McLory and McLory
[2016] FamCA 667
•16 August 2016
FAMILY COURT OF AUSTRALIA
| MCLORY & MCLORY | [2016] FamCA 667 |
| FAMILY LAW – CHILDREN – Best interests – With whom a child lives – Whether the child is at an unacceptable risk of harm in the father’s unsupervised care – Whether the mother has the capacity to facilitate a meaningful relationship between the father and child – Where the mother has an enmeshed relationship with the child – Where the child presents as being genuinely fearful of the father – Whether the father capable of managing a transition of the child into his care. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 65DAC |
| L & L (2006) FLC 93-286 SCVG & KLD Error! Hyperlink reference not valid. Banks & Banks (2015) FLC 93-637 Baghti & Baghti [2015] FamCAFC 71 M & M (1988) FLC 91-979 N & S and the Separate Representative (1996) FLC 92-655 Schorel (1990) FLC 92-144 B & J [2009] FamCAFC 103 |
| APPLICANT: | Ms McLory |
| RESPONDENT: | Mr McLory |
| INDEPENDENT CHILDREN’S LAWYER: | Elizabeth Fairon |
| FILE NUMBER: | BRC | 8082 | of | 2008 |
| DATE DELIVERED: | 16 August 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 11 - 15 July 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms K. Oakley |
| SOLICITOR FOR THE APPLICANT: | KLM Solicitors |
| COUNSEL FOR THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr J. Linklater-J |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Carroll Fairon Solicitors |
Orders
That all previous parenting Orders be discharged.
That Ms McLory (“the mother”) have sole parental responsibility for major long term issues (as defined in section 4(1) of the Family Law Act 1975 (Cth)) in relation to the child V (“the child”) born … 2008.
That upon making a decision in relation to a major long term issue concerning the child, the mother shall forthwith advise the father in writing of all relevant particulars in relation to that decision.
That the child live with the mother.
That the mother forthwith attend upon a psychologist or social worker nominated by the psychologist known in these proceedings as ‘Ms Y’ (“the mother’s therapist”) for the purpose of assisting the mother to facilitate the child being re-introduced to the father and thereafter spending time with him pursuant to this Order and further, to assist her in recognising the impact of her behaviour on the child and/or the father and to provide her with strategies to ameliorate her narcissistic and obsessive and compulsive personality traits.
That the mother attend all appointments made by the mother’s therapist referred to in the preceding paragraph for such period as recommended by that person and promptly pay all invoices issued by that person.
That the father forthwith attend upon a psychologist or social worker nominated by the psychologist known in these proceedings as ‘Ms Y’ (“the father’s therapist”) for the purpose of assisting him to recognise the impact of his behaviour on the child and/or the mother and to provide him with strategies to ameliorate his narcissistic personality traits and further, to provide him with strategies to assist the child in coping with spending time with him.
That the father attend all appointments made by the father’s therapist referred to in the preceding paragraph for such period as recommended by that person and promptly pay all invoices issued by that person.
That the mother and father forthwith retain the services of the psychologist known in these proceedings as ‘Ms Y’ or such other person nominated by her (“the child’s psychologist”) (over an initial period of not more than six months) to provide such therapy and/or counselling for the child as may be assessed as necessary to facilitate the re-introduction of the child to her father and thereafter spend time with him at such times and for such duration and at such venue as may be nominated by the child’s psychologist whether supervised or not as may be assessed by the child’s psychologist as appropriate for the child over the six month period and thereafter provide such therapy and/or counselling for the child as considered necessary by the child’s psychologist to facilitate the child spending time with the father in accordance with this Order.
That the mother punctually deliver the child to all appointments made by the child’s psychologist referred to in the preceding paragraph and comply with all directions made by the child’s psychologist in the implementation of his/her role and promptly pay one half of all invoices issued by the child’s psychologist.
That the father promptly pay one half of all invoices issued by the child’s psychologist.
That this Order be sufficient authority for the child’s psychologist to confer with the mother’s therapist and the father’s therapist for the purpose of best meeting the therapeutic and/or counselling needs of the child in re-establishing and maintaining her relationship with her father and each psychologist/therapist is authorised to discuss and disclose any matter relevant for that purpose.
That the child spend time with and communicate with the father at all such times as may be agreed between the parties but failing agreement as follows:
(a) Upon the expiration of not more than six months from the date of this Order and for a period of three months, each Saturday between the hours of 9.00 am and 12.00 pm;
(b) Upon the expiration of the three month period referred to in the preceding sub-paragraph and for a further period of three months, each alternate Saturday between the hours of 9.00 am and 5.00 pm;
(c) Upon the expiration of the three month period referred to in the preceding sub-paragraph and for a further period of three months, each alternate weekend from 9.00 am Saturday to 10.00 am Sunday;
(d) Upon the expiration of the three month period referred to in the preceding sub-paragraph and for a further period of three months, each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday;
(e) Upon the expiration of the three month period referred to in the preceding sub-paragraph and thereafter, during school term, each alternate weekend from after school Friday until before school Monday or until before school Tuesday if Monday is a public holiday or pupil free day;
(f) Upon the commencement of the time referred to in the preceding sub-paragraph for the second half of the child’s school holidays in odd numbered years and the first half in even numbered years;
(g) Upon the commencement of the time referred to in the preceding sub-paragraph by telephone, Facetime or Skype, each Wednesday between 5.30 pm and 6.30 pm with the mother to initiate the call to the father and facilitate the child speaking with the father.
That the mother be restrained and an injunction hereby issues restraining the mother from leaving the child alone with Ms W.
That the mother be restrained and an injunction hereby issues restraining the mother from questioning the child about her time with the father or from permitting any other person questioning the child about her time with the father save if that person is authorised by this Order or Statute to do so.
That the mother and father each read the Reasons for Judgment delivered this day as soon as reasonably practicable.
The Independent Children’s Lawyer is requested to forthwith provide a copy of this Order and the Reasons for Judgment to Ms Y and thereafter to the mother’s therapist, the father’s therapist and the child’s psychologist (if a person other than Ms Y).
That the father be at liberty to obtain from the child’s school, copies of all of the child’s school reports and school photographs (at his cost) and this Order shall be sufficient authority for the school to provide same to the father.
That the father be at liberty to obtain from the child’s treating medical practitioners details of any relevant medical conditions and/or treatment pertaining to the child (at his cost) and this Order shall be sufficient authority for the practitioner to provide same to the father.
That the mother keep the father informed at all times of her current residential address, contact telephone numbers, email address and of the name and address of the child’s school and medical practitioner/s.
That the father keep the mother informed at all times of his current residential address, contact telephone numbers and email address.
That for the purposes of implementing this Order the parties each be at liberty to communicate with the other by email or text message.
That the parties each be restrained from removing the child and/or causing the removal of the child from the Commonwealth of Australia without the prior written consent of the other parent (witnessed by a lawyer) or an Order of the Court.
In the event that consent is provided as described in the preceding paragraph each party shall do all things and sign all documents necessary to effect the temporary removal of the child’s name from the airport watch list so as to facilitate the child’s travel with the other parent.
The Australian Federal Police are requested to maintain the name, V, born … 2008, on the airport watch list in force at all international points of arrival and departure in the Commonwealth of Australia and retain the child’s name on the airport watch list until 12 February 2026 unless the permanent or temporary removal of the child’s name is permitted by Order of the court or the written consent of both parties (witnessed by a lawyer).
Miscellaneous
All outstanding applications are dismissed and removed from the list of cases awaiting finalisation.
The appointment of the Independent Children’s Lawyer is discharged.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order, and details of who can assist parties adjust to and comply with this Order are set out in the fact sheet attached hereto. And these particulars are included in this Order.
Notation
It is noted that the Order sought by the mother at the end of the trial included the child spending unsupervised time with the father and she expressed absolute confidence in her ability to facilitate the child attending upon the child’s psychologist for the purpose of re-introduction with the father and spending time with him.
The provision in this Order for the child to be re-introduced to the father and spend time with him over the next six month period is intentionally vague so as to best facilitate the prospects of the child’s psychologist successfully re-introducing the father to the child and increasing his time with the child at a pace that is suitable for the child before the commencement of the set time provided for in this Order. The time spent between the father and child during the first six months may or may not be supervised depending upon the child’s emotional capacity as assessed by the child’s psychologist.
Note: The form of the Order is subject to the entry of the Order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McLory & McLory has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the Order pursuant to r 17.02, Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8082 of 2008
| Ms McLory |
Applicant
And
| Mr McLory |
Respondent
And
| Elizabeth Fairon |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
V (“the child”) has been the focus of her warring parents since she was six months old. She is now eight years old.
A final Order was made on 12 April 2011 after a six day trial providing for the child to live with her mother and spend time with her father. The matter returned to court in 2013 with further allegations made against the father and the father’s time was suspended pursuant to an interim Order.
An attempt at supervised time in August 2014 failed and the child has not seen her father since October 2013.
Significant issues
Ultimately, the significant issues for determination comprise:
a)Whether Ms McLory (“the mother”) has the capacity to facilitate Mr McLory (“the father”) and the child having a relationship if the child remains living with her; and
b)Whether the father has the capacity to provide the necessary emotional support to the child if her primary care is changed, given the acknowledged trauma this will cause her.
Relevant background facts
V was born in 2008. She has lived with the mother since her parents separated when she was six months old.
The mother and the father married in 2007 and separated on 27 August 2008. They were divorced on 27 October 2014.
Neither parent has a new partner. The child is the only child of each parent.
The mother is 46 years of age having been born in 1969 in the United Kingdom. She describes her occupation as professional and receives a part parenting payment.
The father is 52 years of age having been born in 1964 in North America but describes himself as being of UK heritage. He coaches sport to a small group and receives Austudy. He is doing tertiary study. The father moved to Australia in March 2007.
The child currently attends X School in Z Town, Queensland. She is in grade 3.
Proposals of the parties and Independent Children’s Lawyer
The mother seeks a final order in terms of exhibit 13 that inter alia the child continue to live with her and that the parties and the child engage in therapy for the purposes of re-introducing the child to her father and thereafter for him to spend unsupervised time with the child for three hours per fortnight. The order sought by her includes a notation of an intention to work towards an increase in the time the child is to spend with the father in the event the re-introduction is successful. In the alternative she seeks an order that the child spend no time with the father. As a last resort the mother would support an interim order if determined to be a preferable outcome.
The father, until submissions, sought a final order that the child live with him while initially staying with Ms H until, with the assistance of therapy, the child made the transition to him. He proposed that the child spend no time with the mother for six months and thereafter commence to spend time on a gradually increasing basis. Ultimately, though, he adopted the final order proposed by the Independent Children’s Lawyer. The father opposes an interim order.
The Independent Children’s Lawyer recommends a final order for an immediate move of the child to the father, no time with the mother for six months and then supervised time for two hours each alternate weekend, graduating thereafter to alternate weekends and after six months, half school holidays. The Independent Children’s Lawyer opposes an interim order.
How parenting applications are determined
Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting Order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer (see L & L (2006) FLC 93-286; SCVG & KLD Error! Hyperlink reference not valid.; Banks & Banks (2015) FLC 93-637).
The Court is not required to make findings of fact on every factual dispute raised by the parties (Baghti & Baghti [2015] FamCAFC 71).
Section 60B(1) provides that the objects of the Act 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.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)Parents should agree about the future parenting of their children;
e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting Order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting Order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means:
a)An assault, including a sexual assault, of the child; or
b)A person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
c)Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
d)Serious neglect of the child.
Section 4AB of the Act defines family violence as meaning violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. Examples of such behaviour and how a child is exposed to such behaviour is set out therein.
Section 61DA provides that when making a parenting Order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an Order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an Order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each section in the ‘legislative pathway’ I have considered all sections as required when making my determination (Banks & Banks (2015) FLC 93-637).
In cases involving allegations that a parent has harmed a child, the High Court held in M & M (1988) FLC 91-979 at 77,081:
In resolving the wider issue the Court must determine whether on the evidence there is a risk of … abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk … is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the Order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has … abused her or whom the child believes to have … abused her. …
In considering the ‘unacceptable risk’ question Fogarty J observed in The Marriage of N & S (1996) FLC 92-655, at 82713-4:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
The 2010/2011 trial
The 2010/2011 trial concerned competing applications for the primary care of the child. The mother made allegations inter alia that the father had physically and sexually abused the child. Ultimately the mother did not press her allegations and proposed that the father spend extended unsupervised time with the child. In her oral evidence before me the mother said she had been ‘brow beaten’ by her solicitor at the time.
In the course of his reasons Murphy J made the following observations and findings:
72. … I … do not consider that the mother genuinely believes that the father has, or is likely to, sexually abuse his daughter. The same applies to her asserted belief about the child being at risk of physical harm in the care of the father.
…
110. … The mother has repeatedly claimed that the father has been physically abusive towards her, and during oral evidence the mother stated the father had a tendency towards violence and emotional abuse, and that violence towards the child was a possibility. I can see very little foundation for those assertions by the mother. I consider her evidence generally unreliable in that respect. I consider that her evidence in that respect has been exaggerated, and coloured by her desire to limit the time between the child and the father. In saying that, I do not particularly impute to her some malevolent motives, rather I consider that more likely to be a manifestation of a desire for an enmeshed relationship of the type referred to by [Dr V].
111. Nevertheless, it is a matter of concern. A protection Order was obtained by the mother against the father around the time of separation, … The independent children’s lawyer stated in written submissions:
The father did not challenge the mother in cross-examination on whether she had made allegations of emotional, financial abuse, and sarcasm, nor did he deny those forms of abuse.
…
115. … Clearly, … the father did, in fact, challenge the mother in cross-examination regarding her allegations of emotional abuse, and in doing so he also denied their truth.
116. The mother was seeing [Ms G], a psychologist, prior to and following her separation from the father. [Ms G’s] notes became exhibit F2. Those notes reveal that the mother had stated to her psychologist that (as at 28 August 2008) “there had been no physical abuse (at the hands of the father).”
117. … I find the mother’s explanation for the absence of complaints about physical abuse, if it occurred as she alleges, as being unsatisfying. I don’t accept it. The mother also failed to disclose any physical abuse when she attended at the [N] Clinic in August 2008. The notes from that attendance on 29 August 2008 record that the mother was “not particularly afraid re safety”.
…
120. … I consider that the mother has exaggerated both any “injuries” and her belief about the possibility of physical harm to the child at the hands of her father.
…
131. [Dr V’s] opinion was that the mother had entirely negative perceptions of the father. …
…
134. This is a troubling aspect of this case. … I consider that the mother’s attitude is a potential impediment to that, [affording to the father the opportunity to have a fulsome relationship with [the child]] and I consider that the father’s narcissism is a potential impediment to his perception of, and support of the relationship between [the child] and the mother. The mother has repeatedly, unilaterally suspended time between [the child] and her father. When I asked the mother about this, she stated that if she felt that [the child] was in any danger of harm, she would suspend the time again.
135. … I am not convinced that the mother’s past motivations for suspending time have been entirely based on genuine serious concerns for [the child]. The actions have about them, an element of the “self serving” or more benignly, the element of an enmeshed relationship spoken of by [Dr V].
136. Subsequent to amending her Orders to allow overnight time between the father and [the child], the mother was asked by counsel for the independent children’s lawyer, whether she had the capacity to truly foster a genuine relationship between the father and [the child], if [the child] remained living with her. The mother said:
Very much so, I want what is best for [the child], I have listened very carefully and I don’t want her to be feeling that she is in the middle of being torn in one direction and another. …
137. I am somewhat troubled by the sincerity of those statements. However, I do consider that this process, and in particular the references in Department notes to the potential for the mother’s attitudes and behaviours to be productive of “emotional abuse” of the child, have in fact, genuinely troubled the mother, and caused her to reassess her position. I certainly hope so … as I have said, I consider that the father’s narcissistic traits impinge significantly on his capacity to accord to the mother a fulsome day to day role in the child’s life. There is about him an element of “my way or the highway”, which I suppose, is central to the nature of a narcissistic personality.
138. [Dr V] was concerned about the mother’s ability to facilitate a relationship between the child and her father, … it is a matter that concerns me also.
…
141. I am not as convinced as, it appears, [Dr V], that the mother is so easily led into opinions. I consider there is an element of wilfully embracing opinions that suit her desire for an enmeshed relationship, which of its nature, is somewhat exclusive of the father and as a result, an exaggeration of events that might serve that purpose.
…
144. The evidence clearly supports the conclusion that a change in the child’s circumstances entailing her being placed in her father’s care, will invariably cause significant distress to [the child]. …
…
146. … The father is an untried primary carer.
161. …The father does not pose an unacceptable risk of harm to [the child]. I record that I would be satisfied of that fact beyond reasonable doubt, were that the standard to be applied.
Despite his Honour’s clear reservations about the mother he nevertheless found it to be in the child’s best interests at that time to remain in the primary care of the mother. Having regard to the exchanges between the mother and counsel referred to by Murphy J, I am not persuaded that the mother was ‘brow-beaten’ by her legal representatives at the 2011 trial in relation to her ultimate trial position.
Pursuant to the 2011 Order the child was to spend time with the father from 9.00 am to 3.00 pm each Tuesday and Thursday and each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday until she commenced preparatory school. From 1 February 2013 until 1 February 2015 the child was to spend four nights per fortnight with the father from 4.00 pm Thursday to 9.00 am Monday and holiday time and special days.
The child’s time with her father after the April 2011 Order
Until October 2013 the child spent time with the father largely in accordance with the 2011 Order. The catalyst for the current dispute arose after a disagreement between the parties about the interpretation of the 2011 Order in so far as it provided for the father to spend holiday time with the child in the September 2013 school holidays. The mother contended the father should only spend seven nights with the child while the father contended he should spend eleven nights with the child. She ultimately stayed eleven nights. There appears to have been one further weekend spent by the father with the child before the mother ceased all time.
Up to October 2013 the father describes a close and loving relationship between himself and the child, incorporating many activities such as attending Suburb I pool and waterpark, playgrounds and cafes, establishing a vegetable garden, swimming, picnics etc. He describes setting up a home for the child where she could be comfortable and be able to play with her various toys and undertake her various craft activities. I accept that evidence.
Apart from observing some separation anxiety in the child when leaving her mother on occasion he describes a period of enjoyable times with the child and cordial relations with the mother until early 2013. He thereafter describes the changeovers becoming more difficult with the child showing reluctance to leave her mother and, as he viewed it, the mother unnecessarily prolonging the changeovers. On occasion he physically removed the child from her mother’s care in a distressed state. Each party attributes blame to the other for this state of affairs.
There can be no doubt, however, that there were numerous changeovers that were distressing for the child. The father contends that once the child transitioned into his care, she quickly recovered and remained happy throughout the time spent with him. With some exceptions I accept that evidence.
The father describes the changeover at the end of the September 2013 holidays as follows:
41. On 30 September 2013, after 11 sleeps including our alternate weekend and the holiday period, I returned the child to her mother. The changeover occurred at 8:30am at [N] Police Station. The child was excited to see her mother. She gave me a cuddle and a kiss before she ran into the police station. I followed and handed her mother the bag. I said goodbye but as I was leaving the child called out “cuddles”, ran to me and gave me another cuddle.
It was during this holiday period that the mother describes reviewing the notes she had been making since the 2011 Order and stated - “I put all the notes together and it was horrifying”.
Mother’s case
The mother’s case is internally inconsistent and confusing.
Despite the comprehensive account of statements allegedly made by the child during the period 26 March 2012 to October 2013 set out in the mother’s trial affidavit and Notice of Risk of Abuse, and upon which the mother relied to form the basis of her initial trial position, namely, that there is an unacceptable risk of harm to the child should she spend any time with the father, the mother does not now seek a finding that the father presents an unacceptable risk of harm to the child. In fact it is conceded that it is ‘inevitable’ that I will find he does not present an unacceptable risk of harm.
Rather, the mother’s case is one in which she agitates for a supervised re-introduction of the child to the father and thereafter unsupervised time. It is only in the alternative that she seeks an order that the child live with her and spend no time with the father.
The mother’s changed position is said to have arisen after hearing the evidence of the psychologist, ‘Ms Y’[1] who expressed optimism in her capacity to facilitate the child being reintroduced to the father, and the opinion of Ms J that even in cases where a child has been harmed by a parent they inevitably seek out that parent in adolescence or early adulthood. The mother expressed the view that while she believed the father had intentionally harmed the child, she conceded she may be wrong and did not want her daughter to grow up and blame her for keeping her from her father. She stated that she wanted to be able to say she had done all she could to enable the child to have a relationship with her father. She said she had confidence in ‘Ms Y’.
[1] Ms Y is employed by a Service which protects the identity of its employees for security reasons. Ms Y nevertheless provided her full name and relevant details to the Court and those details are held in a sealed envelope on the Court file not to be opened without Order of a Judge.
I find it difficult to understand the mother’s position. The mother stated on numerous occasions during this trial that she believed the father had intentionally harmed the child with ‘sadistic pleasure’. She contended that he “will get real pleasure out of hurting his daughter and getting away with it”.
As part of her trial affidavit she recounted evidence upon which she relied in the earlier trial including the child’s alleged sexualised behaviours. At paragraph 80 of her trial affidavit she deposes:
… Although I was concerned about the sexualised behaviour displayed by [the child], given (sic) regard to the Orders of the Court made on the 12 April 2011, I accept the findings made by His Honour Justice Murphy with respect to this issue.
There are two aspects about this statement that I find troubling. Firstly, the mother does not mention the fact that she abandoned her allegations of sexual abuse at the first trial and secondly, if it is the case that the mother accepts Murphy J’s findings, I can only wonder why the evidence relating to this issue is repeated in her trial affidavit. Counsel for the mother submitted that the evidence was of historical relevance (including evidence relating to other ‘concerns’ the mother had during the last trial) so that I could understand the ‘context’ of the evidence that post-dated the trial. For reasons upon which I will later expand, the repetition of this evidence, the repetition of the allegations relating to physical harm and the evidence of utterances by the child and her presentation during the period 10 April 2012 to October 2013, demonstrate, in my view, the mother’s continued focus on anything that might conceivably be construed negatively against the father.
In the current proceedings the mother describes an unhappy and violent relationship with the father to the point of stating that the most ‘prevalent’ reason that she agreed to marry the father was because she was scared of what he would do if she did not agree to go through with it. She contends that the father was “often physically … aggressive towards me”. She contends the father has a long history of abusing alcohol and illicit substances, that he made no financial contribution to the marriage and that she carried out all parenting duties, both because of the father’s drug use and his insistence that caring for the child was her domain. Her allegations of violence are general in nature. She does not descend into any particularity. She describes the father ‘bullying’ her.
After separation the mother contends that she found the father’s diary notes and was shocked to learn of the extent of the father’s drug use, his liaisons with male, female and transgender prostitutes and his posting of his sexual acts on the Internet, all of which caused her to be fearful about his spending time with the child.
Given the very clear findings made by Murphy J in relation to allegations of violence, abuse and unacceptable risk of harm up to the 2011 trial, which I consider to be binding upon me (see Schorel [1990] FamCA 58; (1990) FLC 92-144; B & J [2009] FamCAFC 103), it troubles me that the mother has repeated all of the historical evidence upon which those findings were made, including allegations of physical harm to the mother by the father. On the one hand she raises these historical allegations about which findings have been made and then urges me to make an Order for unsupervised time between the father and the child.
To the extent the mother contends the existence of family violence post the 2011 trial, other than referring to a Protection Order (made by consent without admission) in 2014 the mother does not particularise the alleged violence. I note that in her interview with Ms J she stated:
38. …She has found it necessary to have protection Orders in place post separation due to harassing and threatening texts messages from the father about his time and communication with [the child], as well as the physical abuse he perpetrated against [the child]. …
39. [Ms McLory] reported no communication between the parents currently and … reported all communication now going through solicitors …
While family violence can take many forms other than physical abuse, I nevertheless need evidence upon which to base findings. I do not regard requests to spend time with his daughter, even many of them, as constituting family violence and the fact a Protection Order was made without admission is not sufficient to support a finding. As will be explained, I do not accept that the father has engaged in family violence by physically abusing the child.
While the father’s description of his behaviour towards the mother in oral evidence would no doubt have been intensely annoying, I do not find that his behaviour amounted to family violence. It has formed the rationale however for the mother’s growing antipathy towards the father.
Despite the concessions made by the mother during and at the end of the current trial I consider it necessary to set out in some detail the evidence upon which the mother relied to cease the child’s relationship with the father in 2013.
Evidence relied upon to support child abuse allegations
On 17 April 2011 following the first contact weekend after the final Order, the mother contends that the child returned from time with her father and stated “daddy told me when I am big I have to go to court and tell the judge who I love best”. She contends that the child continued to say that the father had told her she had to say “daddy”. At this time the child was three years old.
The mother contends that the child would resist going to spend time with the father quite vigorously and that she had to make considerable efforts to facilitate changeover.
On 26 March 2012 the mother contends that the child informed her that when she spends time with the father she either sleeps in the father’s bed or on the foldout sofa and that other people sleepover at the father’s residence on the same nights she is there. On 10 April 2012 the mother contends that the child told her she was made to do karate exercises by the father and that she did not like doing them. On 25 July 2012 the mother contends that she observed a faint purplish mark by the child’s right eye and that the child told her that when preparing lunch with the father he had hit her in the eye with his elbow. The impression given is that it was accidental yet it is included as evidence in support of her initial case that the father presents an unacceptable risk of harm.
On 28 October 2012 the mother contends that she received a note from the father in which he said that the child told him that she wished she were dead and that this statement had been made when she did not get the movie she wanted. The mother contends that she raised this with the child who responded that she wished the father were dead and that she did not have to visit him. Further, that the child told her the father had been ‘bullying’ her.
On 11 November 2012 the mother contends that the child told her that the father had been pinching her cheek and when it was time to leave the changeover he had stuck his foot out and caused her to fall. Further, that the child went on to describe the father pushing her in the back with his foot whilst holding her down on the floor. The mother made an appointment with the child’s General Practitioner, Dr K, who suggested a referral to a Centrecare counsellor. Prior to the appointment the mother contends that the child described being pushed face down on a waterbed and demonstrated first on the mother and then on her teddy describing how the father had “kinked her neck” by trapping it against his forearm and bending his arm to keep her in place.
The mother contends that she informed the father that the child was feeling bullied and that she was seeking the assistance of a counsellor for the child. The child commenced to see the counsellor referred to only as ‘Ms Y’. The counselling sessions commenced on 30 November 2012.
On 25 November 2012 the mother contends that after returning from her father, the child told her that the father had tripped her again and the mother saw a large bruise on the child’s shin. On 26 November 2012 the mother contends that the child told her that the father had wrapped her in a blanket and that she didn’t like it. The mother asked the child to show her what she meant and the child demonstrated on a toy. The toy was fully enclosed so that its head was completely covered and the mother contends the child said that this happens “lots of times”.
The mother contends that in early December 2012 the child told her that the father had said that she should “change her story”.
On 14 December 2012 the mother contends that the child informed her that the father kept calling her a liar and saying that she tells fibs about him. The child appeared very distressed by these comments.
In January 2013 the mother contends that whilst shopping with the child the child stated that she didn’t deserve a new skirt because she was “a bad person”. When the mother asked her what was so bad she contends the child told her that the father had said she needed to own up and say “the wrapping in a blanket thing wasn’t bullying, it is a game”.
On 19 February 2013 the mother contends that upon picking the child up from school the child told her that the father had bullied her again and had called her a liar.
On 20 February 2013 the mother contends that the child made statements to Ms Y to the effect that the father had “threatened” her in the neck, which meant he pressed on her neck with his leg and that she was scared. The child described the father using his legs to trap her by the neck so she couldn’t get out and that she screamed and got into trouble.
On 16 May 2013 the mother contends that the child told a teacher, Ms R, that she was crying because she does not ever want to go and spend time with her father because he bullies her.
On 30 May 2013 the mother contends that the child was again teary when she had to leave school to go to changeover and that she clung to her crying at the N Police Station for changeover but was eventually persuaded to go.
In about June 2013 the mother contends that the child returned from spending time with the father with a large bruise on her hairline, telling her mother that the father was “punching” and that is how she received it.
On 17 June 2013 the mother contends that the child was returned at changeover by a Mr U and that she was crying and had a split lip and a large lump and greenish bruise on her forehead near her hairline. The child informed her mother that her injuries were the result of slipping on the floor at her father’s house and hitting her head on his computer and that the computer broke. She further contends that the father told her to lie about what happened and that the child said,
Daddy told me to tell a fib about it and a joke, he told me to say to you that I did it in karate class and you should see the other man, but I don’t want to say a fib. He told me to tell a fib and I don’t want to.
She also contends that the child told her, “he knocks me down and pushes me down and I don’t like it” and that the child told her that she had to sleep in the father’s bed with the father and that she did not feel safe there.
On 21 June 2013 the mother contends the child became upset and told another child, “It is because I have to go to my dad and he bullies me”. When the father arrived, the child clung to her and refused to go with him, sobbing for an extended period. She tried to calm the child but the child clung harder until the father physically pulled the child off her and the child started retching.
On 29 June 2013 the mother contends that after returning from a week-long holiday with her father the child stated,
There was no bullying in Sydney because we were in a hotel and he doesn’t do it when there are other people. But he started bullying right after we went back to Brisbane.
The child demonstrated on one of her toys that he wrapped his arms and legs around her so tightly that she could not move and would not stop when she cried. The child told her that she was sent to ‘time out’ for saying to her father that she did not love him.
On 2 July 2013 the mother contends that on taking the child to see her counsellor, Ms Y, the child said,
The bullying never happens when there is someone else there. What are you kidding, he doesn’t do it in front of other people. He didn’t do it in Sydney because there were other people. But as soon as we got back to his house in Brisbane and nobody was there, first thing he bullied me.
On 4 July 2013 the mother contends that when she took the child to a shopping centre the child told her that when she had travelled to Sydney with the father she had got lost at the airport and had to ask security for help.
On 6 July 2013 the mother contends that the child stated,
My dad says he hates me, sometimes he says he loves me, but he doesn’t because he bullies me.
and that she also said,
Just don’t take me in the car to my dad.
On 25 July 2013 the mother contends that the child told her
Dad kinked me, then pushed me off the stool thing and he was laughing when he did it, but I wasn’t, I was crying.
On 13 August 2013 the mother contends that the child told her the father had been throwing punches at her face but pulling back at the last moment so that she felt a tap rather than a full forced punch. The child demonstrated the technique to her mother.
On 22 August 2013 the mother describes another traumatic changeover with the child crying and clinging to her. The mother told the child she loved her and walked away but could hear the child sobbing as she walked down the street.
On 27 August 2013 the mother contends that the child said to her,
I will tell you now about what happened on the weekend. He kinked me.
The child demonstrated him putting his arm around her neck and squeezing it and then wrapping his legs around her waist to stop her from moving.
The mother describes a further traumatic changeover on 5 September 2013 with the child stating,
No, I won’t go with him. Mummy I want to stay with mummy, I don’t want to go with daddy”.
The child was held over by the father after his designated holiday time such that he had her for a total of 11 nights. Upon her return the mother contends that the child told her that her father had grabbed her by the feet and pulled her hard until she was suspended by her feet causing her pain. The child demonstrated the manoeuvre on her soft toy and said that she had cried. Towards the end of the holiday period with the father, the mother orchestrated a ‘welfare check’ on the child by the police. She was reported to be safe and well.
On 15 October 2013 the mother contends that the child told her,
Daddy kicked the back of my feet and made me swing and I said help, help and I said stop but he didn’t stop.
And that the child went on to say repeatedly that she had been suspended by her wrists and repeatedly had her heels kicked out from underneath her. Further that the child said,
I did not like it one little bit and he punched me at the top of my face under my hair five or six times or seven times.
She describes the child demonstrating that it was not a full punch but sufficient to hurt her. The mother then suspended time between the father and the child. The child has not seen her father since.
The mother gave the father some brief details of the ‘disclosures’ made by the child. He responded that he and the child had been karate training.
I observe at this point that the ‘notes’ taken by the mother as evidenced by the history set out above could not on any view be justly described as ‘horrifying’.
Statements and observations made of the child after the mother ceased all time
On 17 October 2013 the mother contends that the child asked her for a ‘worry doll’ and as the mother could not find one she told the child that some people write their problems down on a piece of paper and then throw the worries away. The child asked her to write down on a piece of paper:
a)I am scared to go to my dad’s because I am worried he will bully me;
b)When he punches me and bullies me I really don’t like it and I think it is really not fair;
c)When I go to my dad’s it makes me worry more than I usually do, and it gives me a shock;
d)My dreams are hurting me because I dream I have to go to my dad;
e)My dad is really hurting my feelings, one thing he is really hurting me by grabbing my wrists, not on, on a 5 ½ year old.
On 19 October 2013 the mother contends that the child repeatedly asked her not to take her back to the father. There were further demonstrations of the punches the father threw around her face and that she demonstrated the technique on her toy dog and “it looked to be very painful”. The child then demonstrated by squeezing her finger and wrist and that the pressure was significant. The child again stated that she did not want to be sent to her father and that she was fearful he would steal her from school.
On 25 October 2013 the mother contends that whilst they were shopping, the child expressed fear of running into her father and states that the child frequently expressed fear of encountering the father in public and in particular, fear of him taking her.
On 3 November 2013 the mother contends that she was doing ‘fortunately/unfortunately exercises’ from her storybook and the child said,
Unfortunately my dad bullies me, fortunately, he doesn’t hit me very hard. Unfortunately, sometimes he does hit me hard, fortunately not always. Unfortunately he does headlocks so I can’t breathe, fortunately I can breathe a little mostly.
In November 2013 the mother describes taking the child to Dr F and contends that while she was telling the doctor about the ‘bullying’ the child interrupted and told the doctor about being hit and kicked.
On 12 November 2013 the mother contends that the child said she only feels safe “when there is a grown up around”. The mother contends that she said to the child that because she is only five there would always be a grown up around and she would not be left alone. The child replied “daddy did, he went to the bottle shop without me”. The mother then asked who was with her and the child stated “no one, I was by myself and it was really scary”. The mother asked her how long she was on her own and the child told her it was five minutes.
On 17 November 2013 the mother took the child to the N Police Station for interview.
On 23 November 2013 the child caught sight of some martial arts people at the local shops she told her mother, she was scared that the father would be there and asked, “what if he tries to take me?”.
On 22 December 2013 the child told her she was very scared that the father was hiding and would come and get her once she fell asleep. The mother contends that the child would only settle after she had shown her that the doors were locked and checked every cupboard.
On 26 December 2013 a news bulletin on television showed a busker who was assaulted by a man who put him in a headlock. The child cried and told her that was what the father did to her.
Attempts to reintroduce the child and the father were made on two occasions in August 2014. On the first occasion the child came happily into the centre but then refused to see the father. On the second occasion the attempt was aborted when the child presented in a very distressed state.
In late 2013 and much of 2014 the child would miss school every Thursday afternoon and Friday as the school advised they would be obliged to send the child to her father if he attended in accordance with court Orders. The mother also kept the child away from school on occasions when she became aware that the father was attending the school as a volunteer. This has not been the case since 2014 and the child rarely has days absent from school. The father did not continue to attend the school.
Professional intervention instigated by the mother
During the period 30 November 2012 and 19 July 2013 the child had thirteen sessions with ‘Ms Y’, a psychologist, who was engaged by the mother.
During the period 31 October 2013 to August 2015 the child had sixteen sessions with Ms L, psychologist.
During the period 28 November 2014 and 23 November 2015 the child had five sessions with Dr AA, psychiatrist.
Mr BB saw the child on three occasions in 2014 for the purpose of re-introducing the father and the child spending time together. Mr BB’s involvement occurred after mediation where the parties agreed for this to take place. Unfortunately, Mr BB felt he could not do so in circumstances where he concluded that to do so would be contrary to a Temporary Protection Order in place.
Father’s case
The father denies all allegations of abuse against the mother and the child. He contends that a significant source of conflict arose between the parties when the mother wished to relocate to the United Kingdom and the father would not agree. He contends that the mother has been on a mission to destroy his relationship with the child.
He contends that prior to all time stopping, he and the child had a wonderful relationship. They had fun together. They had an affectionate relationship. He tried to discipline the child on the few occasions it was required but describes her as a strong willed girl. He contends that the mother intentionally misinterprets anything the child says.
In 2011 he sought an order that the child live with him because of his belief that the mother would continue her behaviour of undermining his relationship with the child and now submits his position has been vindicated. He acknowledges that a move to his primary care would be traumatic for the child and he is not quite sure how he will manage her distress other than to seek professional assistance.
The father contends that his personality vulnerabilities have ameliorated such that he has developed empathy and insight. Apart from making that assertion and referencing a comment made by Dr V, the father provided little in the way of evidence upon which such a finding could be made. The father asserted that he had engaged in counselling with a Mr CC although not specifically about his personality (the father informed Ms J, family report writer that this counselling related to “working on personal development issues and addressing the stress and pressure associated with the ongoing court proceedings”). No evidence was forthcoming from Mr CC.
The father has continued telephoning the child most weeks but has not had a positive exchange with her since April 2014. Most of the calls involve the child telling the father she hates him and never wants to see him.
The father concedes wrestling with the child which he describes as involving her jumping on his back and throwing her arms around his neck in a headlock, and aeroplane and helicopter games where he would hold the child by her arms and spin in a circle. He asserts that the child delighted in these games. He concedes engaging in some karate exercises with the child but never putting her in a headlock or having his arms around her neck.
His description in oral evidence left me with a very clear impression that the interactions were sometimes rough, and rougher than I would have thought appropriate for a small child, although I note Ms J’s evidence that:
Fathers tend to engage in activities where there is more risk-taking and pushing the boundaries, something which is noted to assist children’s development and independence.
The father concedes wrapping the child in a silk blanket and a doona which he asserts was a game repeatedly instigated by the child. With the blanket he describes the child running into it when he opened it up and he would then wrap her and she would unravel herself out of it. In relation to the doona he describes his gathering all four corners together above her head but not tying them and she would work her way out of it. He concedes that on occasion she may have become a little frightened and found her breathing restricted but denies ever intentionally doing anything to cause her to be frightened.
The father concedes engaging in karate exercises and practice with the mother during their relationship. He was and is a very experienced karate and martial arts expert. The mother was a novice. His description in oral evidence left me with a very clear impression that the interactions he had with the mother were sometimes rough and rougher than I would have thought appropriate at times, particularly when the mother was pregnant and given her history of back problems. He recounted one occasion jumping out at the mother as she was taking washing out to the clothes line and twisting her arm up behind her back. He acknowledges that the mother reacted in fright and that the twisting of her arm may have hurt her. He maintains that it was part of routine karate ‘play’ that they often engaged in by way of fun.
The father did not demonstrate any ability to perceive things from the mother’s perspective. I expect his behaviour was intensely annoying to the mother.
Evidence from experts
Dr V
Dr V is a well-qualified and impressively experienced psychiatrist who assessed the father and mother initially on 29 October 2009 and provided a report relied upon at the first trial. That report was read in these proceedings as it is referred to in the more recent report that was prepared after assessing the mother and father on 31 October 2014 and 18 November 2014 respectively.
In his first report Dr V opined:
The father emerges as having significant narcissistic traits and perhaps obsessional traits. The impression one gets is of a person with a relatively poorly developed sense of identity and self. I noted difficulties in sustaining long-term relationships and the history of drug abuse fits with the personality configuration. I note however that he has some capacity for self reflection.
The mother’s presentation and history is also suggestive of personality vulnerability. What emerges particularly strongly is the obsessionality with a need to control, but as with the father she has narcissistic traits and tends to see the situation entirely from her own perspective. She is entirely negative about her ex-husband and returns to this theme several times in the interview.
Both parties seem very focused on their own needs as against the child’s needs and seem to be in a competitive situation with respect to the child.
His conclusions include the following:
The documentation confirms that both parties have significant personality vulnerabilities … as is often the case in Family Court disputation, the emotional issues surrounding separation, particularly where children are involved, make the personality vulnerabilities manifest in maladaptive ways.
…
The data indicates that the mother seeks a highly enmeshed relationship with the child and it could be inferred that she sought to exclude the father from having a meaningful relationship with the child. …
…
The personality issues in the parents are not such that would necessarily impact on their capacity to be effective parents…
There is no psychiatric reason why the mother should not remain the primary caregiver at the present time, given the age of the child. The only issue is the extent to which she encourages a relationship of the child with the father and does not obstruct contact.
The personality issues of the father are not such that would impact on his capacity to be an effective parent in a contact situation or indeed in the care of the child.…
The option of leaving the child with the mother and recommencing time with the father during therapy/counselling
A number of the experts spoke of the developmental improvement in the child’s cognitive abilities given her age and her greater capacity for logical and rational thought. This was perceived as a cause for optimism in managing the child’s opposition to seeing her father.
The most difficult aspect of this option is the mother’s attitude. She implores this Court to accept that she will facilitate the re-introduction of time through a graduated regime. I have little basis to accept her at her word. However, I accept that the mother desperately wishes to retain the primary care of the child and will do everything needed to ensure that outcome. I also accept that the mother fears that if she does not co-operate with this process, the child may very well seek out her father in the future and that prospect brings with it a risk (from the mother’s perspective) that the child may turn against her in the future if she has not done all she can to assist the child in having a relationship with the father.
The mother does have the capacity to facilitate the process if she chooses and one can only hope that if the process will be made easier for the child with the mother’s support, she will put her daughter’s needs ahead of her own in this regard.
Even without the mother’s support, Mr DD felt that therapy would provide the child with coping skills to manage the anxiety experienced around seeing the father but acknowledged that it would be more difficult for the child. She opined that if the therapy occurred gradually then the child would have the opportunity to realise that seeing her father was not so bad.
Ms J gave evidence that there was very little research on the outcomes of removing children in circumstances such as this case. She did however say that one thing raised by adults who had been in an intractable situation such as this was that they wished the professionals had been more insistent with an outcome enabling them to see both parents.
I was particularly impressed with the evidence of ‘Ms Y’. She has had the most experience in dealing with situations such as these and while expressing some confidence in the ‘flooding’ approach, agreed that a more graduated approach would be in the child’s best interests. She opined that even if the mother failed to support the therapy, it is possible that it will work given the child’s age and cognitive abilities. To further improve the prospects of success, she recommended that the father and mother each have their own therapists to assist them through the process and she felt it imperative that all the therapists conferred about the progress of rebuilding the relationship between the child and her father.
The mother did facilitate time between the father and the child pursuant to the 2011 Order for over two years. The child is older now and if her relationship with the father is repaired she will have a greater capacity to resist any attempt by the mother to interrupt it.
An important factor will be the father’s preparedness to exercise patience during the re-introduction phase. He will need to work very closely with his counsellor in preparation for the physical re-introduction phase with the child. He will also need to focus on the child and not on his views of the mother. He will also need assistance to accept that the child has a very close and loving relationship with her mother that will need to be maintained and supported.
Conclusions
I propose to order that the child remain in the primary care of her mother and spend specified time with her father after a period of therapy involving the parties and the child. I find that this is the outcome that best meets the child’s welfare. She will remain with the person she knows and loves as her primary caregiver but she will have professional support to rebuild her once close and meaningful relationship with her father.
Given the state of the parent’s relationship, I cannot find that an order for equal shared parental responsibility would be in the child’s best interests.
I did give consideration to making an interim order but ultimately saw little benefit in prolonging the parties’ involvement in the legal process. Neither the parties nor the Independent Children’s Lawyer supported an interim order. The first period of therapy involving the parents and the child will, in my view, provide a sufficient buffer leading into specified ongoing time between the child and the father. The order I propose to make will provide sufficient flexibility during the initial therapy period to make adjustments and adaptations to meet the child’s particular requirements.
I certify that the preceding two-hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 16 August 2016.
Associate:
Date: 16 August 2016
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