convenient.”
The mother says there should be no time as [X] does not really enjoy time and she does not consider the father has insight into [X]’s needs or tolerances. The emotional toll the visits at Suburb P had on her and [X] was too great.
The Independent Children’s Lawyer asked the mother whether she was comforted that the father had nurtured Mr A until age 16 without apparent incident?
The mother replied “I do not accept he was nurtured or successfully raised by his father.”
That is not correct. He was successfully raised by his father. He got into trouble at age 16, for a period of time. His father may have dealt with it inexpertly and, in hindsight, poorly, but he has turned into a young man who is now training to be a (sports) team. He has a good, solid, strong positive relationship with his father, wishes to be part of his brother and sister’s life. I would call that successful nurturing and raising of a child. The mother is yet to have her daughter reach age 14 to 16 and have to deal with her.
The mother was asked what was her basis of her belief that the father did not raise Mr A well:
“When we lived in (country omitted) and when I returned from Australia Mr A was 17 living in (country omitted) and I did not see any good parenting.”
On her own evidence the mother has no knowledge of the father’s parenting of Mr A.
The mother agreed it is a possibility her tensions are transferred to [X] and her reaction to her father might have been the mother’s anxiety. That she had considered this view at the time she read the report, but by the time she swore her affidavit she had rejected this view. There was no insight by the mother into the consequences for her daughter of her extremely negative view of the father.
The mother says she sees Dr J quarterly, or six months as is needed, and has not needed any additional appointments for the last 12 months. That she has been prescribed medication from a psychiatrist at Suburb S in the past and she took some, and takes medication when it is needed such as during the trial, which is understandable. It is the exception rather than the rule for her to take medication.
Going now to the mother’s connection of [X] wetting herself and time with her. The mother describes [X]’s reaction to the first group of visits under the heading: [X] begins bedwetting and wetting herself.
Paragraph 73, in bold: She wet her pants after talking to her father.
Dr Q speaks of the many reasons why [X] would wet herself and they are not all related to her father at page 30, paragraph 5.
The history of [X]’s bedwetting and temper tantrums after contact is difficult to assess: children who have suffered abuse, physical or psychological, including exposure to family violence, frequently react in such ways but these symptoms are entirely non-specific and have little probative value. They may also reflect that the child has had an episodic relationship with her father and so visits with him might be experienced as unfamiliar and, therefore, stressful. There is also a history of serious anxiety in the mother and a possibility that this could be transmitted to the child in either overt or subtle ways as referred to earlier.
[X] is not accustomed to seeing her father on a regular basis, but she does have some attachment to him and shows an interest in relating to him so it is to be expected that their relationship will strengthen if regular contact is instituted. She would cope with a program of gradually increasing time with her father, provided that there was no possibility of her being exposed to harmful or inappropriate behaviour.
The contact centre workers at Contact Centre also indicated to the mother in October 2014 that there are many reasons for a child to regress in toileting such as being exposed to something new, and seeing her dad was something new for [X]. The mother said “my view is this is due to her interaction with her father.”
Despite not speaking to any other health professional about this concludes:
“I still consider pants wetting due to contact with the father.
I had contemplated that [X] might be reacting to me, but I had rejected it. However, it is a possibility that she was picking up on my view, reaction to him. I do agree with that.”
I formed the view that the mother purports to co-operate, to comply, to be thoughtful, compliant with requests, but has a steely determination that she will only do with her daughter what she believes is appropriate and spending time with her father is the furthest thought from her mind. [X] picks up on this and is placed in a most stressful position.
[X] told her mother that she had lied to the workers about being sick at a visit and the mother’s reaction was to take her to lunch. The mother would not concede that in so doing she had sent a clear message to [X] she had done the right thing because she was being rewarded.
Paragraph 91 of the mother’s affidavit:
When I arrived to collect [X] she was waiting for me in reception she did not look ill. I asked Ms J what was wrong? The mother had been called and been told, “[X] is saying she is sick and is laying down on the sofa.” I was the supervisor supervising contact, [X] wanted you. She was refusing to engage with Mr Kalmar and kept saying she wanted to go home.
This is on 2 September 2016, the last day of contact:
Ms J said, “I do not believe [X] is sick, but she was uncomfortable and I thought it best to end the visit.”
On the way home [X]’s mood changed entirely. She asked me to take her out for something to eat, which I did. While at lunch she said, “I was not really sick. I tricked those ladies because I did not want to see daddy.” I chastised her for doing so.
The mother took her out to lunch as a reward. This little girl got what she wanted, or got what she thought her mother wanted, no time with daddy.
The mother conceded that [X] may have been telling her mother what she thought would please her. The mother opined that this was not the first time she had considered this, but it was not obvious to her at the times when [X] said things such as:
I do not want to see him mummy. Please, Mumma, can I stay with you? I do not want to go. I won’t show it to my yukky daddy. I do not want to see him. I do not like him. Do not take me to see him again.
The mother was asked: “So displays of this behaviour by [X] may be more about her concern for you and your wellbeing than with her dad?”
The mother’s response: “I have grave concerns he will hurt her.”
“What are those grave concerns?”
“Firstly that the father will physically hurt [X], as the mother asserts and Ms L alleged he hurt Mr A when he was aged 16. [X] is six.
That he will not be cognisant of her needs and understand her tolerances.”
These are the concerns expressed by the mother in the witness box
Expert Evidence
Dr Q’s Evidence
Dr Q’s even handed report was released in March 2016. Dr Q raises concerns about both parents. The allegations of family violence perpetrated by the father against the mother and Ms L, and against his children. The mother’s anxiety and the transmission of her anxieties to [X], rather than [X] having a direct experience which would cause her to be anxious with her dad.
Dr Q was clear in her report and in Court. Even though [X] had not seen her father regularly she had an attachment to him and their relationship would strengthen if contact was regular. That [X] would cope with a program of gradually increasing her time with her dad provided she was not exposed to poor behaviour. That a slower, longer transition is recommended for [X] to go from supervised time to unsupervised time. A slower introduction of unsupervised time would be in [X]’s best interests because her mother is anxious and not supportive of contact. The mother was supportive of at least supervised time at the time of the report, but not so at the hearing.
The mother’s position has hardened since that time as she now says no contact or communication whatsoever. The mother is not only unsupportive of time, she is now is directly opposed to contact at any level between [X] and her Dad.
Dr Q opined that [X] should live with her mother. The parents competing proposals were put to her. For the mother sole parental responsibility, no time, communication or knowledge of the father. For the father a slow gradual regime of time commencing with, either supervised or unsupervised time.
Dr Q said:
“Children benefit from a relationship with both parents. Exceptional circumstances would be sexual or physical harm done to a child.”
Dr Q was not happy with the father’s current proposal. It was too rapid and progression needs to proceed more slowly. She said that if the Court is satisfied that there is no overt risk of harm to [X] in spending time with her father then the time progresses slowly because the child needs to adjust.
Dr Q noted there are no allegations of physical violence by the father to the child. There is problematic evidence about allegations of violence to the mother and in the past. The father has failed to comply with post-separation courses and has displayed a disrespectful attitude in relation to supporting his daughter financially.
Dr Q had seen the parents and the child initially but had not re-assessed [X] Dr Q saw [X] after she had had some time with her father at Contact Centre and a year after time had ceased. Dr Q noted she still had a comfortable and relaxed relationship with her father, demonstrated a comfortable and relaxed relationship and showed no fear. Dr Q said:
“It is evident that [X] had a good relationship in 2014 with her dad, and still had the same relationship 12 months later. In those circumstances, it is easy to restore a relationship as she has an easy bond which can be revived.”
Dr Q made very little of [X] calling her dad “Mr Kalmar” initially because she clearly knows that he is her dad. Dr Q did not connect [X] wetting herself to the visits at the contact centre and noted that the mother’s mindset at that time was clearly that time with her father was not a good thing.
The mother still promotes a connection between the child wetting herself and contact, despite one of the explanations being proffered by the contact centre worker that there was a change in her routine and circumstances, and sometimes this is what children do. There was clearly a bond between him and his child, and it should be re-established.
Dr Q said his desire not to be controlled by the mother meant he had not prioritised his time with the child and ceased the remaining 7 to 8 visits scheduled at Contact centre.
I accept that the father is committed to having a relationship with his child but, as with the mother perhaps only on his terms. The mother doubts sincerely that he would prioritise his commitment to his child over everything else. This is one of the major concerns for the mother.
Dr Q said in relation to Mr A and the father’s treatment of him:
“I would not make a lot of the one-off incidents with an out of control 16 year old because after that time he had parented the child well, he progressed well and these events occur.”
Dr Q was asked was his behaviour towards Mr A, when tested, reflective of how he could behave in the future. Dr Q said he may be a better parent for a younger child than he was of an adolescent. This may be correct.
Dr Q said:
“If the court found that the father had been untruthful in the level of domestic violence in the past, as is alleged, then I would be less secure of his capacity as a parent. If there is domestic violence and there is a potential risk of harm to a child when the periods of time are longer the risks increase.”
I asked “did she agree that I order no time? “
“No, not no time. Limited or supervised time. Ms S would be present. It wouldn’t be for long periods, and it wouldn’t be overnight.”
If I found there was no risk of harm to the child then she would be having overnight time at age seven.
Distilling as best I can this evidence if the father has minimised his past violent behaviour, which he has towards Mr A, I would still make an order for time. It would be limited, and supervised by Ms S, perhaps. It would not be for long periods, and it would not be overnight. If there was no risk of harm we would work towards overnight time at age seven. [X] is now 6.
Dr Q said the father’s actions in pursuing his time with [X] indicate he is not a parent who abandons a child, and that I cannot draw that conclusion as the mother wishes me to do and nor do I. This assertion by the mother was grossly unfair.
If there was a no time order made Dr Q said these are the potential risks for [X]:
a)Abandonment;
b)A continual sense of loss which she feels every day when she sees friends who have dads in their lives;
c)She may idealise the absent parent, believe the absent parent is a bad person which is bad for a child because she is part of that parent; and
d)She may internalise the identity of an absent parent. Children need to see their parents in realistic terms. A position that it is all good or all bad would influence her adult relationships. Even a flawed parent should be seen for what they are. This unbalanced position can affect [X] forming a balanced view of relationships in people. She can grow up fearful of men, or look for a daddy figure and can be drawn to controlling relationships. That is not good.
This may affect [X]’s mental health.
Of grave concern to the Court was the opinion that if I found the mother was unwilling to admit or recognise the positives in a relationship for [X] then the mother may be limited in recognising signals of concern.
One of my concerns that the mother cannot envisage [X] having a relationship with her father. It is beyond her capacity at present so convinced is she that the father is a risk to their daughter. This was not always the case however and I am struggling to see why her attitude has so hardened in the absence of any overt concerning behaviour from the father to [X], the mother or others in recent times.
Dr Q further opined that if the mother is anxious it impacts negatively on her ability to support [X]’s relationship with her father. The mother would need to have therapy with a clinician who works with families, a clinical psychologist or psychiatrist. It might be good for the mother to meet the clinician initially without that clinician having read having read any material. The mother’s anxieties inform the Court that the orders that I make should be very slow.
I find that the mother will be anxious, and this will be communicated to the child as it was when attending Catholic Care.
Dr Q said [X] could accommodate block periods of time with her dad if her mum could accept this and “you would have a year of overnight time, and then another year before you could have block time.”
Dr Q said a curious thing, even if the father was to have no time he should be able to attend school events. I cannot see how that would work at any level and would not so order.
Dr Q supported sole parental responsibility resting with the mother as they cannot negotiate.
Telephone time is fraught and this is correct.
Dr Q’s evidence was clear both in her report and orally, that there were significant risks to [X], of severing her relationship with the father, and these risks were issues of abandonment, no paternal input or cultural input, grief and loss experienced every day, self-esteem issues and difficulty in forming her own adult relationships.
The mother said that [X]’s father is not significant in her life at the moment, and she is presently settled and happy unlike when she was spending time with her father. And if issues of abandonment come up later I will get professional advice as to what to do.
Dr Q said:
“Research indicates that girls who do not have a father present in their life have a less positive development than girls who do have a father present in their life”.
As [X] demonstrated no fear of the father before or at the contact centre, and when seeing Dr Q. Dr Q drew the conclusion that: “She has not experienced a fearful event with her father, even though the mother may have.”
Mr Tockar asked:
“What about a parent who asks a child to come to Court to perjure himself? What does that say about his parenting and insight?”
Dr Q said Mr A may have put these incidents behind him. If it is true it does raise concerns about the father’s character. However, [X] and the father have a bond and it is important to sustain that bond.
Dr Q said there may be attendant risks of [X] re-establishing a relationship with her father being her mother’s anxieties, potential risk of the father becoming angry or cranky, [X] regressing in some way either due to stress or anxiety, but there is a risk if this bond is severed as well.
Dr Q agreed that if the Court was not confident of Ms S’s capacity to supervise that would increase the mother’s anxieties as well. She would not agree that [X] only had a superficial relationship with the father or that their relationship had deteriorated.
Dr Q agreed that re-establishing the relationship may cause her some real difficulties without the support of her mother given she has had no time for over 2 years.
I find there is an established risk of supervised contact failing due to the mother’s lack of support for this to happen.
Dr Q agreed that one risk for [X] in re-establishing time is upsetting her equilibrium, however opined “well, that is a risk. But so is the long-term risk of not having a relationship with her father “.
Conclusion
Mr Tockar’s thoughtful and well set out submissions in his summary of argument, said the mother’s concerns are:
a)That her father will not be able to maintain a relationship with her and will abandon her as the mother asserts he abandoned [A] and Mr A.
b)That he has exhibited bizarre, abhorrent, aggressive, irresponsible and violent behaviour in the past.
c)That his treatment of Ms L in the presence of their son [A] and towards Mr A will be repeated in his behaviour with [X] or her being present.
d)That he is now replicating the behaviour described by Ms L.
e)That he will abandon her like he abandoned [A].
I accept Ms L’s evidence that the father treated Mr A poorly for a short period of time and that he failed to be honest about this. Otherwise, I see no compelling evidence that the father has ever treated [A], [X] or this mother is such a fashion that the mother can now say I have grave concerns he will hurt her.
The mother cites conversations verbatim in her affidavit as examples of the father’s verbal abuse:
What the fuck have you been doing? I’ve been trying to fucking call you. You better answer the phone on the first ring when I call. You’re fucking pathetic, Ms Kalmar. I feel sorry for…
You are a poor white, Ms Kalmar. You are the one that should be out on the street not me. I will fuck you up, Ms Kalmar. Fuck off you fucking bitch.
This is totally unacceptable behaviour towards any person let alone the mother of your child.
I am sure that the mother said to the father:
My mother has just been diagnosed with breast cancer. I am still recovering from [X]’s birth and you are acting like a pig towards me. You are completely insensitive. I hate you. Get out of my house now. Take all of your things. I never want to see you again.
The mother has behaved poorly towards the father in front of [X] and the father’s partner in the past. The mother has a temper and I accept she has lashed out at him. The mother asserts verbal and physical abuse by the father up to the day before [X]’s birth. That is a matter for me to determine and I have formed the view that as with Ms L, this mother can give as good as she gets, in terms of verbal abuse. It is situational at best and an example of poor impulse control by both at worse.
As they are no longer in a relationship the chances of them behaving in this fashion in front of [X] or towards her are remote indeed. I accept Ms L’s evidence that the father is thoughtful with her, was gentle but firm with [X] and that it took some real goading by the mother for him to behave in any aggressive fashion while in her presence.
I accept the father has raised his voice, spoken poorly to the mother and that he was clearly not the man he made out he was at marriage. The father has let the mother down and I accept this caused her anguish and hurt, however to now believe he would hurt his daughter is without foundation. Additionally, to suggest the father has hurt [X] or acted in a poor manner towards her or in her presence is inconsistent with her reaction towards him.
I reject the mother’s assertion that the father abandoned [A]. He made a decision. He travelled with his then unwell pregnant wife to Australia where she wanted to return. That decision necessitated him no longer living in (country omitted). That fact coupled with Ms L’s conduct and behaviour and attitude made it impossible for anyone, let alone this father, to spend time with her child if she did not want them to. Ms L moved heaven and earth to extricate this child from what she regarded as a violent father. It is hardly the father abandoning [A], it is rather [A]’s mother not wishing him to have any time with the father, as does this mother in this case.
What I make of the father disputing initially whether the child was his, as the timeline did not seem right to him, now she is born and he is pursuing time with her, is beyond my comprehension.
The mother asserted that the father did not support her during her pregnancy. The evidence is to the contrary. He left his home, his sons Mr A and [A], to live with the mother in Australia.
That he showed “limited interest by the father in [X]after her birth.” It is my view that it would have been very difficult to be involved in this child’s care given the over protective nature of the mother and that nothing is more important to her in the world than her daughter.
His “failure to provide financially for his daughter.” He has been very lax in child support, I accept that. That is not a risk of harm to the child having a relationship with the father.
That, The father gave the child a tissue paper to play with when she was a young baby and the mother was concerned she would get toxins in her mouth and he did not agree with that. That is not a sufficient risk to stop a parent from seeing their child.
These are the risks the mother says the father presents to the child.
The father has been pursuing time with his child for in excess of three years. He has been tardy in paying child support, I accept that. He has at times behaved poorly towards the mother, he has yelled at her, he has called her names, he has not treated her appropriately, he has not supported her as she deemed she needed support. He has never raised his voice at his child, or behaved poorly towards this child who said after an 18 month break of time in seeing her Dad in 2014: I love him all the time.
These poignant words are inconsistent with this child being hurt, damaged or exposed to poor behaviour by her father.
The mother was asked had she carefully listened to Dr Q’s evidence about the consequences for children who do not see a parent, which was that if [X] does not have a relationship with her dad she will have ongoing internalised grief daily and reminders all her life of her loss, particularly seeing girls who have a dad. Her grief will be silent.
Such girls may idolise the lost father. It may affect how she relates to men. [X] may make poor choices in the future as to partners. She may enter controlling relationships. As her mother you will not know of this damage until it is too late. The mother was asked “this must have deeply concerned you”.
“Yes, it did. She will have counselling, psychological counselling.”
These risks are real for [X] if I agree with the mother’s position.
The mother asks that I accept her evidence that the father is a real risk of harm to [X]. The mother’s allegations are supported by Ms L. I do not accept the mother’s allegations of risk and Ms L’s evidence did not assist the mother at all.
The mother is of the view the father lies and does not tell the truth, which I accept in part, in that I agree with the submission that the father very much downplayed his turbulent, for a short period of time, history with his son. I accept that the father’s response in denying what actually occurred did him no credit and only further reinforces the anxieties of the mother. However, the mother also lies in particular about the child’s time at the contact centre.
I have rejected Ms L’s evidence as she has an implacable hatred of the husband.
The mother’s one off incident of any note is that he raised his voice to [X] when she split a drink in 2012. It is beyond belief that the mother asks me to accept that the father is a risk of harm to [X] due to this incident.
Secondly, and most importantly, [X]’s reaction to him is inconsistent with a child who has fear or has witnessed her father behaving poorly to her or in her presence.
Thirdly, the Contact centre worker notes and Dr Q’s report satisfy me the father poses no risk of harm to [X].
I do not find that the father is a risk of harm to his daughter as the mother alleges. He has let his daughter and himself down significantly by not completing courses. Any ongoing time with his daughter is conditional upon him commencing and ultimately completing these courses.
The mother needs to see a professional specialised clinical psychologist to help her deal with her anxieties as they have grown in her mind and have not dissipated with time.
The mother ought to have been comforted by how well [X] reacted to her father at Contact Centre. I accept Catholic Care was a disaster. The mother says [X] is most comfortable with her grandmother who may be able to provide some assistance.
The father’s conduct toward Mr A is not excusable and he should have admitted it, however this was 16 years ago and to suggest that 16 years later he will react similarly to his six year old daughter is a very low risk of possibility.
This low risk of a possibility is almost negligible when I compare it to the clear consequences for [X] in not being given an opportunity to have her father in her life. These are the two competing risks of harm to [X], however, there is another.
Will her mother’s parenting be so compromised if I order time that her hitherto high standard of parenting will diminish?
The mother presented no evidence from any expert in relation to her anxieties other than that assessed by Dr Q. I was referred to the decision of Justice Watts in Richards & Whipp[1] and McCall &Clark[2] and the difficulty in relying on the mother’s anxiety having an impact upon her parenting in the absence of expert evidence to support same. The mother provided no such evidence at all and I accept that submission. Thus, it is an issue of weight. The weight falls on the side of the child’s right to a relationship with her father being preferred to any consequence of increased anxiety in the mother and its consequences, if I order time with the father.
[1] Richards & Whipp [2011] FamCA 141.
[2] McCall & Clark (2009) 41 Fam LR 483.
The mother rejected professional advice in relation to [X]’s bedwetting and shows lack of insight into the consequences for her daughter of a hardening attitude towards the father. Rewarding her daughter for poor behaviour, such as lying about having a stomach ache is not reflective parenting. Nor is it reflective parenting to not see the benefit for [X] of a relationship with her paternal family including her brother Mr A. [X]can have a relationship with [A] but not Mr A.
The Independent Children’s Lawyer summarised the risks in his submissions as follows:
That the father will not go the distance. He will prefer his needs over [X]’s . He has little or no insight to respond to her needs. The mother’s parenting will diminish due to her anxieties at the prospect of the child spending time with her father and the possibility of actual harm or physical violence given the explosive incidents with Mr A.
The potential risks to [X] from no time as Dr Q outlines are:
Ongoing grief, idealisation of father, being attracted to inappropriate male figures and relationships that are unfulfilling or controlling, silent grief.
The Independent Children’s Lawyer said:
Given the real risks that could occur as stated by Dr Q with the risk that the mother outlines the Court ought exercise its discretion and find that it is an order in [X]’s best interest to spend time with her father on a very slow graduating basis.
If I do so this will be the third occasion that the Court has tried to reinstitute a relationship with [X] and her father and will be likely the last occasion.
The father can clearly go the distance. Mr A at age 32 has a close relationship with his father. Mr A came to Court and either perhaps glossed over the truth, for which I do not blame him, or has a different memory, such is his attachment to his father. The argument the father abandoned [A] is a furphy and I find it was Ms L who prevented [A] from having a relationship with his father.
The father’s failure to undertake the courses I ordered and directed him to do and his petulance is ceasing visits at Contact Centre have let his daughter down. It gave the mother fuel to say he will not go the distance, that he cannot put the child’s needs before his own.
The mother demonstrates a significant lack of insight into the impact of her behaviour and her anxieties on her daughter and the consequences for her daughter in not spending time with her father.
The father has preferred his own needs to paying child support. I accept that is the case, but he has made up the arrears and says he will pay now.
The father must complete the courses ordered and supervision should continue for some time. Ms S should be introduced within those 12 months as well as Mr A and his wife as [X] has a right to know these people.
Ms S was a most insightful caring woman whose evidence supported my view of the mother that she can give as good as she gets. The mother has behaved very poorly at times in [X]’s presence when collecting the child. The mother is no angel.
The mother must attend a clinical psychologist, as Dr Q suggested, to deal with her anxiety for her own benefit.
The father was an unreliable witness at times regarding his behaviour to Mr A. He did not complete courses and his child support payment record is a poor one, however, he is committed to a relationship with his child and he has continued to be in this litigation despite many obstacles placed in his way.
The mother, perhaps a more truthful witness, is unable to separate her view of the father from the view [X] may have of the father and it is clear it is a very different view.
Ms S was a truthful witness, but she is clearly aligned with the father and would not be a suitable supervisor if for no other reason than that the mother would have no faith in her. However, I accept that the father behaves well in her presence and when it is time for supervised visits to cease as they must I and the mother should be comforted as she will be present when supervision of time ceases as she lives with the father .
Mr Tockar’s submissions on behalf of the mother were that the paramount consideration for this Court is the risk of harm to this child from her father. I do not accept she is at risk of harm from her father even though I accept he did not tell the truth about the poor behaviour he subjected Mr A to. The risks as I see them are the consequences for [X] if there is no time ordered and the mother’s reaction to time being ordered.
One group of submissions that were cogent for me is that [X] is doing well, and I accept that her mother is an exemplary parent in terms of her care. That it is [X]’s usual care arrangement not to spend time with her father and that I would be embarking upon a change to that by making an order that she commence spending time. That in so doing I may be conducting an experiment which could cut across and interfere with her very pleasing progress at school, socially and otherwise. I accept that is a risk of harm to [X].
I accept there is a risk of harm to [X] of her mother’s anxieties increasing. Whether that has an impact on her parenting I do not know. I have no evidence to support that assertion by the mother, but it is clear the mother suffers from anxieties as Dr Q said. However, having regard to the risks outlined by Dr Q of not spending time I, too, have formed the view consistent with the Independent Children’s Lawyer’s position that I should give this another go as being orders in the child’s best interests.
I find that the father is not a risk of harm to [X] directly.
Going to the factors under section 60CC[3]: I will rebut the presumption of equal shared parental responsibility. The parents do not communicate. [X] has been parented solely by her mother and her mother has always made her decisions alone. It is not practical nor in [X]’s best interest that I change that well established regime.
[3] Family Law Act 1975 (Cth), s. 60CC.
There can be no order for equal time if for no other reason than that [X] lives in the Region A and her father in Sydney.
There will be no order for significant and substantial time made initially given [X] has not seen her father for 2 years and that this is the 3rd occasion the court will have ordered time with the child commence.
Any order for time must provide for a slow and gradual increase.
[X] has been subjected her parents fighting and behaving badly in front of her on occasions. However, I do not see she is at risk of harm in either parents care and each would always protect their child.
[X] benefits from her strong and confident relationship with her mother. I find if given the opportunity to do so she will benefit from a relationship with her father. Not having a relationship with him is what will cause her harm as Dr Q so clearly pointed out.
[X]’s wishes are not relevant, however, she has said, I love him (sic dad) all the time.
The mother is the child’s closet emotional attachment and she has not been given the opportunity to form a strong bond with her father. Dr Q was confident that [X] did have a bond with her father and thus there was a good prospect of that bond strengthening and growing over time.
Both parents have the capacity to provide for the child’s emotional educational and psychological needs and the mother has a demonstrated capacity to do so at a high level save in her attitude to [X]’s right to a relationship with her father and the benefits that will flow to [X].
The risks to [X] in spending time with her father is that her mother may suffer greater anxiety and thus her parenting may be negatively impacted upon or the mother may in subtle ways place pressure on [X] to reject her father when the child’s own view of her father is that: I love him all the time.
The risk in [X] not being given an opportunity to have a relationship with her father are real and likely to occur and will have a devastating consequence upon her future functioning.
The father must now put his child’s needs before his own and do all he is ordered to do, take the lead from contact centre workers and other professionals and accommodate the mother’s over-anxious and histrionic behaviour at times if he wants this arrangement to work.
The mother too must put [X]’s needs before her own and accept that [X]’s view, experience of the father does not necessarily accord with her own, otherwise she will be responsible for the likely negative consequences on [X]’s future relationships and functioning.
In making the orders I will be guided by the Independent Children’s Lawyer whose orders more accord with those as suggested by Dr Q.
I certify that the preceding three-hundred and forty-four (344) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 28 August 2018
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Family Law
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