Mercy & Harry
[2009] FamCA 684
•31 July 2009
FAMILY COURT OF AUSTRALIA
| MERCY & HARRY | [2009] FamCA 684 |
| FAMILY LAW – CHILDREN - with whom a child lives – with whom a child spends time – with whom a child communicates FAMILY LAW – CHILDREN - no finding of unacceptable risk – whether father’s time with the child should be supervised – relocation – domestic violence FAMILY LAW – CHILDREN - parental responsibility-presumption of equal shared parental responsibility does not apply due to alleged violence– also not in the best interests of the child – mother to have sole parental responsibility |
| Family Law Act 1975 (Cth) ss 60B,60CC, 61C, 61DA, 65DAC, 65DAE |
| G and C [2006] FamCA 994 B & S [2004] FMCAfam 61 |
| APPLICANT: | Ms Mercy |
| RESPONDENT: | Mr Harry |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission |
| FILE NUMBER: | HBC | 1024 | of | 2007 |
| DATE DELIVERED: | 31 July 2009 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 24, 25 & 26 June 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J Green |
| SOLICITOR FOR THE APPLICANT: | John Green |
| COUNSEL FOR THE RESPONDENT: | Mr D Geason |
| SOLICITOR FOR THE RESPONDENT: | Butler McIntyre & Butler |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs K Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission |
Orders
All previous parenting orders regarding … born … December 2002 (“the child”) be discharged.
Ms Mercy (“the mother”) have sole parental responsibility for the child.
The child live with the mother.
The mother be permitted to relocate the primary place of residence of the child from Tasmania to S or nearby areas in Victoria.
The father spend time with the child as follows:-
(a)for a period of seven (7) days during each of the mid year Tasmanian school holidays;
(b)such mid school holiday times to take place in the weeks arranged between the parties OR if the parties are unable to agree in writing then the first week of such holiday periods in even-numbered years and the second week of such holiday periods in odd-numbered years;
(c)for one week from the 1st January 2010 (or such later time that month as is agreed in writing between the parties) and every second year thereafter (i.e. January 2012, January 2014, January 2016 etc);
(d)for one week from the 26 December 2010 (or such later time during those Christmas/new year holidays as is agreed in writing between the parties) and every second year thereafter (i.e. December 2012 or January 2013, December 2014 or January 2015, December 2014 or January 2015, December 2016 or January 2017 etc);
(e)at such other and/or alternative times as is agreed in writing between the parties.
The father will meet the cost of transporting the child from Melbourne to Hobart for the purpose of the above school holiday times (if necessary including the costs of someone flying with or supervising the child on the flight);
The mother will meet the costs of transporting the child back from Hobart to Melbourne for the purpose of the above school holiday times (if necessary including the costs of someone flying with or supervising the child on the flight);
The child will communicate with the father by telephone, email, Skype communication, or similar, such times to be agreed between the parties; and the father will have such communication with the child twice a week
That for the purpose of the communication between the child and the father, the mother will, within fourteen (14) days of her arrival in the S or nearby areas in Victoria, obtain a computer or access to a computer which has internet access installed, including a webcam, Skype and email addresses for the child.
Within fourteen (14) days of her arrival in the S or nearby areas in Victoria, the mother will arrange a for the child enrol in a course in social skills training and she will ensure that:
a)the child attend and completes such social skills training as is recommended by Dr H;
b)the mother will do all acts and things necessary to authorise the skills training counsellor to discuss the child’s progress with the father.
The mother will keep the father informed of any issue relating to the child’s health or attendance on health care professional within a reasonable period of time.
The mother do all acts and things to ensure that the father receive timely information about the children’s progress at school including a copy of the child’s school report and information about the child’s extra curricular activities and achievements.
The time the father spends with the child is to be supervised subject to;
(a)such supervision to be in the form of the child remaining over each night and sleeping at the home occupied by the supervisor; plus at all times for the supervisor to be aware of the activities and interaction between the child and the father without necessarily being present at all times (except overnight).
(b)such supervisors may be the father’s mother, one or other of his sisters or such other persons as is agreed between the parties or as otherwise ordered by a court exercising jurisdiction under the Family Law Act 1975 (Cth).
(c)each such supervisor shall before they commence the role as a supervisor file an affidavit in the Registry of this Court and serve a copy on the mother, such affidavit must contain;
(i)an undertaking to the court by the supervisor that they will ensure that the child sleeps at their home or the home of another supervisor (who has complied with this order) when spending time in Tasmania with the father and that he/she shall not leave the child in the unsupervised care of the father overnight and shall be otherwise aware of the activities and interaction between the child and the father, without necessarily being present.
(ii)an undertaking that they will not leave the child in the care of the father if he has consumed alcohol or appears to be affected by alcohol, and that they will notify the mother of any such circumstance within a reasonable time, but at least within forty (48) hours.
(iii)an undertaking to the court by such supervisor that they will not allow the father to sleep overnight at the home where the child is staying during such visits, unless with the written consent of the mother, and
(d)a certificate by a licensed legal practitioner that he/she has explained the meaning of such an undertaking and the consequences for breach of an undertaking to a court.
Both the mother and father will refrain from consuming or being affected by alcohol whilst the child is in their care.
The father is restrained from sleeping in the same room as the child.
IT IS DIRECTED
Within fourteen (14) days of the date of these orders the Independent Children’s Lawyer forward to the Director of Victorian Child Safety/Child Welfare Department the following:-
(a)a copy of the orders made pursuant to these reasons;
(b)a copy of these reasons;
(c)a copy of the mother’s affidavits filed 30 April 2009, 29 February 2008 and 9 October 2007;
(d)a copy of the father’s affidavits filed 30 March 2009 and 5 November 2007.
Within twenty one (21) days from the date of these orders the Independent Children's Lawyer collect the CD-Rom containing the images downloaded from the computers and discs and hand-deliver them to Constable C or other senior officer of Tasmania Police.
At the time of enrolment in a school the mother shall inform and authorise (in writing) the Principal of such school to provide copies of school reports of the child to the father.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist 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.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Mercy & Harry is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 1024 of 2007
| MS MERCY |
Applicant
And
| MR HARRY |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Mercy (“the mother”) and Mr Harry (“the father”) disagree about the parenting arrangements for their child, a son who was aged about 6½, at the date of hearing.
The mother wants an order for sole parental responsibility for the child and wants him to live with her. In addition she seeks permission to move the child’s primary place of residence from Hobart Tasmania to the S area, in Victoria.
The mother agrees that the child should spend time with the father but believes that the father poses an unacceptable risk to the child of abuse and as such that time should be supervised. The mother seeks permission to change the child’s surname from his father’s to his mother’s.
The mother says she is prepared to assist with the cost of the child’s airfares between Victoria and Tasmania, to facilitate such visits to see the father.
On the other hand, the father seeks orders that the child live with him (if the mother moves to Victoria) and that he have sole parental responsibility. If the mother is not given permission to move the child’s residence to Victoria, then he would not pursue an order seeking primary care but seeks to spend unsupervised time with the child one day each week during school term and one week in each of the school holiday periods.
ISSUES
Whilst on the surface there appears an issue as to whether the child primarily lives with the father, he concedes that the mother is the primary carer and the mother has said that she is not prepared to move to Victoria without the child. As such the question of the primary carer is not in issue as the mother will continue in that role. The issue is whether she is permitted to relocate.
Once that issue is resolved the next question is type and extent of contact[1] the child has with the father, including whether some of that contact is supervised.
[1] The word contact is used in a general sense rather than in its former legislative meaning. By contact I mean the time the child spends with the father and the nature and extent of communication. The use of the word contact is to avoid the grammatical contortions and plain poor English necessary in using ‘spend time and communicate with’ as a verb.
There is also the question of parental responsibility. Bearing in mind the high levels of conflict and hostility between the parties, it is likely that the issue will be whether one party or the other has sole parental responsibility as neither party believes or has shown that that they are able work effectively together in exercising parental responsibility.
In terms of the father, there is an issue as to whether his past behaviour, substance abuse and personality are such as to support the view that he is unable to meet the child’s physical, emotional and intellectual needs. Further, there is an issue at to whether he presents an unacceptable risk of abuse to the child in relation to allegations that he is controlling, manipulative, has exhibited stalking behaviour and has collected child pornography.
There is also an issue as to whether the mother has intellectual capacities which preclude her from being able to adequately care for the child without some assistance from either the father or his family in Tasmania together with broader social structures or with the assistance of her mother, family and friends in Victoria.
BACKGROUND
At the date of hearing the mother was aged 39 and the father was aged 35. The parties commenced living together in February or March 2002. The child was born in December 2002.
The mother grew up in Melbourne and in about February 2002 she moved to Tasmania to live with the father. There is no issue that the mother’s family and friends live in the greater Melbourne area in State of Victoria and that this is her primary geographic area of family and social support. There is no issue that the father’s family live primarily in the State of Tasmania, in particular the Hobart area.
The father’s family includes his mother (the paternal grandmother) and three sisters, M, (who has two 9 year old children and a 4 year old son), K and C.
The parents lived together from cohabitation until 24 November 2006. The father was arrested on that day and remained incarcerated until February 2007.
As a consequence of the Tasmanian State Welfare authorities concerns about the father’s alleged involvement in child pornography, on or about 29 November 2006 the child was taken from the mother and placed into care pursuant to a warrant.
The mother claims the relationship between herself and the father came to an end in February 2007. The father claims such separation occurred in May 2007.
In terms of the child welfare proceedings, after the child was placed in care a number of care and protection orders were made, the last order expiring in 18 June 2009. The child remained in foster care (but seeing the mother and at times the father) until June 2007. The child has been in the primary care of the mother since June 2007.
The child presently has contact with the father on Sundays from 9.00am until 2.00pm and the child spends time with his paternal family members after school until 4.00pm most weekdays.
The father was charged with five separate counts of stalking in November 2006 and there was a police investigation into child pornography allegedly in the father’s possession. In terms of the stalking charges, the father was charged with five counts of stalking, four of which were dismissed in March 2007 and the fifth stalking charge was dismissed after a criminal hearing in November 2007.
In April 2007 the father attempted suicide and in May 2007 the mother obtained a Family Violence Order which expired in July 2008. Proceedings in this Court were commenced in August 2007.
These proceedings have been run as a Less Adversarial Trial having commenced in August 2008.
Any statement of fact in these reasons is regarded as a finding unless the contrary is clear from the context of the statement.
THE EVIDENCE
The evidence for the purpose of the trial is contained to that produced during the three days of hearing from 24 to 26 June 2009.
The mother’s evidence
The mother gave evidence in accordance with her affidavits filed 30 April 2009, 29 February 2008 and 9 October 2007. She also relied on a Notice of Risk of Abuse.[2] By leave she gave evidence that the arrangements with the father for seeing the child are now 9.00am until 2.00pm on Sundays with the child being collected by either a member of the father’s family or the father.
[2] Filed 9 October 2007.
The mother concedes that the State Welfare Department had concerns about her parenting skills. The mother has, with the assistance of officers of the Department, Ms T and other community assistance programs, undertaken training to improve her parenting of the child and has address those concerns.
There was criticism that the mother was inflexible. The mother is very direct in her speech and her responses. I accept that she is concerned to do the right thing and I find that she is able adapt and change provided she is given some time, education and understanding. I accept the evidence of the mother and Ms T that her previous inflexibility in relation to changing arrangements had moderated.
The mother gave evidence as barristers would generally like their own witnesses to give their evidence when cross examined, and how they hope the other side’s witnesses will not answer when he/she is cross examined. She answered exactly the question in a literal sense and did not in any way add to it. It imposed a discipline on counsel to carefully phrase their questions. I raised this with counsel during the trial so that they could be careful in the way they asked questions of the mother. This was not because I considered that the mother was prevaricating, quite the contrary, she just exactly answered the question.
The mother sent notes[3] to the father and his family in relation to the child, which in accordance with the mother’s mode of speaking, are direct speech and give an impression that she is dictating terms. These notes simply reflect the manor in which the mother writes and speaks. Observing her when she gave evidence provided good insights into her very direct, somewhat unusual, style of communication
[3] Exhibits F2, F3, F4 and F5.
In terms of living in Melbourne the mother says that she has a good relationship with her mother, her family and her friends are in that area. The mother says by saving, working and family assistance she will be able to afford the cost of and facilitate the return of the child to Tasmania on regular occasions to enable him to spend time with his father. I accept this evidence.
The mother claims that she found pornographic material under the former matrimonial home at a time after the police had undertaken their investigations. She contacted the then solicitor for the father and after taking advice she (somewhat naively) destroyed that material. This has to be seen in the light that the child had been removed from her care and her understanding that this was in part due to the sexual material that had been in the father’s possession. I accept the mother’s evidence that she found sexually explicit material under her house and that the father was the source of that material.
The father had computers at home and the mother did not observe any pornographic material on the computer which she used. She said, and I accept, that the father would often minimise or close programs when she went into the room where the computer was located. There was also a computer in the home which had been provided by the father’s sister for the father to repair, which computer the mother had not used. The mother is not particularly computer literate. The father was far more adept at the use of computers than was the mother. He was seen, at least by one of his sisters as someone who could work on computers and presumably she thought he had some level of expertise.
The mother has few friends in Tasmania, apart from a next door neighbour, and that in the view of what has happened in relation to the allegations of stalking and pornography she has been unable and unwilling to make more friends.
Having regard to the mother’s intellectual capabilities combined with her manner of direct speech it is understandably difficult for her to form friendships. I accept her evidence that she has a number of good friends in the Melbourne area.
The ability of the mother to parent will be greatly enhanced with assistance from her family (particularly her mother), friends and from the community.
There was an incident on Sunday 31 May 2009 when the child was returned to the mother’s house and was sick. She denied she was abusive to the father’s sister or the child’s paternal aunt and said that she was worried about the child and was concerned that the supervisors had not telephoned her to inform her about the illness.
I am satisfied that the mother did not collect or download any child pornography from the computer. The operation of the computer was left to the father and that the mother only used the computer for games and for emails.
The mother is described by some members of the father’s family as “pig headed”. I determine that this arises as a consequence of the mother struggling to meet the needs of the child, her own intellectual challenges and her nature which is to be very direct and blunt without having the insight into the seeing the impact of that direct and blunt communication.
In her affidavit filed 9 October 2007 the mother describes a number of incidents where she said she was frightened of father.[4] While in isolation these may seem innocuous as a grouping, particularly having regard to the mother’s intellectual capacities, they have caused the mother to be frightened and they reflect poorly on the father’s capacity to have insight into the impact of his behaviour on the mother.
[4]Paragraph 7.
The first, in time, was where the mother was pregnant and the father arrived home intoxicated, slurring his words and verbally abusing the mother. He threw a can of beer at her and tipped the metal-framed glass-topped coffee table towards her. The mother’s evidence is that this occurred before the birth of the child. The father’s evidence was that it occurred after the birth of the child and he admits he threw an empty beer can at a wall but denied tipping the table over or tipping it towards the mother. On balance I prefer the evidence of the mother and I find this to be a violent episode. It was violence inflicted on the mother by the father whilst he was intoxicated.
The second incident allegedly took place on New Year’s Eve 2004. The father was brought home by his family after he went out to an all-night party and was very intoxicated and spent the day vomiting. The father denies that he was out all night and said he came home at 1.00am. On balance I prefer the evidence of the mother and accept that she was distraught and frightened at the father’s level of intoxication.
The third incident was when he came home and was verbally abusive and wanted to say goodnight to the child. The father understates his involvement in that issue and I accept the evidence of the mother that she was frightened and upset by the father on that occasion.
The fourth occasion was when the father took the child to a friend’s home and the mother discovered that he had been drinking all day and was proposing to drive home whilst intoxicated. The father had the opportunity to respond to that in his affidavit filed 5 November 2007 and I raised that issue with his counsel during the trial. I accept the mother’s evidence of that.
Tied with other findings I make in respect to the father downloading child pornography and the father’s behaviour in placing notes on windscreens of women’s cars I am satisfied that the mother is afraid of the father and has significant concerns as to his behaviour.
The mother says that the father was stalking her, this is likewise set out in her affidavit filed 9 October 2007.[5]
[5]Paragraph 6.
I accept the mother’s evidence as to the father following her in August 2007 or driving near her at that time. I accept her evidence contained in paragraph 6(b) in preference to that of the father. As to the matter set out in paragraph 6(c) and (d) of the mother’s affidavit they are assertions which cannot be tied to the father, he denying his involvement.
I accept the mother’s evidence in relation to the events in paragraph 6(e) and (f) and I am satisfied, that at that stage, that the father was following or watching the mother. This has to be seen in the context of the mother’s disposition towards somewhat histrionic reactions as noted by Dr H.
The mother’s IQ level is not particularly high and Dr H has said of her in that regard:[6]
[the mother] was also administered with the WAIS-III. Her Full Scale IQ was 79 and placed her at the top of the borderline range at the 8th percentile. Her verbal IQ was 78 and placed her in the borderline range of the 7th percentile. Her performance IQ of 84 fell in the low average range and at the 14th percentile.
[6] Dr H’s Report at page 13.
In his report of 29 April 2009 Dr R concurred with Dr H’s assessment of the mother.
The mother asserted that separation occurred in February 2007 whilst the father was incarcerated. She gave evidence of saying things to the father to let him know that the relationship was over. The father claimed that it ended April 2007. The mother was distraught and upset by the relationship break up and that the child had been taken from her care. It may well be that both parties are right. In the mother’s mind the relationship ended in February 2007, in the father’s mind it ended in May 2007. Either way it makes little difference.
I accept the mother’s evidence that she has lost trust in the father. I also accept her evidence that she will make use of the support that her mother (the maternal grandmother) has provided to her and that she will continue to rely on that into the future.
I generally accept that the mother is a witness of the truth and I generally accept her evidence.
As discussed in these reasons the father had a history of alcohol abuse during the relationship (I accept the mother’s evidence in that respect and that of the paternal grandmother). Whilst the father asserts now that he does not consume alcohol, there should be no reason why either parent, given the material set out in Dr H’s report and her concerns, ought not to refrain from having alcohol or being effected by alcohol whilst the child is in their care. I propose to make such order.
Evidence of Ms T
Evidence was given by Ms T in accordance with her affidavit.[7] Ms T is a family support worker who operates in the Bridgewater area of Tasmania, which community has significant social and demographic challenges.
[7] Filed the 5may 2009.
Ms T has University Degrees with majors in psychology and she has experience as a teacher. She worked for twenty years in family support. I accept that she is a very capable and experienced social worker.
She said that when she first met the mother in 2007 she had quite rigid views with respect to her parenting of the child. Ms T opined that the mother needed to be more flexible in her approach. With assistance of Ms T and other community support, the mother was able to adopt a more flexible parenting style. As a consequence she is now of the view that the mother is now functioning effectively as a parent (albeit she is unhappy).
Ms T’s observations of the mother are that she was lonely, isolated and was distressed about the charges against the father and the involvement of the State welfare authorities. She believes that the mother would be significantly assisted by the support of her family and friends in the Victorian area and that there are community support groups which would assist the mother should she need further assistance such as that provided by Ms T. Ms T opined that it is important for the mother to have the support of her mother and friend and family to continue to function effectively as the child’s primary carer.
Initially Ms T saw the mother weekly but now she sees her two or three times a year. She provides practical training and assistance for the mother, the need for that support has diminished over time as the mother accepted and learnt from this guidance.
Evidence of Constable C
Constable C of Tasmania Police gave evidence in relation to the images which were found on a computer found at the parties’ home and material on some floppy disks. When the father was arrested in relation to the question of stalking, two computers and some computer discs were taken from the family home. One of the computers had been provided by a sister of the father. That computer contained nothing of interest to the police. The computer discs contained images which were of child pornography. The computer, which was purchased by the parties and used by the parties, contained images of child pornography. I chose not view those images as the precise nature of the substance of them was not a matter of forensic interest. They were viewed by counsel for the father and counsel for the mother and they both conceded, as an agreed fact, that the images contained pornography in relation to female children.
Constable C’s evidence was that quite a number of those images were taken from the computer which was operated by the parties.
The mother denied that she downloaded any images and I am satisfied that she did not do so. The father said he believed the images came from the computer which was provided to him by his sister and/or the discs provided by his sister. Many of them came from their computer and they were saved to the discs in November 2006. On balance, I am satisfied that the pornographic images were downloaded or saved to the hard drive on the family computer by the father. The father had retained and kept other (adult) pornographic material and had shown a pre-disposition towards looking at pornography. He conceded that he had “girlie” magazines. The computer was kept at home and whilst it may well be that there was not sufficient evidence for a prosecution to be mounted (although I note that a letter from the Director of Public Prosecutions Tasmania dated
14 May 2007[8] asserted it may be reviewed if the mother were to give evidence against the father), I am satisfied that the pornographic material was downloaded and observed by the father.[8] Exhibit ICL4.
I declined the opportunity to take paper copies of the pornographic material. Much of the child pornographic material was saved to a disc which was marked for identification and placed in the court safe. I will be making orders that the disc be returned personally by the Independent Children's Lawyer to Constable C.
Evidence of Dr H
Dr H is a clinical psychologist who in January 2007 produced a report[9] for the State Welfare Authorities. That report was read into evidence and there was no challenge to Dr H’s qualifications. There was a challenge to her methodology which is discussed later in these reasons. Her report was read into evidence and she was cross examined on the material.
[9] Exhibit ICL 3.
Produced to Dr H in the course of her cross-examination was a report from the child’s teacher and school principal which exhibited some difficulties in the social skills of the child. Dr H recommended that some social training skills be put in place to assist the child in terms of his present circumstances and in terms of his time at school into the future. There was no challenge to that recommendation and as such I will be making an order to that effect.
As discussed in these reasons the father had a history of alcohol abuse during the relationship (I accept the mother’s evidence in that respect and that of the paternal grandmother). Whilst the father asserts now that he does not take alcohol there should be no reason why either parent, given the material set out in Dr H’s report and her concerns, ought not to refrain from having alcohol or being affected by alcohol whilst the child is in their care. I propose to make such an order.
Dr H conducted some assessments with regard to the father. The Wechsler Adult Intelligence Scale (WAIS-III) was administered by Ms O (Dr H’s intern) and the father was given the Millon Clinical Multiaxial Inventory (MCMI-III) to measure any personality disturbance and to detect a range of psychological symptoms such as anxiety and depression. The results were interpreted by Dr H. In regard to the father Dr H said:-[10]
[the father] attained a Full Scale IQ of 88 which places him in the low-average range at the 21st percentile. His Verbal IQ of 91 falls at the bottom of the average range and places him at the 27th percentile. His Performance IQ of 85 is low-average and places him in the 16th percentile.
[10] At page 7.
Dr R formed the view that the father has of an IQ of about 100 which was average rather than the low-average assessed by Dr H. Whilst Dr H’s test was not conducted by Dr H and was conducted on her behalf, I accept that she was in a better position to measure IQ than was Dr R. However, there must be some allowance given to the outcome bearing in mind the father was incarcerated at the time the test was administered and he was upset and under emotional pressure.
Of the father Dr H said:-[11]
[the father] was administered the Millon Clinical Multiaxial Inventory-3rd edition (MCMI-III). This is a measure of personality disturbance in the presence of a range of psychological symptoms such as anxiety and depression. It has a range of validity scales that measure tendencies to wittingly or unwittingly distort results by exaggerating problems or responding in a socially desirable manner.
With regard to the personality characteristics, [the father] attained clinically elevated scores of avoidant personality traits and negativistic or passive-aggressive traits. Elevated scores were noted on the scales measuring depressive personality and dependent personality. A clinically elevated score also was obtained for the paranoid personality scale, and although this may be a reflection of [the father’s] current life circumstance, the score elevation was marked.
People with avoidant personality characteristics experience few positive rewards from themselves or others. They cope poorly with the unpleasant things in life and will actively avoid having to deal with them. They long for affection but do not actively pursue it in case they are rejected.
People with negativistic traits struggle to cope with the competing need to seek the reward offered by others and pursue the rewards they receive from doing what they prefer. They swing between deference and defiance and between obedience and aggressive opposition. Their behaviour indicates an erratic pattern of volatile anger and stubbornness that is interspersed with periods of guilt and shame.
People with dependent personality traits not only seek nurturance and security from external sources, they will passively wait for others to guide them and support them. They lack initiative and will willingly submit to the wishes of others so that they will be liked. People with depressive personality traits are pessimistic and fail to gain pleasure from most activities. They have a disheartened view of life.
In addition, [the father] attained elevated scores for anxiety and alcohol dependence.
[11] At page 7.
In his evidence the father said that he was upset when this test was given and had been recently diagnosed by the prison psychologist as being suicidal. He said he was concerned that the test had not been given by Dr H and as a consequence he went back and did it with the assistance of other inmates in the prison. I have serious concerns about his evidence in that regard.
If that was the case Dr H still adheres to her general views of his personality determined from the tests (albeit in consultation with Ms O). If he did as he said it is quite bizarre bearing in mind this was the test to determine what should happen to his child in circumstances where he knew that the child was in foster care. Either way it raises significant concerns about the father’s ability to parent and his attitude towards his parental responsibilities.
Dr H determined in her joint report that he displayed no anti-social behaviours. She was asked about the impact of this on the father’s parenting of the child if there was a finding of fact that he had downloaded the quantities of child pornography. This has to be seen in the context that counsel for the father said the father denied he was involved in child pornography and, if I determined that he was, that it was child pornography in relation to a girl and therefore a boy would be safe. Dr H said on the information available to her that she could not determine what risk there was with regard to someone who downloaded female child pornography as distinct from male or both male and female child pornography. Her view was that there was an increased risk of inappropriate behaviour although she could not quantify that risk.
She went on to say that there were broader risks however irrespective of the gender of the children in the images. There is a risk the child’s perception of the father as a role-model, that the child could come across the material and be exposed to it.
Dr H expressed a view, and I accept, that people who download and look at child pornography lack empathy and in general have cognitive disturbance about interaction with children. In her report[12] she discussed the risk of inter-generational transmission of sexually inappropriate behaviour.
[12]At page 19.
Dr H was aware that the father was in prison because of stalking concerns but was also aware that there had been no conviction and that he was on remand.
Evidence of Dr R
Dr R was appointed as a single expert in terms of the mental health of each of the parties. Dr R gave evidence in accordance with his report.[13] There was no issue about his qualifications.
[13] Dated the 28 April 2009.
Dr R was less critical in his assessment of the father than was Dr H. This ought to be seen in the circumstances where he saw the father and Dr H did not (although tests were undertaken in accordance with her direction and with her intern).
When the father provided a history for Dr R he denied downloading or looking at child pornography. The father agreed that he placed notes on the windows of about four women’s cars asking for affairs, but said that this was in circumstances where his marriage was failing. It may well be that those notes do not amount to stalking in the strict terms of the Tasmanian criminal law but it was behaviour that caused these women to report his behaviour to the police and, in the words of the Family Consultant, lacked insight into the impact it would have on those women.
Dr R interviewed the mother and concluded that:-[14]
She came across as somewhat defensive in her answers. They were abrupt and she gave little detail. Her affect was reactive and appropriate without depression. Her vocabulary was limited but there were no thought disorder, suicidal ideas or symptoms of mental illness. Her insight and rapport were limited.
[14] At page 5.
He said that both parents expressed appropriate attitudes towards the child but that the father was more sophisticated in identifying the child’s needs.
Dr R expressed the view that the mother, if she moved to Melbourne, would need the support of her family, in particular her mother. I accept that view.
I have some concerns about some of Dr R’s conclusions, not in any way doubting the approach adopted by Dr R or his qualifications. However, parts of his report (but not all) may be undermined or damaged by virtue of the father’s failure to provide truthful information. Dr R thought the father may have, in terms of his action with regard to the notes on the cars, learned from the experience with being charged, imprisoned and being on remand. I am concerned that that may be an expression of hope.
Evidence of the Family Consultant
The Family Consultant gave evidence and varied part of her report[15] in that she made it clear that the father appeared to have disclosed more than one note on windscreens. The Family Consultant noted that the mother seemed isolated in Tasmania and that the father lacked insight in suggesting that the mother should rely on his family and parents for support. As I indicated earlier, I accept that the mother is reliant upon her family even in Tasmania where she was provided with both emotional and practical support. I am satisfied that this will continue whether the mother is in Tasmania or in Victoria although it would be far better for the mother in having the maternal grandmother available on a day-to-day basis.
[15] Dated the 31 March 2008.
The Family Report was prepared over a year ago but in circumstances where the father was seeing the child, in 2008, every afternoon after school for a few hours and for a longer period on a Friday and having a meal. Due to the father’s work commitments this changed in 2009 and the father was only seeing the child from 9.00am to 2.00pm on Sunday with the father’s family having a relationship with the child after school. It was suggested on behalf of the father that the Family Consultant was biased in favour of the mother. I discerned no indication of such bias and as such reject that submission. The Family Consultant undertook a professional analysis of the relationship between the parties. She concluded as follows:-[16]
Given the circumstances of the parties’ separation, the parties’ cognitive abilities and family background, and their different parenting styles it appears very unlikely that they will be able to co-operatively parent [the child] and communicate about his needs.
[16] At page 9.
That is clearly the case. The mother does not trust the father and the father does not respect the mother (in that respect I accept the evidence of the mother and the Family Consultant). The Family Consultant determined that the father minimises his responsibility and I accept her analysis in that respect having regard to the evidence. The Family Consultant observed, and I accept after hearing all of the evidence that: - [17]
[the mother] is a loving and caring mother with some difficulties at times in parenting due to her cognitive range which means that she has more difficulty with thinking flexibly and laterally. Hence her parenting style can be rigid at times. For example, in playing games with [the child] she sometimes wants to insist that he plays in a certain way and she may become angry and punitive at times when other techniques such as distraction can be more suitable. She is isolated in Tasmania and in need of support from her own family.
[17] At pages 9 and 10.
I accept that is the case in this circumstance. There was an issue about whether she would manage the child, bearing in mind her cognitive abilities, as he got older. There is some real concerns in that regard, however, I am satisfied that with the assistance of her family, particularly her mother in Melbourne, the mother will be able to manage parenting well, and better than if she is left isolated in Tasmania. The father says in his oral evidence in chief that he could change his time to be the primary carer of the child. This is somewhat curious evidence bearing in mind that at the beginning of 2009 with a change to his employment he reduced the time he was seeing the child from five days a week to one day a week.
The Family Consultant recommended that face to face contact between the father and the child be supervised. This as a consequence of the Family Consultant’s assessment of the father[18] and the mother’s anxiety in relation to the risks to the child if time contact was unsupervised. I accept her evidence as set out in her report and in cross examination. The level and type of supervision, I will address later in these reasons.
[18]See paragraphs 23 to 34 and paragraph 42 of the Family Report dated 31 March 2008.
Evidence of child’s maternal Grandmother
The child’s maternal grandmother gave evidence in accordance with her affidavit.[19] She is articulate and I accept her as a reliable witness. She denies that there have been significant rifts between her and her daughter and says and I accept that she has provided significant support for her daughter over the whole of her life, particularly since the mother moved to Tasmania. The maternal grandmother has seen the father intoxicated on one occasion as set out in her affidavit and I accept her evidence in respect of that in preference to that of the father’s.
[19]Filed 30 April 2009.
The maternal grandmother says that the mother lived in her home from birth to the time she left in late 2001 or early 2002 apart from a short break. She was concerned when the mother left but only because of natural anxiety when a child leaves the home. The maternal grandmother is available to assist in the care of the child and would, if need be, accompany the child to Tasmania. She is not absolutely negative about the father but describes that she is somewhat disappointed with him.
I am satisfied that she will continue to provide help and support to the mother.
Evidence of Ms J
Ms J gave evidence in accordance with her affidavit filed 25 June 2009.
She is and has been the life partner of the mother’s brother for 4½ years, although she has know the mother since she was aged abut 12 and the mother was a young child.
Ms J has visited the mother in Tasmania and she and the mother’s brother will provide assistance to the mother in Melbourne. I accept her evidence.
Dr L’s report
Dr L was engaged by the Tasmanian Welfare Authorities to prepare a report on the child. There is no issue about her qualifications. Her report dated 23 January 2007 was tendered in evidence[20] without opposition.
[20]Exhibit ICL 3.
Dr L expressed concern over the child having mild developmental delay around areas of social development and speech. She said the child also had delays in toileting.
The mother has addressed these concerns with the help of community based organisation since the date of that report.
The Father’s evidence
The father gave evidence in accordance with his affidavits[21] and his questionnaire.[22] He initially endeavoured to explain that the computer, from which the images were taken, and the discs came from a computer which his sister had purchased and wanted him to repair. That is inconsistent with the evidence of Constable C. As I have said earlier I am satisfied that the father downloaded and viewed the child pornography discovered by the police.
[21] Filed the 30 March 2009 and 5 November 2007.
[22] Filed the 23 July 2008.
While this proposal was not needed to be examined as an issue, due to the mother’s evidence that she would not move from Tasmania without the child I note that the father says if the mother was living in Melbourne and he was looking after the child in Tasmania the appropriate time for the child to see the mother would be one week in each of the four school holiday periods with rotating Christmases so that, in view of the child’s birthday being proximate to Christmas, each parent would have alternative Christmases and birthdays in the one year. There should also be telephone contact. He thought this was sufficient time between the mother and the child if the mother lived in Melbourne. He said he would meet the costs of travelling to Melbourne on those occasions. His proposal lacked insight into the nature of the primary carer relationship between the mother and the child.
The father gave troubling evidence of the circumstances in which he undertook the test with the psychologist. This has to be seen in the light that he agreed he was aware that at that time the child had been removed from the care of the mother and was in foster care, there were allegations of sexual abuse surrounding him, and that the psychologist was said to be gathering information which would determine where his son would live.
Yet when Ms O went to the prison to see the father to do the report the father said that his time had been reduced by prison authorities from 3 hours to 1½ hours. The father said he was offended, outraged and anxious about being put in prison, and was upset that Dr H sent an intern. He said that she simply asked him to undertake the IQ test and at one stage said that during the IQ test was taking statements from him. This was not the evidence of Ms O and was not put to her during cross examination. I accept that the IQ test was properly administered and that a detailed history was taken as set out in Dr H’s report. When he was given the take-home personality test the father says that he took an assessment back to the general prison population, and answered the questions seeking the views and input of other prison inmates at prison.
If he is to be believed as to this, and I am not sure about that, he treated the assessment process with contempt and made a game of it. He is either dismissive of the circumstances in which his behaviour put the child or in a perverse way endeavouring to avoid the analysis of his personality made by Dr H. Either way it is a worry in terms of his approach to the care of the child.
The father complained, in evidence-in-chief, that he had made available a DVD of some children’s movies and a game to the mother that she returned to the Department in about June 2007 with a note expressing her lack of trust in the father. Bearing in mind the issues over the previous 18 months or so regarding material from computers that was not an unreasonable position for the mother to take.
The father set out the time he has seen the child since he was incarcerated in November 2006, that is:-[23]
(i)November 2006 until 14 February 2007 - the father was incarcerated and saw the child in January on two occasions (the child being in foster care);
(ii)from 14 February to March 2007 – both the mother and father saw the child two times per week at H Centre for an hour or so. This continued for about four weeks;
(iii)from April 2007 to November 2007 - the father saw the child independently two times per week for 1½ hours supervised. (It is noted that the child was removed from foster care in June 2007 and placed in the mother’s care but the pattern continued.);
(iv)from November 2007 to the commencement of school 2008 - the father saw the child twice per week for 2½ hours supervised by one of his sisters.
(v)from February 2008 until early 2009 - the child spent time with the father up to five times per week from 2.30pm until 4.00pm Monday, Tuesday, Wednesday and Thursday and from 2.30pm until 6.00pm on Friday;
(vi)from early 2009 onward the father initially saw the child from 10.00am to 3.00pm then later from 9.00am to 2.00pm each Sunday. The child was still collected from school by his paternal aunts (mainly M) until about 4.00pm when the mother collected him on the way home from work.
[23] At pages 4 and 5 of the father’s affidavit filed the 30 March 2009.
The father gave evidence that his work was flexible although it is significant to note that he arranged to reduce his time with the child so that it met with his employment. As such I have concerns about his evidence that his time with regard to spending it with the child is flexible.
He complained that the mother was inflexible in terms of dealing with him. The mother has some rigid views but it is significant to note that most of the negotiations have ended up in the arrangements sought by the father. In particular the mother worked at least four days a week and had the week-end with the child. The father sought time with the child on the week-ends and the mother, after some negotiation agreed. His criticism seems somewhat hollow in that regard. There are a number of instances where the mother initially objected to arrangements, such as birthday parties but eventually consented to the child attending.
The father was cross-examined about the charges in relation to stalking. His evidence was that on a number of occasions he was walking his dog at a park. On three occasions he saw women walking away from their car and he left a note under each of their windscreens (on different days) saying words to the effect “I noticed how good you looked, would you like a discreet affair” and he gave his mobile phone number. The father at this stage weighed at least 153 kilograms and was aged about 33. Dr R put this down as “mostly likely represents the Incompetent suitor”. Dr R said of this:-[24]
These individuals have a combination of social ineptitude and entitlement that lead to inappropriate attempts to form relationships. Rather than having a formed psychiatric illness they are disabled by poor social skills, self-centredness and insensitivity to the needs of others. This group responds to court sanctions and counselling focussed on social skills and instilling empathy for others.
[24] Page 6.
Dr R went on to consider the inadequacies of his personality rather than the diagnosis paraphilia. I have some concerns about that diagnosis bearing in mind the findings made regarding the father accessing child pornography.
The father used some device to protect himself and to conceal his behaviour. He gave evidence that he found a sim card in his mailbox and put it in a second telephone. He could not recall which telephone number he used. I have significant reservations about his evidence in that respect.
He left three notes on the windows of three women at the park. He saw another woman at … and left a note on her windscreen. The father gave evidence that he left no other notes and that all four women had complained. His demeanour in giving this evidence was problematic and I believe that he was either untruthful or significantly minimising what he was doing.
Four of the charges were not pursued, the father initially refusing to admit that he put the notes on the windscreens and being informed that the DNA and handwriting evidence was inadequate. He subsequently made an admission that the notes were his. There is no doubt that he left notes on the windscreens of women’s cars seeking sex.
The father defended the fifth charge of stalking, he was alleged to have sent a text messages to a female neighbour inviting an affair. He was acquitted not because there was any doubt that he sent the message but that to secure a conviction the prosecution needed to prove more than one act for it to be a stalking within the definition contained in the Tasmanian Criminal Code Act 1924.[25] I find that the father engaged in stalking behaviour and that in terms of his relationship with the child it is troubling including in terms of his insights as to the impact of such behaviour on women. He says that he learnt a lot of this in prison and undertook counselling and that he is much better. I am not sure that is the case.
[25] S 192.
When the father telephoned the mother in April 2007 wanting a reconciliation she hung up. That was a clear message. The father refused to accept that as a termination of the relationship and sent her a letter, she did not reply. It was only after he received a letter from the mother’s solicitors in May 2007 did he accept the end of the relationship.
The mother complains in her affidavit about subsequently being sent a teddy bear, by the father, with flowers attached from a florist in suburban Hobart. In response to that assertion the father denied that he bought a teddy bear and sent it to the mother with flowers and went on to say that if he did she has nothing to complain about. The father, however, conceded in cross-examination that he knew the mother wanted a teddy bear from that florist. Having regard to the evidence of both parties and the father’s concession that he knew the mother wanted it and his determination to restore some form of relationship with the mother I infer that he sent the flowers and the teddy bear. The father rang the mother crying on one occasion and drove past on another occasion in about August 2007. While driving past the mother he smirked at her. These incidents do not sound much in isolation but in terms of a woman who is frightened of her husband and where there was an Family Violence Order in place I am satisfied that the father engaged in some limited and subtle stalking of the mother.
Prior to 1999 the father was the subject of a complaint by young girl that he had inappropriately touched her whilst she was sitting on his knee. The father was interviewed by the police but denied any inappropriate behaviour. No police or civil action followed.
In 1999 the father was charged with touching the bottom of a nine year old girl and which charge was dealt with summarily in the Magistrates’ Court. The father was acquitted of that charge. The father’s evidence, which was not contradicted, was that the only evidence against him was that of the child and when she gave evidence in court she recanted and said she said it was somebody else who touched her.
What is not in doubt is that on two occasions the father has been subject of separate and unrelated complaints with regard to his behaviour to children. There is no evidence that he did that which was complained about. However, in the context of all of the other evidence it raises the level of concern about the father’s behaviour and his regard for appropriate boundaries in respect of other people.
When the father was arrested the police removed two computers from his home and a series of floppy disks. One of the computers had been provided by his sister and that was dealt with in her affidavit. That computer contained no child pornography. Some of the floppy disks, did however, contain child pornography from 2003 onwards. The father’s sister, K, said that the floppy disks came with her computer although she was not aware of what was on the disks. She said that when she opened the second hand computer it had inappropriate sexual behaviour between two women on a screen saver. She said she asked the father to get rid of it. She also wanted him to recover some photographs he had saved to the computer.
What is of concern is that on the family computer there were twenty six images of child sex pornography. The only people who had ready access to the computer were the mother and the father. The Director of Public Prosecutions would not proceed against the father as he said the mother was not compellable. As I have said earlier in these reasons I am satisfied that that material was downloaded by the father and that he has consistently denied that downloading to protect himself. That needs to be seen now in context of the sexualised material which was found by the mother under the house and perhaps some of the material on discs which the police recovered.
The father’s initial explanation which he gave to the police in a police car (but refused to make an electronic statement) was that the material was on his sister’s computer. In fact the images were on his home computer. When that evidence came to light the father thought about it and said it must have come from the mother. In the context of the evidence of this case I do not believe that is likely and I find that it is far more likely that the material was downloaded by the father.
When cross-examined by the Independent Children's Lawyer the father said he had noticed that the child was a little delayed. He also said that he and the mother had attended a parenting centre to deal with some eating problems and nightmares, which the child was experiencing. The father agreed in cross-examination that there was no capacity for parental responsibility at this time. He also agreed that the mother needed assistance in parenting and that the mother had isolated herself in Tasmania. His counsel went on to submit that the mother was unable to make friends. I do not accept that submission as I accept the evidence of the mother that she has friends in Victoria. The father attempted suicide in April 2007 after he received the family violence order. He had previously attempted suicide in the 1990s. I find that he reacts extremely to adverse life events.
The father has a number of convictions for disorderly conduct (normally associated with alcohol, similarly with refusing to leave licensed premises).
He was convicted in relation to a telephone offence when he made an obscene phone call to a female whilst he was working at a telemarketing company. Again this is troubling in the context of the stalking like behaviour and the child pornography images. The father does not accept authority and has in the past had difficulties in managing his relationships and consuming alcohol.
In terms of alcohol the father accepted that he was drinking heavily some years ago but that he had stopped drinking after he had been to jail. In evidence resiled from this and said he was drinking much less. That is a concern, although the father has agreed to an order that whilst the child is in his care he will not consume alcohol. The mother (against whom there are no issues of alcohol) is content with such an order. One of the reasons I am considering supervision is the father’s history of alcohol abuse.
The father is now a member of a church and goes to a men’s group. He is part of a group who are endeavouring to change the laws against the safe-at-home program with regard to police violence orders.
Initially the father gave unclear evidence but later gave clear evidence that he did not believe he would go to Melbourne. He has no friends there, he would be isolated there. I accept that moving to Melbourne at this stage is not an option which the father regards as open to him. The father believes the mother is a good mother but has some concerns about her capabilities and her rigid personality. He wants more time with his son although this seems to fly in the face of his negotiations this year to spend less time with the child.
Evidence of M Harry
The father’s sister M gave evidence in accordance with her affidavit.[26] She also gave evidence of an unhappy event on 31 May 2009. It is clear that the child was being sick when he arrived home. The mother’s evidence is that she was anxious and a little angry. The evidence of M and her sister C is that the mother was yelling and yanked the child out of the car. The paternal grandmother gave evidence of trying to be a peace-maker later by telephone and then getting an abusive call from the mother. However when pressed K Harry’s evidence was that she left a somewhat inflammatory message on the mother’s answer phone. This is an example of the difficulties of communication. The truth lays no doubt somewhere in the middle. It belies any suggestion that the mother can have a relationship with the child’s paternal aunts and paternal grandmother while remaining in Tasmania. There is high hostility and whilst the father and his family blame the mother I determine that both sides contribute to that issue.
[26] Filed 30 March 2009.
M collects the child most afternoons after school. She has five children, three who are of an age close to that of the child. I am conscious in making these decisions of the relationship between the child and his cousins.
Evidence of C Harry
C gave evidence in terms of her affidavit.[27] She lives with the child’s paternal grandmother.
[27] Filed 30 March 2009.
Evidence of K Harry
K gave evidence in accordance with her affidavit[28] and oral evidence in respect of the events on 31 May. She identified the cream computer as being the one she had collected. She prevaricated in her evidence in relation to the computers. Initially in her affidavit she said that there was “adult porn” on the computer. She said this showed two women performing explicit sexual acts on each other which she found disgusting. She went on to say she tried to delete the pornographic material and then gave it to the father so he could retrieve the photos and delete the pornographic material. She said she told the father that if he couldn’t get rid of the pornography that he was to throw away the computer. In evidence she changed it to the women were in lingerie and took a step back from the question of whether there was pornography. She was reluctant to admit that she had informed the father of the material on the computer. I do not reject her evidence but it must be seen in the context that she was supporting her brother.
[28] Filed 5 November 2007.
Evidence of the paternal grandmother
The child’s paternal grandmother gave evidence in accordance with her affidavit.[29] She said she had a good relationship with her son but no relationship with the mother (this being the mother’s choice). She said that the father had problems with alcohol but that improved after he met the mother. Before that he drank every night and he was sometimes aggressive and violent. When asked about violence she said he would throw things around.
[29] Filed 30 March 2009.
The paternal grandmother believe that the mother was a little hard on the child and gave the example that the mother did not like the child having Coca-Cola whilst her other grandchildren were allowed to have it. She went on to say that the mother was otherwise a good parent. The paternal grandmother said that if the child came to Tasmania (if relocation to Melbourne was allowed) there was a spare bedroom and the child could stay overnight. She was prepared to supervise the child if he stayed with her.
DISCUSSION
I have considered all of the facts and findings in this case in terms of the various factors of which I am obliged to consider under s60CC(2), (3), (4) and 4(a). I will address some of these particularly in regard to the various provisions however in reaching the conclusions I have considered all of the factors against all of the evidence and findings and vice versa
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The Independent Children's Lawyer submitted that the child’s views were not in evidence before the court and his age prevents him from appreciating the ramifications of any opinion he might give. The mother submitted that the child was not an age where his maturity and understanding ought to be a factor in these proceedings. The father made no submissions.
There was no evidence of any views of the child and even if there was such evidence the maturity and level of understanding of the child are such that such evidence would not have been relevant to this determination.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
On the evidence before me I determine that the mother was a primary carer of the child from birth until November 2006. Whilst the father was involved in the care of the child over that time I determine that the mother was the primary carer. Between November 2006 and June 2007 the child was in foster care and was then returned to the mother in June 2007. The mother maintained regular contact with the child during the time he was in care. From June 2007 to date the mother has been and is the primary carer of the child. She ensures that all of his needs are met and whilst there are some concerns about the mother recognising difficulties in the child’s developmental skills in 2006, and the mother’s at times rigid attitude, she is a good mother and cares well for the child. I am satisfied that the child has a close relationship with the mother and vice versa. She is his principal carer.
The father was a carer of the child up to November 2006, but not to the extent of the mother. Over the period of time from the child’s birth until the father’s incarceration in late 2006 the father was engaged in some level of care of the child including taking the child to various developmental centres. However, during this period the father was, from time to time, binge drinking which significantly impacted on his parenting. He was drunk on a number of occasions during 2002 (presumably prior to the birth of the child) and he was convicted on a number of occasions of refusing the leave licensed premises. I am satisfied that he had a good relationship with the child during this time but that the primary carer, over that time was the mother.
In terms of that finding I have had regard to all of the evidence including the evidence of the child’s paternal grandmother that she deferred to the mother’s approach with regard to parenting arrangements for the child.
The father was incarcerated from November 2006 until mid-February 2007. During that time the child was brought to see him on two occasions at the Prison. After the father’s incarceration he saw the child for a little over an hour two times a week for the remainder of 2007. From 2008 the father saw the child four to five days a week from after school till 4.00pm or 6.00pm on Fridays. This was very constant time. The father voluntarily reduced his time with the child in 2009 to five hours on a Sunday. I am satisfied that the child has a good relationship with his father and the father with the child (subject to other comments I have made elsewhere in these reasons).
The child has had a long relationship with the paternal grandmother and aunts in particular since 2008 when the child was collected after school each day by a paternal aunt. The child has a good relationship with his cousins.
Whilst the maternal grandmother has not seen the child as much as the paternal family she has been involved in the child’s life and care since his birth. I am satisfied there is a strong relationship between the maternal grandmother and the child and the broader family. In that regard I note and accept the evidence of Ms J who has known the mother since Ms J was 12 and for the last 4½ years has been in a relationship with the mother’s brother.
(b)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
In terms of the mother her counsel submitted that she initially found it difficult to facilitate a relationship between the father and the child after the father’s incarceration. He submitted that in recent times the mother has felt more confident about the father spending time with the child and has a better understanding of his behaviour and acknowledgment, at some levels, that his behaviour has been inappropriate.
The father’s counsel submits that the mother will not facilitate a relationship between the child and the father and, in particular, if the child is allowed to relocate to Melbourne these court orders will not be complied with and as a consequence the child will lose contact with the father.
The mother has said she will facilitate the time between the child and the father. She has thought through plans with respect to how that time can occur (for one-week periods over the school holidays including alternate Christmases and birthdays). She believes she can save sufficient money to meet the air-fares and has made enquiries in that regard. The child’s maternal grandmother has said she is willing to help both in practical and financial terms with regard to the child travelling to Tasmania to visit the father.
The mother has a somewhat rigid personality but she has taken steps to address that rigidity. It is noteworthy that the mother sometimes says “No” to changes but eventually adapts. The question of the child attending birthday parties and the change of the father’s time, from mid-week to week-ends, are examples of this.
On balance I am satisfied that the mother will facilitate and encourage a relationship between the child and the father, whether the mother lives in Tasmania or whether the mother lives in Victoria.
The Family Consultant sets out in paragraph 34 of the report that:-
[the father] appears unlikely now or in the foreseeable future to be able to promote [the child’s] relationship with the mother due to his antagonism towards her.
This report is over twelve months old and was challenged by the father as containing unconscious bias, which I have dealt with earlier in these reasons. I do not accept that the report is biased and observing the father in the witness box, including his demeanour, it is clear that he does not respect the mother and that the conclusion of the Family Consultant, set out immediately above, is well founded.
The father, through his counsel, was critical of the mother for her defining of “girlie” magazines as “pornography”. From the mother’s evidence it is clear that she was not familiar with the various distinctions of pornography. Yet the father was quite happy to assert that the person who downloaded the child pornography on the family computer was the mother. This is in circumstances where the mother had little technical knowledge of the computer and used it for playing games and for emails. The real user of the computer was the father. Having regard to the findings in that respect (that is that the father downloaded child pornography) and his quick response in blaming the mother I do not believe that he would encourage a relationship between the child and his mother.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
From the child’s perspective there is evidence that he has difficulty making friends at school. Consent Orders will be put in place to enable the child to learn to socialise better at school. He is 6½ and I am confident that he will adapt to a new school in Victoria reasonably quickly and the change of school will not have a significant impact on him.
The move to Melbourne would mean that the child spent significantly less time with the father. It would be at least four one-week periods per year (including alternate Christmas Day’s and birthdays). The father would be able to keep in contact with the child by telephone and other electronic means such as Skype and as the child matures, emails, SMS and the like. However the quality of the relationship would be less than that which would have occurred in Tasmania.
Similarly the child’s relationship with his paternal family (including his grandmother, aunts, uncle and cousins) would be significantly impacted. It will not be at the same level as it currently is. I have had regard to these relationships.
If the mother is required to remain in Tasmania (and she says she will not move to Melbourne without the child) she will remain isolated and dependent on her mother and at some levels the father’s family. This must be seen in the context of the high level of antagonism between the mother and the father’s family and the lack of trust that the mother has in them and the lack of trust she particularly has in the father. She will be isolated and remote from her family and friends.
If the mother is permitted to move to Melbourne she proposes to live with the child’s maternal grandmother. I also accept the mother’s evidence that she has friends and family who will be significantly involved and she would receive help. The mother will be better able to meet the needs of the child in Melbourne than she would if she was required to remain in Tasmania.
As I have said earlier the mother will facilitate the relationship between the child and the father irrespective as to whether the child is in Tasmania or Melbourne.
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
The mother has the capacity to provide for the child’s needs. She has done so through most of the child’s life but with some troubles. The mother did not recognise the developmental concerns which were determined when the child went into foster care in November 2006. The father says he was aware of those concerns and he and the mother endeavoured to address them. I am not sure that he has fully understood the concerns. In any event the mother has limited cognitive ability and will need support by way of family, friends, and community to continue her role as a parent. She has embraced levels of support in Tasmania and in that regard I accept the evidence of Ms T. The mother’s ability to care for the child in Tasmania in the absence of friends and family will be compromised. The mother is a good parent subject to the comments I have made and will be better able to meet the needs of the child in Melbourne. The father asserts that his capacity to meet the needs of the child is better than the mother. In that respect he relies on his own evidence and particularly the evidence of Dr R where he says:-[30]
Both parents expressed the appropriate attitude towards [the child] and the responsibility of parenthood. [The father] was somewhat more sophisticated in that he identified [the child’s] current needs but also mindful of future needs depending on the court’s decision upon residency.
[30] Dr R’s Report at page 6.
Early in his report Dr R made comments on the inadequacy of the father’s personality. I have no doubt that the father could meet the physical needs of the child. However, I have doubts about the father’s capacity to meet the emotional and intellectual needs of the child.
The father has a troubling history with regard to his treatment of women. This could be seen through his conviction of making an obscene phone call to a woman when he was telemarketing, his downloading of child pornography, his stalking-like behaviour in relation to putting notes on the windscreens of cars and the SMS to a neighbour seeking sex, his low level stalking of the mother following his release from prison between February 2007 and later that year, his previous use of alcohol (then an assertion that he no longer drinks and then resiling from that absolute statement) and his long history of antagonism towards the rules of society in terms of his minor convictions for failing to leave licensed premises and disorderly conduct. There are serious issues about his role-modelling for the child and serious issues about whether he would provide inter-generational transfer of this behaviour to the child (as raised by Dr H). There was also his lack of insight into how that behaviour impacts upon others.
The father has on two occasions attempted suicide. The most recent of those was the day after he was served with the Family Violence Order. In that regard Dr R said:-[31]
His own personal psychiatric history includes an attempted self-harm incident after receiving a Family Violence Order. He aborted an attempt at hanging and attended a family member who called an ambulance. He was admitted briefly to the Department of Psychological Medicine between 26 and 28 May 2007. Here the diagnosis was one of a situational crisis. On discharge he had some counselling through Anglicare and took the anti-depressant Fluoxetine for a period.
[31] At page 13
Dr R noted that the father denied any suicidal thoughts at this time. As I have said earlier in these reasons I am concerned about the frankness of the interview provided by the father to Dr R. I note that the father’s forensic history to Dr R is limited to drink driving charges and the one count of drunk and disorderly. The father’s history is much broader than that and there is a concern that the father has minimised his forensic history. In evidence he talked about two attempts of self-harm but apparently only informed Dr R of one attempt.
The father’s behaviour is such that he could not realistically be a candidate for the full-time care of the child. It is appropriate for the child to know his father and have some time with him but it would need to be carefully monitored.
Counsel for the father submitted the father’s capacity to care for the child was such that the child should either live with him most of the time or, in a fall back position, live with the father each alternate weekend from after school Friday to the commencement of school Monday plus each Tuesday and Thursday from after school to 7.00pm. This submission (which was presumably made on instructions) causes concern about the father’s approach to the child. Such an arrangement would have the child tracking backwards and forwards with no secure place to call his own. It exhibits a significant lack of insight by the father into the emotional needs of the child. This submission must be seen in the context I raised with counsel for the father during the trial that he ought to “reality test” the proposals the father was putting to the court.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents have completed the Parenting Orders Program run by Relationships Australia.
I am satisfied that the mother has adopted a responsible attitude to parenting. I am not entirely satisfied with the father’s attitude to parenting. It beggars belief that the father placing notes on the windscreen of women’s cars would not have attracted adverse attention. It also beggars belief that the downloading of child pornography reflects a proper attitude to parenting and his responsibility to parenting. In other respects with regard to the attitude to parenting I reiterate what I have said elsewhere in these reasons.
The father complains about the mother’s attitude to his family and her refusal to form relationships with the family.
As I have said in these reasons that process is a two way street and whilst the rhetoric of the father’s family is that they have tried to do so, the reality is there is a high level of polarisation of the parties following the father’s incarceration and in the context of the family’s concern that the father was wrongly imprisoned and that the Family Violence Order was improperly put in place by the mother.
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
The father has exhibited violence to the mother and low level stalking. He refused to accept the end of the relationship until he received a letter from the mother’s solicitor in May 2007. The father engaged in binge drinking during the relationship
A Family Violence Order was put in place. As always it is the underlying facts that this Court must consider in terms of the question of violence, or the protection of the mother.
The Family Violence Order was put in place against the father after he was released from prison and where he was facing charges, or a charge for stalking, and there were serious issues about him downloading child pornography.
The father has shown a propensity to act inappropriately and at times violently when he does not get his own way. The violence is not a significant issue but it certainly reflects on the character of the father.
(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;
The father submits that the best way to make an order would be to leave the mother in Tasmania with the child. He asserts that if the mother goes to Melbourne with the child there will be the necessity for enforcement orders. I do not accept that is the case.
If the mother remains in Tasmania she will be isolated. It is asserted that there would inevitably be other applications into the future. I determine that is likely to be the case. When the mother relocates to Melbourne she will have a strong network of family and friends about her which will enable her to better parent the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The mother has disclosed a high degree of effort and commitment towards the child’s schooling. The father does not involve himself in the child’s schooling as much as the mother. The father pays child support. The mother has discouraged overnight time between the father and the child. The father now seeks overnight time.
I have had regard to all of the relevant matters under s 60CC(4) and (4A) in making these determinations. Having regard to the factors under s 60CC(3)(c) I consider the primary considerations as to the benefit of the child having a meaningful relationship with both parents.
In that regard I refer to the matters set out above. There is a benefit in the child having a meaningful relationship with both of his parents. The father’s ability to have a meaningful relationship with the child will be reduced by the child’s move to Melbourne. On the other hand the mother’s ability to properly parent the child will be enhanced by the move to Melbourne where she will have family support and be better able to parent the child.
The father submits that the relationship would cease, I do not accept his submissions in that regard as I have believe that the relationship will continue both in person and via electronic means. It is likely that the mother will comply with the orders.
If the child is left in Tasmania he will have a meaningful relationship with both parents however the mother’s capacity to parent will be significantly compromised. That will impact on her ability to care for the child.
(a)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The father has engaged in stalking like behaviour, downloaded child pornography onto his computer and engaged in criminal activities as set out earlier in these reasons including an indecent telephone call to a woman. The father had difficulties with alcohol in terms of binge drinking and with that came associated convictions for disorderly conduct and failure to leave premises. The father says that he no longer drinks although his evidence altered from that position from that during the hearing.
The mother has consented to the father having unsupervised time with the child during the day.
The father lacks insight into how his behaviour can impact on the child in terms of role-modelling (including inter-generation transfer of inappropriate behaviour) and empathy. The father, through his counsel, argued that even if the child pornography was his the child was safe because it was child pornography of girls and not boys. The experts could not provide any indication as to whether different sorts of pornography operate in different ways. It would need an admission by the father of that behaviour (to which the father has not admitted) and an analysis as to why he did it before any indication could be given. There is evidence that people who download child pornography are slightly more likely to act sexually inappropriately with a child than those who do not.
Dr H’s evidence in respect of the broader impacts of the father’s behaviours is of concern. With the history of the father’s behaviour over many years it seems to me that it would be prudent to put into place an arrangement that when the child visits the father overnight it should be in the home of either the paternal grandmother or paternal sisters.
The question of supervision is a vexed one. I have some lingering concerns about the father’s predisposition to inappropriate sexualised behaviour, such as viewing child pornography, the notes and text which gave rise to the stalking charges and the conviction for the obscene phone call. I accept the evidence of Dr R that the father is not a paedophile or the like. However, I am concerned with the broader aspects to the father’s behaviour and the likely broader aspects of its possible impact upon the child.
The father’s behaviour is troubling when added to the sexualised behaviour is the binge drinking and occasional associated violence and loss of control together with his lack of insight into his own behaviour.
The type of supervision needed will alter in the years to come. As the child matures his ability to discern any troubling behaviour will develop. In the meantime I will impose a type of supervision to address the concerns identified throughout these reasons. During the week long visits the child should sleep overnight at the home of one of the supervisors. The supervisors should be aware of what is going on between the child and father during the day, but not necessarily be present all of the time (such as is the existing arrangement). As the child grows there can be discussion and mediation (perhaps via the Family Relationships Centre to adjust this requirement as needed).
There is animosity and miscommunication between the mother and the child’s paternal grandmother and paternal aunts. Despite this they have retained a close relationship with the child. By inviting them to take the supervision role, it will enable the relationships to continue, including with the child’s cousins. The child’s paternal grandmother and paternal aunts were impressive in their support of the child and I am confident they would not in any way allow the child to be harmed or compromised, and would put his interests above that of the father. The supervision is not designed to be close and pervasive, it is designed to enable the supervisor to monitor and control the visits.
When the child was taken into care in 2006 he was suffering from poor nutrition and mild developmental delay particularly in relation to social development. The most likely cause of these, according to Dr H, was parental neglect. Dr R says it was likely to reflect a lack of intellect on the part of the mother and the lack of experience in the personal skills on the part of the father. These issues have been addressed by the mother since separation. With her mother’s assistance and broader support I am confident that the mother will continue to provide proper parenting for the child into the future.
Presumption under Section 61DA
This is a matter where the presumption of equal shared parental responsibility does not apply as a consequence of the provisions of s 61DA(2) which provides that the presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in family violence. Family violence is broadly defined to include conduct, whether actual or threatened, by a person towards, or towards property of, a member of the person’s family that causes that or any other member of the person’s family to reasonably fear, or reasonably be apprehensive about, his or her personal well-being or safety.
The father’s behaviour in relation to the yelling, throwing of the beer can, tipping over the table falls within the definition of family violence. Accordingly the presumption does not apply.
Notwithstanding that the presumption does not apply I will, of course, consider whether there ought to be an order for equal shared parental responsibility. I have dealt with that elsewhere in these reasons and it seems to me that Federal Magistrate Ryan, as she then was, discussed the question of sharing time equally in B & S (2004) FMCA fam61 where in the context of equal time, at paragraph 29, she set out some of the factors which the court should examine. These are apposite in terms of considering equal parental responsibility. The factors which she considered were:-
·The parties’ capacity to communicate on matters relevant to the child’s welfare;
In this case the parties do not communicate except by notes. The father blames the mother entirely for this and says he is willing to communicate. He has little insight into the impact of his behaviour.
·The physical proximities of the two households;
If the mother remains in Tasmania their households will be fairly close. As the mother will be living in Melbourne the households will be States apart and this will make co-parenting very difficult.
·The prior history of caring for the child. Have the parties demonstrated a commitment to a 50-50 living arrangement without undermining the child’s adjustment?
The parties have shown they have been unable to communicate since effectively November 2006. Irrespective of the underlying causes, to force them to a situation where major decisions have to be made together by both parents would in fact create court-ordered sclerosis of the ability to exercise parental responsibility. It would inevitably mean this matter would need to come back to court.
·Whether the parties agree or disagree on matters relevant to the child’s day to day life;
The parties do not agree on relevant matters to the day to day life. The father, for instance, believes that the mother is too inflexible in her approach.
·Whether they disagree on these matters the likelihood that they will be able to reach a reasonable compromise;
The parties have reached compromise in relation to some issues of time.
·Do they share similar ambitions for the child?
The parties’ communication is such that they have not had this discussion and are unlikely to have such a discussion.
·Whether or not the parties respect the other party as a parent.
The mother does not trust the father. The father does not respect the mother.
Having considered all of the evidence and the findings made in these reasons, I determine that it is not in the child’s best interests to make an order for equal shared parental responsibility. The appropriate course would be, in circumstances where the child should continue primarily living with the mother, to give her parental responsibility but require her to inform the father of any significant exercise of that responsibility. I propose to make orders to that affect.
Section 65DAA of the Act imposes a duty upon a court to consider equal time or substantial time if there is to be equal shared parental responsibility. In this case there is no equal shared parental responsibility and this provision does not apply. However, it seems to me that family courts have generally considered significant time and equal time as part of the process of determining what is in the best interests of the child.
In his submissions at the conclusion of the hearing counsel for the father sought an order which involved the child living with him and spending unspecified time with the mother or alternatively the father having substantial and significant time with the child during school terms.
If the parties live in Tasmania substantial or equal time would have been available due to the proximity of the parties to each other. However the other factors discussed in these reasons would predicate against substantial or significant time. Substantial or significant or equal time could not work when the child is living with the mother in Melbourne.
Equal or significant and substantial time depends upon the parties’ capacity to implement agreements and communicate with one another. The parties are able to implement agreements but their communication is very poor. Having regard to the factors discussed in these reasons under s 60CC it is not a case where there should be equal time nor is it a case where there should be significant or substantial time.
Having regard to all of the facts, circumstances, findings in relation to these proceedings I am of the view that the child should remain in the primary care of the mother and the mother ought to be able to relocate the residence of the child from Tasmania to Melbourne. I propose to make orders in that regard.
During the course of the hearing counsel for the mother submitted that any time the child spent with the father ought to be supervised. This must be seen in the context that the father’s time with the child had not been supervised for about 18 months. The father does not have the child overnight. I am not convinced, on the evidence, that the child should be supervised during daylight hours with the father. However, in view of the findings I have made of the father and the concerns articulated in these reasons I propose to order that when the child spends time with the father in Tasmania pursuant to these orders he spends overnight with either his paternal grandmother or one of his paternal aunts and that he sleep in a room separate to that of the father.
Much of these proceedings dealt with computers and there is discussion in these reasons. I intend to make an order that the father spend reasonable time with the child perhaps at least twice per week by Skype, either voice or video. Accordingly I will be making an order in that respect.
But there was no argument in relation to the name change and in the circumstances of this case I see no reason why the child’s name ought to be changed at this stage.
Having regard to all of the evidence and findings I am satisfied that the mother ought to be permitted to relocate to Melbourne Victoria with the child. This is also a case where either shared or several parental responsibility would not be in this child’s best interests. The mother is obviously the person who should have parental responsibility, but she needs to keep the father informed as to the child’s education and health. I will make orders accordingly.
The geographic and financial constraints make weekly or monthly contact time unavailable to the parties and the child. As such I am putting in place holiday arrangements, but I make it clear that if the father is able to spend more time in the Melbourne area such contact should be facilitated by the mother. I have also made orders for the child to have electronic communication with the father.
I certify that the preceding one hundred and ninety seven (197) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.
Associate:
Date: 31 July 2009
Key Legal Topics
Areas of Law
-
Family Law