Mifune and Roberts

[2013] FamCA 660

FAMILY COURT OF AUSTRALIA

MIFUNE & ROBERTS [2013] FamCA 660

FAMILY LAW – CHILDREN – mental state of the father

Family Law Act 1975 (Cth)

Cox & Pedrana (2003) FamCAFC 48 19

APPLICANT: Ms Mifune

RESPONDENT: Mr Roberts

INDEPENDENT CHILDREN’S LAWYER: Ms Dart

FILE NUMBER: BRC 647 of 2012

DATE DELIVERED: 16 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: Friday, 16 August 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Ms Dart of Counsel of Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. The child B born … 2003 (“the child”) live with the mother.

2. The mother have sole parental responsibility for the child.

3. Mr Roberts also known as Mr C born … 1973 (“the father”) be restrained and an injunction issue restraining him from having any contact or communication with the child until she attains the age of 18 years.

4. The child be permitted to travel outside of the Commonwealth of Australia without the consent of the father.

5. Pursuant to section 65Y of the Family Law Act 1975 (Cth) (“the Act”) this Order acts as an authority for the child to leave the Commonwealth of Australia.

6. This Order acts as authority permitting the child’s overseas travel and enabling a passport to issue pursuant to section 11(1)(b) of the Australian Passports Act 2005.

7. The requirement for the father’s signature to appear on an application for a passport for the child be dispensed with.

8. In the event that the father’s signature is required for any reason to facilitate the child leaving the Commonwealth of Australia, a Registrar of this Court is appointed pursuant to section 106A of the Act to sign all documents necessary and do all things necessary to cause a passport to issue for the child or to sign any other instrument or document in order to facilitate any travel by the child outside the Commonwealth of Australia.

IT IS FURTHER ORDERED THAT

1. The Independent Children's Lawyer be discharged.

2. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mifune & Roberts has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 647 of 2012

Ms Mifune

Applicant

And

Mr Roberts

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings concern the child, B born in 2003 (“the child”) who is currently 10 and a half years of age.  The child’s parents commenced cohabitation in 1998 and married in 2002. 

2. On 19 June 2009, the father assaulted the mother by punching her to the head and strangling her with a towel until she lost consciousness.  The father was subsequently charged with intentionally and unlawfully strangling the mother so as to render the mother insensible and also with assault occasioning actual bodily harm. 

3. In December 2010, the father was found not guilty of those charges by reason of mental impairment having been judged to have suffered a delusional disorder.  He was ordered to spend a period of time incarcerated in the Australia Capital Territory, where the parties had lived, before being moved to a psychiatric ward at a local hospital.  The father was later granted bail and ordered to reside under the supervision of his mother in Western Australia and he did so until about January 2011.  The parties separated at the time of the father’s assault on the mother. 

4. In February 2011, the mother and the child relocated with the father’s consent from the Australia Capital Territory to live in the D Town area of Queensland.  The child commenced speaking with her father twice a week by telephone. 

5. In August 2011, the child started to refuse to speak with her father by telephone.  The child has not done so since about that time. 

6. Following the move by the child and her mother to Queensland, the child commenced counselling with a domestic violence service provider in D Town.  On April 2012, following the mother filing proceedings, the father filed a Response. 

7. On 1 May 2012, Registrar Kane appointed an Independent Children's Lawyer and listed the matter before a Registrar for directions on 4 September 2012.  The father ceased to be legally represented when his solicitors filed a Notice of Discontinuance on 31 October 2012.  Since that time, no other document, including a new Notice of Address for Service or any other document, has been filed in the Court on behalf of the father. 

8. On 27 November 2012, Registrar Stoneham made a series of directions: requiring the mother to file any further Amended Initiating Application setting out the final orders that she sought by 14 December 2012, directing the father to file any Amended Response to such final orders by 11 January 2013 and directing that both parties file and serve affidavits intended to be relied upon by no later than 8 February 2013. 

9. The Registrar made further directions for the filing of material in order to ensure that the matter was prepared for final hearing.  Amongst those further directions was a direction that the parties file and serve a Case Information document and that the matter be listed for compliance mention before a Registrar on 22 February 2013 with the parties to be excused from attendance if legally represented. 

10. On 16 January 2013, the Independent Children’s Lawyer wrote to the father, care of the address provided by him, asking him to confirm by return correspondence whether he intended to file documents in accordance with the Court’s direction and/or to take any part in the proceedings in relation to the child. 

11. On 12 February 2013, the mother’s then solicitor caused correspondence to be sent to the father at his address in the Australian Capital Territory.  On 14 February 2013, the Independent Children’s Lawyer wrote to the father at this same address indicating that she had received no response to previous correspondence and noting that she had not been served with any trial affidavits or material in accordance with the directions of this Court.  On 15 February 2013, the Independent Children’s Lawyer wrote again to the father enclosing the Case Information document prepared by her. 

12. On 21 February 2013, the mother’s then solicitor caused email and correspondence to be sent to the father at his address in the Australian Capital Territory.  Enclosed was a copy of the Case Information document filed on behalf of the mother on 21 February 2013 together with a copy of her affidavit filed 11 February 2013.  This is the affidavit relied upon by the mother in the proceedings before me today.  Later in February 2013, the mother’s then solicitor forwarded a further email to the father by which she enclosed a copy of the Amended Initiating Application together with other correspondence. 

13. The Independent Children’s Lawyer and the mother’s solicitor deposed that, save for correspondence sent by the mother’s solicitor dated 21 February 2013, none of the correspondence sent by either of them have been returned to their respective offices by Australia Post.  Further, the mother’s then solicitor deposes that none of the email correspondence forwarded by her to the father has been returned, nor has there been any indication that it has not been received at or by the father at the address provided.

14. The father has not responded to any correspondence sent to him by the mother’s legal representatives or the Independent Children’s Lawyer. 

15. On 22 February 2013, as I have already noted earlier, the Registrar made various directions about the further progress of the matter including directing the filing, by the father, of particularised material.  Again, despite the directions of the Court on that occasion, there has been non-compliance by the father.  It is clear from the contents of the order of Registrar Stoneham, made 22 February 2013, that the father was made aware that the matter would, in his absence, proceed today. 

16. The father was called three (3) times outside the Court this morning and did not appear.  I am satisfied that the father is aware of the proceedings and has been afforded appropriate opportunity to choose to participate in them and that he has determined not to do so. 

17. The mother relies upon her Amended Initiating Application filed 18 December 2012.  By that document, she seeks an order for sole parental responsibility for the child, that the child live with her, and that the father be restrained from having or spending time with the child until she attains the age of 18. 

18. The mother also seeks the making of orders which would permit the child to travel outside Australia without her father’s consent and that a passport be issued without the necessity for the father’s signature on any passport application.  The mother seeks an order that would substitute a Registrar of this Court in the place of the father and that such Officer of the Court be permitted or authorised to sign any document required to be signed on his behalf. 

19. In the Response document filed by the father in April 2012, he sought an order for equal shared parental responsibility, that the child live with her mother, and spend time and communicate with him. 

20. The father also sought that the child meet with professionals so as to be evaluated and briefed about the implementation of the orders he sought.  As noted earlier, there has been no further updating material filed by the father in these proceedings. 

21. The position of the Independent Children’s Lawyer is that she supports and is prepared to consent to the orders sought by the mother in the proceedings. 

22. These proceedings are proceedings seeking parenting orders in relation to the child. Subject to section 61DA of the Family Law Act 1975 (Cth) (“the Act”) which obliges the Court to have regard to the presumption of equal shared parental responsibility and the considerations which then follow, I may make such parenting order as I think proper: s 65DAB of the Act.

23. I must have regard to the objects of Part VII of the Act and the principles which underpin those objects: s 60B of the Act. The paramount consideration when making parenting orders is the child’s best interest: s 60CA and s 65AA of the Act. When making a parenting order, the Court is bound to apply a presumption that it is in the child’s best interests that her parents have equal shared parental responsibility for her (“the presumption”): s 61DA of the Act. The presumption is rendered inapplicable by the matters prescribed in section 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for her parents to have equal shared parental responsibility for her: s 61DA(4) of the Act.

24. Section 61DA(2) of the Act provides that if the Court is satisfied that there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or another child or family violence, the presumption does not apply. I am satisfied in the circumstances of this case, which involve the father’s attempts to kill the mother by strangulation, that there are reasonable grounds to believe that the father has engaged in family violence. Consequently, the presumption that it is in the child’s best interests that her parents have equal shared parental responsibility for her does not apply and the power to make parenting orders pursuant to section 65D of the Act is at large, albeit subject always to the child’s best interests being the paramount consideration: s 60CA and s 65AA and the decision of the Full Court in Cox & Pedrana (2003) FamCAFC 48 19.

25. In February 2011 the child and her mother relocated to the D Town area.  After that time the child and her father communicated via telephone on a twice-weekly basis.  This telephone communication ceased in August 2011. 

26. The Act does not define the term “meaningful relationship”, nor does it prescribe the criteria which the Court should use or to which the Court should have regard in assessing a parent’s involvement in a child’s life. 

27. I accept the submission made by Counsel for the Independent Children’s Lawyer that, on the evidence before the Court, there is no existing, meaningful relationship between the child and her father. 

28. In McCall & Clark, the Court concluded that in order to interpret the phrase “benefit to a child of a meaningful relationship” a prospective approach should be taken, that is, the Court should balance the evidence adduced at trial to determine how orders should be framed to secure a meaningful relationship with both of that child’s parents. 

29. Given the father’s actions toward the mother and the matters which have also been disclosed by the child to her counsellor which led to her being interviewed by the Police, it is difficult at this stage to identify any benefit to the child which would flow from the opportunity to spend and interact with her father.  Whatever benefit may theoretically exist is, I consider, far outweighed by the need to protect her from the potential physical and emotional instability and negative impact on her functioning which may occur should there be an order for her to spend any time or communicate with the father at this point in time. 

30. It is clear that, whilst the Court must have regard as a primary consideration to the benefit to the child of having a meaningful relationship with both of her parents, the need to protect her from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, must be given greater weight. 

31. The child was present at the time her father attacked her mother in their home in the early hours of June 2009.  Following this attack she was taken to the Police station and placed into foster care for a period of time until her mother was released from hospital.  The child saw her mother in the aftermath of her father’s assault upon her.  She saw her mother at a time when her mother was very weak and her face was black and swollen. 

32. As noted above, the child has not seen her father since this incident on 19 June 2009.  It is apparent, from the reports exhibited to the mother’s affidavit, that, at least as at July 2009 the father’s delusional beliefs, which have been described as a complex delusional system, involved implicating the mother and multiple individuals in various plots to kill him, intimidate him, and blackmail him into silence. 

33. There were, according to these delusional beliefs, extraordinary conspiracies and frauds.  As at July 2009 the forensic psychiatrist engaged to assess the father stated that he was “mainly worried” that the risk posed by the father was in fact, higher than he had assessed.  That practitioner considered that the father was actually profoundly affected, and not just with delusions; that his illness had likely remained under-diagnosed, probably for many years, possibly in the order of 10 years.  He considered that, during the presentation by the father of his history, it was more in keeping with a “frightening delusional world”. 

34. The medical practitioner described it as a list of horrific actions the father asserted were performed by individuals, including the mother, who, from the father’s perspective and belief, systematically targeted him.  The psychiatrist to whom the father spoke at that time recorded the father saying that he was in constant fear of the mother; that he had a perception that she was systematically blackmailing him into staying with her under threat of revealing “the truth”, which, when explained to the psychiatrist by the father was reported by that practitioner as being “oddly inconsequential” and as not making any sense. 

35. At that time, the psychiatrist to whom the father spoke recorded that the father saw conspirators in unlikely places and that any person with a meaningful relationship to him, with the exception, at that time, of his daughter, was implicated or suspected by him. 

36. The psychiatrist upon whom the father attended then said:

    These almost bizarre thoughts and attitude to the alleged victim, his wife, deepens my concerns regarding risk. 

37. The medical practitioner noted that it was incredible and frightening for the father to live in this delusional world where his wife and people he initially befriended take on what was described as a “non human aspect of complete badness”.  The medical practitioner also recorded, at that time, that the father told him that he had a moral dilemma, and that he could not truly say anything positive about the mother, which made it difficult to reply in writing to a letter she had written.  The medical practitioner considered that it was a reasonable inference from this communication by the father to conclude that he was finding it hard to say sorry for his significant and severe assault upon her. 

38. The medical practitioner upon whom the father attended at that time said that, without treatment, the father’s delusional system presented a compelling argument for concern regarding possible future violence.  He said that he would prefer the condition to have improved before risking any interaction between the father and the mother, noting that the father’s suspicions and fears were not limited at that time to the mother, and that, given the nature of the presentation, the father would continue to incorporate new people into his delusional system and would regard at least some of them as imminent threats to his life. 

39. The father was also seen by Prof E, a consultant psychiatrist, on 16 March 2010.  At this time he was living with his parents in Western Australia as a consequence of his bail condition.  Professor E considered that the father seemed to have some well-formed ideas which appeared to be delusional.  These included a continuing fear of being threatened, despite having no basis for this, and the fear being maintained beyond reason; that, whilst he did mention his sadness about not seeing the child and the breakdown of his marriage to the mother, he at no time suggested remorse about having tried to strangle her, saying that he did not feel it was his fault as he did not know what he was doing. 

40. Professor E considered that the father “certainly showed no remorse for what he had done to his wife”, and that his insight was poor.  Professor E expressed the opinion that he had no doubt that the father had a serious delusional disorder of a very fixed type and of a very paranoid nature which, as far as he could tell, had been present for 10 to 12 years.  Professor E considered the father to be rather bland with a limited capacity to engage. 

41. Professor E said that the father was absolutely clear that in his own mind, he did not feel responsible for what he had done to the mother, and that, in fact, he gave to Professor E no impression even as being sorry for her. 

42. The only degree of warmth noted by Professor E appeared when the father spoke about his daughter – this was considered, by the Professor, to be genuine.  Professor E hypothesised that the father’s state of terror, fearing attack from the outside and then, from his perspective being “attacked” by the mother, may have raised the intensity of the delusional fear to such a point that he lost control and was not, for a short period, aware of what he was doing.  Professor E also said that, whilst he had not undertaken a formal risk assessment, he would take the view that the father may well be of significant risk in the future. 

43. Professor E interviewed the father again on 14 July 2010 in order to undertake a risk assessment.  After expressing some scepticism about the manner in which the father presented to him, the Professor reiterated, as in his previous report, that he was somewhat concerned about the father’s prognosis, especially without medication, and felt that there was a moderate risk of a repetition of the delusional illness if he was un-medicated.  Professor E also noted that there was a risk of delusional beliefs - if this was not recognised fairly early there, was a risk that such belief and behaviour would, again, become out of control. 

1. Professor E considered that the father could return to the Australian Capital Territory provided he remained under the supervision of a psychiatric service, and continued to take medication.  He also noted that, if the father continued in the relationship he had described with a current partner, she should be informed regarding his risk of developing delusions so that she was made aware of the need to require assistance.  There is nothing in the evidence before me to suggest that this has, in fact, occurred. 

2. The father was interviewed by Dr F, a consultant psychiatrist on 18 August 2010.  Having referred to notes made by the father’s treating psychiatrist, a Dr G, which Dr F considered to be well constructed and reasoned, and which noted that the father implicated the mother and other individuals in various plots to kill him, intimidate him and blackmail him into silence, Dr F considered that the father still presented significant risk issues to others. 

3. The father was interviewed by Dr H, a forensic psychiatrist, for the purpose of assisting the adjudicator in determining issues pertaining to his defence of mental impairment.  This interview took place on 24 August 2010. Dr H’s report, dated 5 October 2010, records the father telling him that there were some difficulties with interpersonal aggression towards his wife. 

4. Dr H’s report also reviews previous medical records and refers to notes of 12 August 2009, which record that, at that time, the father spent 20 minutes expressing persecutory beliefs regarding the mother, reporting on the “hassle” she had caused him with the current proceedings, including taking out an Apprehended Violence Order.  The notes further record that, whilst the father conveyed his remorse about the offence he had committed, he also made statements alleging that the mother had hurt him or injured him in some way, and implying that, somehow, her actions justified his offence.  On 13 August 2009 he was also recorded as expressing multiple delusional beliefs about the mother, that there was something wrong with her, that she was overbearing and controlling, and that she, perhaps, deserved what he did to her.  Such statements can only be a reflection of the very serious and significant delusional beliefs held by the father. 

5. The father was seen in January 2010 by Dr I, a consultant psychiatrist, who expressed the view that the father was compliant with the medication, and recorded that the father’s delusional disorder was being treated with anti-psychotic medication received by the father consequent upon him being a voluntary patient. 

6. At this time, Dr I considered there was no indication that the father was a risk to his former wife or anybody else in his immediate environment.  Dr I recorded that, whilst the father did not openly discuss any delusional material, he thought that the father did not have full insight into the nature or events which led to him being charged with the very serious offence referred to above. 

7. As at 5 January 2011, Dr I wrote to the Duty Officer of the ACT Forensic Mental Health Service informing that the father would be returning to live in Canberra. He noted that the father had been compliant with treatment in Western Australia but he remained guarded and had very limited insight into the nature of his illness. Dr I recorded the father as expressing no overt or ongoing delusions relating to paranoid conspiracies or harming the mother.

8. The evidence establishes that the father is the subject of an Involuntary psychiatric Treatment Order.  The material also supports the conclusion that he believes he does not have a mental illness and does not require treatment and that such views increase the likelihood of his non-compliance with medications and subsequently the risk of harm to others that he poses. 

9. Correspondence dated 23 June 2011, authored by Dr J, a consultant forensic psychiatrist, records and confirms that the father has a psychiatric diagnosis of a delusional disorder.  At that time, the father was reviewed every six (6) weeks by a psychiatrist and by a clinical manager, who was a psychologist, every two (2) to three (3) weeks.

10. Dr J’s correspondence records that the father had been somewhat reluctant to engage in psychological intervention to assist his development of insight into his illness.  This is because he is adamant that he does not have a mental illness and does not require treatment.  The doctor considers that, given the father’s lack of insight into his illness, the service would be concerned, if he were not on a psychiatric Treatment Order, that he would be non-compliant with his medication, his mental illness would worsen and he would be at an increased risk of harm to others. 

11. The mother deposes that the child remains confused and unsettled about the events of 19 June 2009 and her father’s very significant mental illness.  This of course is perfectly understandable.  I accept the mother’s evidence that the child has a constant fear that her father will find them and kill both of them.  In addition to these concerns and understandable fears expressed by the child to her mother and others, the child has been interviewed by Police in relation to disclosures made by her during counselling which suggested the possibility that she had been the victim of sexual abuse or inappropriate behaviour by her father.  She was questioned by Police in 2010 after a report from her counsellor indicated that she had given some indication that her father may have sexually abused her or was grooming her for future abuse.

12. However, the child refused to talk to the Police about her father and the investigation ended.  The mother has expressed the view that she does not think that the father sexually abused her.  She holds concerns, completely understandably given her experience of his behaviours in June 2009, about the father’s inappropriate behaviour and considers that she needs to act protectively in the child’s best interests.  There can be, I consider, absolutely no doubt about the necessity for this in these circumstances.  The circumstances clearly establish the need to protect the child from any interaction with her father at this point in time.

13. The evidence clearly establishes a need to protect the child from both the potential of severe and significant physical harm should she be, in the future, incorporated into the father’s delusional beliefs, and the impact, via her mother’s understandable anxiety, of any indirect harm as a consequence of her mother being asked to deal with the concept that the person who attempted to kill her was to have time and spend time with their child.  I accept the mother’s evidence that the child has indicated to her a very strong desire not to have any contact with her father and that she is very fearful of him.

14. I also accept her evidence that, when she has previously asked the child about speaking with her father on the telephone, the child has refused to do so and has told her that she does not wish to see him or speak with him. 

15. The child attended upon a clinical psychologist who has provided correspondence dated 4 December 2012.  Such correspondence reveals that the child’s behaviour is affected whenever there is a Court issue approaching.  The psychologist states that the mother becomes anxious whenever there is a Court issue and the child becomes very concerned about her.

16. Again, the mother’s anxiety and the child’s reaction to it are perfectly understandable and based in fact, given the significant and severe attack by the father upon her mother in June 2009.  The clinical psychologist upon whom the child has attended also records that the child has expressed to her a desire not to see her father or to have any contact with him. 

17. It is clear that since her birth, the mother has been her primary care provider and primary attachment figure.  I accept and find that the child and her mother have a strong and close relationship.

18. It is also clear, I consider, that, after the telephone communication between the child and her father ceased in August 2011, it is more likely than not that, whatever remnants of the relationship between the child and the father which existed at that time has continued to deteriorate and has reached the point where, as I have already stated, I consider that there is, at present, no meaningful relationship between the child and her father. 

19. I accept the evidence of the clinical psychologist upon whom the child has attended that she does not appear to be psychologically bonded to her father. 

20. It is also clear, I consider, that the mother has undertaken all that has been required of her in the aftermath of the very serious assault perpetrated on her by the father.  The mother has continued, no doubt with great effort on her part, to support the child and to provide to her the necessary emotional and physical support in order to deal with the significant impacts of the events that occurred in June 2009.  It is telling also, I consider, to note that the father, himself, when speaking with Professor E on 16 March 2010, acknowledged that, during the relationship between himself and the mother, he did very little in the way of child care, because he was at home so little of the time. 

21. It is clear that the mother has carried out and fulfilled her obligation to maintain the child.  The mother has done this despite being in receipt of a disability support pension following upon the post-traumatic stress she has suffered as a consequence of the father’s assault upon her in June 2009. Whilst the father pays child support in accordance with an assessment rendered by the child Support Agency, the mother bears the totality of her maintenance over and above such amounts. 

22. The mother does not propose any change to the child’s long-standing care arrangements.  As noted above, the child has not had any communication with her father since August 2011, and has not seen him since June 2009 when he perpetrated the significant assault upon her mother.  I accept the mother’s evidence that she doubts that the child is capable of coping with any level of contact with her father. 

23. I also accept her understanding that the child’s counsellor believes that such contact could be damaging to the child emotionally.  I am persuaded on the evidence before me that it is more likely than not that, if the child was required to spend face-to-face time with her father, it would be damaging for her emotionally.  I am also persuaded on the evidence that it is more likely than not that, if the child were required to have any communication with her father – for example, by telephone or other means – it, too, would be damaging to her emotionally.

24. In addition, I accept and find that the mother is afraid that, if the child were to have ongoing contact with the father, he may, at some stage in the future include her in delusions, as he had previously with the mother, thereby placing her at a significant risk of harm. 

25. Following the perusal of the various medical reports to which I have already made reference, I consider that the mother’s conclusion and fear about the potential risk to the child of being incorporated into the father’s delusional beliefs has a sound basis.  It is certainly not a conclusion unsupported by expert medical opinion.

26. I accept the mother’s evidence that, if the child was required to communicate with, or spend time with, her father, there is a risk that she could regress in her behaviour and be emotionally damaged.  I also accept that, in the time since the child and her mother have lived in Queensland, the child has settled and improved, in that she has developed and maintained good relationships with peers at school, and within her neighbourhood, and she takes part in classroom and chosen extracurricular activities. 

27. I find that, should the child be required to spend time with, or communicate with, her father, there is an unacceptable risk to her functioning and ability to continue to settle and improve in the manner described by her mother. 

28. Given the evidence of the child’s clinical psychologist, and her mother, as outlined above, about her lack of connection and/or psychological bond with her father, I consider that any order which required her to have any time, or communicate with him, is more likely than not to increase the episodes of anxiety, appetite disturbance, panic, and sleep disturbance she already experiences when matters associated with the Court proceedings occur.  I refer to the clinical psychologist’s correspondence dated 4 December 2012.

29. I accept the submissions made by the mother this morning to the Court that she does not want “to go back” to the situation which existed in June 2009, and that she seeks the orders so as to ensure that the child is afforded every opportunity to continue to develop and maximise her potential in a safe and secure environment. 

30. The father remains living in Canberra.  The child and her mother live in the D Town area.  The mother deposes that she would be unable to afford the cost of ongoing travel between the D Town and Canberra because she remains on a Disability Support Pension as a consequence of the father’s serious assault on her in June 2009.  I accept the mother’s evidence that she is unable, because of the significant fear and stress associated with it, to return to Canberra for any length of time due to the level of distress that travelling to that place may cause to her and, indirectly, the child as a consequence of the child’s awareness of the events of June 2009.

31. Whilst it may have been, had I been otherwise persuaded that it was in the child’s best interests that she have time and communicate with her father, that mechanisms could be put in place to overcome any practical difficulty or expense which might otherwise have affected the child’s right to maintain personal relations and direct contact with her father, it is, I consider, and would be clear from the reasons given thus far, that I have determined that the risk to the child is so significant that no such time should be afforded in any event.

32. After the serious assault perpetrated on her in June 2009, the mother has ensured that the child has received the opportunity to participate in and obtain support from a number of counselling services.  That she could do this in the aftermath of her own significant assault and during the time she has suffered post-traumatic stress disorder as a consequence of that assault is a clear demonstration of her significant capacity to provide for the child’s needs including her emotional and intellectual needs.

33. As noted, I have accepted the evidence of the clinical psychologist that the child does not appear to be psychologically bonded to her father.  Given this finding I consider it more likely than not that any parent in such circumstances as exist in this case would need to possess significant empathy and the ability to perceive and interact with the child in a way that acknowledges this.  I consider that the reports of the various psychiatrists upon whom the father has attended following the significant assault in June 2009 consistently record him as lacking empathy and as lacking the ability to appreciate the impact of his behaviours upon others.

34. Such evidence provides further support for my conclusion that the father lacks the capacity to interact with the child in a manner that would see her obtain any benefit from any form of relationship with him. 

35. It is, I consider, clearly established that the mother has demonstrated, through her care and attention to and for the child and her actions in ensuring that the child has been supported in the very difficult time that has followed since June 2009, a significant and appropriate attitude towards the child and the responsibilities of parenthood.  It is also clear, I consider, that the father has, by virtue of his ongoing delusional disorder, been incapable of demonstrating the same. 

36. Whilst the father has paid child support in the manner and amount assessed he has not provided any other support.  Again, I refer to his admission to Professor E as to his lack of attention to and support for the child in the time prior to June 2009.  Clearly, since that time, the mother has been the party who has discharged and borne all of the responsibilities of parenthood and who will, in the future, continue to discharge all of the same.  The evidence clearly establishes, I consider, that the mother has done so, despite the very difficult circumstances in which she has been required to discharge such obligations, in a manner which has allowed the child to flourish and to develop to the fullest extent.  I refer here to the various school reports attached to the mother’s affidavit material. 

37. As noted, there has been significant family violence perpetrated on the mother by the father.  On 6 August 2009, a temporary domestic violence order was made in the mother’s favour.  On 15 January 2010, a final Protection Order, on which the child was named, was made in the mother’s favour.  On 8 December 2011, a Protection Order was made in the D Town Magistrates Court.  This order expires on 12 November 2013 and encompasses both the child and her mother.

38. I accept the mother’s evidence that, due to her fear of the father (which is completely understandable) as a result of his behaviour toward her, she would not be able to cope with any contact with him. 

39. It is clear, I consider, that the parties do not have the capacity, nor, in my view, should the mother be required, following what happened in June 2009, to jointly make decisions in relation to the child.  I also accept the mother’s evidence that the father’s mental health issues and his potential to incorporate delusions into any decisions that need to be made, may mean that it is more likely than not that he is incapable of making appropriate decisions for the child.

40. Having regard to the matters outlined above, I am well satisfied that it is in the child’s best interests that there is an order for sole parental responsibility and that her mother have sole parental responsibility for her. 

41. I consider that the risk to the child of any interaction with her father is such that it significantly outweighs whatever theoretical benefits may theoretically flow from her being afforded an opportunity to develop a meaningful relationship with him.  I consider, given the mother’s understandable fear of the father that, any orders for any interaction between the child and her father would, more likely than not, cause the mother significant anxiety. 

42. Given the evidence of the child’s clinical psychologist - that when the mother is anxious and concerned about Court events the child becomes worried about her - I consider it more likely than not that, should there be any orders for any time between the child and her father, the child will become anxious about her mother’s fear and anxiety about the same.  Such impact upon her could not, in any way, be seen as something beneficial to her development.  She is developing well in her mother’s care and I consider that no order should be made which has the potential to derail or undermine any such development.

43. An order for any communication between the child and her father, at this time, is such an order.  An order which would have, as its consequence, the necessity for the mother to correspond with the father to obtain his consent for the issuing of a passport or for the child to leave Australia for the purpose of a holiday is such an order. 

44. For the reasons outlined above I am well satisfied that the orders sought by the mother are those which are in the child’s best interests and I order accordingly. 

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 16 August 2013.

Associate:     

Date:              16 August 2013