Matthews and Bender (No 2)
[2013] FamCA 740
FAMILY COURT OF AUSTRALIA
| MATTHEWS & BENDER (NO. 2) | [2013] FamCA 740 |
| FAMILY LAW – CHILDREN – With whom a child lives – where the mother seeks that the father’s time with the child be reserved – whether the mother will promote and facilitate the child’s relationship with the father – in best interests of the child to live with the father. FAMILY LAW – CHILD ABUSE – Where mother alleges the father and paternal grandfather have sexually abused the child – whether the child is at an unacceptable risk of sexual abuse in the father’s care – whether the child is at risk of neglect in the father’s care – satisfied child has not been abused and father presents no risk. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Matthews |
| RESPONDENT: | Ms Bender |
| INDEPENDENT CHILDREN’S LAWYER: | Glezer Lanteri & Associates Pty Ltd |
| FILE NUMBER: | MLC | 3524 | of | 2008 |
| DATE DELIVERED: | 27 September 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 15 – 19 July 2013, 9 & 12 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Samson |
| SOLICITOR FOR THE RESPONDENT: | Peninsula Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Agresta |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Glezer Lanteri & Associates Pty Ltd |
ORDERS*
IT IS ORDERED THAT
All previous parenting orders in relation to the child M Matthews born … 2005 are discharged.
The father have sole parental responsibility in respect of all major long term issues for the child save that the father shall, prior to making any decision with respect to any long term issue for the child:
(a) use his best endeavours to advise the mother in writing (via letter, email or communication book) of any decision to be made;
(b) seek the mother’s written response in relation thereto;
(c) consider by reference to the child’s best interests any such response prior to making any decision; and
(d) advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The child live with the father.
It is requested that the Family Consultant or her nominee in Child Dispute Services in this Registry meet with the child and explain to her the effect of the orders made this day prior to releasing the child into the care of the father.
The father liaise with the Manager of Child Dispute Services in this Registry as to the time he may collect the child from the child minding room following the pronouncement of these orders and the Family Consultant or her nominee meeting with the child to explain to her the effect of the orders.
The mother be and is hereby restrained by herself, her servants and agents from communicating directly or indirectly, approaching or removing or attempting to remove the child from the father’s care or the care of any other person with whom he has placed her save to exercise time with the child pursuant to an order of this Court or with the prior consent of the father.
The father forthwith do all acts and things necessary to facilitate the attendance by the child upon a counsellor recommended by the Independent Children’s Lawyer in consultation with the Family Consultant or Dr J for the purpose of supporting the child’s transition into his care.
The father thereafter ensure that the child attend for counselling on an ongoing basis at such frequency and at such intervals as may be recommended by the child’s counsellor and further abide by any directions as may be made by the counsellor as he/she considers necessary to facilitate the counselling provided for the child.
The father and/or the Independent Children’s Lawyer be at liberty to provide to the child’s counsellor a copy of all professional reports prepared in this matter, a copy of these orders and a copy of the reasons for judgment.
10. The cost of the child’s counselling be borne by the father.
11. The child’s counselling be conducted on a reportable basis.
12. The mother be and is hereby restrained by herself, her servants and agents from taking or allowing any other person to take the child for any medical examination or any therapeutic intervention by any medical practitioner, psychologist, social worker, counsellor or like professional which relates in any way to an allegation that the child has been abused (sexually, physically or emotionally) by the father or by any other person when in his care save pursuant to a request from the father, a protective worker employed by the Department of Human Services in Victoria or a member of the state police force.
13. The mother be and is hereby restrained by herself, her servants and agents from taking the child to a psychiatrist, psychologist, counsellor or like professional when the child is with her save with the written consent of the father.
14. The father is at liberty to remove the child from X School, and enrol her in another primary school as soon as practicable and the father is at liberty to liaise with the principal of X School as to matters relevant to the child’s education and welfare and to seek advice as to how best to manage the child’s transition to a new school.
15. Upon the father enrolling the child in a new primary school he do provide to the mother the name and address of the school.
16. The father is at liberty to provide a copy of these orders and the reasons for judgment to the principal of the school at which the child attends.
17. The father provide to the mother as and when they become available a set of school photographs and each school report prepared in respect of the child.
18. The father as soon as practicable advise the mother of any significant illness or injury that effects the child whilst she is in his care and in the event of significant illness or injury the father authorise the treating medical professionals to speak to the mother about the child’s treatment save that the father alone shall be responsible for decisions relating to all treatment or other interventions undertaken by the professional.
19. In the event that the mother takes the child to a medical practitioner when the child is spending time with her she do advise the father within 24 hours of the name, address and telephone number of the medical practitioner and authorise the medical practitioner to speak to the father and in the event that no such authority is provided paragraph 2 of these orders shall stand as such authority and the father is at liberty to provide a copy of this order to the medical practitioner.
20. Each of the father and mother be and is hereby restrained by themselves, their servants and agents from:
(a) discussing the evidence adduced in these proceedings or the judgment with the child or in the presence of or hearing of the child or allowing any other person to do so; and
(b) denigrating the other or the other’s family in the presence or within the hearing of the child.
21. The father and mother attend a Parenting Orders Program as soon as practicable.
22. The question of the time the mother spends with the child be reserved.
IT IS ORDERED UNTIL FURTHER ORDER THAT
23. The mother be and is hereby restrained from attending at X School or any school in which the father enrols the child for any reason save with the written consent of the father or by court order.
24. The mother advise the Independent Children’s Lawyer of the name, address and telephone number of any counsellor upon whom she may attend and the Independent Children’s Lawyer is permitted to provide to the counsellor copies of all professional reports prepared in this matter, a copy of these orders and the reasons for judgment.
25. The mother authorise any counsellor upon whom she attends to discuss the progress of the counselling with the Family Consultant in the course of preparing an updated report.
26. Pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the Family Consultant meet with the parties and the child and by no later than four months from the date of this order prepare an updated report and make any further recommendations as to the mother’s time with the child.
27. For the purpose of preparing the updated report the Family Consultant be at liberty to consult with the child’s counsellor and any counsellor engaged by the mother and/or the father.
28. The matter be listed for mention before Justice Macmillan at 9.00 am on 11 February 2014.
29. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order, are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
*The numbering of these orders has been amended to accord with the orders as pronounced by Justice Macmillan and distributed to the parties on 27 September 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Bender has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3524 of 2008
| Mr Matthews |
Applicant
And
| Ms Bender |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The parties in this case were married in October 2003 and separated in July 2007. The child M (‘the child’), who is the only child of their marriage, was born in 2005 and is now eight years of age. She was only two years of age when her parents separated.
There is a long history of allegations, primarily made by the mother against the father, conflict and litigation with respect to the father’s relationship with the child since her father and mother separated including proceedings in what was then the Federal Magistrates Court, this Court, intervention order proceedings and criminal proceedings.
In the course of the various proceedings the child has been interviewed by police and workers from the Department of Human Services (‘DHS’) and has attended upon various counsellors and psychologists for the preparation of reports and for therapy.
Although a significant feature of this case is the fact that the mother’s allegations against the father have either not been accepted or substantiated, it is her case that the father has abused the child both sexually and physically, has failed to protect the child from sexual abuse by the paternal grandfather, and that he is both a neglectful and incompetent parent. It is on that basis that the mother says the child would be at risk in his care, that she should have sole parental responsibility for the child and, when she opened her case, that the child should not only live with her but also not spend any time with the father.
The father denies the mother’s allegations and it is his case that since separation the mother has failed to support his relationship with the child and has actively engaged in a course of conduct designed to alienate him from the child. It is his case that the only way in which the child will be able to maintain an ongoing relationship with both of her parents is for her to be removed from the mother’s primary care and placed in his care. His proposal, reflecting the recommendations of the Family Consultant, is that he should have sole parental responsibility for the child, that she should live with him, and that, to enable the child to settle into the new arrangements for her care, she should not spend any time with the mother for a period of three months. Thereafter, it is the father’s case that the child should start spending time with the mother under the supervision of her psychologist before moving to unsupervised time on the recommendation of her psychologist.
Both Dr J, who treated the child for anxiety in late 2012 and early 2013, and Dr P, the Family Consultant, agreed that in a perfect world the least disruptive option for the child would be to remain living with the mother and commence spending time with the father. However, for reasons that I will discuss in more detail, that is unfortunately not a realistic option in this case. The task facing the Court was also described by Dr J, and confirmed by Dr P, as a choice between the “least worst” or least damaging of the options. It is an apt description insofar as it is true that there are risks associated with whatever course is taken, and particularly so, given the mother’s seeming inability to see any benefit to the child of a relationship with her father.
The issues I must consider in this case include:
a)Does the father pose an unacceptable risk of sexual abuse to the child?
b)Has the father failed to protect the child from sexual abuse by the paternal grandfather?
c)Has the father physically abused the child?
d)Is the father an incompetent or neglectful parent, as a result of which the child can be said to be at risk in his care?
e)If the risk to the child in his care is unacceptable, then what arrangements should be made for her care including what, if any, time she should spend with the father?
f)If the court determines that the father does not pose an unacceptable risk of abuse to the child, then what arrangements for her care, including whether she lives with the father or mother, and what time, if any, she should spend with the other parent, are in her best interests?
The parties
The father is 42 years of age. He is one of four children, one of whom is his identical twin who lives overseas. The father’s other siblings live in Melbourne. The father lives with his parents in their home in Suburb V. The father has a degree in business and works in his father’s business in a sales and a support capacity. He says he earns a salary of a little over $80,000 including a car allowance. He is in good health.
The mother is 44 years of age. She lives with the child in a home she purchased following separation. The mother’s home is a short distance from the child’s school. The mother has a Diploma from a tertiary institution and has recently completed her Certificate IV for Training and Assessment, which she says will enable her to teach. She has not worked since the child’s birth and is in receipt of Centrelink benefits. The mother is in good health.
Documents relied upon
The husband, who was the applicant in these proceedings, relied upon the following documents
(i)his Amended Initiating Application filed 18 June 2013;
(ii)his Affidavit filed 30 April 2013;
(iii)his Affidavit filed 12 June 2013;
(iv)the Affidavit of his mother, Mrs Matthews, filed 13 April 2012; and
(v)his Outline of Case filed 15 July 2013.
The respondent mother relied upon the following documents:
(i)her Amended Response filed 18 June 2013;
(ii)her Affidavit filed 26 March 2012;
(iii)her Affidavit filed 16 April 2013;
(iv)the Affidavit of her mother, Ms A, filed 3 August 2009; and
(v)her Outline of Case filed 12 July 2013.
The Independent Children’s Lawyer relied upon the following documents:
(i)Family Report of Dr P dated 30 May 2013;
(ii)Child and Family Meeting Memorandum dated 12 April 2012;
(iii)The Affidavit of Dr Y filed 4 March 2013 annexing Dr Y’s psychiatric assessments of both the mother and father dated 6 January 2013. Dr Y was not required for cross-examination;
(iv)The Affidavit of Ms B filed 28 May 2013 annexing the report from F Contact Centre dated 5 April 2013;
(v)The Affidavit of Dr J filed 25 June 2013 annexing Dr J’s report dated 6 February 2013;
(vi)Dr N’s psychological report of the mother dated 20 July 2009;
(vii)Dr W’s report dated 6 October 2011;
(viii)Dr O’s psychological report dated 24 February 2012;
(ix)Dr L’s report dated 16 December 2010;
(x)The Affidavit of Family Consultant Ms D dated 12 April 2012;
(xi)Department of Human Services Report dated 30 May 2012; and
(xii)The Independent Children’s Lawyer’s Outline of Case filed 12 July 2013.
There had at earlier stages of the proceedings been some issue about which of the reports, other than those of the Family Consultant, should be in evidence and which of the authors of those reports should give evidence in the case. In her evidence, Dr J described what she said were attempts by the mother “to influence my sessions and judgment by way of providing previous reports and highlightings (sic) which bits to take on board particularly by providing a letter from a dance instructor who has no expertise in this particular area and just all sorts of little bits and pieces of notes and things left for me constantly”. Ms Samson referred in her closing address to a letter of instruction from the Independent Children’s Lawyer to Dr J enclosing copies of the DHS Report, Dr N’s report and Dr L’s report, however although Ms Samson offered to hand that letter to me it is in fact not in evidence. Although I cannot say with absolute certainty which reports Dr J read, Dr P had read the reports of Dr N, Dr L, Dr W, Dr O, Ms D, Associate Professor Y and the report prepared by DHS. It was ultimately agreed by both the father, Ms Samson on behalf of the mother, and Ms Agresta on behalf of the Independent Children’s Lawyer that all of the reports I have listed should be in evidence. None of the report writers other than Ms B, Dr J and Dr P were required to give evidence or be cross-examined.
Legal principles
The objects underlying the provisions of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) relating to children are set out in s 60B(1) of the Act as follows:
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.
The principles underlying those objects are outlined in s 60B(2). They are that unless it would be contrary to the best interests of a child:
(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).
The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s 60CA). In determining what is in that child’s or children’s best interests the Court must consider both the primary and additional considerations set out in s 60CC(2) and (3) of the Act. Section 60CC(4) requires the Court to consider the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent and must have regard to the circumstances since separation (s 60CC(4A)).
The analysis of these statutory considerations of what is in the best interests of the child or children in question in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives.
The fact that a case involves an allegation of sexual abuse does not alter the Court’s paramount obligation to determine what is in the child’s best interests and to make orders that will best promote that child’s best interests. This was clearly stated by the High Court in M & M (1988) 166 CLR 69 (‘M & M’) per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ (at 76) as follows:
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance of or rejection of the allegation of sexual abuse on the balance of probabilities.
Unacceptable risk
In In the Marriage of B & B (1993) FLC 92-357 the Full Court referred to the principles to be applied in cases involving allegations of sexual abuse and said (at 79,778) as follows:
The test propounded by the High Court in M v M and which is authoritative in this jurisdiction, is: “That a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”.
The “unacceptable risk” test is therefore the standard used by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access” (M & M at 78). In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in allowing access outweighs the possible benefit to them of that access.
It should be noted that the “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary” (M & M at 76–77). The overriding consideration in all custody and access decisions is the welfare of the child.
The evidence
The relevant standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may taking account in applying that standard of proof, the Court must take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362 Dixon J said as follows:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
It follows, given the serious implications of a finding that sexual abuse has occurred, that the Court should not make a finding that it has occurred unless that has been proven to this higher standard.
I have considered all of the evidence and had the benefit of observing the appearance and the demeanour of the father, mother and those witnesses who were required for cross-examination. I have given careful consideration and make my findings to the requisite standard having regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.
Assessment of the mother’s evidence generally
Dr P, the family report writer, described the mother as follows:
[The mother] displayed impaired judgement and reasoning during this assessment. She was determined to align the writer with her fixed and negative view of [the father] and to be rejecting of any alternative information that challenged or contradicted her view, including multiple professional assessments. [The mother’s] beliefs about [the father] impressed as somewhat delusional, as they remained fixed despite superior evidence to the contrary.
Associate Professor Y, the psychiatrist who was engaged to provide a psychiatric assessment of both the father and the mother, described the mother as having:
…more than the usual levels of obsessional and paranoid traits in her personality. The mother is mistrustful. She is highly opinionated. She is rigid and unyielding in her views…The mother presented herself to me as manipulative, dramatic and unconvincing about her accusations of the father’s behaviour.
Associate Professor Y was not cross-examined and his evidence is unchallenged.
These assessments and observations of the mother accord with my observations of her and her evidence. When confronted with an aspect of the evidence that might be unfavourable she would try to introduce evidence or direct the court to evidence, including the evidence of expert witnesses, which she perceived to be supportive of her version of events and her case generally. Beyond that she would highlight parts of the evidence of those experts which she perceived to be supportive, totally disregarding those parts of their evidence that might not be or were less so.
One example of many was the evidence of Dr L. The mother was highly critical of Federal Magistrate O’Dwyer, as he then was, because she said he had ignored the evidence of Dr L and dismissed her application to return to supervised time between the father and the child. However, she ignored the fact that Dr L was not recommending supervision on an indefinite basis and that she had also qualified her recommendation on the basis of her view that it was “difficult to determine how much weight should be given to [the child’s] report that she is scared of her father” and the possibility that reducing the father’s time with the child might play into her “manipulative tendencies.” She also referred, both in the course of her interviews with the family consultant and repeatedly during her evidence, to Dr L’s assessment of the father as having on the supplementary scales “obtained borderline elevations for Ego strength and Social Responsibility and significant elevations for Over-controlled Hostility and Dominance showing he claims a strong character but may be prone to outbursts after having pent up aggression”. It is true that is what Dr L said, however she also said that the mother had obtained “a distinctly elevated score for Over-Controlled Hostility, suggesting that she may avoid anger expression and then explode”. Dr L, in the section of her report headed Opinion and Recommendations, said that “the parties showed notably similar profiles on psychometric testing, with over-controlled hostility on two instruments suggesting that they would each benefit from anger management or psychological counselling to develop non-aggressive assertiveness. None-the-less each showed a low propensity for violence”.
Dr L also noted that the mother continued to refer to examples of what she said was the father’s inappropriate behaviour, notwithstanding that her applications for intervention orders arising out of those incidents had been investigated and dismissed. This is also consistent with the mother’s evidence and the way in which she presented her case.
The mother also seized on parts of the evidence which she interpreted as being supportive of her version of events when that was demonstrably not the case. For example, it was the mother’s case that the father had left the child unsupervised and alone overnight when he was having overnight time with the child. In support of this allegation, she relied upon the husband’s credit card statements which she said were evidence of the fact that he had stayed at a hotel in St Kilda on Saturday 6 and Sunday 7 October 2012. It was the husband’s evidence that not only had he never left the child overnight, but that he had used his credit card to pay for one night’s accommodation on the Sunday night, after the child had been returned, not for accommodation on the Saturday night. The credit card statements showed the date of the transaction and the date upon which it was processed. There were two transactions for the hotel. One was for $242.59. The date of transaction was 6 October 2012 and it was processed on 8 October 2012. The other was for $50. The date of that transaction was 7 October 2012 and it was similarly processed on 8 October 2012. There is no evidence in the credit card statements which demonstrated how many or which nights the father stayed at the hotel or when that was. When that was put to the mother it did not cause her to reflect upon her evidence and she continued to insist that it was evidence of the fact that the father had left the child home alone.
Another example of what I consider to be the mother’s manipulation of the evidence and the unreliability of her evidence was her evidence about what she had reported to Dr P about the child’s school, allegedly noticing:
…a ‘dramatic’ decline in her focus at school last year following the commencement of overnights with her father (approximately August). [The mother] reported that the school reported [the child] was more agitated, her self esteem decreased and her academic skills regressed. [The mother] reported that [the child’s] application at school had improved since the beginning of the year, which she related to the cessation in contact with [the father].
The mother called the child’s teacher, Mr U, to give evidence, however he did not confirm what the mother was reported to have told Dr P. Mr U said that he had been the child’s class teacher both last year and this year. He said that he had not noticed nor reported any dramatic decline in the child either academically or emotionally last year and that although she has made progress this year that was what he considered a normal progression and was to be expected. When faced with Mr U’s evidence and asked about what she had told Dr P, the mother first suggested that it had been the ballet school principal and attempted to direct the Court’s attention to a letter she said she had received from the ballet school. She later suggested that she had been referring to both the child's school and the ballet school and that Dr P may have misunderstood her. When Dr P was cross-examined, her evidence, which she confirmed by reference to her notes, was that they had been discussing the child’s progress at school and the mother was telling her about what she had been told by the school. Dr P was certain that the mother had been referring to what she had been told by the school. When asked about whether she would be surprised if the mother’s evidence had not been consistent with her evidence, she had said that she would not be surprised as in her “experience of the mother she showed a bias towards information, a confirmatory bias looking for information that would support her beliefs”.
Even when faced with evidence which contradicted her preferred version of events or professional opinions which she sought to rely upon, the mother showed no capacity to reflect upon her evidence or to make any concessions. She said that as the child’s mother she knew her best and that she did not accept that there was any possibility that anything the child had said about the father might not be true, including that the father did not feed her when she was in his care. She said that nothing would change her mind. Her clearly stated position was that the system had failed the child and that as the courts weren’t protecting her from the father she would take whatever steps she considered necessary to do so. In all of the circumstances I have grave reservations about the mother’s evidence, not only in relation to the facts of the case, but also what it suggests about her parenting capacity and personality generally.
Assessment of the father’s evidence generally
The fact that a party is self-represented allows the Court to observe that party and to assess their evidence in a way that is often not possible when they are legally represented.
Although there was evidence of the father using inappropriate language, including on two occasions to workers at F Contact Centre, Ms B, the contact centre co-ordinator, gave evidence that he did so in the context of his frustration at the cancellation of his time with the child and that he was generally co-operative and respectful. That accords with my observations of the father, who conducted himself courteously throughout the proceedings.
The father was not aggressive and, if anything, his presentation was quite passive and at times flat. Dr P, the Family Report writer, in her report also described the father’s affect as flat and said that he seemed “apprehensive about the interview”. She described him as “despondent about the current proceedings, expressing a sense of powerlessness and pessimism about the likelihood of a just outcome”. Dr P said that he had reflected sadly that he had spent $150,000 thus far in legal costs and been embroiled in litigation for four years yet he had made little headway in establishing a relationship with his daughter.
Dr P also said in cross-examination that she believed that it would be difficult for the father to present his strengths in the context of the hearing because of the history of the matter and the fact that he feels that he has been let down over and over again. She described it as “almost a learned helplessness”. This was consistent with my observations of the father’s evidence, particularly at the commencement of the proceedings, however there was a noticeable change in his demeanour on the last day of the hearing when I heard the parties’ final addresses and he appeared significantly more positive and assertive.
There was one aspect of his evidence which caused the father some difficulty. The mother alleges that the father has a gambling problem. In support of that allegation she relied upon the father’s bank statements which showed numerous cash withdrawals, in a number of instances on the same day and from the same ATM machine. These bank statements were produced by the father in the course of a hearing before the Social Security Appeals Tribunal (‘the Tribunal’) in relation to his obligation to pay child support for the child. The father told the members of the Tribunal that he felt that his bank statements were private and personal and that he was not prepared to provide them to the Tribunal or the mother. He ultimately agreed to provide them on the basis that he was permitted to black out the names of vendors or organisations that he did not want to disclose.
These transactions were put to the father as evidence of his gambling problem. He vigorously denied that the money was withdrawn for the purposes of gambling and gave various explanations for the withdrawals. When cross-examined by Ms Samson for the mother, the father initially said that the money was used for general living expenses, flights and accommodation for an overseas trip, to pay board to his parents, for work whilst in the city, and to pay his legal fees. When cross-examined on this issue by counsel for the Independent Children’s Lawyer, the father further explained that he pays for dinners with his parents, that he went out socialising a lot last year and was attending speed dating.
The father’s explanations about what he had used the money for did not really explain the frequency of withdrawals, the amounts withdrawn, or the location of those transactions. I gave the father a number of opportunities to explain those transactions and explained to him that I was unlikely to accept the explanations that he had given to the Court and that he should reflect on his evidence overnight.
The next day the father admitted that he had been attending strip clubs where he would pay for drinks and sometimes group dances. He said he had been embarrassed talking about his finances and having to explain what he had spent the money on, particularly in front of his sister who had been in the courtroom at the time. The father’s discomfiture and embarrassment about this evidence was quite obvious. I am satisfied that any reluctance on his part to answer the questions or any equivocation was due to his embarrassment about the subject matter of his evidence rather than any attempt on his part to mislead the Court.
There was otherwise nothing about father’s conduct or his evidence that would lead me to conclude that he was not doing his best to give honest evidence. The father’s reluctant evidence about attending strip clubs does not alter my view that he was a truthful witness doing his best to honestly answer the questions he was asked. He was also able to reflect on matters that were put to him and to make concessions when it was appropriate to do so.
Competing evidence
Whilst I have confidence in the father’s evidence, I am left in the position where I have little or no confidence in the mother’s evidence. Ms Agresta submitted that the mother has intentionally and consciously undermined the child’s relationship with her father. She gave a number of examples which she said supported her submission, including the fact that when the mother took the child to see Dr O she gave her the reports of Dr L and Dr K but did not give her the report of Dr N which described the father as having a warm and appropriate relationship with the child. As I have already noted, the mother referred selectively to reports supportive of her case during her evidence whilst ignoring other aspects of those reports and of the evidence generally.
Ms Agresta also relied upon the fact that the mother kept the child home from school on those Fridays when the father was scheduled to collect her from school in the face of an order that the child spend time with the father and in the knowledge that the Independent Children’s Lawyer’s view was that she should comply with the order.
The mother may genuinely believe her version of events, although that belief does not appear to be well founded. Alternatively, based upon her fixed and negative view of the father, she is incapable of any rational reflection or consideration of the evidence in the case and, as a result, has intentionally undermined the child’s relationship with the father. Whichever is the case, insofar as there is a dispute between the evidence of the father and the mother, or for that matter the mother and the expert witnesses, I have little confidence in the mother’s evidence and prefer the evidence of the father and those expert witnesses.
I also prefer the evidence of the paternal grandmother and in particular her evidence about the mother’s behaviour outside the courtroom. The father’s mother gave her evidence carefully and thoughtfully. Her evidence was detailed and specific. What the mother is reported to have said is also consistent with the father’s evidence about text messages the mother has sent to him, some of which he read out in Court, including a message he received from her on 26 June 2013, as follows:
Looking forward to when my lawyer asks you how you could leave your own child home this was in 2008, and go [overseas] which you clearly told the SSAT page 8 paragraph 3. It’s all in black and white. You completely disregard your child’s welfare and went overseas and you deliberately held up the settlement money, really thinking you were entitled to half when you merely came to the marriage with a car. Disgraceful. Looking forward to that question.
So you, … and … all single. Surprise, surprise, says it all. If your sister contacts my lawyer again she will be breaching a Privacy Act. Tell her to butt out.
Another example was the mother’s message to the father on 17 June 2013, as follows:
Or you can make me an offer out of court if you like, either way. If you don’t, we will be going for retrieval.
The [Matthews] don’t always win, do they? Outsmarted you, didn’t I? Thought you would get away with it, didn’t you? Well one thing you need to know about me, I do my homework and am very tenacious and very smart. Don’t underestimate me. I wrote the SSAT documents up myself. Just wait until you see my affidavit, even better.
I accept the paternal grandmother’s evidence and I am satisfied that the mother indeed called the paternal grandmother a “bitch” and later the same day an “evil bitch”. I am also satisfied that the previous day she approached the father’s sister and said words to the effect of “found a man yet, …?” and when the father’s sister replied “well, actually I have” and showed the mother her rings, the mother then said, “well look how fat you are”.
The proposals
The father
The orders proposed by the father in his case outline were as follows:
1. That the child [M Matthews] born … 2005 live with the Father.
2. That the Father has sole parental responsibility for the child.
3. That the Mother has no contact with the Child for 3 Months to allow the Child to settle with the Father.
4. That the Mothers (sic) contact with the Child commenced (sic) under supervision of a psychologist and unsupervised contact commence at the psychologist discretion and safe to do so.
At the conclusion of the trial he adopted the position of the Independent Children’s Lawyer which was as follows:
FINAL ORDERS
1. That all previous parenting orders in relation to the child [M Matthews] born … 2005 be discharged.
2. That the father exercise sole parental responsibility in respect of all major long term issues for the child save that the father shall, prior to making the sole ultimate decision about any long term issue
a)Use his best endeavours to advise the mother in writing (via letter email (sic) or communication book) of any decision intended to be made, and
b)Seek the mother’s written response in relation thereto and
c)Consider by reference to the child’s best interests and such response prior to making any decision and
d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision
3. That the child live with the father and he liaise with the Manager of Child Dispute Services in this Registry as to the time he may collect the child from the child minding room following the pronouncement of this Order.
4. That it is requested that the Family Consultant or her nominee in Child Dispute Services in this Registry meet with the child and explain to her the effect of the Orders made this day prior to releasing the child into the care of the father.
5. That the mother be and is hereby restrained by herself her servants and agents from removing the child from the fathers (sic) care or the care of any other person with whom he has placed her save to exercise time with the child pursuant to this or any subsequent Family Court Order or with the prior consent of the father.
6. That the father forthwith do all acts and things necessary to facilitate the attendance by the child upon a counsellor recommended by the Independent Children’s Lawyer in consultation with the Family Consultant or Dr [J] for the purpose of supporting the child’s transition into his care.
7. That the father thereafter ensure that the child attend for counselling on an ongoing basis at such frequency and at such intervals as may be recommended by the child’s counsellor and further abide by any directions as may be made by the counsellors as he/she considers necessary to facilitate the counselling provided for the child.
8. That the father and/or the Independent Children’s Lawyer be at liberty to provide to the child’s counsellor a copy of all professional reports prepared in this matter, a copy of this Order and a copy of the Reasons for Judgment.
9. That the cost of the child’s counselling be borne by the father.
10. That the child’s counselling be conducted on a reportable basis.
11. That the mother be and is hereby restrained by herself, her servants and agents from taking or allowing any other person to take the child for any medical examination or any therapeutic intervention by any medical practitioner psychologist (sic), social worker, counsellor or like professional which relates in any way to an allegation that the child has been abused (sexually physically (sic) or emotionally) by the father or by any other person when in his care save pursuant to a request from the father, a protective worker employed by the Department of Human Services in Victoria or a member of the state police force.
12. That the mother be and is hereby restrained by herself her (sic) servants and agents from taking the child to a psychiatrist, psychologist, counsellor or like professional when the child is with her save with the written consent of the father.
13. That the father is at liberty to remove the child from [X School] and enrol her in another primary school as soon as practicable and the father is at liberty to liaise with the Principle (sic) of [X School] as to matters relevant to the child’s education and welfare and to seek advice as to how best to manage the child’s transition to a new school.
14. That whilst the child remains at [X School] the mother is restrained from attending at the school for any purpose during the school day.
15. That upon the father enrolling the child in her new primary school he do provide to the mother the name and address of the school.
16. That the father is at liberty to provide a copy of this Order and the Reasons for Judgment to the Principal of the school at which the child attends.
17. That the mother be and is hereby restrained from attending at any school in which the father enrols the child for any reason save with the written consent of the father or by Court Order.
18. That the father do provide to the mother as and when they become available a set of school photographs and each school report prepared in respect of the child.
19. That the father do soon (sic) as practicable advise the mother of any significant illness or injury that effects the child whilst she is in his care and in the event of significant illness or injury the father authorise the treating medical professionals to speak to the mother about the child’s treatment save that the father alone shall be responsible for decisions relating to all treatment or other interventions undertaken by the professional.
20. That in the event that the mother takes the child to a medical practitioner when the child is spending time with her she do advise the father within 24 hours of the name, address and telephone number of the medical practitioner and authorise the medical practitioner to speak to the father and in the event that no such authority is provided paragraph 2 of these orders shall stand as such authority and the father is at liberty to provide a copy of this order to the medical practitioner.
21. That each of the father and mother be and are hereby restrained by themselves their (sic) servants and agents from:
a)discussing the evidence adduced in these proceedings or the judgment with the child or in the presence of or hearing of the child or allowing any other person to do so; and
b)denigrating the other or the others family in the presence or within the hearing of the child.
22. That the mother and father attend a Parenting Orders Program as soon as practicable.
INTERIM ORDERS
23. That the mother undertake counselling on an ongoing basis to address issues as to her behaviour and functioning and follow all reasonable directions as may be made by her counsellor as to the frequency and duration of counselling.
24. That the mother do advise the Independent Children’s Lawyer of the name address (sic) and telephone number of the counsellor and the Independent Children’s Lawyer is permitted to provide to the counsellor copies of all professional reports prepared in this matter, a copy of this Order and the Reasons for Judgment.
25. That the mother do authorise the counsellor to discuss the progress of the counselling with the Family Consultant in the course of preparing an updated report.
26. That the Family Consultant do no later than three months from the date of this order prepare an updated report to advise the Court of the progress of the child’s transition to the fathers (sic) care and to make further recommendations as to the mother’s time with the child.
27. That for the purpose of preparing the updated report the Family Consultant be at liberty to consult with the child’s counsellor and any counsellor engaged by the mother and/or the father.
28. That the matter be listed for mention on a date to be advised by the court as to the issue of time between the child and the mother.
29. 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The father otherwise proposed, which was also the position of the Independent Children’s Lawyer, that in the event I was to order that the child continue to live with the mother he should spend time with her in accordance with the final orders made 5 August 2009 which, after a gradual increase of time, provided for the father to spend each alternate weekend from Friday until Sunday and half the school holidays with the child.
The mother
The mother opened her case on the basis that she have sole parental responsibility for the child, that she live with her and that the question of her spending any time with the father be reserved. During her final address Ms Samson initially confirmed the mother’s position, although in addition she submitted that the child should re-engage with appropriate professionals and that the child and the parties should participate in family therapy.
It was Ms Samson’s submission that the Court should follow the recommendations of Dr J, however there was, as I pointed out to Ms Samson, an inherent inconsistency in that submission because Dr J, contrary to the mother’s case, recommended that the child should spend time with the father. Ms Samson said that her instructions were that if the Court “were to make an order that required the whole family to attend therapy, the mother and the father and the child, that she would be willing to and make sure she facilitated that therapy”. When I asked Ms Samson about the possibility of the child spending time with the father she said that the mother “says that she will adhere to your Honour’s order.” Ms Samson also relied upon the fact that although the parties had been required to attend upon various professionals for assessment and the child had attended therapy, there had been no family therapy.
On 12 August 2013, the final day of the hearing, my having adjourned the matter over the weekend to allow the mother to consider her proposal for spending time with the child in the event that I was to order that she live with the father, Ms Samson handed to the Court a document headed “Alternative Minute of Order Proposed By The Mother”. That minute proposed final orders as follows:
1. THAT the child [M Bender] born … 2006 live with the Mother.
2. THAT the Mother have sole parental responsibility for the child.
3. THAT the child to (sic) re-engage in therapy with her Psychologist Dr [J], and the Mother to facilitate the attendance of the child at such times and frequency as recommended by Dr [J] and abide by any directions made by Ms (sic) [J] as she considers necessary to provide therapy to the child, the cost of the therapy to be paid by the Father.
4. THAT the time specified in 3 hereof to commence at a time recommended by the child’s psychologist, Dr [J].
5. THAT the Father to initially communicate with the child by telephone each Thursday between 6.30pm and 7.00pm with the Father initiating the call to the mobile telephone of the Mother, the child to answer the phone and the Mother to ensure her telephone is charged and turned on and she is to provide a private setting for the call to be taken by the child.
6. THAT the Mother and he (sic) Father forthwith engage in therapy, such therapy to be provided by Ms (sic) [J] if she considers this to be in the best interests of the child or otherwise the parties engage with an alternative therapist as nominated by the Independent Children’s Lawyer.
7. Each of the parties to attend upon the therapist at times and intervals as recommended by the therapist and to follow any direction the therapist considers necessary to facilitate the therapy; the Father to pay the cost of therapy.
8. THAT upon the recommendation of Dr [J] for commencement of time with the father the father to spend time with the child as follows:
(a)For a period of two occasions each alternative Sunday from 12.00pm to 4.00pm;
(b)Thereafter on the third Sunday of each month from 9.30am to 5.00pm.
(c)On the birthday of the child from 3.30pm to 5.30pm;
(d)On Father’s Day from 9.30am to 5.00pm;
(e)On Christmas Day each year from 3.30pm to 8.30pm.
9. THAT the child’s time with the Father is suspended on Mother’s Day.
10. THAT the Father’s (sic) time with the Father is suspended on the birthday of the Mother …
11. THAT the Father to be in substantial attendance during he (sic) time the child is in his care.
12. THAT the Paternal Grandmother to be substantially present during the child’s time with the Father specified at paragraph 8.hereof (sic)
13. THAT the exchange of the child to occur at the home of the Maternal Grandmother and the Mother is not to be present at the home at exchange time; or in the alternative at Mc Donalds (sic) at …, and facilitated by an independent supervisor such as Ms [Z], the cost to be shared by the parties.
14. THAT the Father be at liberty to attend the child’s school by appointment with the child’s teacher for the purposes of discussing the child’s progress at a time separate to any time the mother may be at the school.
15. THAT the Father is authorized (sic) to obtain copies of the child’s Progress Reports and Photograph Order Forms from the child’s school.
16. THAT the Mother and the Father to inform each other by SMS of any serious illness or injury suffered by the child and inform him (sic) of the treatment the child is receiving from any medical professional who may be treating the child, and the Mother and Father are authorized (sic) to communicate directly with any such medical professional.
17. THAT the Mother and the Father are hereby restrained by injunction from:
(i)discussing any aspect of these proceedings with the child or within the hearing of the child;
(ii)speaking with disrespect or negativity about the other parent to the child, within the hearing of the child and from (sic) allowing third parties to do the same;
(iii)discussing aspects of the parties’ past relationship with the child or within the hearing of the child;
(iv)form (sic) allowing the child unsupervised access to the Internet.
18. THAT the Mother and Father forthwith enrol in and attend a Parenting Orders Program.
19. That in the event the rehearsals for the child’s ballet concert occur at a time the child is to spend time with the Father the time to occur on the Sunday prior to the rehearsal with the Mother to give the Father two weeks of notice by e-mail and SMS.
20. THAT pursuant to s 65DA (2) (sic) and 64 B (sic) the particulars of the obligations there (sic) orders created and the particulars of the consequences that follow if a person contravenes these orders and details of who can assist the parties adjust (sic) to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Ms Samson also tendered a handwritten document which was headed “If Her Honour makes an Order for [the child] to live with [the father], what are your proposals to see [the child]?” The response contained in that handwritten document, which Ms Samson advised the Court was prepared in consultation with the mother, was as follows:
I wouldn’t Cope (sic) and would probably have a nervous breakdown I couldn’t go on without my child two hearts would break in two. I wouldn’t see her at all it would be too heartbreaking to only see her each fortnight + (sic) see how she suffers.
Background
The decision I must make is one that will best promote the child's welfare now and in the future. That decision, in this case, is informed by both the history of the relationship between the parties themselves and their relationship with the child and the history and background to the various legal proceedings in which they have been involved since their separation.
The mother says that during the marriage she suffered repeated verbal and physical abuse by the father. The father says that he was the one who was abused. He says that the mother is a bully and that during the marriage she was verbally abusive, manipulative and controlling. He says the mother’s abusive behaviour continued after separation and that he has received hundreds of abusive text messages from the mother which are unrelated to the child’s welfare. It was when Ms Samson put to the father in cross-examination that he had not provided any detail of the alleged abusive messages, that the father produced his mobile phone and read to the Court text messages that he had received from the mother as recently as 26 June 2013. The mother did not challenge this evidence which corroborates the father’s evidence generally about not only the abusive messages he has received from the mother but her abusive behaviour and attitude generally.
The father says that following separation and throughout 2008 the mother frustrated his attempts to spend time with the child. He said this included ignoring his requests to see the child, failing to attend when arrangements were made for him to see the child, insisting on being present during his time with the child and being both threatening and abusive in the child’s presence. For her part the mother says that initially following separation the father did not show any interest in seeing the child, that she asked him to attend a parenting course and anger management and that she facilitated him spending time with the child at public venues. She said she would stay nearby whilst the father spent time with the child. According to the mother the father spent time with the child only a couple of times between separation in July 2007 and May 2008 and that even though arrangements were made through their respective lawyers he would not turn up. As I have previously indicated, where there is a conflict between the evidence of the father and the mother I prefer the father’s evidence.
The mother, somewhat surprisingly given her detailed history of the marriage and what had occurred after the parties separated, made no mention in her trial affidavit of the alleged assault which she said occurred on 12 July 2008, a matter of days after the parties consented to final parenting and property orders. In the application for an intervention order filed by the mother she alleged that:
ON 12/07/08 THE DEFT ATTENDED THE AFM’S PREMISES UNANNOUNCED, THE AFM HAD HER FLY SCREEN DOOR UNLOCKED & THE DEFENDANT ENTERED THE HOUSE. THE DEFENDANT POUT HIS HANDS AROUND THE AFM’S THROAT & PUSHED HER UP AGAINST A WALL. THE DEFENDANT YELLED AT THE AFM” WHO’S THE NEW MAN IN YOUR LIFE?” THE AFM SAID TO THE DEFENDANT “WE ARE DIVORCED NOW”. THE AFM & DEFENDANTS DAUGHTER [THE CHILD] WAS PRESENT WHILST THIS HAPPENED AND BECAME UPSET. THE AFM PICKED HER DAUGHTER UP AND WITH THAT THE DEFENDANT SAID “ARE YOU LISTENING TO ME”” AND PUSHED THE CHILD OUT OF THE AFM’S ARMS. [THE CHILD] FALL ACROSS THE FLOOR. AFM THREATENED TO CALL THE POLICE IF THE DEFT DID NOT LEAVE. DEFD THEN LEFT THE HOUSE. THE AFM STATES THE DEFENDANT DID NOT SEEM CONCERNED ABOUT THE DISTRESS OF THEIR DAUGHTER. OVER THE PAST 4 YEARS THE DEFT HAS BEEN ABUSIVE TOWARDS THE AFM. THERE HAS BEEN MANY INCIDENTS OVER THE RELATIONSHIP WHERE THE POLICE WERE CALLED THE DEFT HAS BECOME EXTREMELY ABUSIVE AND VIOLENT. THESE EVENTS INCLUDE THE DEFT SMASHING AFM’S HEAD AGAINST HER CAR WINDOW, KICKING THE AFM BEING VIOLENT WHISLT AFM CONSTANTLY EVNE WHILST SHE WAS PREGNANT.
THE AFM IS WORRIED ABOUT THE DEFT’S IRRATIC TEMPERAMENT & PAST BEHAVIOUR & DOES NOT FEEL SAFE. THE AFM SEEKS AN ORDER TO PROTECT HER & HER DAUGHTER& HOPES THAT THE DEFT WILL BE REFERRED TO COUNSELLING/COURSES TO ASSIST WITH HIS ANGER MANAGEMENT PROBLEMS.
The mother’s application for an intervention order was opposed by the father. Both the mother and the father gave evidence as did the paternal grandfather. The father’s evidence, which was corroborated by the paternal grandfather, was that he attended a running group early on the morning of the alleged incident, that after the run he and his father went for breakfast with a group of people and that after breakfast he went to collect the child at R play centre in Suburb E at the commencement of his time with the child. He was accompanied by the paternal grandfather. He said that as the child was not at the play centre he and his father returned home. This was confirmed by the paternal grandfather. Perhaps of even more significance is that for the purposes of his decision the Magistrate hearing the matter had the transcript of a number of calls made by the mother to the father later that day. He said as follows:
Now the interesting thing about the phone calls and I have the transcript on the 12 July at 5.29, 5.33 and 5.35 they are calls made by the complainant to the defendant after she has been assaulted and she says and after her daughter has been assaulted she says and before she rings the Police. Now the calls are to do with as I read them are to do with messages being left and contact being made and games being played. They strike me as staggering calls that are being made by a woman who allegedly was assaulted that morning by the man she is leaving messages to, there’s not one reference to the assault, not one reference to the assault on her daughter indeed they seem to be directed at subsequent contact and messages in relation to that contact. They are just not the type of calls you make if you have been assaulted at 9.30 that morning.
The Magistrate found that on balance he was not satisfied that the alleged assault had happened. What is significant, for the purposes of the hearing before me, is the way in which the mother dealt with the evidence of this incident. Her response was to point out that there had been inconsistencies between the evidence of the father and the paternal grandfather. However she completely disregarded the evidence about the telephone calls which, from my understanding of the Magistrate’s reasons, had a significant impact on the outcome of the case. This is a clear example of what I would describe as the mother “cherry picking” those parts of the evidence that she perceives to be supportive of her case and disregarding those parts which are not. There were also inconsistencies between the allegations she made at that time and her evidence of what occurred during this case.
Irrespective of whether the father showed little interest in spending time with the child as asserted by the mother or his attempts to spend time with the child were frustrated by the mother, on 9 July 2008 the parties consented to final parenting orders. The orders provided that the child was to live with the mother and spend time with the father at the R play centre from 10.00 am to 12.00 noon on three out of four Saturdays. The maternal grandmother was to be in attendance during the time the father spent with the child. After 12 weeks the father was to start spending unsupervised time with the child for two hours on either a Saturday or a Sunday at venues to be agreed and he was required to confirm the preceding Wednesday whether he would be attending.
The mother alleges that once the father was required to contact her to make the necessary arrangements he rarely did so and that he spent very little time with the child. That is disputed by the father. She deposed that:
[the] Applicant’s lawyer wrote to me with proposals for time at Christmas of 2008. The Applicant didn’t contact me to confirm arrangements. I tried to call him but my telephone calls were not returned. On 13 October 2008 I sent a text message telling the Applicant [the child] and I were going away from 26 December to 20 January 2009. I also told him I would see him on the visit scheduled on 20 December. I did not receive a response. The Applicant did not spend time with [the child] that Christmas.
The father has a very different version of what occurred. He says that in spite of his lawyer’s efforts to make arrangements for him to spend time with the child at Christmas it did not occur. He says that not only did his lawyer’s attempts to arrange time not succeed, but that when he sent a text message to the mother she called him and told him that she and the child did not want anything to do with him. I accept the father’s evidence.
Although the mother says she then did not hear from the father until March 2009, he says that having made one last attempt at mediation he thereafter issued further proceedings. On 30 March 2009 the relevant paragraphs of the previous orders in relation to the father spending time with the child were discharged and interim parenting orders were made which provided for the child to spend time with the father each Sunday from 10.00 am until 12.00 noon and each Wednesday from 9.00 am to 11.00 am with changeover to occur at the XX Community Centre. It was further ordered that the father be in substantial attendance and that he not take the child to his parents’ home. Both the father and the mother were required to attend an anger management course. They were also ordered to attend upon Dr N for the preparation of a report in anticipation of a final hearing on 5 August 2009.
Notwithstanding the orders, the father says that he agreed to the mother being present during the first scheduled visit. On the second of the scheduled visits, which was to be the father’s first period of unsupervised time, the mother says that rather than leave immediately she went to collect a bottle that she said she had left there and on the way back to her car noticed that the child was in the outdoor area on her own and that the father was sitting in his car reading a newspaper with his back to the child. She said that his car was facing away from the park and separated from the park by a row of cars. She says that as she was worried about the child she waited for the father to return to the park. When he did not do so she says she decided to draw the possible danger to the child to his attention. She says that the father’s reaction was to call her a “mole” and a “fucking bitch” and that he put his chest up to her face.
The mother was also critical of the father because she said that he insisted on staying out in the park with the child even though it was raining and that when he returned the child to her care she had wet hair, her clothing was saturated and she had a wet nappy.
The father denied the mother’s allegations. He said that the mother set out to sabotage his time with the child, that he left her for a matter of seconds when he went to collect a toy duck from the seat of his car, and that he kept the child in his sight at all times including when he went to his car. I accept the father’s version of what occurred.
On 15 April 2009 the mother says that after she arrived home after collecting the child from the Community Centre she was accosted by the father who she said drove into her driveway and then got out of his car and started swearing at both she and the child calling them both “bitches” and complaining about the child support he was required to pay. She said that when she told him to stop because he was scaring the child he pushed her and the child into the car. She said that his left hand was pushing the child’s shoulder and his right hand was pushing her left shoulder. She described him as using a lot of force and pinning her and the child to the car for about five seconds.
The mother says that after she screamed a neighbour came out and the father got in his car and drove off. The mother then called the local Police who she says advised her to apply for an intervention order. The mother obtained an interim intervention order on 15 April 2009 and the father was charged with unlawful assault.
The mother says that whilst she was waiting for the intervention order and assault charges to be heard, her solicitor requested that the father provide a written undertaking that he would not expose herself or the child to verbal or physical abuse at changeover. When the father refused to provide that undertaking, he would say because he had not done anything wrong, the mother refused to make the child available to spend time with the father.
The mother in her trial affidavit deposed “that at the first return of the Intervention Order at [the] Magistrates Court on 27 April 2009 the presiding Magistrate suggested that [the child’s] time with the Applicant should return to supervised time” and that she proposed that the maternal grandmother attend changeovers. As the maternal grandmother was not available on Sundays, there were negotiations between solicitors to vary the orders and it was ultimately agreed that changeover would take place at the R play centre.
The mother also deposes that she does not know how the charges against the husband proceeded or were concluded, nor for that matter does she depose to the outcome of her application for an intervention order. I consider it is unlikely that the mother would not have been aware of the outcome of her application to an intervention order or the criminal charges against the father. In my view it is much more likely to be another example of the mother ignoring those aspects of the evidence that do not support her case.
The father for his part denied that the incident described by the mother had happened at all. Although there seemed to be some misunderstanding on his part in relation to whether he had been charged with assault it is clear that even though he was charged those charges were later withdrawn. The father’s evidence is that the charges were withdrawn because his mobile phone records showed that he was at Suburb V at the time of the alleged assault.
Notwithstanding the orders that were made on 30 March 2009 not requiring supervision and which appear to have been made following a contested hearing, as a result of the alleged assault on 15 April, the father’s time with the child was once again supervised.
On 5 August 2009 the father and mother once again consented to final parenting orders which provided for them to have equal shared parental responsibility and for the child to live with the mother and spend time with the father each Saturday, increasing to overnight time in January 2010 and to alternate weekends from Friday until Sunday commencing in December 2010. They also signed an agreement to the effect that they would do all things necessary to revoke the interim intervention order and withdraw the application which was listed for final hearing on 1 September 2009 with no order for costs.
It was put to the mother in cross-examination by counsel for Independent Children’s Lawyer that to proceed with an application for an intervention order which alleged violence involving both herself and the child would be inconsistent with a consent order which provided for the father to spend unsupervised time with the child. The mother’s explanation was that she did so because of the fear of being in breach of the orders and because she didn’t have the funds to keep going, but she insisted that she had still been worried about the child ‘going with’ the father. The mother’s evidence must be viewed in the context of the report prepared by Dr N in anticipation of that hearing. Dr N described the child as “greeting her father excitedly” and said that she “exuberantly threw herself into play with him”. She observed that there were many examples of the child’s trust in the father.
Notwithstanding that, orders were made by consent and the agreement to withdraw the intervention application, the father’s unsupervised time with the child was not to be and on 2 March 2010 the mother was found by Federal Magistrate Baker, as she then was, to have contravened the orders on 23 and 30 August 2009, on 6, 19 and 26 September 2009 and again on 3 October 2009. The first of those contraventions having occurred within two weeks of the mother consenting to final orders. The orders made 5 August 2009 remained in force.
Following the incident on the 17 September 2010 when the mother alleges that the father drove off with the child on the roof of the car, the mother obtained an interim intervention order from the Children’s Court in which both she and the child were named as affected family members and filed an application to reinstate the supervision of the father’s time with the child. Interim orders were made on 23 November 2010 which provided that the father’s time with the child be supervised by the paternal grandmother and the matter was adjourned for an interim hearing on 20 December 2010.
On 20 December 2010 that application was dismissed by Federal Magistrate O’Dwyer, as he then was, and she was ordered to pay the father’s costs of that application. The dismissal of the mother’s application meant that the orders made by consent on 5 August 2009 continued to be in force. The mother’s application for intervention orders against the father was dismissed by the Children’s Court on 7 April 2011 following a contested hearing. I will refer to the incident which led to this further application in more detail later in my reasons.
There was a further incident on 4 February 2011 at changeover at the tennis courts in Suburb K. The father attended changeover with the paternal grandfather. The father’s evidence is that when the mother saw the paternal grandfather she became verbally abusive and slammed the car door. It was his evidence that the handover did not occur because the child was upset but that as he and his father drove away “the mother punched my father in the side of his face through the open car window”. The father’s evidence is that he reported the incident to the local Police.
The mother’s evidence was that the paternal grandfather “swore at me and told me about his previous sexual experiences with women”. She said that the incident was recorded by the father and that he gave a copy of that recording to the Police, as a result of which they advised her to apply for an intervention order against the paternal grandfather which resulted in him giving an undertaking to the court. Although the father admits that there was a verbal altercation, he denies the mother’s description of what she said occurred and the seriousness of that incident and also denies that his father gave an undertaking to the court.
The wife relied upon a Family Violence Report which refers to a verbal confrontation between the father and the mother on 4 February 2011. That report refers to a digital recording in which the father is described as “shouting fowl (sic) language and derogatory comments at [the mother] and possibly within earshot of [the child] who could be heard crying in the background”. There is no reference to the paternal grandfather in this report and although the mother relied upon this digital recording with respect to what she said occurred on the 4 February 2011, I cannot be satisfied that this report is referring to the alleged altercation between the father, the mother and the paternal grandfather. Nor am I satisfied on the balance of probabilities that the paternal grandfather either attended court or was required to give an undertaking to the court. I am, however, satisfied that there have been verbal altercations between the father and the mother and that these may have been witnessed by the child.
It was during this same period that the mother first alleged that the child had been sexually abused by the father, as a result of which she stopped him spending time with the child pursuant to the orders. On 7 November 2011 the father filed a further application for contravention alleging the mother had failed to make the child available to spend time with him. The father’s application was listed for hearing on 19 December 2011. The matter was transferred to this Court and on 31 January 2012 Senior Registrar FitzGibbon made orders by consent that provided for the father to spend time with the child each Sunday from 9.30 am until 2.30 pm, with such time to be supervised by the paternal grandmother. On 11 March 2012 the mother again stopped the father spending time with the child following what she said were allegations made by the child of sexual abuse by the paternal grandfather.
On 13 April 2012 Senior Registrar FitzGibbon made orders by consent confirming that the orders of 31 January 2012 remained in full force and effect but extending the conclusion time to 3.30 pm. It was also ordered by consent, but without admitting the necessity of such order, that the father ensure that the child was not brought into contact with the paternal grandfather during his spend time periods. Senior Registrar FitzGibbon further requested that DHS prepare a report pursuant to s 69ZW of the Act.
The mother filed a Notice of Child Abuse or Family Violence on 16 April 2012 three days after orders were made by Senior Registrar FitzGibbon. On 30 May 2012 Senior Registrar FitzGibbon made orders by consent providing for the father to spend time with the child on the following four Sundays from 9.30 am until 4.00 pm, with the first two Sundays to be supervised by the maternal grandmother. It was also ordered by consent that the child would then begin spending increasing time on alternate weekends with the father, with the paternal grandmother in substantial attendance, as well as alternate Wednesdays from the conclusion of school until 7.00 pm.
Although the child did initially recommence time with the father pursuant to those orders, she became increasingly reluctant to spend time with the father and has now not spent any time with him since early March 2013. F Contact Centre, which facilitated the changeovers, then withdrew its services on 18 March 2013 because, as they reported, “the Service could not offer any support to [the child] and she appeared to be distressed while here”. Following the withdrawal of the services of the Contact Centre the mother kept the child away from school on those Fridays during school term when she was, pursuant to the orders, to have spent time with the father in order to prevent him from collecting her from school at the commencement of that time.
The history of this matter discloses a pattern of allegations followed, at the mother’s instigation, by either periods of supervision or other conditions placed upon the father’s time with the child or the interruption or cessation of that time, irrespective of the existence of orders made by the Federal Magistrates Court, as it then was, or this Court. This pattern adds significant weight to and supports Dr P’s concerns, as outlined in her report, as to the mother’s capacity to support the child spending time with the father without supervision and her opinion that if the Court were to order unsupervised time with the father the mother would obstruct the child’s time and relationship with the father. My concern, given the history of the matter, and having heard the mother’s evidence, is that the mother does not support and does not consider a relationship of any kind to be of benefit to the child and will obstruct both the father’s time and his relationship generally irrespective of whether that time is supervised or unsupervised.
Is the child exposed to an unacceptable risk of sexual abuse in the father’s care?
The mother made a number of allegations about what she said was the father’s inappropriate sexual behaviour and/or his sexual abuse of the child and his failure to protect her from sexual abuse by his father. Her evidence about the alleged abuse is primarily contained in her affidavit filed 26 March 2012 and is as follows:
·that in early February 2011 the child asked her if she could “lick my teeth”. She said that when she asked the child what she meant by this she said words to the effect that “that’s what Daddy says to me”.
·that the child had told her that the father, during the time she spent with him and with the paternal grandmother present in the house, asked her to “lick his teeth clean” and to “drink daddy’s milk” whilst referring and gesticulating to his breast area; and
·that on 13 March 2011, the day after the child returned from spending time with the father, she and the child were driving in the car and talking about the time she had spent with the father and that the child had said to her “out of context with the rest of [our] conversation” that “daddy asked me to touch his penis”. She said that she stopped the car “and asked her if this was true as [if] it was not she wouldn’t be having a party for her birthday” and that the child “became upset and said that it was true and that she was scared of her Father and her grandparents”. She said the child asked her “not to make her go back to her Father’s.
Although Ms Samson repeatedly referred to the child’s happiness and the need to maintain her happiness, there is an artificiality about this concept of her happiness. Both the father and Dr P questioned the child’s happiness and I agree with Dr P’s view that although the child’s happiness is important, it should not be given higher priority than her psychological and physical safety.
(e)the practical difficulty and expense of the child spending with and communicating with a parent and how that difficulty and expense will affect the child’s rights to maintain a personal relationship and contact with both parents on a regular basis:
This is not an issue in this case.
(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 relevant 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 have already discussed the child’s level of maturity. These are otherwise not issues in this case.
(j)any family violence involving the child or a member of the child’s family;
(k)any final or contested family violence order that applies to the child or a member of the child’s family:
I have already discussed in some detail the history of allegations of family violence towards both the mother and the child, including the history of applications for intervention orders on behalf of both the mother and the child and the criminal charges against the father. Whilst I am satisfied, as conceded by the father, that there have been a number of verbal altercations both during the marriage and since the parties separated between the father and the mother, and that on one occasion there may have been a verbal altercation between the mother and the paternal grandfather, and that this has on occasions been witnessed by the child, I am not satisfied that the mother or the child are victims of any physical or family violence by the father or, insofar as the mother says she believes that he presents any risk of family violence to them, that there is any basis for that belief. I find it inconceivable that if the mother were genuinely concerned for her safety she would send the provocative text messages she sent to the father shortly before the hearing.
There are no current family violence orders that apply to the father, the mother or to the child.
(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; and
Dr P was asked whether it might be appropriate in this case to consider a trial change of residence. This was opposed by the mother. It is my view that it would be preferable to make an order that would avoid the necessity for further proceedings in relation to the child. However, particularly in light of the mother’s evidence that she will not cope and does not propose in those circumstances to spend time with the child, I cannot see how I can avoid the possibility of further proceedings, albeit limited to the time the mother is to spend with the child.
Although I am satisfied that the mother loves the child, I have found based upon both her own evidence and the evidence of the experts that the mother is unable to separate her needs from those of the child. I am hopeful that with the passage of time and the assistance of some therapy that she will have the capacity to put the child’s needs before her own and to not only spend time with the child but support the arrangements for the child’s care.
Although I am hopeful that the mother will eventually decide to spend time with the child, given the history of this matter I am not confident that she will develop the necessary insight to accept the orders the Court makes and will not actively undermine those orders, particularly if those orders are interim orders rather than final orders and likely to be the subject of further proceedings. Although further proceedings, at least with respect to the mother’s time with the child, may be unavoidable I am satisfied that it is preferable to make orders that will provide certainty and stability for the child and not leave open the issue of where and with whom she should live.
(m)any other relevant circumstance
There are no other relevant circumstances.
The extent to which the father and mother have fulfilled or failed to fulfil his or her responsibilities as a parent: s 60CC(4)
Section 60CC(4) provides as follows:
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.
I have already discussed in detail matters which reflect on the parenting capacity of both the father and the mother and whether they have met their obligations as parents. However there are a number of specific issues which were raised, in particular, by the mother which I propose to address. The mother levelled a number of criticisms at the father which included in particular his failure to spend time with the child and his failure to provide financial support for the child. She was also critical of what she said was his lack of interest in her schooling and other activities.
Ms Samson relied upon the fact that the father had between May 2012 and the date of the hearing failed to take the opportunity to spend time with the child each alternate Wednesday evening pursuant to paragraph 1(d) of the orders made 30 May 2012. I am satisfied that the child has not spent time with the father since early March 2013 and that, to avoid the possibility of the father collecting the child from school pursuant to the orders, the mother kept her home from school. I am satisfied that since then even if the father had attempted to collect the child from school for the purposes of spending time with her on a Wednesday evening it is likely that the mother would have taken whatever steps she considered necessary to prevent him doing so.
The father’s evidence was that although he could not remember exactly when, he had travelled to Suburb K on three or four occasions to spend time with the child on a Wednesday after school. The father said that Wednesday evening time was not really feasible and the changeovers were problematic. I accept that there were likely to be practical difficulties with the Wednesday time. The father’s decision not to avail himself of the Wednesday evening time with the child, in all of the circumstances in this case, does not lead me to conclude that he has failed to fulfil his responsibilities as a parent. I have a similar view about the mother’s criticism of the father’s overseas holidays.
The father was also criticised by Ms Samson for having waited for five months to issue his application for contravention after the mother stopped him spending time with the child pending DHS investigations of the allegations of sexual abuse. The husband’s evidence was that he was required to attend mediation before he could issue an application for contravention and that he was unable to get an appointment for that mediation until August. Given the history of the proceedings and the amount the father says he has spent on the proceedings it would not be surprising if there was some reluctance on the father’s part to once again enter the fray and I do not consider that any delay on his part reflects upon his parenting capacity.
The mother was also critical of the father because she said he had understated his income for a number of years. The purpose of this criticism was two-fold. Firstly it was submitted that the father in understating his income had not met his responsibility to maintain the child and secondly that it reflected upon his credit. It was the father’s evidence that he had always paid child support as assessed. I accept that evidence. On 16 January 2012 the mother applied for a departure from the assessment on the basis that the child had special needs, there were extra costs in caring and educating her and that she was being educated at a private school as her parents had intended. The mother also asserted that the father’s income was $150,000 whereas his adjusted taxable income for the relevant period was $85,440.
On 29 June 2012 a senior case officer determined that there were grounds to depart from the assessment and increased the rate of child support payable by the father. The mother lodged an objection as did the father. The father’s objection was allowed and the mother’s objection was disallowed. As a result the father’s assessment was reduced. On 26 October 2012 the mother appealed to the Social Security Appeals Tribunal. The Tribunal ultimately decided to set aside the decision of the Objections Officer and substituted its own decision increasing the child support payable by the father. My reading of that decision is that it was based primarily upon the fact that because the father lived at home and had few living expenses he had a surplus out of which he could make a greater contribution to the child’s expenses.
The Tribunal did note that the father had not complied with the directions on time or fully in particular in relation to the production of his bank records. Having heard the father’s evidence I am satisfied that this was likely to be as a result of not wanting to disclose to the mother that he had been attending strip clubs rather than an attempt on his part to avoid his financial responsibility for the child.
Given the attack on the father’s credit in relation to this issue I also note that the mother’s evidence in relation to the fact that the father had consented to the child attending X School was not accepted by the Tribunal. In my view this is another example of the mother seeking to rely only parts of the evidence she perceives as supportive of her case, disregarding other aspects of the same evidence which are not. I am satisfied that the father has not failed to fulfil his obligation to support the child as submitted by the mother.
Although the mother has clearly been committed to and met her obligations to maintain the child there are also many criticisms that can be made about the way in which the mother has fulfilled her parental responsibilities. The primary criticism in this case being her inability or unwillingness to facilitate the child’s relationship with the father and involve him in her life generally or in the decisions they as the child’s parents are required to make. There is no evidence to suggest that the mother consulted or sought the father’s consent to take the child to see either Ms W or Ms O.
Although the mother’s evidence before the Tribunal was that the father had agreed to the child attending X School and that he therefore should be required to contribute to the school fees, his evidence was that he had not been consulted. According to the decision of the Tribunal, which was relied upon by the mother, the Tribunal did not accept her evidence. Whilst this was not ventilated in any detail before me I am satisfied on the balance of probabilities that the mother made the decisions with respect to the child’s schooling without reference to the father. There is no evidence that the mother provided the father with information in relation to the child’s schooling or was notified in relation to school events he might wish to attend. To the contrary, the evidence suggests that the mother attempted to limit the father’s contact with the school and information being passed on to him by the school. The mother was asked about an email she sent to the school which referred to an interim intervention order and advised the school that because the father was not spending time with the child there was no need for the school to correspond with the father. This was notwithstanding that the interim intervention order contained the usual exception in relation to any orders that the child spend time with the father. The mother said that she did this because the child was fearful of the father and she was protecting her. There is also no evidence that the mother advised the school that no final order had been made. Notwithstanding the mother’s attitude, the father said that he had contacted the school to enquire as to the child’s progress.
Although I am satisfied that the father has, as best he can in all of the circumstances of this case, fulfilled his parental responsibilities, I am not satisfied having regard to all of the evidence in the case that the mother has fulfilled her parental responsibilities.
Parental responsibility
Parental responsibility is defined in s 61B of the Act as all of “the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
There is a statutory presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA). The presumption is rebuttable if the Court is satisfied that it is not in the child’s best interests.
When that presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider firstly whether it is in the child’s best interests and reasonably practical to spend equal time with the parents (s 65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practical to spend “substantial and significant time” with each of the parents (s 65DAA(2)).
Each of the parties in this case seeks an order for sole parental responsibility, albeit for different reasons. It was conceded by the mother that if the court were to make orders that the child live with the father that he should have sole parental responsibility. The mother’s case is that the presumption of equal shared parental responsibility is rebutted by what she says is the father’s abuse of the child and his history of family violence. I do not accept that the presumption of equal shared parental responsibility should not apply in this case as alleged by the mother because the father has engaged in either abuse of the child or family violence
It is without question a serious matter to remove from a party the duties, powers, responsibilities and authority they have in relation to their child or children. However, there are of course cases in which the best interests of the child determine that it should be so. I have already discussed in detail the primary and additional considerations that I must consider in order to determine the child’s best interests. Those matters are also relevant for determining whether it is in her best interests for her parents to equally share parental responsibility for her.
Any attempt to equally share parental responsibility will require the parties to communicate in some fashion, even if that communication is not face to face. In this case the only evidence I have of recent communication between the parties is the husband’s evidence of text messages sent to him by the mother shortly before the hearing. The history of this case, the mother’s evidence generally and her stance that she will not spend time with the child if the court makes an order for her to live with the father give me little or no confidence in either the mother’s capacity for or commitment to appropriately exercising parental responsibility let alone sharing that responsibility.
Although the father acknowledges the importance of the mother in the child’s life, I am satisfied that it would not be practical or in the child’s best interests for him to have to communicate or negotiate with the mother in order to make decisions with respect to the child’s welfare. I propose to make the orders proposed by the father and the Independent Children’s Lawyer, including the order with respect to the father providing information to the mother, considering her views and advising her of any decisions. In these circumstances it is not necessary for me to consider whether it is in the child’s best interests to spend either equal or substantial time with either of her parents.
Extraneous material
In her final submissions Ms Samson sought to rely upon a number of articles of published research in support of her case. Although initially the basis upon which she sought to rely upon that material was not clear, she ultimately agreed that it was not evidence in the case. As Murphy J said in Wheldon & Dinh [2010] FamCA 740 at 116–119:
The distinction is, in my respectful view, important. It is unsurprising that a specialist tribunal or court should acquire specialised knowledge to which recourse might be had in the determination of matters before it (see the line of authority referred to in ICI Australia, above). But the use of “writings of an expert nature which support [a judicial] view” is, in my respectful view, very different indeed to the use of such writings “to support findings”.
Considerable circumspection should, in my respectful view, attend the use of any published research (whether in the manner held appropriate or otherwise). It seems to me that the specialised knowledge based on a person’s training, study or experience that permits of the giving of opinions that would otherwise be inadmissible as evidence (cf ss. 76 and 79 Evidence Act 1995 (Cth)) has, as a quintessential component of it, the expertise to give published research its proper place in the scientific mainstream.
“Published research” does not receive credence, cogency or credibility by reason alone of fitting that description. Moreover, in my view at least, it is difficult to see how a trial judge could determine the credence, cogency or credibility of the research (save in the manner indicated in ICI Australia) without recourse to expert evidence that addresses that very issue.
In my respectful view, where “published research” is said to be important to findings in a particular case, it should, in the usual course of events, be the subject of evidence from an expert who has the requisite attributes sufficient to qualify him or her as such in the area of specialised knowledge to which the “published research” refers. (See generally eg. Makita (Australia) Pty Ltd v Sprowles, above esp. at [87]) .
The articles to which I was referred by Ms Samson discuss what is described as “parental alienation”. In this case both Dr J and Dr P gave evidence that the child appeared alienated from the father and referred to “parental alienation” or “parental alienation syndrome”.
Neither the father nor Ms Agresta objected to me reading the articles provided by Ms Samson and I have done so. However, although I have read those articles I want to make it clear that my findings and ultimately my decision is based upon the evidence in this case and not the opinions of the authors of those articles or any label that might be applied to the circumstances of this or any other case.
Dr P also made reference to research however I am satisfied that whilst she had considered that research she based her recommendations primarily upon her observations of the parties and the child and her general expertise rather than solely by reference to the research.
Ms Samson also referred me to a number of cases, however each of the cases to which she referred was decided on the basis of the particular facts of that case and insofar as I must make my decision based upon the unique facts of this case they are not of great assistance to me.
Conclusion
Although both Dr J and Dr P described the decision in this case as a choice between the “least worst outcomes”, that in my view misstates the decision that I must make. The child’s best interests are paramount and I must make the decision that I consider best promotes the child’s welfare. It would be a rare case in which there were not positive and negative aspects associated with the various options open to the court, however, at the end of the day the court must determine which of those options, having regard to both the positive and negative aspects, will best promote the interests of the child or children who are the subject of the proceedings.
In Champness & Hanson (2009) FLC 93-407 the Full Court, referring to what it said was the submissions of counsel based upon the assumption “that it was obligatory for the trial Judge to make the orders most likely to ensure the children has a ‘meaningful relationship’ with both parents”, said that this is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established it must still be weighed along with all other relevant factors.”
I have considered the benefit of the child having a relationship with the father and I have found that this will not be possible if she remains living with the mother. However, that is not the only relevant consideration in this case. I have considered all of the matters in s 60CC(2), (3) and (4) of the Act relevant to the facts of this case. It is in this case not just the fact that the mother is unable to support the child having a meaningful relationship with the father, but what her lack of insight and inability to put the child’s needs before her own says about her parenting capacity generally which leads me to conclude that it would be in the child’s best interests to live with the father.
The mother’s written statement to the Court in response to my request for her proposals with respect to spending time with the child in the event that I made an order that she live with the father highlights the mother’s inability to reflect upon her own behaviour and the ramifications of that behaviour. Whilst the mother clearly considers that a change of residence would be devastating for the child, she has persisted to ignore the risk to the child of the breakdown of her relationship with the father and to ignore the possibility that, ultimately, the Court might come to the conclusion that a change of residence is the only way to ensure that the child’s needs are placed before her own. Even when faced with that outcome, all the mother can say is that she will not be able to spend time with the child, although it is clear from the evidence, including the evidence of Dr J which I am urged by the mother to accept, that it is important for the child to have a relationship with both of her parents.
I accept that a change of residence when it occurs is likely to be traumatic and the management of that change is important. In my view, the orders proposed by the Independent Children’s Lawyer, including the order that the father arrange for the child to attend counselling, will facilitate that change of residence. I am also satisfied, notwithstanding that the mother now says she could not cope with seeing the child if she were to live with the father, that in any event, as recommended by Dr P, the mother’s time and communication with the child should be reserved for three months to allow for the consolidation of her placement with the father. I have no confidence that the mother would be able to spend time or communicate with the child without putting pressure upon her and undermining her placement with the father.
Both Dr J and Dr P gave evidence about whether or not it would be in the child’s interests to continue at her current school for some time after the change of residence and recognised the benefits of a more gradual change. Although the evidence of the child’s class teacher was that she would cope with a change of schools, in this case it is much more than just a change of schools. However, I must also consider the practical problems associated with the child continuing at X School in Suburb K whilst she lives with the father in Suburb V. In all of the circumstances having decided that it is in the child’s best interests for the father to have sole parental responsibility for the child and that she should live with him, I am satisfied that which school she attends is a parenting decision that the father should make in consultation with Dr J, the staff of X School and the staff of the school at which he proposes she should be enrolled. I am satisfied that he will do all he can to make these changes in a way that will be in the child’s best interests.
As I have said I am hopeful that the mother will in time accept the orders the Court has made, reflect upon the reasons for those orders and take whatever steps are necessary to allow her to play an ongoing part in the child’s life. Although the Independent Children’s Lawyer proposed that I make an order requiring the mother to attend counselling on an ongoing basis, I am not satisfied that that is the answer in this case. The mother, if she is to develop any insight, needs to be committed to doing so and until she makes that commitment counselling is not likely to assist her. I am satisfied that it would be in the child’s best interests to have an ongoing relationship with her mother and encourage the mother to seek the help she needs to enable her to take the necessary steps to develop a healthy relationship with the child.
I certify that the preceding two hundred and seventy six (276) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 27 September 2013.
Associate:
Date: 27 September 2013
3
0