King and King
[2008] FMCAfam 94
•13 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KING & KING | [2008] FMCAfam 94 |
| FAMILY LAW – Children – parenting order – father to spend time with child – poisonous relationship between parents – mother alleging risk of exposure to sexual behaviour – poor relationship between father and child – child’s views – court expert’s opinion. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 65DAA, 65DAB, 65D, 68B, 114 |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112 Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224 Powell & Ptolemy, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340 |
| Applicant: | MR KING |
| Respondent: | MS KING |
| File number: | PAM471 OF 2005 |
| Judgment of: | Halligan FM |
| Hearing date: | 27 & 28 June AND 3 December 2007 |
| Date of last submission: | 3 December 2007 |
| Delivered at: | Parramatta |
| Delivered on: | 13 February 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Solicitors for the Respondent: | Comasters Law Firm |
| Solicitors for the ICL: | Legal Aid Commission of New South Wales |
ORDERS
All prior parenting orders in relation to the child S, born in February 1995, are discharged.
The parents shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The child shall spend time with the father-
(a)on the first Sunday of each month, commencing on the first such Sunday after the making of these orders-
(i)from 2.30 pm to 4.30 pm on the first four occasions;
(ii)thereafter from 2.30 pm to 5.30 pm, or such longer period as the child may request;
(b)on Christmas Day for 3 hours as agreed between the parties, and failing agreement, from 2.30 pm to 5.30 pm;
(c)if the father's relatives from the United Kingdom visit Sydney and the father gives the mother at least one month’s notice, from 2.30 pm to 5.30 pm on any non-school day nominated by the father.
(d)such additional occasions as may be requested by the child;
(e)otherwise as agreed by the parents.
For the purpose of Order (4)-
(a)the mother shall deliver the child to and collect the child from the father at the country ticket office at Cxxx Railway Station at the commencement and conclusion of the father's time with the child;
(b)the mother shall immediately leave the vicinity once she has delivered the child to the father at the commencement of the father's time with the child;
(c)the mother shall not attempt to contact the child during the father's time with the child;
(d)the father shall permit the child to contact the mother at any time during the father's time with the child.
The father may communicate with the child-
(a)by telephone each Tuesday and Saturday and on the father's and the child’s birthdays between the hours of 7.30 pm and 9.30 pm, the father to initiate the call to the mother's landline number; and
(b)by post and email.
Each parent-
(a)shall keep the other informed at all times of his or her current address and landline and mobile telephone numbers;
(b)shall notify the other as soon as possible of any accident or serious illness suffered by the child;
(c)is restrained from discussing these proceedings or the evidence given in them with the child, and from showing the child any documents filed or produced under subpoena, or any exhibit, in these proceedings and from permitting any other person, other than the Independent Children's Lawyer, to do so;
(d)is restrained from denigrating the other parent or any member of the other parent’s family to or in the presence of the child and from permitting any other person to do so.
The mother shall provide the father with copies of all newsletters, school reports and school photograph order forms as soon as possible after receiving them.
The father may liaise with the child’s school on matters pertaining to the child’s progress and welfare, and may attend school functions and other activities in which the child participates and to which parents are invited.
The Independent Children's Lawyer shall as soon as possible explain these orders and how they will operate to the child, and the mother shall deliver the child to the Independent Children's Lawyer at the time and place nominated by the Independent Children's Lawyer for that purpose.
Otherwise all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym King & King is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT KING & KING |
PAM471 OF 2005
| MR KING |
Applicant
And
| MS KING |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern whether, and if so when and under what circumstances, the father will spend time with the parties’ 12 year old daughter, S.
Both parties and the Independent Children's Lawyer agreed that orders should be made to the effect:
·that the parents have equal shared parental responsibility for the child;
·that the child live with the mother;
·that the father communicate with the child by phone each Tuesday and Saturday between 7.30 pm and 9.30 pm, the father to initiate the call;
·that the parties keep each other informed of their addresses and phone numbers; and
·that each party inform the other as soon as possible of any accident or serious illness suffered by the child.
While it was agreed that the father should spend time with the child, there is an issue as to the duration and frequency of that time, and whether it should be under supervision.
In relation to the controversial matters, the father ultimately sought orders to the following effect:
·that the child spend time with the father for 2 hours on the first and third Sunday each month for 2 months, and thereafter for 6 hours each alternate Sunday;
·that the child spend time with the father for 5 hours each Christmas Day, and for 5 hours on any non-school day nominated by the father if his relatives are visiting from the United Kingdom (UK) provided the father gives the mother at least a month’s written notice;
·
in addition to the agreed telephone communication, that the father communicate with the child by phone between 7.30 pm and
9.30 pm on Christmas Day and the child’s birthday, and by post;
·that to facilitate the child and father spending time together, the father collect and return the child from and to the mother at the booking office for country trains at Cxxx Railway Station at the commencement and conclusion of his time with the child, and that the mother immediately leave the vicinity after delivering the child to the father at the commencement of his time with the child and not attempt to communicate with the child during the father's time with the child, although the child is to be permitted to contact the mother if she wishes;
·that the mother not change the child’s school without the father's consent;
·that the mother direct the Principal of the child’s school to provide the father with copies of all newsletters, school reports and school photograph order forms, and that the father be permitted to liaise with the school on matters pertaining to the child’s progress and welfare, and to attend school functions and other activities in which the child participates and to which parents are invited;
·that neither party denigrate the other in the presence of the child, involve the child in parental disputes, discuss these proceedings with the child or permit another person to do so, or show or otherwise reveal to the child any evidence or documents in the proceedings;
·that neither party send abusive or disparaging communications to the other or a third party;
·that the mother be restrained from visiting, contacting or communicating by any means with the father's relatives in the UK; and
·that both parties be restrained from removing or attempting to remove the child from Australia.
In relation to matters remaining in dispute, the mother ultimately sought orders to the following effect:
·that the child spend time with the father for 2 hours on the first Sunday of each month and on Christmas Day, in the presence of the mother or, in the alternative, in the presence of a third party agreed to by both parties, the child to be permitted to ring the mother during time spent with the father;
·that the father spend time with the child for 2 hours on any non-school day if his relatives are visiting from the UK provided he gives the mother at least 1 month’s written notice, and further provided that-
i)the child is willing to meet the father and his relatives;
ii)the mother may travel with the child to Hong Kong or the UK for periods of 1 month on giving the father 2 weeks’ notice and showing him a copy of a return air ticket for the child; and
iii)the father does all things necessary to enable the mother to apply to renew the child’s UK passport when it expires;
·that the parties agree at least 48 hours in advance on a venue where the father is to spend time with the child or, in the alternative, that the father meet a third party agreed to by both parties, and the child, at the entrance to Jxxx Shopping Centre;
·that the father at his expense see a registered psychologist for a minimum of 3 months not less than weekly “to address and minimise his anxiety problems, stabilize his moods and reduce his high stress levels”, being either Dr Chris Lennings or another psychologist or psychiatrist agreed to by both parties;
·that the mother provide the father with copies of the child’s school reports and photos but not newsletters; and
·that, subject to the mother taking the child to Hong Kong or the UK as previously referred to, the parties be restrained from removing the child from Australia.
The Independent Children's Lawyer proposed orders, other than those about which there was agreement, to the following effect:
·that the father spend time with the child on the first Sunday of each month, for 2 hours for 4 months and thereafter for 3 hours, and for 3 hours on Christmas Day and on any non-school day nominated by the father if the father's relatives are visiting from the UK provided the father gives the mother at least one month’s written notice, the child to be permitted to ring the mother at any time when with the father;
·that the parties meet at the booking office for country trains at Cxxx Railway Station at the commencement and conclusion of the father's time with the child, the mother to immediately depart the vicinity after delivering the child to the father at the commencement of his time with the child and to not thereafter attempt to contact the child by any means during the father's time with the child; and
·that the mother authorise the child’s school to provide the father with copies of newsletters, school reports and school photograph order forms.
Both the mother and the Independent Children's Lawyer sought orders at the commencement of the hearing that the father attend the “Dads 4 Kids” program with Unifam. The father attended and completed this course before the completion of the hearing.
Background
The father is aged 50 and the mother is aged 46. The parties married in Hong Kong in October 1990. S, born in February 1995, is the parties’ only child.
The parties were living in the UK at the time of S’s birth. They and the child went to live in Hong Kong in April 1995, and they came to live in Australia in April 1996.
The parties separated on 12 January 2000, when the mother and child vacated the parties’ rented premises in the Eastern Suburbs. Less that a week later, by agreement between the parties according to the father, the father vacated the rented premises and the mother and child moved back in.
Consent orders were made by the Family Court of Australia on
3 May 2001. Those orders provided that S live with the mother and spend time with the father for at least 4 hours on every Saturday, Christmas Day, New Years Day, Easter Saturday, the child’s and the father's birthdays and on Father's Day. The father's time with the child was to be spent in a public place and in the mother's presence, with the venue to be mutually determined at least 48 hours before each occasion. Those orders also made provision for property settlement between the parties.
The parties were divorced in April 2005.
Consent interim orders were made in these proceedings on
8 December 2006providing for the father to have telephone communication with the child each Tuesday and Saturday between 7.30pm and 9.30pm. Consent orders were also made to facilitate the mother taking S to Hong Kong in the December 2006/January 2007 school holidays to visit the mother's extended family.
The mother's application to call the child as a witness
At the commencement of the hearing, the mother sought permission to call the child as a witness in her case. It transpired that the mother had taken the child out of school and brought her to court, and the mother's solicitor had conferred with the child at court before the hearing commenced.
The purpose of calling the child as a witness was said by the mother's solicitor to be to “solidify” things in the Family Report, and to provide evidence about the father's behaviour towards the child not included in the Family Report.
The Independent Children's Lawyer had at no time been advised or consulted about the child being directly involved in the proceedings as a witness in support of the mother's case, and the mother's solicitor had conferred with the child without reference to the Independent Children's Lawyer. No explanation was forthcoming as to why the mother waited until the commencement of the hearing to make the application, and why she had not made the application earlier, for example at the time the matter was set down for hearing and the identity of the witnesses to be called by both parties was specifically canvassed.
For reasons I then gave, I refused permission to call the child as a witness. Without repeating all I then said, I was concerned at the child’s age (12), that the child’s views had already been put in evidence through a Family Report, the author of which the mother did not intend to cross-examine, that there were allegations in the father's case of the child having been exposed by the mother to the affidavits filed by the parties in the proceedings, and that the mother and her solicitor had involved the child directly in the proceedings without reference to the child’s own legal representative, who did not support the mother's application.
This episode caused me considerable concern, both as to the actions of the mother's solicitor in conferring with the child behind the back, as it were, of the child’s legal representative in the proceedings, and as to the mother's actions in directly involving the child in the parental conflict in a partisan manner. This episode is consistent with the evidence and concerns of the father about the mother having embarked on a course of enlisting the child to her side of the parental conflict, and being apparently unwilling or unable to recognise any differentiation in her and the child’s relationship with, or attitude towards, the father.
Credit
No issue as to credit arose in relation to the expert witness
Dr Lennings, who was not required for cross-examination, or Ms L or Ms N, witnesses in the mother’s case.
The father’s credit was sought to be challenged in relation to statements he made to the expert witness, and prior statements he made to a Dr B. However, for reasons which later appear, I am not satisfied there was any inconsistency in the statements he made, and his credit was not otherwise successfully challenged.
The mother’s credit was called into question by several aspects of her evidence. When cross-examined about her allegations that the father frequently masturbated in front of the child, the mother’s evidence that medical records of Dr B produced under subpoena contained notes that she quoted in her affidavit proved to be incorrect, and her evidence of whether she or some unidentified person in the Registry in fact read the notes to say what she suggested was unconvincing. The mother’s suggestion to the expert witness that Dr B may have falsified or altered his records to delete or omit these references is inconsistent with her evidence that the notes did record these matters, and in any event is a scurrilous accusation made without any evidence to support it.
The mother’s evidence in cross-examination about her allegations of the father masturbating in front of the child was quite unsatisfactory, with various inconsistencies. She denied she and the father shared a bed with the child, then agreed that sometimes they did. Her evidence about the circumstances in which she said she had encountered the child in the father’s presence while masturbating was inconsistent. Her statement in cross-examination that she changed the sleeping arrangements after first noticing the father masturbating while the child was in the same bed, having the father sleep in the child’s bed and she and the child sleeping in the double bed, is inconsistent with her statement to Dr Lennings that it was the father who initiated this arrangement and her suggestion to Dr Lennings that this was a sign of the father’s oddness.
I found the mother’s explanation of how the child came to read some of the documents filed in these proceedings similarly a cause for concern. Her suggestion of the child forcibly taking the documents from her when she declined to show them to the child is simply inconsistent with all the other evidence about this child, in particular the mother’s evidence of doing a good job of raising the child, her description of the child to the expert witness as her “little angel”, and the school report she put in evidence that describes the child as “well mannered”, always following directions, always accepting responsibilities, always treating others fairly, and always speaking politely. Almost immediately after giving her evidence about S forcibly taking documents from her, the mother denied the child was old enough to speak up and protect herself if the father did something the child found disturbing.
The mother indicated to Dr Lennings that she was happy for the child to spend time with the paternal grandfather, but not with the paternal grandmother, who she said was a witch who practiced witchcraft, contradicting her affidavit evidence of wanting to promote the child’s relationship with the father's family without exceptions.
Because of these and other aspects of the mother’s evidence, I formed the view that the mother’s evidence needed to be treated with some caution, and where her evidence and the father’s differs, I generally prefer the father’s evidence.
The Evidence
As Dr Lennings observed, the accounts given by each of the parties are quite extreme, each labelling the other as having some kind of mental illness or disorder so profound that each fears for the safety or adjustment of the child if with the other. He expressed the opinion that it seems extremely unlikely that any kind of realistic communication can occur between the parties. I note that despite the father's expressed concerns about the mother, he agreed that she be the child’s primary carer. I also note that despite Dr Lennings’ pessimistic prognosis for the future communications between the parents, both parties and the Independent Children's Lawyer agreed there should be an equal shared parental responsibility order.
The mother asserted that the father is a risk to the child because of his angry and violent outbursts, and his propensity to masturbate in the presence of the child. She apparently believes the father has autism spectrum disorder, specifically Aspergers Syndrome. She contended that the father is completely self-absorbed, unable to communicate with the child or appreciate her needs, and treats the child in an inappropriate and immature way. She also asserted that she believes the father is a paedophile and a member of a paedophile ring, intent on sexually abusing the child if he can gain unsupervised time with her, although she had no evidence to support any of these beliefs. This latter belief of the mother was not part of her case as to the protective needs of the child in any regime of spending time with the father, but it clearly colours all interactions between the parties and her attitude to the child spending time with the father.
The father believes that the mother is poisoning his relationship with his daughter as a means of punishing him for the breakdown of their relationship, and that she baits him to make him angry. He contended, with good cause, that the mother is involving the child directly in the parental conflict and enlisting her to her view of the father.
The mother has a very poor attitude to the paternal grandmother, who lives in the UK, claiming among other things that she tried to infect the mother with German measles when she was pregnant. The mother believes the paternal grandmother is a practicing witch.
The father believes the mother has destroyed cards and presents sent to the child by his family in the UK, for Christmas 1999. The mother denied doing so. Despite my general comments on the parties’ credit, I am not satisfied on the evidence that any specific item was in fact sent from the father’s family to the child, and so cannot find the father’s allegations of the mother destroying items for the child proved.
I have already commented on the inconsistency between the mother’s affidavit evidence of wanting to foster a relationship between the child and all the father’s family, and her statement to the expert that she supported such a relationship with the members of the father's family other than the paternal grandmother.
To address the mother’s concerns about the father’s mental health, after separation, in January 2000, the father attended a Dr M at Jxxx Health at the mother's suggestion. There was no referrals made or further action taken. Again in October/November 2000, at the mother's suggestion, the father attended for an assessment at the Sxxx Clinic. The only result was the suggestion of some possible relaxation techniques. The mother nonetheless maintains her belief that the father suffers some mental disorder.
As an illustration of the mutuality of the distrust and conflict between the parents, from December 2005 to 22 July 2006, the father refused to provide the mother or the child with his new address, despite repeated requests for it, and even when told the mother needed it for the child’s enrolment into high school.
As mentioned, the mother called Ms L and Ms N as witnesses in her case. She also initially relied on an affidavit of Ms H, but withdrew reliance on that affidavit when Ms H declined to attend court for cross-examination.
Ms L and Ms N related conversations they had had with the mother, which are of little probative value other than to show that the mother raised her concerns about the father's alleged obsessive masturbation with these witnesses before these proceedings commenced. The significance of that evidence is that the mother was challenged about having failed to mention these concerns to professionals the parties consulted before separation. While the mother mentioned her concerns to these witnesses, she did not mention them to the professionals consulted before separation.
Otherwise, Ms L said that in her one encounter with the father in 2002, he seemed reserved, shy and socially awkward. She agreed that the state of the relationship between the parents may have had an impact on his affect, the mother having introduced them. Ms N said that in her frequent visits to the parties’ home before separation, the father seemed often disinterested in talking to the child.
The father said that Ms N had accompanied the mother and child to a contact visit in January 2007. The mother and Ms N talked during this visit, which the father said went well. He said that if the Court ordered his time with the child to be supervised, Ms N was an acceptable supervisor.
Ms N was the only supervisor of the father’s time with the child the mother put forward. The mother said the purpose of supervision was to protect the child from the risk of exposure to the father’s masturbation and violence. Despite saying she believed the father would sexually abuse the child if he spent unsupervised time with the child, she paradoxically did not identify protection from the risk of sexual abuse as a purpose of supervision.
In cross-examination, it seemed that Ms N understood her function in being present during the father’s time with S was to be responsible for the child in a general supervisory sense and to keep the child from accidental harm. She appeared anxious to say that she would not be responsible if there was an accident. She said she was asked to be present during the father’s time with S because the father and daughter need to meet and someone needs to be present, however she at first said she did not know why someone needs to be present. She then said that she needed to be present because the father is not really normal. She said that was why she was concerned at being responsible for the child in the mother’s absence.
While he currently lives in Bxxx, the father said he was thinking of moving closer to Sydney. He said that it would not be practical for him to take the child to his home in Bxxx during his time with the child. He said that if he lived closed to Sydney, he would take the child home if the child wanted this. While he acknowledged that taking the child home may reignite or exacerbate the mother’s concerns about exposing the child to his masturbation, he did not agree to his time with the child being restricted to public places.
The mother conceded in cross-examination that having supervisors present when the child spends time with the father will not protect the child from the father’s angry outbursts, and that her absence when the father spends time with the child is the only thing she can do to help protect the child from such outbursts.
The mother’s objection to the Independent Children's Lawyer’s proposal of 3 hour visits rather than the 2 hours she proposed was that due to the father’s poor communication skills, he will not be able to communicate with the child for 3 hours.
Expert’s Report
Dr Lennings expressed the view that the father's history is not suggestive of the kind of severe interpersonal difficulties normally associated with Autism Spectrum Disorder or Aspergers Syndrome. However, he reported that the father is, and admits to being, an odd and eccentric man. Nor did the father seem to satisfy the criteria for Post-traumatic Stress Disorder, the father having been involved in a very serious glider accident at age 12, when he was in a glider involved in a mid-air collision that killed the pilot of the glider he was in.
The father has been in stable employment with the same employer for six years and is perceived by his employer as a good employee, working as a technical person in a hospital performing maintenance and testing electronic equipment.
Dr Lennings found the father to be a somewhat anxious person with difficulties in being able to deal with his anxiety, and expressed the view that he does not appear to have problems controlling his temper. However, he said the father appears to have difficulties controlling his emotions, in particular his sense of frustration and irritation around the mother. He expressed the view that it was self-defeating to have the mother supervising the father's time with the child, and expressed the view that whether or not the father has autism spectrum traits in his behaviour is irrelevant.
The expert said it is probably the case that the father can be inattentive of others’ needs and his preoccupation with his own interests and activities probably makes him psychologically unavailable. However, he did not consider the father's behaviours to be such as to constitute a symptom of mental illness. Nor did the father's scores in a mental illness assessment imply any psychological disturbance.
Dr Lennings observed that it is the mother's view that the father is some kind of deviant person probably with a severe mental illness, a diagnosis of which in his opinion cannot be sustained. He reported the mother as having “a great deal of contempt for and anger towards” the father. In his psychological assessment of the mother, he reported that the mother's manner and presentation did not reveal any behaviours of concern or worry. In his opinion, the mother either had no insights or was deliberately denying how the poisonous atmosphere between her and the father might have an impact on the child’s visits with her father.
Dr Lennings recommended the current contact arrangements change. He was of the opinion that with the father's very poor communication skills and lack of understanding of how to behave in the presence of and towards S that visits of 6 hours were not sustainable at present, although they may be in the future.
Dr Lennings was of the view that-
·there should be no requirement for the mother to be present during the father's time with the child;
·six hours was unsustainable for the child to spend time with the father and visits should be graded with the first period being for no more than an hour or two at the most. Fortnightly visits are probably less important than the quality of the visits, and it may be better to have monthly visits with the father able to attend special days of importance on the invitation of his daughter; and
·the father should attend a parenting course to assist him relate to an almost teenage daughter.
The last point has since been addressed by the father voluntarily.
Dr Lennings was not required for cross-examination by either party or the Independent Children's Lawyer, and I accept his unchallenged evidence.
The applicable law
The proceedings come under Part VII of the Family Law Act 1975. They involve competing applications as to the time the child spends with the father, and are thus for parenting orders (s.64B).
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about this child, so s.65DAB is not relevant.
S.60B sets out the objects and principles of Part VII in the following terms:
“60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
In deciding what parenting order to make, the child’s best interests are the paramount consideration (s.60CA). S.60CC indicates how the court determines the child's best interests. It is as follows:
“60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, decided after the 2006 Shared Parental Responsibility amendments, as follows:
“Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
When making a parenting order, the Court must apply a rebuttable presumption that it is in a child's best interests for the child’s parents to have equal shared parental responsibility for the child (s.61DA(1)). As mentioned, both parties and the Independent Children's Lawyer agree and equal shared parental responsibility order should be made.
If there is, or is to be, an order for equal shared parental responsibility, the court must consider the child spending equal time with each parent, and if such an order is not to be made, must consider the child spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, the court must consider whether such an arrangement would be in the child's best interests (S.65DAA(1)(a) and (2)(c)) and is reasonably practicable (s.65DAA(1)(b) and (2)(d)). If so satisfied, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)).
Where s.65DAA applies and neither party seeks an equal time or substantial and significant time order, the court must nonetheless consider these options, but must ensure in doing so that the parties are afforded procedural fairness by having their attention drawn to the section and its consequences, and by being afforded the opportunity to adduce evidence relevant to the options the section raises and to address the court on them. (As to the court’s power to consider options other than those presented by the parties, and the need to afford procedural fairness if doing so, see U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224, Powell & Ptolemy, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340).
Despite the agreement that there should be an equal shared parental responsibility order, it is clear that an equal time or a substantial and significant time order is neither practical nor in the child’ best interests in this case. The distance between the parties’ residences makes neither option practical. The child’s views, the nature of the relationship between the child and the father, and the father’s extremely limited ability to meet the needs of the child, amounting to a risk of neglect, as elaborated later in these reasons, means neither option is in the child’s best interests.
The primary considerations (section 60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
A meaningful relationship exists between the mother and the child, and is likely to continue whichever of the present alternatives is adopted.
A meaningful relationship does not presently exist between the father and child. Whether a meaningful relationship is possible between them is in question in this case. A relationship presently exists, albeit it is quite poor. Both father and daughter want a relationship. For reasons I will explore later in these reasons, what may be meaningful for this father and child may be quite atypical. It must accommodate the idiosyncrasies and eccentricities of the father in a way that is not harmful to the child.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are three issues relevant to the second primary consideration raised by the evidence, namely-
· the risk of sexual abuse of the child or of exposure of the child to sexual behaviour of the father;
· the risk of exposure of the child to family violence with the father; and
· the risk of neglect of the child by the father.
I will deal with each in turn.
The risk of sexual abuse of the child or of exposure of the child to sexual behaviour of the father
The mother said that the father frequently masturbated during cohabitation, doing so in front of the child on many occasions. She said that on 24 October 1999, and on other unspecified occasions, she walked into the lounge room and saw the father masturbating in front of the child, with his pant zipper undone, his hands in his underpants, and his face bright red. She said that the father left tissues that he used after he masturbated lying everywhere around the house, some of which the child found and questioned her about. The father denied these allegations by the mother.
In 1999, the parties attended their general practitioner, Dr B, both individually and together about their relationship problems. The mother did not raise with Dr B any allegations of inappropriate behaviour by the father in the child’s presence. The mother sought to explain the absence in Dr B’s notes of any reference to a complaint by her of the father’s constant masturbation by suggesting Dr B may have falsified or altered his records. I have already commented on this evidence.
In fact, the mother’s evidence in cross-examination about these allegations was quite unsatisfactory, with various inconsistencies. She denied she and the father shared a bed with the child, then agreed that sometimes they did.
In relation to the father’s evidence that the child was asleep whenever he masturbated in bed when the child was present, the mother denied the child was asleep. She said on one occasion the father was in bed, the child was on top of him, and when the quilt was taken off, the father’s zipper was open and he had his hand inside his pants. However, she further explained this incident by saying the child ran into the bedroom looking for a bag, and the mother followed the child into the bedroom. She said that whenever she realised the father was masturbating with the child present, she would run in and remove the child from the room. She said the father did this quite often. She said that after the first time the father masturbated in bed in the child’s presence, she did not let the child stay in the same bed. She said she moved the child and herself into the same bed, and the father slept in the child’s bed. However, the mother told Dr Lennings that when the father bought a single bed for S and a double bed for the parents, he moved into S’s bed and she and the child slept in the double bed, citing this as a sign of the father’s oddness, not her taking action to protect the child from observing the father’s masturbation. The mother contradicted her evidence that the father allegedly masturbated in front of her and the child as part of the father’s gratification when she then said she did not know why he did it in front of them.
The father was questioned by Dr Lennings about the mother's masturbation allegations, and denied he had ever done so on any occasion when the child would have been able to see him.
Dr Lennings did not consider the father to be someone for whom concerns need to be raised about sexual deviancy per se. He expressed the view that despite the mother's allegations, and unless additional information came to light indicating a pre-occupation with sexual themes or behaviours, the history given to him did not indicate a specific risk of sexually inappropriate behaviour in the context of contact visits.
The father was cross-examined about whether he was frank with
Dr Lennings when he denied he had ever masturbated on any occasion when the child would have been able to see him. He told Dr B that at a time when both the parties and the child shared a bed, the mother sleeping in the middle, he had masturbated in bed when the child was asleep. The father denied that what he told Dr B was inconsistent with what he told Dr Lennings. The father reconciled his statements to Dr B and Dr Lennings on the basis that if the child was asleep, she could not have seen him. He said he assumed that Dr Lennings’ question referred to the child being awake and able to see him, and his conduct being a form of exhibitionism. I accept the father’s explanation.
There is no issue that the parents’ sexual relationship effectively ceased immediately after S was conceived. Thereafter, the father sought to satisfy his sexual needs by masturbation. The father denies this occurred in the presence of the child when she was awake, while the mother says the father did so in front of the child often. I prefer the father’s evidence over the mother’s because of the inconsistencies in the mother’s evidence and her failure to report it to professionals the parties consulted before separation.
I accept Dr Lennings’ unchallenged evidence that on the history he was given, it did not indicate a specific risk of sexually inappropriate behaviour in the context of contact visits. I am not satisfied that the history Dr Lennings had was deficient or inaccurate, nor has additional information come to light indicating a pre-occupation with sexual themes or behaviours.
I am not satisfied the child is at risk of exposure to this kind of behaviour in the presence of the father.
In the absence of any evidence to support the mother’s beliefs, I am not satisfied that the child is at risk of sexual abuse in the unsupervised presence of the father, either by him or by any of his associates.
The risk of exposure of the child to family violence with the father
The mother said that the day before the parties separated, the father banged repeatedly on the furniture, threw a bottle in front of the child and the mother, and yelled and screamed at them both. She said she and the child were scared, and the child was crying and screaming. The father admitted to shouting but denied making any threats towards the mother or being violent or damaging their home or any of its contents. I prefer the father's evidence where it differs from the mother's.
The mother said that in early February 2001, the father shouted at the child and swore at her because she did not meet the father to spend time with him. In another affidavit, the mother said the father swore and shouted at her and the child. The father said that he attended where he understood the parties had agreed to meet for his time with the child, but the mother and child went elsewhere. The father said he waited an hour for the mother and child, and became angry when they did not arrive. He then rang the mother and, when the mother suggested meeting elsewhere, he objected, raised his voice, and said things he should not have said. He did later meet the mother and child, and denied then raising his voice to the mother or child. I again prefer the father's evidence where it differs from the mother's.
The mother said that in late June 2006, while spending time with the child, the father was yelling loudly while they were in a toy store, attracting the attention of a security guard who approached and said he was calling security. She said the father then left. The father did not deny this incident, and I accept it occurred as the mother described it.
The father admitted that he has lost his temper and used bad language to the mother and in the child’s presence, but adamantly denied making any threats or using violence. He said that his displays of temper and bad language occurred when provoked by the mother or when she acted unreasonably in his view. However, some of the father's views about the unreasonableness of the mother's actions appear to be highly subjective and reflect a significant degree of self-absorption to the extent of ignoring the child and her needs on occasions. He displayed an inability to moderate his behaviour for the child’s benefit. The father's statement that his anger is never directed towards the child suggests an inability to appreciate the affect of his behaviour on the child, who understandably finds the father's angry outbursts directed to her mother, with whom she has a warm and close relationship, in public embarrassing and quite distressing.
I am satisfied it is more likely than not that there have been occasions of family violence, as that term is defined in the Family Law Act. There have been occasions, for example at about the time of separation, when the father’s behaviour, even if not including specific threats, engendered fear in the child for her and/or her mother’s safety. The incident in the toy store when the attendant approached the parties and said he was calling security indicates that an independent bystander regarded the father’s behaviour as warranting security assistance. It is reasonable to infer that the person to whom his anger was directed, the mother, would more likely than not have been apprehensive about her safety, and that the child would have been similarly affected by seeing the father’s behaviour directed towards her mother, with whom she clearly has a close relationship.
However, I am also satisfied that if the parties’ interaction is kept to the barest minimum, the risk of further exposure to family violence is low. On the other hand, requiring the father’s time with the child to take place in the mother’s presence is likely to ensure further incidents of family violence, a point the mother seemed to acknowledge.
The risk of neglect of the child by the father
The mother said that during contact on a weekend in 2002, the father placed a spoon on the child’s hand after having stirred his hot coffee. She said the child screamed and cried and the father laughed. The father denied this allegation. Because of my view of the parties’ credit, I am not satisfied this incident occurred.
The mother said that in October 2003, the parents and child went on a ferry ride during the father's contact. The child asked the father to hold her drink while she went to the toilet, his face went red and he appeared angry. When the child returned the child asked the father where her drink was and the mother said the father replied “I finished it all. Who told you to go to the toilet?” The father did not deny this incident, and I accept the mother’s evidence. It is consistent with an incident the child mentioned to Dr Lennings of the father taking her drink and consuming it himself.
The mother said that on a weekend in 2005, she saw the father “deliberately puncture” a hole in the child’s netball. She said the child cried and the father laughed at the child. In another affidavit the mother said the father deliberately kicked the ball up into a tree and created a hole in it, and showed indifference and a lack of concern. The father said that he kicked the child’s netball up in the air, it struck a tree branch and was punctured. The child was upset and crying, and he said the mother refused to allow him to accompany her and the child to the shop to buy a replacement netball.
The child told Dr Lennings of an incident when the father kicked her ball into a tree when she asked him not to. This impresses me as the more likely scenario, rather than either as the mother sought to suggest the father deliberately taking action for the purpose of puncturing the ball, or as the father sought to suggest the father accidentally kicking the ball into a tree.
In September 2005, when the father was spending time with the child, the parents and the child went to the movies. The mother said that before entering the cinema the child asked to go to the toilet and the father looked angry. When the parties and the child entered the cinema, she said the father announced loudly that there were now no more seats, and sat in the aisle beside the child’s seat throughout the movie. She said she proposed that they all sit together in the front row and the father “screamed” no. She said the child appeared upset.
The father said of this incident that when they entered the cinema most of the seats were taken and the only way he could sit next to the child was by sitting in the aisle. He said generally in response to the mother's evidence about this incident that it became an established pattern for the mother to take the child to the toilet when a conversation started to develop between him and the child. That hardly seems relevant to the child requesting to go to the toilet when about to enter a cinema to watch a movie.
I accept that the father became angry that the delay waiting for the child to go to the toilet before the movie commenced resulted in his view in there being no seats left other than the front row, where he was not prepared to sit, and that he petulantly and immaturely announced his displeasure and sat in the aisle beside the child for the duration of the movie, without any appreciation or regard for the embarrassment this would cause the child.
The mother said that on 18 February 2006, the father swore several times in front of the child, the child asked him to stop, and that the child said after he left that she found his behaviour very embarrassing. The father did not deny swearing in front of the child, and I accept her evidence.
The father said that in April 2006, when he was spending time with the child in the mother's presence, the mother took the child from Jxxx to a piano shop and, on the child choosing a piano, the mother demanded the father make a $4,000 payment on his credit card towards the piano, with no prior consultation. The father declined and left after about 15 minutes. About 2 weeks later, the father said he made a $500 contribution to the child’s new piano. The mother said she advised the father the child needed a new piano to practice on for her exams, and asked him if he could lend her money for the purchase until a term deposit the mother had matured. She said the father refused. Considering the poisonous relationship between the parties, I accept that the mother’s request for financial assistance from the husband to buy the piano was made peremptorily and in front of the child, and that the father responded angrily in the presence of the child.
In late April 2006, when the father arrived to spend time with the child at Jxxx, having travelled from Bxxx for the purpose, the mother and child proposed going to Cxxx to buy some ballet shoes for the child. The father objected to what he saw as an unreasonable encroachment on his limited time with the child and the parents argued, during which the father said the mother called his mother a witch. Also during this argument the father raised concerns that he had stopped receiving newsletters, school reports and the like from the child’s school. The father left after 10 minutes. He denied swearing at the child, saying he lost his temper with the mother. He admitted swearing. He admitted there were others around who were aware of his losing his temper.
The mother said that the child asked the father to accompany her to the store where she wanted to try on some point shoes. The mother said the father refused, swearing. She said the father was yelling at her and the child and waving his arms about.
Even on the father’s version of this incident, he failed to appreciate the significance to the child, who enjoyed dance and was proficient at it, of buying her first pair of point shoes. Rather than being an unreasonable encroachment on the father's time with the child, this was a lost opportunity for the father to participate in an event of significance and some considerable enjoyment and satisfaction to the child. It is illustrative of the father's great difficulty in appreciating the child’s needs and meeting them ahead of his own needs and wants, especially when interacting with the mother.
Dr Lennings observed that based on the child’s comments, the father is unable to develop reasonable communication with the child and lacked knowledge about how to relate to his daughter. I observe that whether this has been addressed by the father's attendance at the Parents 4 Kids program is unknown. Dr Lennings expressed the view that the poisonous relationship between the parents had impacted on the father's ability to communicate with the child, and that the father's failure of communication and his inability to separate his daughter out from his relationship with the mother is the major stressor in the father/daughter relationship.
I understand that the mother’s case is that the father lacks any ability to communicate with the child, he is unable to appreciate the child’s needs, and he is unable to focus on anyone’s needs other than his own. As I understand the mother's case, she suggests this exists to such an extent that I must consider whether this goes beyond simply raising doubts about the father's parenting capacity, which is one of the additional considerations, and whether it could expose the child to neglect.
I am satisfied on the above evidence that the father in his interactions with the child has demonstrated immaturity, self-absorption, an inability to communicate with the child and a lack of both an awareness of the child’s emotional needs and of an ability to meet them. The father has caused the child considerable emotional distress by his propensity to engage in loud, angry outbursts, using bad language even when the child has asked him to desist, and by verbally abusing the mother, with whom the child has a close and warm relationship, in the child’s presence. This has risked, if not in fact inflicted, emotional and psychological harm to the child, and I am satisfied amounted to neglect or a risk of neglect of the child.
However, if the mother was not present during the father’s time with the child, I am satisfied the risk of this type of harm would be significantly reduced. While the risk of the father’s embarrassing behaviours, and his self-absorption, inability to communicate, and lack of appreciation of the child’s emotional needs would remain, one major stressor that has triggered past problems, the mother, would be absent.
I take into account that the child is entering adolescence, and may display challenging behaviours that frustrate and stress the father. Nonetheless, provided the duration of time with the father was not too long, I am satisfied the mother’s absence would reduce the risk of this type of neglect to an acceptable level.
Summary
In summary, I am not satisfied the child is at risk of sexual or other abuse with the father, and I am not satisfied the child is at risk of exposure to inappropriate sexual behaviour by the father. I am also satisfied that provided the mother is not present during the father’s time with the child, their interaction is kept to a minimum, and the duration of the child’s time with the father is not too long, the risk of the child being exposed to family violence with the father is low and the risk of neglect is at an acceptable level.
The other considerations (section 60CC(3)
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
In reporting the child’s view about spending time with the father,
Dr Lennings said:
“When asked S made it clear that she would like to have some kind of relationship with her father but she appeared to share her mother's punitive views towards her father. She saw him as incompetent, she saw him as angry and aggressive and she saw him as a person who was unable to sustain any kind of conversation and he could be embarrassing in his behaviours. When discussed what those behaviours were it would appear that he would get so anxious that he would be unable to contain himself and he would either yell or scream or he would crouch and shake. Clearly these kinds of behaviours are embarrassing to a young girl. To my mind she is describing his inability to manage his emotions in the presence of either imagined or real conflict with his wife. I believe these behaviours would diminish on the contact visits if his wife was not there. However S also described a number of behaviours of her father that appear to me to be immature and petulant. For instance he would take things from her such as a drink and consume it himself, and he would kick a ball into a tree when she asked him not to. Such behaviours sound more like immature behaviours from a man who really doesn’t know how to relate or to get on with a 12-year-old girl.”
Dr Lennings reported that when asked, S echoed her mother’s wish that the father spend time with her in her mother’s presence. However, Dr Lennings was of the view that this is an untenable situation, and that there is no way the child would be able to develop a personal or individual relationship with the father in the mother’s presence.
I accept the unchallenged evidence of Dr Lennings. This suggests that for S to have an opportunity to develop the relationship she says she wants with her father, her time with her father must be in the absence of her mother, despite her wish to the contrary.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Dr Lennings reported a warm emotional bond between mother and daughter.
The father admitted his relationship with the child is not good, and he accepted some responsibility for this, referring to his angry outbursts directed to the mother in the child’s presence. He accepted that the child may have felt some of these outbursts were directed at her. He said that the phone contact he has had since he stopped face to face time with the child in about April 2007 has been for only about a minute each time as the child is not communicative with him. He conceded that his difficulties with the mother have spilt over into his relationship with the child. He did not believe his relationship with the mother was likely to improve in the future, and believed spending time with the child in the absence of the mother would improve communications between him and the child. This is consistent with the assessment of Dr Lennings.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this matter, subsections 60CC(4) and (4A) are relevant. They provide:
“(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.”
The father has failed to attend to spend time with the child under the consent orders of May 2001 on many occasions. Before he moved to Bxxx, there were periods when the father stopped seeing the child for up to about 2 months at a time. When he moved to Bxxx, the father saw the child each fortnight, rather than weekly as provided for in the orders. However, there were still periods where he would not see the child even fortnightly, and he has not seen her since receiving a poison pen letter from the mother in April 2007.
The father sought to explain these interruptions to his regular visits by reference to disputes with the mother, saying when relations between them became too poisonous, he would stop the visits for a period as it was too distressing and stressful for him, and since receiving the poison pen letter from the mother, he said he has not been prepared to spend the contact time in her presence.
The father insisted that when he did not attend for his contact, he did not ring to confirm a meeting place, whereas the mother said he did arrange to meet, and then simply did not attend. Because of the view I take of the parties’ credit, I prefer the father’s evidence.
One problem with the father’s periodic suspension of his time with the child was that the father gave the child no explanation of why he was not attending to spend time with her.
The mother has directly involved the child in the parental conflict. In November 2004 there was a very heated argument between the parties by phone, during which the mother directly involved the child in the parental argument.
The mother admitted in cross-examination that the child is aware of these proceedings and had read documents filed in them. The mother said the child asked to read documents she saw the mother reading. She said she told the child she was too young to read them but the child simply took the documents forcibly from the mother. The child asked the mother what “masturbate” means after reading the documents. The mother said she responded that the child was too young to have it explained to her. The mother denied telling the child she thinks the father is a paedophile.
The mother’s explanation of how the child came to read documents in the proceedings, suggesting the child forcibly took them from her, was quite unconvincing. It is part of the mother’s case that she is doing a good job raising the child. She described S to Dr Lennings as her “little angel”. She included in her case S’s end of year Year 6 school report, which described S as “well mannered”, always following directions, always accepting responsibilities, always treating others fairly, and always speaking politely. This is simply inconsistent with a 12 year old child so defiant of parental authority that she is prepared to forcibly take something she wants from her mother, which is the scene the mother paints. Almost immediately after giving her evidence about S forcibly taking documents from her, the mother denied the child was old enough to speak up and protect herself if the father did something the child found disturbing.
I am satisfied the mother has shown the documents to the child, consistent with her admittedly taking the child to see her solicitor early on in the proceedings to speak to her solicitor, and bringing the child to court on the first day of the trial to give evidence in her case and again permitting the child to speak to her solicitor.
The mother wrote to the father in mid 2006 advising that her mobile phone was no longer available and that he could ring on the landline after 9.30pm “because the child has a lot of activities after school”. The mother said in cross-examination that she did this because the father kept ringing when she or the child was busy, despite her asking him not to. She advised the father of a new mobile phone number at court in September 2006. The mother sought to justify her request that the father not ring until after 9.30pm on the basis that the child did not get home from ballet lessons, which she had twice a week, until 9.30pm.
In June 2006, the father said he was informed by the Principal at the child’s school that the mother had directed the school to cease sending the father copies of newsletters, reports, etc. After the school holidays, the father said the mother began mailing this material to him. By letter dated 19 July 2006, the mother advised the father that the child’s school “cannot” send him newsletters, reports etc, and that the school had realised it was a “mistake” to have done so. The mother advised the father that thereafter she would send them to him by registered post.
The mother’s evidence when cross-examined about this was concerning. She prevaricated and contradicted herself. She sought to suggest it was the decision of the school principal not to continue sending the father copies of newsletters, school reports, etc, but ultimately admitted she asked the school to stop sending the material direct to the father. The mother said she did this because the orders required her to send the material to the father. However, when the child commenced high school in 2007, the mother stopped sending the father copies of the school newsletters, on the basis, she said, that it was available on the school website and the father should access it for himself.
On 23 July 2006, the mother terminated the father's time with the child after only 30 minutes when he refused to agree to the mother and child travelling to Hong Kong in January 2007 unless the parties first attended mediation.
On 30 March 2007, the father received an anonymous poison pen letter. The mother admitted in cross-examination that she sent the letter to the father. This letter contains quite serious and bizarre allegations. It is as follows:
“To whom it may concern,
You cooked and twisted. There is no one can compete in the name of the father and the son and the Holy Spirit. Amen.
You proclaim Jehovah Witness doctrine and exercising its strategy, [the most famous] [Evil Five Steps] to oppress the most vulnerable individuals as your goal of Paedophiles practice.
You abuse the most vulnerable individuals and the members of your club with moral corruption and corruption.
You set up the family court case to take away the child from a non-white Australian person to repeat the policy of stolen generations, which against and oppressed Aboriginal people in the 19th century. Thus, you can satisfy your desires of Paedophiles practice with the most vulnerable children in the 21st century.
You cannot wait sexually abuse the child and treat the child as your slaves by persuade the members of your club to assist you with Jehovah Witness strategy for your own and very personal secret desires of paedophiles practice.
You abuse many members of your club to carry out the set up family court case to destroy the most vulnerable individuals as your doctrine of your club.
You abuse the human being with handicap condition to harm the most vulnerable individuals by relocate the handicap and have sent members of your club to brain wash the handicap human being day and night for the set up family court case for your secret practice of paedophiles.
You order the members of your club to pretend to be friends with the handicap so that you use the handicap as the bridge because you are not the father of the most vulnerable chid. You cannot take the most vulnerable individual to a family court to get the most vulnerable child for your paedophiles practice.
You abuse the democratic society. You abuse human rights, and individuals’ well-beings. You abuse the system in this society.
You have corrupted mediators, psychiatrists, psychologists, and nurses in hospital and in private practice to put label on the normal individual with severe mental illness.
Thus, the most vulnerable individual will lose the custody of the most vulnerable child. Therefore, you can take away the child through the handicap human being for your own and very personal secret desire of paedophiles practice among all members of your club.
You have corrupted the lawyers in court, in legal service and government servants, who are employed within the social welfare system to terminated legal aid and sole parenting payment to the most vulnerable individual with a dependent child so that they cannot afford to pay for private lawyer to protect the most vulnerable child from your Paedophiles practice.
You abuse the members in your club and ordered them to harass the most vulnerable individuals by paying double games in the members of your club so that these members do not know about your true and very person and very secret motivation on the most vulnerable individuals.
You have planed for a number of the members of your club to be in court for the final hearing. You are showing the most vulnerable individuals how your abuse the members of your club to the very end.
The most vulnerable individuals would like to say, ‘thank you very much for your effort to organise this set up family court case and showing the most vulnerable individuals of the inborn nature of yourself and your members in your club, which have assisted the report for the most vulnerable individuals.’
You are running our of Jehovah Witness strategy to destroy the most vulnerable individuals?
There is one for you. You go to the Catholic fathers and persuade them, ‘the non-white woman has a very severe mental illness in your religion. You need to get rid of her. Don’t let her practice to be Catholic.’ The Catholic fathers will believe in you 100% because you have a persuasive title and reputation in your club as well you are also white like many of them.
Now, off you go immediately because it got to be done before the final hearing. Hurry up, in the name of the father of the son and the Holy Spirit, Amen.” (sic)
The mother's case was not presented on the basis that the father had sexually abused the child or that there was a risk of sexual abuse of the child if the child spent time with the father unsupervised. The mother's case at its highest on this aspect was said to be that the father had engaged in masturbation in the presence of the child. This was said not to involve the use of the child in any way for the father's sexual gratification, but to involve the inappropriate exposure of the chid to this activity by the father.
The mother explained her reason for sending this letter by saying that in June 2006 the father told her there was a “set up family court case” in which someone would say the mother was the one with a serious mental problem and she would lose custody of the child. She claimed to have evidence of the official corruption alleged by her, but then said the only such evidence was what she said the father told her. The mother also said she believes the father intends to sexually abuse the child if he spends unsupervised time with her, and that he is a member of a paedophile ring, although she has no evidence of this. She said she believes the father has brought these proceedings to take the child away from her, despite acknowledging that the father has never sought an order that the child live with him rather than her.
Relevantly to this consideration, I am satisfied on the above evidence that the mother has failed to facilitate a relationship between the father and child, and has in fact sought to hinder it, by:
· inappropriately involving the child in parental conflict and exposing the child to evidence in the proceedings by letting the child read at least some of the affidavits;
· by unreasonably restricting when the father may ring to have phone contact with the child to an unreasonably late hour;
· by sending the father a poison pen letter containing outrageous allegations against the father, for which the mother has not a shred of evidence, knowing that when the stress in their relationship becomes most acute, the father stops seeing the child.
I am also satisfied that the father has failed to avail himself of many of the opportunities to spend time with the child provided for under the previous orders without explanation to the child. Further, the father has acted destructively of the relationship between the child and her mother by his angry and abusive outbursts directed to the mother in the child’s presence.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
A continuation of the present arrangement is on the evidence clearly untenable. The option of the father spending no time with the child is at present similarly untenable. The alternatives are unsupervised time or time supervised by a third party.
Either of these options would be beneficial in that they would enable the father and child to spend time together in the mother’s absence, and thus away from demonstrations of the poisonous relationship between the parents. Neither option would meet the full wishes expressed by the child, who expressed the wish for her mother to be present.
Time supervised by a third party would provide the mother with some reassurance for the child’s safety, despite the absence of evidence to substantiate her expressed concerns about unsupervised time. On the other hand, supervised time may convey the impression to the child that the Court feels she needs protection from the father, and reinforce in the child the mother's unsubstantiated fears about the risks the father poses.
Unsupervised time may provide the best opportunity for the father to demonstrate such parenting capacities as he may have free from the stress of being supervised needlessly as he sees it, a not insignificant consideration since stress seems to be a reasonably significant contributor to his past inappropriate interaction with and behaviour in the presence of the child.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Within the range of viable options at present, the distance between the parties’ residences is not a relevant consideration.
(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
As indicated under the second of the primary considerations when considering the risk of neglect of the child, the father’s parenting capacity is quite limited due to his lack of communication skills with the child, his self-absorption, his immaturity and petulance, and his inability to recognise the child’s emotional needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Despite the child’s age (nearly 13) calling for significant weight to be placed on her views, as previously mentioned when dealing with her views, there are good reasons why her wish to spend time with the father in her mother’s presence should be disregarded.
(h) If the child is an Aboriginal child or a Torres Strait Islander child the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right
This consideration is not relevant.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Subsections 60CC(4) and (4A), set out above, are relevant to this consideration.
The manifestations of the father’s self-absorbed, immature and petulant behaviour, and his displays of anger and use of bad language in the child’s presence, as referred to earlier, show a poor attitude to the child and the responsibilities of parenthood. Similarly, both parties’ actions referred to earlier as inhibiting the development of a relationship between the child and the other parent reflect poorly on both of the parents under this consideration.
(j) Any family violence involving the child or a member of the child’s family
I have dealt with the issue of family violence under the second of the primary considerations.
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
There are no family violence orders.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is not apparent that either supervised or unsupervised time with the child is less likely than the alternative to lead to further litigation about this child.
(m) Any other fact or circumstance that the court thinks is relevant
There are no other relevant facts or circumstances.
Comparative assessment of relevant considerations
The most significant matters in this case are the benefit to the child of a meaningful relationship with both parents, the need to protect the child from the risk of neglect and family violence, the child’s views, the child’s poor relationship with the father, and the poisonous relationship between the parties as manifested in their mutual failure to foster a close and loving relationship between the child and the other parent and their attitudes to the child and the responsibilities of parenthood.
I am not satisfied the child is at risk of sexual abuse or of exposure to sexual behaviour while with the father. Hence, I am not satisfied any supervision or oversight of the father’s time with the child is warranted for this reason. Nor am I satisfied his time with the child should be restricted to public places for this reason.
I am not satisfied there is such a risk of neglect of the child or of exposure to family violence from relatively short periods with the father that any supervision or oversight of his time with the child is warranted for this reason. Nor am I satisfied his time with the child should be restricted to public places for this reason.
The only purpose supervision or oversight of the father’s time would serve is to reassure the mother of the child’s safety from what appear to be irrational fears in relation to a risk of sexual abuse and greatly exaggerated fears in relation to exposure to sexual behaviour. It would come at the cost of creating an impression the child needs protection from the father. When viewed with the mother’s involvement of the child in the proceedings and her exposure to the affidavit evidence, including references to masturbation, this may simply serve to reinforce in the child the mother’s view of the father as a deviant from whom the child needs protection, when there is no evidence of any such risk. On balance, therefore, I am satisfied any order for supervision would be more harmful than beneficial for the prospects of developing a healthy relationship between the father and child.
In any event, the only third party supervisor nominated by the mother, Ms N, while acceptable to the father, seemed rather reluctant, was unsure of her role, and was unclear why her presence may be required. Her availability was quite uncertain. But in the result, these matters become irrelevant.
What then of the duration and frequency of the father’s time? The 6 hours the father seeks seems unrealistic at this stage. That was the view of Dr Lennings, he was not challenged on that view, and I accept his evidence. Similarly, Dr Lennings suggested the frequency was less important than the quality of the time spent. The extent to which the father may have benefited from the parenting program he attended is untested. The child herself may well have some reticence about spending time with the father away from her mother, in light of her views on that matter. The father’s extremely limited parenting capacity calls for caution in seeking to reintroduce a regime of spending time, especially when the father has not spent time with the child since April 2007.
I accept Dr Lennings’ view that time should be monthly, and should be graded with the first period of no more than an hour or two at the most. Thereafter, in my view the time should increase to a duration of 3 hours but no more unless the child herself seeks it. The mother’s explanation of her objection to visits of 3 hours, while proposing visits of 2 hours, that the father could not communicate for that long, may be overcome by a gradual build up to 3 hours, and by the removal of one half of the past poisonous interaction that has occurred when the child and the father have spent time together, namely the mother.
Decision
I therefore find that what is in S’s best interests is to see her father unsupervised, once a month and on Christmas Day, for a period of 2 hours for 4 occasions, and thereafter for a period of 3 hours. Changeovers should occur at Cxxx Railway Station, the mother should depart the area as soon as she delivers the child to the father, and she should not thereafter attempt to contact the child during her time with the father. However, the child should be permitted to contact the mother at any time when with the father. Otherwise, the father should spend time with the child on any occasion the child requests, and should spend more than the above times if the child so requests. Further, the father should be permitted to attend school events to which parents are invited.
Both parties and the Independent Children's Lawyer agreed that there should be an equal shared parental responsibility order. I will make such an order, despite considerable misgivings about the parents’ ability to communicate appropriately for such an order to work. It will certainly be in the child’s best interests if the parents are able to communicate sufficiently to jointly discharge parental responsibility for the child, and I make the order in the hope that the existence of the order may spur the parties to achieve that goal.
During final submissions, the father sought an order that the Independent Children's Lawyer explain the orders and how they are to work to the child. Considering the child’s inappropriate involvement in the parental conflict and in these proceedings by the mother, I consider this entirely appropriate, and will so order.
The parties ultimately reached agreement, during final submissions, in relation to overseas travel. They agreed that the mother be permitted to take the child overseas for a maximum period of 1 month no more than once a year, provided the mother gave the father 2 weeks’ prior notice and a copy of the return air ticket, and provided further that any time with the child due during an absence overseas be made up within one month of the child’s return to Australia.
In relation to the father’s application to restrain each party from forwarding abusive or disparaging letters or emails to each other or any third party, the father, who was unrepresented, was unable to identify the provision under which he sought this order. I assume it is sought under either s.68B or s.114 of the Family Law Act.
In his submissions, the father said one reason he ceased seeing the child after receiving the poison pen letter from the mother was that he was advised by his employer that if they received a complaint in the nature of the letter, he would be stood down. This suggests the father disclosed the letter or at least its contents to his employer.
As I intend ordering the father’s time be unsupervised, it would seem unlikely that any repetition of the mother's poisons pen letter would interfere in the father's time with the child. It does not appear that the order is for the welfare of the child, but rather for the convenience of the parties. Hence it seems unsupportable under s.68B.
In the absence of evidence the parties have been making false or malicious complaints about the other to third parties, in my view an injunction of this kind under s.114 is not warranted.
Similarly, the basis on which the father sought the injunction to restrain the mother contacting his family in the UK is uncertain, and I am not satisfied such an order should be made.
Finally, the mother's application that the father be ordered to attend on a psychologist is not supported by any of the evidence. If the father's eccentric behaviour warrants such an order, it may be argued the mother's bizarre and irrational allegations against the father and his mother may warrant a similar order. However, Dr Lennings, having assessed both parties, finds no signs of any condition that could warrant the order the mother seeks.
I certify that the preceding one hundred and fifty two (152) paragraphs are a true copy of the reasons for judgment of Halligan FM.
Associate: Deanne Bush
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