Martyn & Thompson
[2008] FamCA 732
•28 August 2008
FAMILY COURT OF AUSTRALIA
| MARTYN & THOMPSON (NO. 5) | [2008] FamCA 732 |
| FAMILY LAW – CHILDREN – Sole parental responsibility - With whom a child lives- supervised time - issues of credit Family Law Act 1975 (Cth) G and C [2006] FamCA 994 |
| APPLICANT: | Ms Martyn |
| RESPONDENT: | Mr Thompson |
| FILE NUMBER: | HBF | 608 | of | 2002 |
| DATE DELIVERED: | 28 August 2008 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 21 & 22 July 2008 |
REPRESENTATION
SOLICITOR FOR THE APPLICANT: | Ms Harper | |
SOLICITOR FOR THE RESPONDENT: | In person | |
| COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER | Ms Baker | |
Orders
All previous parenting orders in respect of … born … December 2001 (“the child”) be discharged.
Ms Martyn (“the mother”) have sole parental responsibility for the child save as is otherwise provided in these orders.
The child live with the mother.
The child spend supervised time with the father at the Hobart Contact Centre (“the Contact Centre”) subject to the following orders.
Each party contact the Contact Centre within seven days of the date of this Order and:
a. arrange an appointment for assessment for suitability for supervised times;
b. attend the assessment;
c. attend any appointments made by the Contact Centre for supervised time;
d. comply with all reasonable rules of the Contact Centre; and
e. comply with all reasonable requests and direction of the staff of the Contact Centre including but not limited to a recommendation that the parents or either of them participate in a program or programs.
If after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in this order then each party and the Independent Children’s Lawyer have leave to restore the matter to the list on the giving of fourteen days’ written notice to the other party and to the Court, with such liberty to re-list the matter to expire as and from twelve months from the date of this order.
If after assessment the parents are accepted by the Contact Centre as suitable for supervised time the father is to spend time with the child on one day each fortnight on either a Saturday or a Sunday at times nominated by the Contact Centre.
In the event that the Contact Centre offers supervised times only at times which are less regular than specified in this order then time will be spent at the times which are offered by the Contact Centre.
The periods of time to be spent provided in these orders may vary by reason of the closure of the Contact Centre’s services during holiday periods and in such event, time will be spent at times when the services can be provided by the Contact Centre.
The father shall not attend the Contact Centre or its vicinity before the time with the child is to start and shall promptly leave the Contact Centre and the vicinity when the time with the child is to end.
Within three months of the date of these orders the parents shall meet with
Dr W and shall confer in respect of the child’s future time and communication with the father and in that regard:a. Times shall be as provided by these orders or as otherwise agreed by the parents in writing, with the guidance and counsel and should the parties not reach agreement, written recommendation of Dr W.
b. In the event the parents do not accept the recommendations of Dr W and are unable to resolve that conflict at a Family Relationship Centre or similar, each party including the Independent Children’s Lawyer have liberty to apply with respect to this paragraph for a period of twelve months commencing twelve months after the date of these orders.
c. This paragraph is to operate for two years from the date of these orders.
The father meet the costs of the Contact Centre and Dr W.
Pursuant to section 64B(2)(h) before the parties commence further proceedings in relation to any changes to the time the child spends with the father they shall:-
a. consult Dr W (or some other similarly qualified expert agreed between the parties) in relation to the time the child spends with each parent, in particular:-
i.times shall be as set out in these orders or otherwise agreed in writing between the parties under the guidance and supervision of Dr W; or
iiin the event the parties are unable to agree then such time as is recommended in writing by Dr W;
iii.in the event the parties not accept the recommendations of Dr W and are unable to resolve such conflict at a Family Relationships Centre or similar then the parties or either of them shall then be at liberty to commence proceedings.
b. nothing in this order shall prevent either party from making application to a Court in the event that such application would fall into the exceptions provided under s60I(9) of the Family Law Act.
IT IS NOTED
The parties should endeavour, within eighteen months of the date of these orders, to develop a plan for the father to spend time and communicate with the child having regard to the recommendations of Dr W.
IT IS FURTHER ORDERED
The parents each provide a postal address by which that party may be able to be contacted and an emergency contact number by which that party may be able to be contacted to the Independent Children’s Lawyer within fourteen days from the date of these orders (such address and telephone number need not be the residential address and/or telephone number of such party).
The Independent Children’s Lawyer shall:-
a.inform each party of the other’s contact details by ordinary pre-paid post within a further period of seven days;
b.forward a copy of these reasons to the Single Expert within 21 days of the date of the orders.
Thereafter each party shall keep the other informed as to a current emergency telephone number and contact postal address until such time as the child attains the age of eighteen years.
The mother to keep the father informed of the school which the child attends and any medical treatment provided to the child.
The father have parental responsibility such as to enable him to obtain copy school reports from the school which the child attends and be able to communicate with the child’s teacher as to the child’s progress at school.
The father have parental responsibility such as to enable him to speak to a medical professional providing assistance to the child (provided that the child and/or the mother are not present at that time without the written consent of the mother).
BY CONSENT neither party physically discipline the child or allow any other person to physically discipline the child.
BY CONSENT both parents are restrained from abusing, demeaning or belittling the other party in the presence or hearing of the child.
BY CONSENT each party shall have available on show in the child’s bedroom, at the child’s principal place of residence, a photograph of the other party.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parents adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
a. A transcript of the evidence of the father given in these proceedings, be taken out;
b.A copy of these reasons, a copy of that evidence and Exhibits M5 and ICL5 be forwarded by a Registrar of this Court to the Commonwealth Attorney General (or his nominee) to consider whether the evidence of the father may have breached a law of the Commonwealth.
This matter be removed from the list of cases requiring determination.
The appointment of the Independent Children’s Lawyer be extended for a period of twenty-four months from the date of these orders and is thereafter discharged.
All subpoenaed documents be returned to the persons or institutions from which they emanated.
All exhibits be retained on the Court file for a period of twelve months from the date of these orders and copies may be made available to the Commonwealth Attorney General (or his nominee).
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Martyn & Thomson approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBF608/2002
| MS MARTYN |
Applicant
and
| MR THOMPSON |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parties’ child (“the child”) is aged six and a half and has been the subject of parenting litigation between Ms Martyn (“the mother”) and Mr Thompson (“the father”) for most of her life. These are the reasons in respect of the second final hearing regarding parenting of the child.
The mother seeks orders that she have parental responsibility for the child, the child live with her and spend supervised time with the father through the Hobart Contact Centre, the time and method of that contact being under the guidance of a clinical psychologist, Dr W.
The father has not filed an amended application but said he wishes the parents to have equal shared parental responsibility and that the child live with him. He seeks orders that the child should spend time with the mother each alternate weekend from after school Friday until Sunday and spend half the school holidays with the mother. He seeks orders for a psychiatric and psychological assessment of each of the parents and the child on a continuing basis.
In July 2005 an independent children’s lawyer was appointed to represent the interests of the child. At the end of the hearing the independent children’s lawyer sought orders substantially the same as those sought by the mother.
The parents and independent children’s lawyer agreed that there ought to be an order restraining the parents from physically disciplining the child, restraining the parents from abusing, demeaning or belittling the other party in the presence or hearing of the child, that a photograph of the other party be placed in the bedroom of the child when living with that parent. These were to be mutual consent orders. Such orders are in my view in the best interests of the child.
The independent children’s lawyer sought an order that the father undertake an anger management course. I have not made that order although it is clearly within the discretion of Dr W to request the father to undertake such a course to enable him to spend time with the child (if Dr W determines that this is the appropriate course) other than time at the Contact Centre.
Any statements of fact in these reasons are to be regarded as a finding of fact unless the contrary intention is clear from the context in which the statement is made.
BACKGROUND
The father is aged thirty five. He provided no evidence of his current employment. There was no evidence about his health apart from the psychological assessment referred to later in these reasons. The father has two children being the child and another child E (being a child of his relationship with Ms JB). E is aged about three and a half[1].
[1] See exhibit “ ICL8” – Geno gram by ICL.
The mother is aged thirty years. She has two children being the child and N who is aged ten. The mother, N and the child live together.
The parents commenced a relationship in about mid 2000 and commenced living together in about November 2000. The parents separated in February 2002. The separation was about two to three months after the birth of the child.
The litigation between the parents has been long term and consistent. It has not resolved the parenting conflict between the parents.
The initial parenting proceedings were commenced in February 2002 and interim orders were made in May 2002 which provided that the child live with the mother and have contact with the father. The matter proceeded to a final hearing on 6, 7 and 27 March 2003 and final orders were made by Hannon J on 1 July 2003. Those orders provided that the child reside with the mother, the mother be responsible for the day to day care, welfare and development of the child whilst the child is in her care and the father have the responsibility of the child when the child is in his care. The orders went on to provide that the father have contact with the child on an unsupervised and escalating basis.
Between July 2003 and the commencement of these proceedings there were no applications seeking a change of the parenting regime but there were proceedings regarding alleged non compliance with orders. The father was found to have contravened parenting orders by his actions on 12 March 2004 and 26 March 2004. Those contraventions were made out before Federal Magistrate Roberts.
On the child’s birthday in December 2004 the father had contact with the child and did not return the child as was arranged from that contact. As a consequence of the father’s actions the mother sought and obtained an ex parte recovery order on 10 January 2005. The mother subsequently obtained the assistance of a location order on 1 February 2005. Those proceedings were commenced by application filed 31 January 2005. With the help of the police and the location order the child was recovered on 20 February 2005.
Since that time there have been endeavours with regard to the child seeing the father through the Contact Centre although this has only occurred on two occasions. There was one other occasion where the father saw the mother in a shopping centre and saw the child.
A single expert was appointed in July 2005 and in July 2006 Dr W was appointed to prepare a report. This matter came before Bryant C J on 28 August 2006 at which time the Chief Justice noted the parents consented for the matter to be dealt with under Division 12A of Part VII of the Family Law Act (“the Act”) and the Chief Justice was satisfied that the father (who at that time was unrepresented) freely consented to the matter being dealt with under that Division. Accordingly this is a matter to which the provision of Division 12A of Part VII of the Act applies.
Shortly after August 2006 the matter was mentioned concurrently with two other proceedings. These were proceedings between the father and JB with regard to their child, E, and proceedings between MS and JB in relation to their child, T.
A single expert report was ordered from Dr C (“the single expert”). Her report dated 4 July 2007 was released to parties on 6 July 2007 (“the single expert report”).
The matter was the subject of directions until it came before the Court on
5 February 2008. At that time the father did not attend Court and it seemed likely that the proceedings between the father and JB and the proceedings between JB and MS could be dealt with separately. The proceedings were stood over for possible undefended hearing on 17 March 2008. Directions were made for parents to file affidavits. The mother filed affidavits in compliance with those directions.When the matter came before me on 17 March 2008 the father (who had been represented earlier in the proceedings) said he still wanted the matter to be dealt with on a defended basis.
The two other proceedings were adjourned to a date for hearing and have now been resolved. No detailed evidence of the resolution of those proceedings was provided except a statement from the father by way of submission that he was having regular time with his daughter E.
These proceedings were listed for hearing on 21 and 22 July 2008 and directions were made that affidavits upon which the parents relied were to be filed by 2 May 2008. Neither party complied with that direction. The matter came before a Registrar who directed that all affidavits were to be filed and served by 11 July 2008. The mother filed her material on 17 June 2008 being her affidavit and an affidavit by her mother PM and her father RM. She had also filed an amended application on 3 March 2008 setting out the orders which she asked the court to make.
The father was well aware of the time limits but did not file any material. He arrived at Court after 10.00am on 21 July 2008 and sought a further adjournment of the hearing to enable him to obtain legal aid and file documents. I declined that application and delivered ex tempore reasons at that time.
The trial proceeded over the next two days with evidence being given by the mother, the child’s maternal grandparents, the single expert, the father and short telephone evidence by Dr W. All witnesses were made available for cross-examination.
CREDIBILITY
The evidence of the mother and the child’s maternal grandparents was not seriously challenged by the father. This, however, must be seen in the context of the father self representing. He raised issues which put the evidence of the mother and her witnesses in issue. The independent children’s lawyer cross-examined the mother and her witnesses. I have some concerns about the accuracy of the evidence of the mother particularly in terms of her assertion (and that of her parents) that she was encouraging a relationship between the child and the father. The single expert[2] observes on page 5:-
“She did not feel comfortable about pressing her daughter to do something she so clearly did not wish to do. She stated that she is happy for her daughter to attend supervised access visits with her father, if she wishes to do so”.
[2] The single expert report.
On page 13 of the single expert report the child is reported to have said to the single expert that:-
“her mother has told her to tell me [the single expert] that she did not want to see her father and that she ‘hates her father;’ and that her mother hates her father”.
The single expert determined that the child believed the mother wanted the child to express negative views about the father.
The mother and her parents are subjective and their evidence must be seen in the light of the mother being involved in significant and continuing litigation over the last six years. The evidence of the child’s maternal grandparents must be seen in the context of their relationship with the mother and of the assaults by the father on the mother and on the maternal grandfather.
The father’s evidence was, to say the least, problematic. He prevaricated and avoided answering questions. Some of the evidence he gave did not have a ring of truth and other evidence he conceded was just untrue. On the first day of the hearing the father was cross-examined about some driving charges he faced in the Hobart Magistrates Court. He was shown prosecution details[3] which was a business record of Tasmania Police disclosing that the father had been charged with;
· drive under the influence of intoxicating liquor;
· drive whilst disqualified;
· drive a motor vehicle while exceeding the prescribed alcohol limit (0.0148 grams of alcohol per 210 litres of breath);
· drive without a driver’s licence; and
· exceed the speed limit.
[3] Exhibit “M5”.
The father denied that he had been charged with such offences, he denied attending Court in respect of them and said he had not driven a motor vehicle for about one year.
The following day, when questioned about a digital recording of the father entering a guilty plea to a number of those offences at the Hobart Magistrates Court a week or two before giving this evidence, the father then admitted that he had been driving motor vehicle as alleged by the police and that he had been charged with those offences and convicted for some. The father continued to deny that drugs were involved. He said that his memory had failed. I do not accept he was truthful in that regard.
The father equivocated when questioned about Dr W seeking a referral to a general practitioner with regard to a mental health case plan and as such it was necessary to call Dr W.
I raised with counsel and the father as to whether the evidence of the father should be referred to the Attorney General for consideration of any charges under Commonwealth Law. Having regard to the nature of the father’s evidence, I intend to make that referral.
Some of the father’s evidence was not truthful. The father was prepared to either avoid answering questions, answer questions with a question or deceive the court to achieve the ending he thought was appropriate. Accordingly, where there is a conflict in the evidence between the father and the mother I will generally prefer the evidence of the mother except where the evidence of the father is otherwise objectively supported. This approach is moderated as a result of my earlier expressed reservations in regard to the mother’s evidence.
THE EVIDENCE
The mother gave evidence in accordance with her affidavit filed 17 June 2008 (“the mother’s affidavit”). I generally accept her evidence.
She described her early relationship with the father as being initially good. However, from that time the mother said that the father became controlling. The mother’s evidence was that, prior to separation, the father had become demanding and verbally abusive to her. She said the father endeavoured to isolate her from her family.
The mother and the father separated in about February 2002, at that time the child was aged about two months. The mother’s evidence was that since that time whenever there is a changeover or contact with the father, on every occasion, she is subject to verbal abuse irrespective as to whether the child is present or not. I accept her evidence in that regard.
The father retained the child in November 2002 (when the child was aged less than one year) and to have the child returned to the mother it was necessary for her to seek and obtain a recovery order. During that time, in November 2002, the father took the child to see a number of doctors in circumstances which could only be described as doctor shopping, the father seeking from the doctor’s answers that the father considered were ‘right’.
In 2003 final orders were made, as set out earlier in these reasons. After those final orders were made there were allegations by the mother, which I accept, of the father breaching the orders in that he kept the child overnight without prior arrangement or orders. Notwithstanding those breaches the mother continued to arrange for the child to see the father in accordance with the then court orders.
The mother had originally sought and obtained a restraint order against the father in November 2002. This order subsequently expired. In October 2004 the mother applied for a further restraint order claiming that the father had verbally abused her then grabbed her by the shoulders and pushed her before slapping her once to the face with an open palm (which evidence I accept). As a consequence of that behaviour the father was convicted of common assault on 2 December 2005 and on 22 February 2005 a restraint order was made against the father for a period of twelve months.
On 21 November 2005 the father was convicted of breaching an interim family violence order for the protection of the mother on or about 25 October 2005[4].
[4] See Exhibit”ICL5”.
The father had contact with the child on the child’s birthday in December 2004. He did not return the child from that contact in contravention of the orders and otherwise absent of any prior arrangements with the mother.
The father left the State of Tasmania with the child. He did not inform the mother that he was doing this and he did not inform her of his whereabouts or those of the child. This retention happened on the child’s third birthday and in the Christmas/New Year holiday period. In early January 2005 the mother applied to the Family Court and was granted a recovery order for the child. The whereabouts of the child were unknown to the mother and the recovery could not be made. On 1 February 2005 the mother was granted a location order by the Family Court. As a consequence of those location and recovery orders the child was recovered on 20 February 2005 and returned to the mother. The child was isolated from her primary carer for a period of almost two months.
On the return of the child to the mother, the child was unsettled and I accept the evidence of the mother that the child’s hair was dirty and the child showed some indications that she had not been properly cared for by the father.
The mother says, and I accept, that the two months that the child was in the exclusive custody of the father (between December 2004 and February 2005) the mother was worried and stressed and required medication and medical help.
The father’s removal of the child from the care of her mother in December 2004 also impacted on the broader family including the mother’s elder child, N.
Within a short period of time after the child was returned to the mother, the father arranged for his then solicitors to write requesting contact with the child on 22 February 2005 as per the previous court orders. This displayed breathtaking arrogance and/or lack of insight by the father as to the impact on the mother and the child by his removal and retention of the child from the mother’s care.
Arrangements were put in place for the child to spend time with the father at the Children’s Contact Service Hobart. On the first occasion the father did not attend. The child saw the father on the second and third occasion. On the fourth visit the child declined to attend and on the fifth visit she did not get out of the car. Arrangements were put in place in 2007 for the father to undertake some treatment through Dr W so that endeavours could be made for the contact to resume. The father declined to do so and the child has not seen the father for over two years.
The child was sexually assaulted by another child in November 2006. This occurred when the mother was visiting a friend and the mother made appropriate disclosures to the police and facilitated their investigations. Since that time the mother has not visited the friend. There has been at least one occasion where the former friend attended the mother’s home whereupon the mother called the police to have her removed. The father was critical of the mother in terms of her protection of the child and the mother’s association with this former friend. I am satisfied that the mother was properly protective of the child and after discovering the abuse the mother has taken steps to end her association with the former friend. Her evidence, which I accept, is that for some considerable time the mother has ended that friendship and voluntary meetings or interaction between the mother and that former friend have not occurred.
The mother took the child to sexual assault counselling which ended two months ago. She describes the child as now a happy little girl.
The mother has not had any contact with the father since he took the child to Sydney. She does not know his present address. I accept the mother is the primary carer of the child and I accept the evidence of the mother and the single expert that the removal of the child from Tasmania to Sydney in December 2004 had a significant impact on both the child and the mother. I accept the mother’s evidence that she properly cares for the child and I note that the father observed to the single expert the following:-
“In relation to [the child] [the father] stated that some years ago, he was concerned about [the child’s] well-being as he was unsure of [the mother’s] parenting ability given her age. He stated that he now believes “she is doing fine”. He said he had no concerns about [the mother’s] parenting ability and simply wanted to move forward and reinstate supervised access with his daughter”[5]
[5] Single expert report page 4.
The father went on to say:
“He stated that he is satisfied with the level of care [the mother] is providing to [the child]”[6]
[6] Single expert report page 9.
The mother gave evidence, which I accept, that the child has some health concerns in that she suffers from encopresis. The effect of this illness is that the child sometimes suffers from incontinence and is required to wear appropriate underclothing. The mother says that this illness and the treatment of it has involved the child in a significant amount of time away from school. The mother is endeavouring to manage the educational challenges through liaison with the child’s teachers. The mother says the child is doing well at school. The mother takes the child to doctors and specialist appointments. One of the side effects of the encopresis is that the child suffers from urinary tract infections from time to time, which needs treatment.
The father asserted that the mother had difficulties in terms of her alleged use of alcohol. There is no reliable evidence before me, apart from the father’s assertions, and having regard to my views of the father’s evidence I do not regard it as reliable. The mother denies that assertion. I accept the mother’s evidence that she occasionally drinks but not to excess. The mother gave evidence that she does not take illegal drugs, which evidence was not seriously challenged by either the father or the independent children’s lawyer.
The child lives in a comfortable home and her medical and physical needs are met. I am satisfied that the mother is able to care for the child’s physical, psychological and emotional needs.
I accept the mother’s evidence that the child has been distressed when she sees her father or believes she is to see the father. I also accept the evidence the child has some good memories of the father.
PM (the child’s maternal grandmother) gave evidence in accordance with her affidavit filed 17 June 2008. Her evidence was supportive of the evidence of the mother and she said that she supported the child seeing the father. Her evidence, in cross-examination, was that she never ran down the father in the presence of the child. Her evidence was consistent with the mother’s evidence of the child being reluctant to see the father in the Contact Centre on fourth and fifth occasion. She also provided evidence as to the poor condition of the child’s hair when she was recovered from the father in late February 2005. I generally accept her evidence.
RM (the child’s maternal grandfather) gave evidence in accordance with his affidavit filed 17 June 2008. His evidence was supportive of the mother. He said that his evidence was that the father was abusive at changeover and this continued irrespective of where the changeover occurred. He gave evidence of a number of events of verbal abuse. RM said, and I accept, that in July 2005 he was assaulted by the father and as a consequence RM suffered a broken nose and two black eyes. The father was charged with an assault arising out of that incident and was convicted. I accept that an award of $2,000.00 victims of crime compensation was made to RM. I find that the father was violent to RM and that the father has little or no insight into the impact of his violence to members of the mother’s family (including the mother) in terms of the relationship of the child with the father.
Evidence was given by the single expert in terms of her report. Without repeating all of the material contained in that report, I accept her evidence. I find that the child is attached to the mother and that the mother is the principal carer of the child. I accept her evidence that there are concerns about the father’s psychological functioning including the tendency towards violent behaviour and I note and accept her evidence that the father would benefit from engaging in an anger management course.
The single expert found that there was emotional connection between the child and the father and from a psychological point of view
“it is important for [the child] to be able to further develop this relationship. However there was enough evidence to suggest that [the child] had developed a fear response towards her father which required some consideration. I believe that it would be beneficial for [the child] to engage in a process of counselling to explore further her reluctance to see the father to remedy the situation”[7]
[7] Single expert report page 17.
The single expert was of the view that the child’s reluctance to see the father was an anxiety arising out of the child’s removal from the mother in December 2004. It is significant to note that the child was worried about whether she would see her mother again if the father took her away[8].
[8] Single expert report page 13.
The way forward, according to the single expert, was by way of the child spending supervised time with the father under the guidance and counselling of Dr W. I accept the evidence of the single expert as to this approach together with her underlying reasons upon which that view is based.
The father cross-examined the single expert and during that cross-examination it became clear that subsequent to preparing the report the single expert has entered into a therapeutic relationship with the mother and has seen her on eleven occasions. That is not a relationship which I would have approved had I have known of that proposal in advance. It is inappropriate and unfortunate that this single expert undertook this therapeutic work. The taking on of such therapeutic work for the mother had the capacity of undermining the integrity of her report and creating a need for a new report.
A single expert, or for that matter any expert giving evidence in this Court must certify that the “opinions expressed in [the] report are independent and impartial”.[9]
[9] Family Law Rules 15.62.
This requirement follows on from Rule 15.59 which sets out the expert witnesses duty to the Court;
(1) An expert witness has a duty to help the court with matters that are within the expert witness’s knowledge and capability.
(2) The expert witness’s duty to the court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness.
(3) The expert witness has a duty to:
(a) give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability;
(b) conduct the expert witness’s functions in a timely way;
(c) avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts;
(d) consider all material facts, including those that may detract from the expert witness’s opinion;
(e) tell the court:
(i) if a particular question or issue falls outside the expert witness’s expertise; and
(ii) if the expert witness believes that the report prepared by the expert witness:
(A) is based on incomplete research or inaccurate or incomplete information; or
(B) is incomplete or may be inaccurate, for any reason; and
(f) produce a written report that complies with rules 15.62 and 15.63.
(4) The expert witness’s duty to the court arises when the expert witness:
(a)receives instructions under rule 15.54; or
(b)is informed by a party that the expert witness may be called to give evidence in a case.
For single experts who undertake this work they are informed of the consequences of non compliance which include the power of the court to require the single expert to attend court, refuse to allow the report or questions and answers to be relied upon, and powers to award costs. I will direct that a copy of these reasons be forwarded to the single expert by the independent children’s lawyer.
Fortunately from the point of view of the report and the child (and for that matter the single expert) the report was completed before the therapeutic relationship between the expert and the mother started and further the child has not seen the father since the report has been prepared. I am satisfied that the evidence contained in the single expert report is not contaminated or impeached by her later therapeutic relationship with the mother.
The father had not filed any affidavits in these proceedings and sought leave to give evidence orally. Contrary to the submissions of counsel for the mother and in accordance with the submissions of the independent children’s lawyer and the father I gave leave to the father to give his evidence orally. His evidence included that he had always provided for the child and N. He denied he was ever nasty to the children and that the only time he took the child to the doctors was when she needed care.
The father said that the reason he took the child to Sydney was that he observed a welt across her back and that he was going to Sydney because the child’s paternal great grandmother was dying. The father said that a police officer was with him on 26 or 27 December 2004 (that police officer did not provide evidence) and the child made an allegation to the father and to the police officer that the welt was caused by the mother.
The father’s evidence, insofar as the welt being observed in late December 2004, is contradicted by a log sheet produced as a business record by the State child welfare authorities[10]. That report shows that the father did make a complaint on 27 December 2004, which was that the child had been bruised but that that bruising occurred some months before. Having regard to the unreliable nature of the father’s evidence, I prefer the evidence as disclosed in the log from the welfare authority.
[10] Exhibit “M1”.
There was no follow up by the father either with the police or of the notification to the welfare authority. I find that the father had determined to retain the child, irrespective of the court orders and premeditated his excuse via the telephone call to the welfare authority. He produced no affidavit evidence from the police officer.
The father said he attended the Parramatta Registry of the Family Court in early 2005, however, he commenced no proceedings in respect of the child, knowing full well of the orders that were in place from 2003.
The father gave evidence that when was in Sydney he intended to return the child to Tasmania and had arranged for both he and the child to fly from Sydney to Hobart on 21 February 2005 (the day after the child was recovered). The father said that he eventually flew back to Hobart a few days later after 20 February 2005. He did not offer any satisfactory explanation as to why he did not fly back on the day he said he had planned to return to Hobart. If he had tickets to fly back on 21 February 2005 the rhetorical question should be asked as to why he did not fly back then. I do not accept his evidence that he was going to return to Tasmania with the child.
The father was aware the child had time off school and blamed the mother. He did not seem to acknowledge or accept the child’s illness.
The father asserted that the child had a good relationship with his family and later tendered into evidence photos of the child with members of the father’s family. Evidence was not called from those members of his family despite the opportunity for the father to do so by affidavit.
The father complained in an email to the independent children’s lawyer[11] that he was not seeing the child. This complaint was made in December 2007 and the independent children’s lawyer responded by letter dated 13 December 2007[12] in which she noted that the father had not completed the six appointments required with Dr W. I find the following facts in relation to the father’s endeavours to re-connect with the child:-
·The father agreed he would have a series of sessions with Dr W.
·The single expert opined that the child should have supervised time with the father and that should be reinstated through the Contact Centre under Dr W’s guidance.
·The single expert further opined that the father may have psychological and/or emotional issues that warrant psychological intervention.
·The single expert wrote to Dr W on 23 July 2007[13] asking him if he would assist with the recommencement of supervised time.
·In mid October 2007 Dr W advised the parties that he would need six sessions with the father. The father attended only two of those appointments. He declined to obtain a referral from a GP under a mental health plan to facilitate the remaining sessions. The father disputed that evidence of Dr W. I prefer Dr W’s version of events.
[11] Exhibit “ICL1”.
[12] Exhibit “ICL2”.
[13] Exhibit “ICL6”.
When cross-examined by the independent children’s lawyer the father could not adequately explain why he did not take up the opportunity to spend supervised time with the child. The father has not seen the child in circumstances where if he had taken the steps recommended by the single expert and Dr W it is possible that such time would have recommenced. I find that the father had adopted an approach in recent times that he will not see the child unless it is unsupervised. This is indicative of the controlling approach that the mother complains about.
The father complained that he was not provided information from the mother about the child. Information was provided by the mother through the independent children’s lawyer to the father[14].
[14] Exhibit “ICL3”.
The independent children’s lawyer tendered the father’s police record. The father objected to its tender. Notwithstanding that objection it was admitted into evidence. The major matters disclosed by that police record are:-
·August 2005 - Common assault, fail to appear, breach of bail. The father was convicted of those offences.
·November 2005 - Breach of interim family violence order (25/10/05). The father pleaded guilty to that offence and his sentence was the previous twenty six days he had served in prison.
·December 2005 - Drive without a driver’s licence, common assault (23/10/04) and breach of restraint order. The father pleaded guilty to the first two offences. He pleaded guilty to a breach of restraint order (18/2/03).
·January 2006 - Assault police (11/9/05), escape (11/9/05). The father was convicted and received a global sentence being a term of twenty eight days that he had spent in prison on committal.
·October 2006 - Prescribed alcohol limit (BA reading 0.152), unregistered motor vehicle and exceed speed limit. The father pleaded guilty to all three charges.
·March 2007 - Failed to comply with duties of a driver involved in a crash.
·January 2008 - Drive motor vehicle while exceeding prescribed alcohol limit (BA reading 0.071) (30/9/06).
The father was cross examined in terms of the assault upon the police officer of which he was convicted. He said he put his hand against the police officer. The police incident report[15] asserts that:-
“The offender [the father] then used his left foot to push backwards off the inside of the door and was able to break the hold of police. The offender [the father] then raised his right leg and kicked [the police officer] to the face with the bottom of his foot”.
[15] Exhibit M3.
I prefer the evidence of the police records to the version suggested by the father.
As indicated earlier in these reasons, the father was questioned in relation to any further drink driving offences other than 18 January 2008 and 17 October 2006. The father denied that he had been involved in any other drink driving offences. The father said he did not drink excessively despite these two (now three) drink driving convictions. From the evidence of the three recent drink driving convictions I find that the father has significant problems managing his alcohol use in a responsible manner.
He was then asked if he had a further drink driving offence in March 2008. The father was then shown prosecution details in respect of five charges arising out of an allegation the father was driving on 8 March 2008.[16]
[16] Exhibit “M5”.
The five charges were as set out earlier in these reasons. The father examined those documents and said that it was not him and made it clear he was not the person referred to in those charges.
The father was cross-examined as to whether he appeared in Court in respect of those charges. He denied he had appeared in Court. He was asked if he had been found with cannabis in his possession. He denied having cannabis in his possession and he was then shown a letter addressed to him from the Department of Health and Human Services dated 10 March 2008[17] in respect of an alleged discovery of cannabis in his possession. The father denied that he was involved in cannabis in any way. I do not believe the father in this regard. I find, on the evidence[18] that the father had cannabis in his possession earlier in 2008 notwithstanding his assertion to the contrary.
[17] Exhibit “M4”.
[18] Exhibit “M4”.
This cross-examination occurred on the first day of the hearing and on the second day the counsel for the mother sought leave to ask further questions of the father in relation to the father’s evidence relating to the incident in March 2008 which leave was granted. The father then conceded that he had been charged with the matters referred to in the previous day. He said he blamed his error on poor memory. I do not accept that explanation. Counsel for the mother then challenged the father as to whether he had been convicted of a number of the charges referred to above. He conceded that he had been convicted of a number of offences arising out of the events in early March 2008 such conviction and court appearing taking place a week or two prior to the commencement of this hearing.
The father at the conclusion of his evidence sought to call oral evidence of a witness. Neither the independent children’s lawyer nor the mother’s solicitor had notice of what this evidence was going to be or to what issue it was going to be. I was concerned that to allow that evidence to be adduced in those circumstances could amount to a breach of natural justice for the mother and the child. The father had time to file affidavits prior to March 2008, in accordance with my directions and further directions of the Registrar in about May 2008. He did not do so. Issues about children must not be allowed to be determined by ambush evidence. Parties are entitled to know what case they face, and the fact that the father was unrepresented is not a factor when he knew of the requirements of the court.
The father conceded in submission that he knew about the evidence that the witness could provide but had not filed any affidavits, as he was seeking legal aid. This was in circumstances where he had had months to apply for legal aid but only applied shortly before the trial. I declined leave to enable the father to call that oral evidence.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act.
The object of Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done 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.
The principles set out in section 60B(2) that underlie those objects are that, except when it 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).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s61DA of the Act. Section 61DA is part of the amendments which became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[19] for the child. The section provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
[19] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in s61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in s65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption is found to apply an order must be made in accordance with s61DA for equal shared parental responsibility, provided it is in the best interests of the child. If not, the Court must make a declaration that the presumption does not apply and for reasons pursuant to subsections within s61DA.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s65DAC. That section provides as follows:
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The question of the allocation of parental responsibility should be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s65DAA. In circumstances where s65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parents be unable to agree about the living arrangements of a child, a Court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a Court determines what is in the best interests of a child is set out under s60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s60CC, that lists “primary considerations” and “additional considerations”. A Court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss60CC(2) and (3) of the Act. Part of s60CC reads as follows:
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 consistence 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);
(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.
A court must consider the s60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A court must consider each of the additional considerations separately. A court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In this case the primary considerations set out in s60CC(2) go to the core of the decision, although they must be taken into account with the additional considerations under s60CC(3) of the Act.
The meaning of the primary considerations has been considered by Bennett J in the recent unreported decision of G and C [2006] FamCA 994 in which her Honour said:
The primary considerations
65.The primary considerations echo the first two objects set out in s60B. The primary considerations are set out in s60CC(2) of the Act described as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
66.This is a case where both of the primary considerations are relevant.
The benefit of a meaningful relationship – as a primary consideration.
67.The correct interpretation of s60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68.The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69.While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 [pursuant to s15AB of the Acts Interpretation Act 1901 (Cth)].
70.The arguments supporting the first possible interpretation include:
(a)Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;
71.The arguments supporting the second possible interpretation include:
(a)Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b)The primary considerations are described in the explanatory memorandum (paragraph 4) as follows:
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c)The whole of s60CC calls for an evaluation of various factors by the court.
(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e)The terms of s60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.
72.My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [the child] into the future.
I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship” to establish whether there is any ‘benefit to the child’ in having or continuing a relationship and whether such relationship is or will be “meaningful”. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
Whilst this is a somewhat circular approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the court make such a determination.
DISCUSSION
There are two issues for me to determine; first is the question of parental responsibility and second the question of where the child should live and spend time and communicate with her parents. It is not a matter to which the presumption under s61DA of the Act applies bearing in mind the clear evidence of violence and findings of violence made in these reasons.
In discussing the various factors under s60CC of the Act I will be highlighting various aspects of the evidence. If parts of the evidence are not dealt with in particular under the particular factors it is not because I have not considered nor evaluated that evidence. I have considered and evaluated all of the evidence in terms of each of the factors and I have considered all of the factors together in reaching the determination which I have made.
Section 60CC(2)(a)
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
There is no argument that there is a benefit to the child having a meaningful relationship with the mother. Even on the father’s case he proposes that the child spend time with the mother.
The child is attached to the mother and she is a significant person in the child’s life. The single expert observes the extent of that love and attachment and I find, on all of the evidence, there is a benefit for the child to have a meaningful relationship with the mother.
As to the father, I am satisfied that up to about December 2004/January 2005 the child had a meaningful relationship with the father. Since 20 February 2005 the child has had virtually no contact (but for two visits at a contact centre) with the father. Communication has been poor or non-existent. However, the evidence is that the child still has some positive memories about the father. On the evidence before me I am satisfied that there is some benefit for the child to have a meaningful relationship with the father, provided that time can be managed in a way that meets the needs and concerns of the child. The child was reluctant to spend time with the father on third and fourth occasion that she was due to attend at the Children’s Contact Centre. That reluctance arose out of the child’s fears by virtue of the retention of the child in 2004/2005 by the father and the mother’s failure to promote any relationship between the child and the father.
Such relationship may be able to be developed with the assistance of
Dr W and in a slow but steady build up of time. At present the time the father spends with the child ought to be supervised.So that the father understands why I have so determined, I note that in my view, should future time or communication between the child and the father be significantly irregular; should changeovers be attended by abusive behaviour; or should the child be retained by the father and kept from her mother again; then any relationship the child has with the father is unlikely to be “meaningful” in a positive sense and may be detrimental to her. I have formed the view that unless the parents have the assistance of an expert in managing and improving the quality of time and communication then it is unlikely to be in the best interests of the child.
My view takes into account the recommendations of the single expert, who stated
I am of the opinion that if future access visits between [the child] and her father are successful, then the possibility of increasing contact should be considered, gradually, taking into account [the child’s] wishes…supervised access visits with her father should be reinstated at the contact centre under the guidance and counsel of Dr [W]. I am of the opinion that [the father] has particular psychological/emotional [sic] that warrant participation in psychological intervention…[20]
[20] Pages 17 and 18 of the Single Expert’s Report.
Section 60CC(2)(b)
(a)the need to protect the child from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence;
There are issues of violence which I have referred to earlier in these reasons and which are the subject of the evidence of the mother. There is also the evidence of the maternal grandfather and the father’s record of prior convictions. Family violence is broadly defined under the Family Law Act as follows:-
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
The removal of the child from the care of the mother in December 2004 caused by the mother and the child to be apprehensive about the child’s personal safety or well-being and this arose by means of actual conduct by the father.
The child needs to be protected against any such unilateral action on the part of the father.
The single expert’s report states
“..there is evidence to suggest an anger management problem [of the father’s] and a tendency towards violent behaviour. The psychological effects o children exposed to violence have been well researched. There are a number of short and long-term psychological consequences when children are exposed to violence. At the time of witnessing the violence, exposure can result in immediate physical and psychological trauma. It can contribute to chronic physical, developmental, neurological, emotional and behavioural problems. Children exposed to violence are vulnerable to life-long difficulties in relationships with others. Moreover, exposure to violence can lead to a variety of educational and juvenile justice outcomes. I am of the view that [the father] would benefit from engaging in anger management in order to prevent his children from being exposed to the negative consequences associated with exposure to aggression.[21]”
[21] Page 18 Single Expert’s Report.
Section 60CC(3)(a)
(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;
The child has verbally and in actions expressed a reluctance to spend time with the father. It is likely that her attitude arises out of her removal from the mother in 2004/2005 and also as a result of the mother’s reaction to the child being removed from her care. It is likely that the mother is either intentionally or unintentionally created an environment encouraging the child not to spend time with the father.
The child is six years old and her views are not a major determinant. They are in any event and understandably somewhat mixed. She has some good feelings about the father but have some residual fears arising from the father’s removal of the child from her primary carer in December 2004.
(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);
The child has a meaningful relationship with her mother and is closely bonded with her mother. This is confirmed by the evidence of the single expert. There is no reason why this relationship ought not to continue as it seems the child is thriving in that relationship, according to the evidence of the single expert (albeit over twelve months old).
This child does not have a good relationship with the father, although she has expressed positive feelings towards the father. The single expert found that the child
“felt comfortable expressing positive feelings towards [the father]. Nevertheless, there was also clear evidence to suggest that she had developed a fear response in relation to visitation with her father, which appears to be related to her removal from the state by her father.[22]”
[22] Page 14 Single Expert’s Report.
Provided the child is protected from the ongoing abuse and conflict and protected from the father’s anger and provided the child’s fears are properly dealt with there seems to be good reason why the child should allow her relationship with the father to develop. It seems to me this ought to be done in a protected way.
This is a matter where there has been intractable conflict over almost all of the child’s life and with incidents of ongoing violence and verbal abuse. The parents have no communication and no real ability to put in place any effective communication with regard to the child.
I accept the submission of the independent children’s lawyer and the mother’s counsel that the mother has a close and loving relationship with the child and her sister N. The father conceded that relationship to the single expert although he lacked insight into the impact of cutting the child off from that relationship as referred to earlier.
The child has some positive memories of his father but a process needs to be put in place to build up the relationship in a positive and constructive way.
(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;
The father has demonstrated an unwillingness to facilitate the relationship between the child and the mother. The constant litigation, retaining of the child contrary to orders, violence, verbal abuse are evidence in that he is not willing to facilitate that relationship.
I am not sure that the mother has demonstrated a willingness to facilitate the time between the child and the father. In that regard I note the comments of the single expert in the single expert’s report.
(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;
The child has suffered psychologically as a result of being removed from the mother’s care in 2004/2005. The child has developed a fear response. The father has a history of violence. He has three convictions for assault, one in relation to police, one in relation to the mother and one in relation to the child’s maternal grandfather. The father lacks insight in respect his anger and violence to others and he does not accept that he has anger problems. He has taken no effective steps about this problem to the extent that when the opportunity arose for him to do this so that he could see the child he would not engage in that process.
The father has been verbally abusive of the mother at least since separation and is unreliable in terms of any assurances he gives as to what he will or what he won’t do. Any restoration of time between the child and the father would need to be in a way which would protect the child from the violence and verbal abuse.
The father proposes that the child live with him and spend time with the mother. Bearing in mind the views of the expert and the reaction of the child when she was removed from the mother’s care in December 2004 such an approach would be contrary to the health and best interests of the child. It would impact with her relationship with N and her mother. It would be a significant detrimental impact. The proposal by the mother and the independent children’s lawyer would not significantly change the child’s circumstances but would, hopefully, lead to an arrangement which will, in the long term, lead to the child spending unsupervised time with the father but in a safe environment and free of the verbal abuse, violence and conflict that has been the hallmark of the circumstances in which this child has found herself in the last six years.
(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;
Both parents live in Hobart. Neither party has a driver’s licence and both parents will need the assistance of others or with the use of public transport to enable contact through the Contact Centre to take place.
(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;
I have already commented on the mother’s capacity to parent. There is nothing further to add. I note and accept the submissions of the mother’s counsel and the submissions of the independent children’s lawyer.
There are concerns about the father’s capacity to parent which are set out in the mother’s affidavit many of which have been dealt with in these reasons. The father lacks insight into the care of the child.
(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;
The child is aged six and has a close relationship with the mother and her sister.
(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;
Not relevant.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The father has displayed an insensitive and poor attitude to parenting. I repeat the matters set out above. He has had the mother’s affidavit setting out the child’s illness for some time but still persists with his belief that the child should not wear the protective underclothing as recommended by the doctor.
The father failed to enter into the counselling with Dr W which may have created an opportunity to re-establish his relationship with the child.
I have found that the father lacks insight into his offending, into the value of being truthful, and into the child’s needs. His approach to the responsibilities of parenthood is not optimal. He is unlikely to approach future time and communication with the child in a significantly different manner unless he has the assistance of an expert with whom he can engage to improve the situation so that his time with the child becomes regular, is not marred by conflict, and the child looks forward to seeing her father free of any fears of being withheld from her mother.
The Single Expert’s report notes that the father is satisfied with “engaging in counselling to reinstate contact with his daughter.”[23] The success of what I propose will to a large part be dependent upon the father’s willingness and ability to work constructively and consistently with the mother and Dr W.
(j) any family violence involving the child or a member of the child’s family;
[23] Page 17 Single Expert’s Report dated 6 July 2007
(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;
The father has a history of verbal abuse to the mother and to members of her family. Such abuse took place in the presence of the child. The father has convictions for breaches of restraint orders. The father has a conviction for assault on the mother and assault on the child’s maternal grandfather. The assault on the child’s maternal grandfather was particularly violent leaving that person with a broken nose and two black eyes.
The father does not believe he has any issues to address and lacks any insight into the impact of his behaviour on the child and on the mother.
(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;
These proceedings have been ongoing since 2002. This is the ‘second’ final hearing. I intend to put in place the orders suggested by the mother and the independent children’s lawyer.
The orders are designed to enable Dr W to put in place mechanisms for the child to spend time with the father should the parties not reach agreement between themselves.
Unless the fathers’ time is facilitated at the Contact Centre, and unless the parties reach agreement between themselves, it will be Dr W who can recommend when the father’s time starts and on what reasonable frequency. Dr W will have the power to recommend that the father to undergo courses such as anger management, before any time with the child (other than that at the Contact Centre) may start.
In the event that issues arise with regard to the time the father spends with the child, I will be giving the parties leave to bring the matter back before me in respect of that narrow issue. That leave will not be able to be exercised until twelve months have passed and will only be available for a further period of twelve months. The parents will be required to undergo some form of mediation at a family relationships centre, or similar, before they bring this back to court. Hopefully by putting in place this process it will avoid further fresh hearing, at least in the short term or medium term.
Section 60CC(4) of the Act
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;
(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 take the opportunity to spend time with the child by failing to engage with Dr W as set out earlier. I have had regard to the events that have happened and circumstances that have existed since separation.
CONCLUSION
Having regard to all of the facts and circumstances in these proceedings and the submissions made on behalf of all parties I am satisfied that orders ought not to be made as sought by the father.
In terms of parental responsibility the parents do not communicate. There is family violence within the meaning described under the Act and an equal shared parental responsibility order would be doomed to failure. There is high conflict between the mother and father but the mother has made genuine efforts to facilitate the provision of information about the child to the father.
Having regard to all of the factors under s60CC of the Act I determine that it would be in the bests interests of this child for the mother to have sole parental responsibility.
Having regard to all of the facts and circumstances of this case and all of the factors unders 60CC of the Act I determine that it would be in the child’s bests interests to live with the mother and spend time with the father supervised at the children’s contact centre and with the involvement of Dr W, as I have outlined earlier in these reasons.
I certify that the preceding 148 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.
Legal Associate :
Date: 28 August 2008.
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Breach
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Costs
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