Pearce and O'Toole and Anor
[2007] FamCA 1491
•18 December 2007
FAMILY COURT OF AUSTRALIA
| PEARCE & O’TOOLE AND ANOR | [2007] FamCA 1491 |
| FAMILY LAW – CHILDREN – Equal shared parental responsibility – With whom a child lives – With whom a child spends time with – Unacceptable risk – Child’s views |
Family Law Act 1975 (Cth)
Collins and Collins (1985) FLC 91-603
G and C [2006] FamCA 994
McCoy v Wessex [2007] FamCA 489
Napier and Hepburn (2006) FLC 93-303
Potter v Potter (2007) FLC 93-326
| APPLICANT: | Mr Pearce |
| RESPONDENT: | Ms O’Toole |
| INTERVENOR: | Ms Cousen |
| INDEPENDENT CHILDREN’S LAWYER: | Patrick Fitzgerald |
| FILE NUMBER: | HBF | 1558 | of | 2002 |
| DATE DELIVERED: | 18 December 2007 |
| PLACE DELIVERED: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 3,4,5,6,11 July and 13,14, 15 & 16 November 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Marcus Turnbull |
| SOLICITOR FOR THE APPLICANT: | Ogilve Jennings |
| COUNSEL FOR THE RESPONDENT: | Respondent in person |
| COUNSEL FOR THE INTERVENOR | Intervenor in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Patrick Fitzgerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
ORDERS
All previous parenting Orders in relation to …, born … July 1994 (“the child”) are discharged.
BY CONSENT Mr Pearce (“the father”) and Ms O’Toole (“the mother”) have equal shared parental responsibility in relation to the child, which shall include the question of any proposed change of high school which the child wishes to attend.
In the event that there is any conflict about any major parental responsibility decision regarding the child, the father and mother must, except in the case of urgency, endeavour to mediate or talk through such issue/s at a Family Relationship Centre or similar, prior to commencing proceedings in a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
The child live with the mother.
The child spend time with the father on the following dates in each year, 24 December, the child’s birthday, Easter Saturday, and Father’s Day subject to:
(a)such meetings to be for one half hour starting at 4.00 pm on such days;
(b)such meetings being used by the father to provide letters, cards and gifts to the child and to enquire about her well-being;
(c)such meetings to be arranged through Dr W or such other psychologist or counsellor as reasonably nominated by the father and at the father’s expense, with the organiser to arrange direct with the child the location and time;
(d)In the event that the time or the day does not suit the needs of Dr W or the other psychologist or counsellor then such other time in the week before each of those dates as is nominated in writing by the father to the mother, at least six weeks in advance of the meeting;
(e)such other times as requested by the child; and
(f)Such requirement for the father to spend time and communicate with the child to cease after the child attains the age of 15 years, if that is the view of the child.
The father may communicate with the child by forwarding to her letters, cards and gifts care of Y High School, …, or via PO Box ….
The mother must provide to the father a copy of any video, DVD or recording, at the mother’s expense, made at any performance of the child’s in terms of her choir and/or singing performances, within two months of the date of any such performance.
BY CONSENT the intervenor, Ms Cousen (“the aunt”) shall:
(a)be entitled to communicate with the child by forwarding letters, cards, photographs and gifts to the child care of Y High School, …, or PO Box …; and
(b)be entitled to attend performances of the child in choir and other public and/or school performances or open day activities such as sport and swimming carnivals.
The parties must use their best endeavours to ensure that any letters, cards and gifts from the other party/s are given to the child unopened and unread.
The mother must inform both the father and the aunt in writing or SMS, within seven (7) days of any change of address and provide the new address to which those letters, cards and gifts may be sent.
The mother and father are restrained from changing the high school to which the child attends without the written consent of the other parent or further order of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
The parties must not abuse, demean or belittle the other parties in the presence of or hearing of the child.
In the event that the child suffers any significant and/or serious illness or injury the mother must inform the father of such illness or injury, in writing, as soon as possible or at least within twenty four (24) hours of such illness or injury and the mother must inform the father of the treatment and prognosis in relation to any such illness or injury and of the name of all treating medical professionals in that respect.
The parties must not take the child to further counselling or guidance at any domestic violence support group without;
(i)the written consent of both parents, or
(ii)the written recommendation of the child’s general practitioner after such doctor has certified that he has read the reasons upon which these Orders are based, and a consequential Order that a copy of theses Orders and the reasons are provided to the child’s general practitioner, or
(iii)order of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
The mother must inform the father of any appointment for the child to see any medical specialist, psychologist, psychiatrist, sexual abuse health worker, counsellor or similar, and such notice must be provided in writing at least fourteen days (14) before any such appointment is scheduled to occur.
The parties are restrained from directly or indirectly providing to the child a copy of the reasons upon which these orders are based.
If between the date of these orders and the time the child attains the age of eighteen (18) years, a therapist is treating the child in accordance with these Orders, leave is granted for such therapist to be provided with and a copy of this Order and the reasons upon which it is based.
Pursuant to ss 65DA(2) and 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.
The appointment of the Independent Children’s Lawyer extend for six (6) weeks after the date of these orders.
The Independent Children’s Lawyer must, within six (6) weeks from the date of these orders:
(a)personally inform the child of the nature of these orders. In that respect the mother must ensure that the child is brought to an appointment at a time and place reasonably nominated by the Independent Children’s Lawyer;
(b)following having personally informed the child of these orders, provide the child with a copy of these orders and inform her that she is entitled to obtain a copy of the reasons for judgment delivered with these orders when she attains the age of eighteen (18) years;
(c)provide a copy of these orders to the principal of Y High School within three weeks (3) from the date of these orders; and
(d)forward to the Director General, Department of Child and Family Services (Child Protection Unit) a copy of:
(iv)these orders;
(v)the reasons upon which these orders are based;
(vi)the affidavit of Ms S filed 18 May 2007;
(vii)the affidavit of A filed 24 May 2007;
(viii)the affidavit of A filed 26 June 2007;
(ix)the reports of Mr P filed 28 April 2004, 8 December 2004 and 16 February 2006;
(x)the report of Dr R filed 1 March 2005; and
(xi)the report of Dr N filed 14 November 2006.
This Court requests that the Department of Child and Family Services monitor and supervise the care of the child at such levels as the Department considers appropriate having regard to the material at its disposal including the material provided by this Court.
Leave is granted for a copy of the reasons for judgment to be provided to the child at any time on or after … July 2012, being the date she attains eighteen (18) years of age.
The legal files of the Independent Children’s Lawyer in respect of acting for the child in these proceedings:
(i)must be retained by that lawyer, the Legal Aid Commission of Tasmania or by the practice at which that lawyer practiced as at the date of these orders (“the practice”) for a period of seven (7) years from the date of these orders, or such longer period as is otherwise determined by that lawyer and/or the Legal Aid Commission of Tasmania and/or the managing partner of the practice, having regard to any general obligations of legal practitioners in respect retaining files for child clients.
(ii)subject to the following sub-order (c), the Independent Children’s Lawyer, the Legal Aid Commission of Tasmania and/or the managing partner of the practice must not release the file or any part of it to any person, corporation, government department or authority, Court or other organisation without the leave of Benjamin J, or in the event that he is unavailable, the leave of either a judge of the Family Court of Australia or a Federal Magistrate exercising jurisdiction under the Family Law Act 1975 (Cth).
(iii)In the event that the child seeks access to the Independent Children’s Lawyer’s file after she attains the age of 18 years, she shall be entitled to:
A inspect that part of the file as would be generally available to a client in a practitioner/client relationship at the time of request for inspection;
B obtain a copy of that part of the file as would be generally available to a client in a practitioner/client relationship at the time of request for inspection;
C subject to the then adult child meeting the reasonable costs of the retrieval of the file, engage a lawyer to inspect the file to determine what part should be made available to her and also to copy the file; and
D nothing in this order shall impose any obligation upon the Independent Children’s Lawyer, the Legal Aid Commission of Tasmania or the practice to retain a file or files beyond the seven years to enable the inspection and/or copying of such file/s.
IT IS FURTHER DIRECTED
The address provided by witness Mr B be placed in an envelope and remain on the Court file and the envelope not be opened without leave of a Family Court Judicial Officer or Federal Magistrate exercising jurisdiction under the Family Law Act 1975 (Cth).
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 be returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to rule 19.50 of the Family Law Rules2004 (Cth) it was reasonable to engage counsel to attend in these proceedings.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Benjamin delivered this day will for all publication and reporting purposes be referred to as Pearce & O’Toole and Anor.
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBF 1558 of 2002
| Mr Pearce |
Applicant
and
| Ms O’Toole |
Respondent
and
Ms Cousen
Intervenor
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings between the father, the mother and the aunt. The proceedings relate to the parenting of the child born in July 1994 (“the child”).
The applicant father seeks orders that the child live with him or in the alternative he sets out a number of cascading alternative proposals including the possibility that the time he spends with the child is supervised. In terms of parental responsibility, the father, the mother parties and the Independent Children’s Lawyer have asked the Court to make consent orders for equal shared parental responsibility. Having regard to the relationship between the parties and the relationship between the child and the father, I have concerns as to whether such an Order is viable. However, if the parties are able to manage shared responsibility it would, in this case, be in the best interests of the child. As such I will make that consent order.
The mother’s proposal is that the child live with her and that she have sole parental responsibility. The mother submits that the child ought to spend time with the father on a supervised basis but concedes that the child has been given that opportunity in recent times and that has not been successful.
The aunt is the child’s paternal aunt (the father’s sister) and she seeks communication with the child by telephone and time with the child every four or five weeks for a few hours, and orders confirming her entitlement to send to the child letters, cards and gifts.
In final submissions the Independent Children’s Lawyer sought the following orders:
(a)the child should continue to reside with the mother.
(b)the father should spend some time with the child on special occasions, on Christmas Day, the child’s birthday and Easter and in doing so leaves a “light shining on the porch” should the child choose to re-establish a relationship with the father.
BACKGROUND
The father is aged 49 years and is a tradesman by occupation. He presently lives in southern Tasmania but his evidence is that if the child lives with him he will make immediate arrangements to live in an area close to her present school.
The mother is aged 45 years and enjoys good physical health. She has been previously married and there is a child of that relationship, R, who is now aged 23 years.
The child is the only child of the relationship between the parties. She is aged 13 years. The child attends Y High School and has just completed Year 7.
The aunt is aged 46. The aunt is the sister of the father. She is married and has two children, C aged 11 and E aged almost 4. She is employed in the hospitality industry and lives with her husband.
The child’s paternal grandparents have both passed away and the father and aunt are two of three children of the said paternal grandparents. It is asserted by the aunt that the paternal grandparents had a good relationship with the child prior to their deaths. The child’s paternal grandmother died in 2000 and her paternal grandfather died in September 2002.
The mother and father commenced cohabitation in about 1989 and they separated in 2002. The mother asserts separation occurred in July 2002 and the father asserts that separation occurred in September 2002. The issue of separation is of consequence in terms of the question of credit of either party. The father deposes that separation occurred in September 2002 being the day that his father died. He says that after returning home from dealing with his father’s death, the police were called and he was removed from the home. He says he had no notice of the separation nor did he understand the reasons for the separation. His evidence is supported by the evidence of Mr G.
The mother has been the primary carer of the child at least since separation. There is an issue as to the extent of the father’s care with regard to the child prior to separation. The child has not seen the father since separation, except from time to time under supervised conditions. The child has expressed strong views that she does not wish to see or communicate with the father and has no interest in her paternal aunt or her family.
There is an issue with regard to the father’s use of alcohol. In that regard the father has three convictions related to drink driving. The first of those convictions was in 1988 (shortly before the father and mother commenced cohabitation) when the father had a blood alcohol reading of .122. In re-examination the father said that this reading was taken after he was involved in a car accident which he said did not arise from his use of alcohol. He said that the high reading was from his use of alcohol the night before. The second conviction was in May 1995 when he had a blood alcohol reading of .245 (this was about one year after the child was born). The third conviction was in September 2001 when he had a blood alcohol reading of .229.
The proceedings relating to the child’s care were commenced in November 2002 by the father. The matter was the subject of an interim hearing in December 2002 and contested orders were made at that time that the child reside with the mother and have supervised contact with the father including some time on Christmas Day.
The father filed contravention proceedings in February 2003 but these were discontinued. The proceedings have taken a long time to reach hearing as the parties have from time to time put in place consent arrangements to enable the father to spend time with the child. These arrangements have generally failed. A number of experts have provided reports, these are dealt with in these reasons. In September 2004 an application in a case was filed by the aunt. Leave was given to the aunt to intervene on 22 September 2004.
A single expert report of Dr R was provided in March 2005. Further amended documents were filed by the parties in 2005. In February 2006 there was a joint single expert report prepared by Mr P and Ms B. On 7 March 2006 interim consent orders were made to provide for the re-introduction of the father into the child’s life. A further single expert report was ordered in August 2006 and the parties gave consent to the proceedings being dealt with under Division 12A of Part VII of the Family Law Act 1975 (Cth) in October 2006
An expert report was provided by a psychiatrist, Dr N, in November 2006 and interim consent orders were made by Carmody J on 17 January 2007 providing for the child to spend supervised time with the father and other procedural orders.
The proceedings came before me on 28 February 2007 at which time the matter was listed for hearing and an order was made, by consent, that the proceedings are proceedings to which Division 12A of Part VII of the Family Law Act 1975 (Cth) applies and directions were made for the hearing.
The trial was conducted on 3, 4, 5, 6 and 11 July 2007 and 13, 14 and 16 November 2007. During the period between July 2007 and November 2007 orders were made to see whether the child would spend time with the father. Those orders did not lead to any meaningful time being spent between the child and the father.
There have also been proceedings in other courts involving the mother and the father. An interim restraint order was made on 30 September 2002 in the Tasmanian Magistrates Court against the father in favour of the mother. That order was made as a final order on 7 October 2002 on an ex parte basis; the father did not appear at that hearing.
In February 2003 the father applied to the Magistrates Court for a restraint order against the mother and revocation of the mother’s restraint order. On 2 May 2003 after an undefended hearing an order was made against the mother protecting the father. The ex-parte interim restrain Order made in February 2003 to protect the mother was discharged.
The father was convicted in December 2003 for breach of the restraint order made against him for the protection of the mother. The mother was also convicted for breach of a restraint.
The mother complained that the father assaulted her on 23 July 2003. The father was charged by the police and after a defended hearing in the Magistrates Court the charge was dismissed on 6 July 2004.
The father’s evidence is that he has not been violent and/or abusive to the mother and allegations by her and by R are untrue. He says he has never assaulted or grabbed either the mother, the child or R.
A request was made to the Tasmanian Magistrates Court for the production of criminal files. Part of that file involved a report from Ms L, a psychologist. She worked with the Community Forensic Mental Health Services and the report was dated 20 July 2004. Leave had been given by a Registrar of this Court on 1 December 2004 that such report to be made available to the parties some of the experts.
On 4 July 2007 Mr Turner of Counsel sought leave to appear on behalf of Dr John Crenshaw, the Clinical Director, Department of Mental Health Services of the Department of Human Services, Tasmania to consider objecting to the production of that report. There being no objection, leave was given for him to appear. The argument was then adjourned for determination on 6 July 2007.
A letter was tendered by counsel for the Independent Children’s Lawyer dated 5 July 2007 from Mr Turner, Assistant Director Public Prosecutions at the Crown Law Office[1] which in part read:
I am writing to advise that Dr Crawshaw has instructed me to the effect that he (and the State of Tasmania) does not wish to be further heard about the status of the report of Ms [L] dated 20 July 2004.
The letter goes on to indicate that they believed there was a reasonable argument that the report ought not to be made available as it attracts a statutory equivalent to the public interest immunity.
[1]Exhibit ICL 1.
There may have been a public interest immunity argument however the report had been released to the experts some years ago and had been incorporated into the expert’s report. In the circumstances of these proceedings I admitted the report of Ms L dated 20 July 2004 into evidence as part of the business records of the Crown Law Office. I note that the report was prepared for the purpose of deliberations on sentence and that there was no evaluation of the context in which it had been prepared.
During the course of the trial, there was an issue as to whether the child ought to be given the opportunity to give evidence. That course was requested by the mother, supported by counsel for the Independent Children’s Lawyer and opposed by the father and the aunt. A determination was made during the course of the trial that the child would be offered the opportunity to express her views directly to the Court. This would be on the basis that the child would be informed that she was not required to, and could only attend if she wished to do so. Further, an order was made restraining the mother from discussing any aspect of the child’s views prior to that time or encouraging any others to do so.
The arrangements were that the child would speak to the Court in open court but the only people present would be Dr W, counsel for the Independent Children’s Lawyer and the Judge. The interview was recorded on transcript and Dr W was to report back in evidence as to the child’s views.
ISSUES
I will deal first with the discrete issue raised by the Independent Children’s Lawyer concerning the protection of his files relating to this matter. During the course of the hearing the Independent Children’s Lawyer sought orders to protect the files of that lawyer in relation to the child. Counsel for the Independent Children’s Lawyer submits that as the Independent Children’s Lawyer is not acting for the child but rather acting in the child’s interest pursuant to s 68L, there may not be legal professional privilege to protect the child and as such the Independent Children’s Lawyer may be obliged to produce documents under subpoena from another court and/or in the context of enquiries made by the discipline arms of professional associations or the like.
I note that an Independent Children’s Lawyer may be required to produce documents that were not otherwise subject to legal professional privilege.
The only purpose of the order the Independent Children’s Lawyer seeks, could be to protect the child or the interests of the child. The legislation and the common law have long recognised that parties to proceedings are entitled to the protection of legal professional privilege. Whilst in the circumstances of an appointment under Division 10 of Part VII of Act, the lawyer represents the interests of the child – almost akin to counsel assisting a Royal Commission – those interests of the child should not be prejudiced as a result of lack of a client in the traditional sense where legal professional privilege would otherwise apply.
I believe I have power to make orders such as that sought by the Independent Children’s Lawyer both statutorily and by virtue of the inherent jurisdiction of a court over lawyers, those lawyers being officers of the court (see Collins and Collins (1985) FLC 91-603 at 79,878). The statutory power derives from s 68L(2)(b) which provides:
(2)If it appears the court that the child’s interests in the proceedings ought to be independently represented by a lawyer, the court:
…
(b) may make such other orders as it considers necessary to secure that independent representation of the child’s interests.
That provision must apply to ensuring that the files and records of the Independent Children’s Lawyer, as so far as they would otherwise be protected by legal professional privilege in a traditional sense, are protected for the benefit of the child. At the same time the child ought to be able to inspect such a file, if it exists when the child attains his or her majority, and an order such as proposed by the Independent Children’s Lawyer ought not to be seen as creating immunity for an Independent Children’s Lawyer from suit by the child.
As such I will make orders for the appropriate protection of the Independent Children’s Lawyer’s files and orders relating to the inspection of those files by the child when she attains 18 years of age.
The course of the hearing saw some agreed resolution to certain parenting issues. I propose to make consent orders in line with the agreements.
While I note now that consent orders have been made in relation to equal shared parental responsibility, I will leave discussion of this issue to later in the reasons for judgment as it will benefit from the evidence, findings and analysis of law which are to follow.
It was agreed between the parties and the Independent Children’s Lawyer that irrespective of the outcome of the proceedings there should be a consent order that the aunt can send letters, cards and gifts to the child and that the parents will keep the aunt informed of an address to which those items can be sent and that those items will be given to the child, unopened. I will make that consent order.
There was evidence that the child is attending counselling through a ‘Victims of Domestic Violence’ group. The evidence before me is that this counselling is providing little or no assistance to the child and may in fact be counter productive. Accordingly, I will be making an order restricting the parents from taking the child to such counselling without the consent of both parents, or recommendation of a general practitioner after reading these reasons or order of a Court.
In relation to the remaining parenting issues, there are significant findings which need to be made. The issues are:
(a)Whether the father has engaged in family violence prior to separation and subsequent to separation and whether, by stalking and/or intimidation he continues a pattern of behaviour designed to physically and psychologically dominate the mother and the child. In the event that the Court finds such behaviour, as alleged by the mother, has occurred, a further issue will be whether the father has confronted and dealt with the impact of such behaviour;
(b)Whether the mother suffers from a mental health condition which affects her capacity to provide for the child’s psychological, emotional and physical needs and/or whether, as a consequence of that condition, she has deliberately or with reckless disregard, inculcated, and continues to inculcate the child, with a distorted image of the father without regard to the emotional consequences upon the child of such behaviour; and
(c)The impact of the father’s use of alcohol in terms of his capacity to care for and/or spend time with the child.
EVIDENCE
The father gave evidence in accordance with his affidavits sworn 1 December 2004, 18 October 2005, 24 November 2006 and 5 April 2007. The father spent time with the child at the Hobart Contact Centre earlier in 2007, however, in recent times it is generally agreed that the child, for whatever reason, has expressed a wish not to see the father.
The father admits that during the relationship between the mother and himself, he argued, from time to time, with the mother. He said that at the time they were living together R was rebelling against the system and that he had heated discussions with her. The father denies any physical abuse by him of the mother. He says it simply “did not happen”. He denies any assault of R.
In terms of the separation, the father says that it occurred on the day of his father’s death, being in September 2002. He says he had no prior notice of it and that the mother requested that he leave the home and when he did not do so the police were called and they removed him from the home. He denies the mother’s version that separation occurred on the child’s birthday in July 2002. He says he would not have been drinking on the day of his daughter’s birthday.
The father admits being convicted four times for breach of the restraint order taken out by the mother against him, three of those arising out of telephone calls he made to the mother. In that regard he says that she telephoned him on a number of occasions and these were calls that he returned. He said he was not abusive in those calls but in fact the mother was abusive to him. The other conviction arose out of his attendance to see his daughter singing with the Children’s Choir in December 2003. He says that he did not abuse the mother, and that while he was convicted there was no penalty imposed.
The father denies having made any threats to the mother.
In relation to his use of alcohol the father says that he is a social, moderate drinker, notwithstanding the three drink driving charges. He says his drinking was mainly on weekends and denies that his recollection of any events is clouded by the misuse of alcohol. He says that his use of alcohol has not altered dramatically over the years and he has no problems with drinking. In relation to the report prepared by Dr R dated 1 March 2005, he disputes the opinion of the doctor.
In relation to the 1995 and 2001 drink driving convictions, the father says he takes responsibility but says they arose out of disputes he had with the mother. Those readings are particularly high. In relation to the conviction in 1988 which was a “morning after” reading of .22, I am able to infer that his blood alcohol content the night before would have been significantly higher. Further, the father’s ability to drive and control motor vehicles with readings in excess of .122 gives rise to a reasonable inference that the father consumes significant amounts of alcohol.
On hearing all of the evidence and in particular the medical evidence of Dr R, I find that the father has a significant alcohol problem which he seeks to de-emphasise and of which he has little insight.
The father’s evidence in terms of how he will manage the child if she comes to live with him is somewhat vague. He expresses, and I accept that he has a deep love for the child, but he is not thoughtful in terms of how he can manage with the child if she forms a view that she does not wish to see her father and “votes with her feet” if an order is made that she live with him.
The father says he has contacted the school in respect of the change of circumstances and has spoken to the teachers. In terms of the time the child should spend with the mother, the father sets out in a questionnaire, prepared for the purpose of a Division 12A first day of hearing, that such time would be “as arranged between [the child] and her mother”. He says that the child would need her mother. He lacks some insight into how this could occur with regard to the relationship that exists between the parents and bearing in mind the views of the child and whether she would simply go and live with her mother. In submissions his Counsel put that if the residence was changed the child would need to be separated from the mother for some time.
The father says that the meeting with the child on 26 January 2007 gives him some hope that he can get through to her although he conceded, at that time viz July 2007, he has not seen her since that time.
There is an issue about how the child is managing at school. The father is concerned about a number of matters, in particular those set out in the affidavits of Ms C at paragraph 16 and onwards, Ms Y at paragraph 15 and onwards, and Ms K at paragraphs 11, 12, 13 and 14. This should be seen in context of the reports of Ms T/Ms F from the child’s high school which say that the child is “polite, well groomed and hard working” and that she “relates well to peers and staff”. Ms E, the child’s grade seven supervisor/teacher, says the child “has good group of friends”.
The father gave evidence that the relationship between the child and her aunt was good at the time of separation and that there had been a good bond between the child and the aunt’s son, C. This was not the expressed view of the child.
Mr G gave evidence in accordance with his affidavit of 30 November 2004. He was cross-examined by the mother in relation to seeing the children, being the child and R, at H Road on 4 April 2003. Mr G gave evidence, which I accept, that the father was driving to look for a fishing spot and that Mr G saw R and the child but that the father had not. He said this was an innocuous event.
Mr G denies that the father is a heavy drinker and said that they drank normally towards the end of the week and had five to six cans of beer (being their definition of a couple of beers). Sometimes on rare occasions they drank more. Mr G says that in September 2002 (the night the father alleges separation occurred) he was living in a cottage about two hundred metres from the home of the father and the mother. He says on that night the police interviewed him but he would not have been able to hear a commotion from that distance in any event. He believes that the father had been unjustly dealt with by the mother but that the father was not motivated to punish the mother.
Mr G’s evidence should be seen in the light that he is strongly partisan to the father’s cause, he has given evidence for him in other proceedings and the weight attached to his evidence must be considered to be reduced in that light.
The mother’s great aunt swore an affidavit on 30 November 2004. That affidavit was relied upon by the father. Neither the mother, the aunt nor the Independent Children’s Lawyer sought to cross-examine her. The mother’s great aunt has not spoken with her since Christmas 2002. Her evidence offers little assistance in terms of these proceedings.
The aunt gave evidence in accordance with her questionnaire filed 24 October 2006 and her affidavit filed on the 15 December 2004.
She says that prior to separation she, her husband and their son C had a lot to do with the child and visited the father and mother from time to time and also saw them when the aunt visited her parents. She said this was about once every three to four weeks until her mother was diagnosed with cancer in or about 1998 or 1999, after which the visits became weekly and she saw more of the child.
The child’s paternal grandmother died in August 2000. The child’s paternal grandfather died in September 2002. In October 2001 the mother applied for and obtained an intervention order against the child’s paternal grandfather. In cross-examination the aunt agreed this proceeding caused tension within the family and that she saw less of the child subsequent to that date. She seemed, for some reason, reluctant to admit this circumstance. She says she did not go to the child’s home after the apprehended violence order proceedings against her father.
I accept the aunt’s evidence that she saw the child every three to four weeks until her mother was diagnosed with cancer in or about 1998 or 1999 and thereafter saw the child more regularly in the visits to her mother until she died in August 2000. From August 2000 until October 2001 I accept the aunts evidence that she saw the child once every three or four weeks and then saw her rarely up until September 2002. After September 2002 the evidence of the aunt, which I accept, is that she did not see the child except on very rare occasions.
There was an incident which occurred during the New Year period of 2005 when the aunt was in central Hobart with her seventeen month old child E, her son C, and her husband. Her evidence is that she and E were sitting down and she was feeding E. She saw the mother and the child walking towards her. She smiled as they approached and the child smiled back. The aunt said “hello […], I hope you have a lovely Christmas”. Immediately afterwards she heard the mother say to the child “tell her to leave you alone”.
The aunt’s evidence is that the mother and the child continued to walk past her. Sometime, about five minutes later, she heard someone yelling. She stood up and saw the mother, who was some distance away, agitated and pointing. The aunt did not say anything to her and eventually the mother stormed off. Her then lawyers received a letter from the mother’s lawyers[2].
[2] Exhibit F1
The mother gives a different version of this event as set out in a number of places including at the bottom of page 10 and commencement of page 11 of the mother’s affidavit filed 12 April 2007. The mother asserts that the aunt approached her and yelled at her and that she needed the assistance of policeman to leave the area. She provides statements by the police although the police were not called to give evidence.
Whilst I have some concerns about the aunt’s evidence I have greater concerns about that of the mother. I am satisfied, on balance, that the events were substantially as asserted by the aunt.
The aunt was also asked to comment in relation to paragraph 74 of the mother’s affidavit sworn 8 January 2007 where the mother asserts that after the father was acquitted in the Tasmanian Magistrates Court on or about July 2004 for assault of the mother, the aunt said to her “sucked in bitch”. The aunt denies having made that statement. The aunt says in evidence that she did not use those words, was not close to the mother and would not have abused her bearing in mind the continuing Family Court proceedings. The mother asserts that the aunt used the words. On balance, I prefer the version of the aunt.
The aunt agrees that she is a supporter of the father and that in her view he is not a violent person. The father has lived with her for the last two and a half years and she does not accept that he is a heavy drinker. The aunt’s husband and the father drink together and play golf together. Her evidence is that they would have a couple of beers after the game.
This evidence must be seen in the light of her close relationship with the father (her brother). The aunt has been a significant supporter of the father throughout the course of the proceedings and gave evidence that she has a sense of injustice about these proceedings. She agrees that she has been antagonistic towards the mother but says that she was always very careful in her dealings with the mother. I find that she is a strongly partisan witness and I have some reservations about the quality of her evidence in this regard.
The aunt says she will assist the father if orders are made for the child to live with him. I find that any assistance will be of a limited nature bearing in mind the father’s evidence that he will reside close to Y High School in Hobart and that the aunt resides about one and a half hours driving distance from Hobart. I also note that the aunt has her own family and her own children to care for.
The aunt has a view that the child would manage well if residence was changed. This must be seen in the context that the aunt has not seen the child (accept on some limited occasions) since at least September 2002 and has a narrow insight as to the impact of such a change and may be over-optimistic about the success of any such change. She has little current knowledge of the child in her present circumstances. The aunt believes that her children, C and E (particularly C) will be a conduit to assist the child in the change of residence.
In respect of her application, if orders are made that the child live with the father or spend significant time with the father, she would not press her orders for the child to spend time with her for four hours each four to five weeks. However, if the child’s time with the father is to be a contact centre on a fortnightly basis, the aunt would press her order. If the child spends time with her she would “do the aunt thing”, meaning go to picnics, share meals etc.
Read into evidence was an affidavit of Mr O’Toole filed on the 1 December 2004. Mr O’Toole is the mother’s father and the child’s maternal grandfather. Mr O’Toole has not seen the mother for about four years and there is clearly animosity between the mother and himself.
The grandfather gave evidence in accordance with his affidavit filed 1 December 2004. His evidence is that he was excluded from the mother’s life when she was a little girl. He also says that she was brought up by her maternal grandparents. He denies allegations that he was violent to his wife when the mother was a little girl and he denies that he had a problem with alcohol. It was put to him that he did not take care of the mother when she was a young child suffering from asthma.
The grandfather was not aware that the father was seeking a residence order and believed that he was seeking orders that he see the child on weekends. He was also not aware of any violence or allegations of violence by the father to the mother or to R.
When the mother and father were living together the grandfather says he had a good relationship with his daughter but that it stopped after the relationship came to an end and he does not know why. He says he helped her move but she did not complain to him about alleged violence by the father. He seemed somewhat vague and his evidence about the relative qualities of the characters of the father and mother is not of great assistance. Further, the grandfather’s evidence is not current and whilst it has some impact it is more of historical value.
During the course of the trial the police records of the mother and father were tendered by the father together with a file of the Tasmanian Magistrates Court.
The mother gave evidence in accordance with her affidavits of 12 April 2007, 8 January 2007, her questionnaire filed the 2 November 2006 and her affidavit of 14 October 2005.
The mother was cross-examined in respect of the date of separation. The mother asserts that separation occurred in July 2002. She says that the final date was in fact the following Sunday in July 2002 when the father did not attend the child’s birthday party. The mother says she moved to a property at H and had fully moved into that property by August 2002. She says the relationship was at an end by that time. The mother denies that she is deliberately lying about the date of separation.
In cross-examination the mother was referred to paragraphs 39, 40 and 41 of her affidavit of 8 January 2007 where she said that she and the father were still living under the same roof and described an incident about three and a half weeks after the child’s birthday. I find that her description was indicative that she was living with the husband. When presented with this the mother prevaricated and said that she was living in two homes.
The mother was referred to an annexure of her affidavit being her application for a restraint order sworn 19 September 2002. In that application she described the parties’ home at D as her residence in both the declaration and as her address. In that application she sought orders that the father be restrained from attending that home at D.
I do not accept her evidence in regards to the date of separation and I have general reservations about the quality of her evidence. She is not a reliable witness.
The mother gave evidence that she is engaged to Mr B but they do not live together at this time though they “nearly” live together. The evidence is that the child has a strong relationship with Mr B and wishes to be adopted by him. She calls him “dad”. The mother says that the child was not discouraged from calling Mr B “dad”. This must be seen in the context that the mother gave evidence that she herself sometimes calls Mr B “daddy”.
In the context of all of the evidence in these proceedings I am satisfied that the mother encourages the child to call Mr B “dad” and encourages her to regard him as her father to the exclusion of the father.
The mother was cross-examined about an allegation she made to Ms S[3] about a threat in 2006 that “daddy threatened to cut my throat”.
[3] Paragraph 105 of report of Ms S attached to affidavit sworn 18 May 2007
Ms S in her statement asserts the following:
105.At the beginning of the session, I asked [the mother] how things had been since we last talked. [The mother] stated “daddy threatened to cut my throat, I don’t think he likes me anymore”. I immediately enquired about the circumstances as this was a serious allegation. However, it transpired that the alleged incident had occurred in January. During this conversation [the mother] referred to her current partner as “daddy dear”. I clarified that she was talking about her partner, since this was a phrase [the mother] commonly used to derogate [the father].
After cross-examination it was clear that the mother had complained to police in January 2006 that the father had threatened to “cut her throat”. The police investigated this complaint including interviewing the father. The police determined that there was not sufficient evidence to prosecute such a claim. I am satisfied on balance that no such threat was made by the father to the mother. It is significant to note that it was only a week or two before the meeting with Ms S that the mother was informed that the prosecution would not go ahead. In cross-examination, counsel for the father suggested that the threat may have been made by Mr B, however on the evidence I am satisfied that such threat was not made by Mr B.
Ms S was appointed by a Court order made by consent on 7 March 2006 to try and restore contact between the child and the father. This arrangement was put in place as an alternative to a hearing of these proceedings which was due to commence before Le Poer Trench J in Hobart in March 2006. Ms S observes in her report that:
15.[The mother] stated that the idea to avoid going to trial by using my services was her own idea. I therefore sought to establish [the mother’s] goal(s) and how she would constructively support counselling [the child]. We discussed the content of my email to the solicitors of 1 March describing the service that I was prepared to offer. The service had difficulty focusing on this, preferring to complain about [the father]. This was to become a feature of her sessions with me.
The mother says in evidence that at no time did she want Ms S to undertake this task and that she would have preferred someone else. Her evidence is that her primary reason for accepting this course was because she had no alternative to that other than go to trial.
I find that the appointment of Ms S was supported by the mother and I prefer the evidence of Ms S set out in paragraph 15 of her report to that of the mother. I find that the mother did not want these proceedings to go to trial and that the mother was not bona fide in her endeavours to put in place some system which may have enabled the child to have contact with the father.
I also find that in the past the mother has sought to undermine orders for time between the child and the father. Orders were made in 2003 by Hannon J for supervised contact (these being the orders that the mother sought). These orders did not work. Based on the material before me I find that the mother took active steps to prevent that contact between the child and the father. In 2005 orders were made for supervised contact and I make the same finding that the mother actively discouraged and took steps to ensure that that contact would not occur.
In her report, Ms S observes that the mother was endeavouring to persuade Ms S to assist in her campaign for the child to change from L Primary School to another primary school to assist with enrolment by the child at Y High School. On 6 April 2006 Ms S says that the child expressed the wish to change schools and wanted to know why the father would not agree. Having regard to all of the evidence in these proceedings, I infer that the child’s approach in this regard was encouraged and/or precipitated by the mother. In terms of this both the mother and the child said at different times that if the school was not changed, the child “would need to stay in sixth class forever”.
When the mother did not succeed changing the child’s school with the help of Ms S, the mother actively undermined the involvement of Ms S in terms of the consent orders made in March 2006.
Ms S had developed a good relationship with the child which continued to the times she saw her on 3 April 2006 and 6 April 2006. The mother gives evidence that after a meeting between the child and Ms S on 10 April 2006 (the third meeting), the child came out and suffered a “panic attack”. Her evidence is that the child came “running out, her breathing was erratic, she was hyperventilating. She was fumbling at the car door, her hands were sweating, she was rubbing her hands together and [I] was unable to talk to her. It was very bad, similar to an asthma attack”. She cannot recall how long this episode lasted. The mother said that she did not take the child to the emergency department at the Royal Hobart Hospital nor did she take the child to a doctor until the following day. She says she eventually took the child home and called a friend to offer first aid.
The mother did not contact Ms S to complain or enquire about why this incident had occurred and from the school reports it appears that the child went to school the following day.
What did happen was on 13 April 2006 there was a meeting at L Primary School between the mother, the principal of the school, Mrs RS, the child’s grade teacher Ms PE and Ms S. Ms S observed in her affidavit the following:
71.13 April 2006 9.00am Meeting at [L] Primary School with the Principal (…), [the child’s] grade teacher, and [the mother]. I explained to the school staff why I was involved with [the child] and that the goals of counselling were set by [the mother]. I then invited [the mother] to talk about her gaols.
72.[The mother] immediately became highly aroused and hostile towards me. Her speech was very pressured. [The mother] said that the goal was to find out what [the child] wanted and that it was not her ([the mother’s]) idea to use my services. This view clearly conflicted with the consent orders and [the mother’s] agreed goals.
73.[The mother] stated that it as all a big mess and that I had so upset [the child] at the last counselling appointment, three days earlier, that [the child] had had a panic attack. I stated that this meeting was neither the time nor the place.
74.[The mother] would not desist and went on to assert that [the child] had been quiet when she left counselling and that it had taken “quite a while” for [the mother] to get out of her what was the matter. [The mother] said that [the child] then had a panic attack and [the mother] had taken her to the doctor. She said that she had got [the child] to write down the conversation that [the child] had had with me. [The mother] read out this account and demanded a response from me. I stated that it wasn’t true but that we should discuss it at some other time. [The principal] also said that the present meeting was not appropriate.
75.[The mother] insisted so I suggested that she need not remain at the meeting in view of her present emotional state. [The mother] immediately left.
76.I explained the consent orders to the Principal and apologised for [the mother’s] outburst. [The Principal] advised me that [the mother] had told staff that [the child] was feeling fragile on April 11th (the day after the counselling session and the alleged panic attack) but that staff had not noticed anything untoward.
77.Regarding the alleged bullying, [the Principal] advised me that [the child] continued to interact well with all children in her class, including the alleged bullies. [The Principal] said that reports of comments by the girls may be wildly exaggerated and that the girls may be responding to things [the child] herself has said that they don’t believe.
78.Same day 10.00am [the mother] phoned the co-ordinator of […], where I had casual employment. [The mother] complained about me and described the way I had allegedly treated [the child], even though [this organisation] had no connection whatsoever with my counselling practice. I was unaware of this phone call until September 2006, but it reminded me of [the mother’s] approaches to [the father’s] employees in previous years (see para 107).
79.Same day phone call to Child Representative. I informed Ms Van Meer about the school meeting and that I felt it was in [the child’s] best interests to return to see me, to at least give closure and address issues arising from the counselling session on April 10th. Ms Van Meer subsequently instructed that [the child] be brought to appointments”.
Paragraphs 71 and 77 are confirmed by the principal and the child’s grade teacher except to the extent set out in these reasons with regard to the term “wildly exaggerated” and whether it was bullying or mutual conflict.
On the basis of this evidence I do not accept the assertion that the child suffered the panic attack in the circumstances alleged by the mother. I find that Ms S did not indicate to the child that she would “lock her in a room with her father” as alleged by the mother, and thus induced a panic attack. I find that the mother precipitated or manipulated events with a view to obtaining her own way with regard to the child changing schools.
I find that the mother rang the co-ordinator of Ms S’s casual employer in an endeavour to undermine the efforts put in place by the Court to provide a process whereby the father could spend time with the child.
The mother says that the child turned up to her sessions with Ms S on a number of occasions in tears. She says that the child did not want to meet with Ms S and that she was standing at the doors, yelling and in tears on either 3 April or 6 April.
Ms S observed the child when she left her rooms on 10 April 2007 and said that:
70.[The child] was quiet but composed when she left the session. I would not have allowed her to leave had I considered her upset and disturbed.
Ms S was taken to the evidence of the mother given on 6 July 2007 and she says that there was no indication of that extreme distress in the child the time she left her rooms that day. I accept her evidence in that regard. I find that the mother either fabricated, exaggerated or induced the child to believe that the session was as the mother believed.
The extent of the mother’s determination regarding choosing the high school the child would attend can be seen in Ms S’s report, particularly where she says:
108.[The mother] also expressed the view that [the child] would be “suicidal” and “hold so much hatred it will be it’ll be “unhealthy” if [the father] does not agree to the enrolment at [Y] High School, because it had been [the child’s] “dream” since kindergarten. Although [the mother] subsequently resolved the notion of suicide, she stated that if [the child] could not go to [Y] High School “I don’t know how she will cope …she will smash, she will crash” because “she has had plans since she could speak”. [The mother] said “she has got a knife in her back … she has gone feral”.
Ms S went on to say:
109.[The mother] was very focused on issues around high school, and made lengthy digressions on relevant matters. She frequently stated that [the father’s] actions were to “get at” [the mother] rather than being about [the child]. I was unable to illicit a response to questions about where [the mother] thought the counselling process should go.
110.[The mother’s] speech was very pressured throughout the session and I again note instances of bizarre facial expression (apparently involuntary and unconscious) or bizarre speech (guttural and uncouth). [The mother] used violent language about people and events, and spoke in extreme terms about everything.
111.Eventually, I stated that I would have to make a decision myself about where the process should go, as I was not prepared to continue because it was not beneficial for [the child]. I stated that I expected [the child] to be present when I shared my decision and I expected her to come in and close the door.
I accept Ms S’s evidence in that respect. I am concerned that the child’s ambitions may now well be her own but are extensively entwined in the ambitions of the mother.
The mother was cross-examined in relation to the meeting between the child and Ms S on 20 April 2006, of which Ms S’s report said:
84.At one point [the child] stated that she had more rights than me and that if a child said an adult had done something to them, that person would get into trouble whether it was true or not. I said that it was not actually so and that a person should not get into trouble if it wasn’t true. [The child] said that they would have to be investigated and asked questions. I agreed that someone would have to find out whether it was true or not. In my notes, I queried whether this constituted a threat to me. In retrospect, I suspect that it may have been related to [the mother’s] phone call to [the casual employer] following the meeting with the school (paragraph 78).
From the context of the report and from the evidence of Ms S I am satisfied that this exchange between Ms S and the child occurred in the presence of the mother. I am satisfied that this was a threat to Ms S arising out of the events of 10 April 2006 and 13 April 2006.
The mother complained to Ms S’s casual employer and made complaints to the Independent Children’s Lawyer. From the evidence of Ms S and reflecting on the quality of the evidence of the mother, I am satisfied that the mother informed or persuaded the child that she had that opportunity to complain to Ms S and to threaten her as she did, at the meeting of 20 April 2006. I find that this was designed to undermine the process which was envisaged in the consent orders of March 2006 and to further alienate the child from the father.
During the meetings on 3 April 2006 and 6 April 2006, the mother also claimed that the child was being bullied at her school. Whilst there was some minor issues at school, they were not such as asserted by the mother. I find the mother either exaggerated or fabricated the issue of bullying of the child at school in early 2006. In that regard I accept the evidence of Ms S that she contacted the school and was informed that the teachers had “not noticed anything”[4].
[4] Affidavit Ms S 18 May 2007 annexure D paragraphs 3
Ms S says she is concerned about the mother’s impact on the child’s well-being. In addition to the threats the mother influenced the child to make against Ms S, there are concerns as spelt out in Ms S’s report as follows:
88.[The mother] said to [the child] that if this matter went to trial it would be “goodbye mummy, hello daddy”. I asked [the mother] if she had explained to [the child] what might happen if the matter goes to trial and [the mother] said “over and over and over again”, which contradicted [the mother’s] statement (paragraph 46) that [the child] did not know.
She further observes:
90.Before [the child] got up to leave, [the mother] said to [the child] (“Poor baby your shaking all over aren’t you!”). I saw no sign of [the child] shaking even though she had one leg crossed over the other. [The child] looked at her mother in an alert, guarded way, but was still and did not respond.
At paragraph 92 of her report, Ms S expressed a view that the child put on a staged performance. This is also reflected in paragraph 157.
Ms S came to the conclusions that:
138.Based on the foregoing, I conclude that [the mother] was never serious about re-establishing contact between [the child] and [the father] and that she was likely to have deliberated undermined process.
139.Although [the mother] stated that she was supportive of contact between [the child] and the father, [the child’s] own statement (para 87) clearly indicates that those closest to [the child] denigrate [the father]. If this had been the case since separation of [the father] and [the mother] it would not be surprising if [the child] were alienated from [the father].
I accept these opinions of Ms S.
Ms S, although not a psychologist, does not believe the child’s feelings of antipathy towards the father are that deep rooted. This is inconsistent with the evidence of Dr W. On balance I prefer the evidence of Dr W. Ultimately, Ms S expresses concern as to the child remaining in the mother’s care although she concedes she is not an expert in this particular area.
Mr P and Dr W are both psychologists and they gave evidence in accordance with their expert reports. Mr P’s evidence, being his notes of the conference of experts on 9 February 2006, his single expert report of 8 December 2004 and reports of 8 December 2004 and 28 April 2004, was read into evidence. The evidence of Dr W consists of his report of 26 June 2007. There are also notes on the conference of experts relating to the reports of Mr P, Ms S, Dr N, Dr W and Dr R on 29 June 2007. Both doctors confirm they had received updated material and Mr P had read the transcript of the interview of the child by me and by Dr W in July 2007.
These witnesses gave evidence at the same time and were sworn in at the same time. Counsel for the father, the mother, the aunt and counsel for the Independent Children’s Lawyer were given leave to cross-examine these witnesses together. The qualifications of these experts are not in issue. The unrepresented parties, being the mother and the aunt, and counsel for the father confirmed that expression by the Independent Children’s Lawyer.
Towards the end of the cross-examination the mother sought to cross-examine Mr P on an allegation that he had released her address to the father. Bearing in mind the concession about their qualifications and having concerns about the relevance of such questioning, I did not allow the mother to ask those questions.
Dr W interviewed the child, both parents and the aunt in June 2007. In that interview the child reiterated that she did not wish to see the father. In that report it is of benefit to note that Dr W interviewed the child’s counsellor, and he noted:
In response to the author’s questioning as to whether [the child] would benefit from any further counselling, [the counsellor] stated that she felt that [the child] was “over” having counselling and had been so for six months.
Dr W concluded at paragraph (e):
[The child] is an articulate young lady, about to turn thirteen years of age. [at the time of the conclusion of hearing [the child] was aged thirteen years and four months] who has consistently refused any form of contact with her father, since her parents separation approximately five years ago. [The mother’s] stance on her refusing to have contact with her father has also been unchanged, in that she claims that her father has been violent to herself and to her family in the past and that she is fearful of him. At present, it would appear that [the child] is less fearful and more angry with her father for what he has done in the past (ie. the alleged alcohol abuse and violence) and also his continuing attempts to continue seeking contact with her and in turn her requiring to be interviewed, attend counselling or attend at the Children’s Contact Service.
Although [the father] obviously holds out great concern for [the child’s] psychological well-being, it would appear from reports from her school, [the child’s] mother and her counsellor that [the child] is doing well both personally and academically. Whilst it would appear that [the mother] has consistently supported [the child’s] refusal to have any contact with her father, this does not necessarily negate that it is the true opinion of [the child]. Whilst many of [the child’s] comments in the present and past interviews mirror the language of her mother, there is obviously a very close relationship between the mother and daughter where there has been frequent discussions of these interviews. In turn [the child] would be naturally influenced by her mother’s opinion on this matter and her mother on hers.
In support of the comments previously made by Mr [P] in his report of 2004, it is the author’s opinion that a change of residence is not indicated for two reasons:
1. [The child’s] consistent anger with her father and refusal to engage in any form of contact, and
2. [The child’s] apparent well-being whilst living in the mothers care.
As also noted by Mr [P], the more [the child] is pushed to have contact with her father, the more she is likely to resist and her position becomes more entrenched. Mr [P] also noted in his report that “if pressure was not placed on [the child] to see her father, [the father] may feel that he has “given up” but this may free [the child] to be more kindly disposed to him”
There has been a significant effort in the past to assist and rectify this matter, most notably from [Ms S] and to also [Ms X], with no change in [the child’s] attitude towards her father. It is the author’s opinion that any future endeavours will meet with the same outcome. Although it is unclear whether [the mother] has actively engaged in alienating [the child] from her father [this court finds that the mother has actively engaged in alienating [the child] from her father] the present circumstance is clear, that is, [the child’s] wishes are and have been for the past five years that she does not want any contact with her father. Despite ongoing efforts by the Court and allied health professionals this circumstance has not changed.
Considering [the child’s] age and her consistent refusal to have any form of contact with her father, the author finds it difficult in such circumstances to provide any recommendations with respect to this case other than recommending that the father be at liberty to have written communication with [the child], that these letters be read to [the child] by a third party and this third party retain these letters. It is the author’s opinion that this may provide the only opportunity for [the child] to reconnect with her father at the same time in the future. In summation, it is the author’s opinion that this family law matter is a situation that has become more entrenched over five years of its existence and if there were time or opportunity to remedy the situation, it has long since passed.
Since coming to those conclusions Dr W has interviewed the child with me in July 2007 and has had the opportunity of reading Exhibit “ICL8” in respect of the endeavours to persuade the child to see the father between July 2007 and November 2007.
Mr P’s report was read into evidence although Mr P has now not seen the child for some years. In his notes on the conference of experts on 9 February 2007 he and Ms S concluded:
7.If the Court were to find that [the father] does pose a risk, the mother’s position and [the child] would be warranted.
8.If the Court were to find that [the father] does not pose a risk to [the child] it would be in [the child’s] best interest to have a relationship with the father.
9.This could only happen with a clear Order of the Court that the mother could not contravene.
10.Such an order is likely to be opposed by [the child], at least initially, and she would require professional assistance to comply with such an order.
11.The older [the child] becomes, chronologically and developmentally, the more she will be capable of successfully adjusting to a change of residence. She would be developmentally capable of this now.
In the conference of experts on 29 June 2007:
15.Agreement could not be reached on the appropriateness or otherwise on a change of residency for [the child].
On the evidence of these experts I find and accept that the child has a negative relationship with her father and that it is a strong hate. I accept the present evidence of Mr P that he does not see that such relationship will improve between the child and the father if residence is changed. Whilst the child’s reasons may not be validly based, the child has developed this view and if orders are made forcing her to live with her father this may do her damage. Dr W says that he agrees and that he could not see a viable outcome for a change of residence.
Mr P had some concerns about the possible diagnosis by Dr N that the child has Shared Delusional Disorder. However, Mr P’s expertise in mental health does not extend to psychiatry. Mr P says that if he does accept the opinion of Dr W, the child will end up hating her father if she does not already do so.
Both doctors agree that the impact of the mother’s behaviour with regard to the child will be to put the child at risk of problems in later life with regard to:
relationships with intimate partners;
psychological problems;
alienating her children from their partners;
some possibility of drugs and alcohol abuse although this could not be defined; and
risk of depression because of alienation from the father and conflict with the family.
Both psychologists note that the child is otherwise in good physical and psychological health. Dr W’s view is that the least detrimental option is to leave the child with her mother. Mr P says that if there are to be significant detrimental effects they should have shown up in the child by now but none have manifested. Dr W said that the child is competent, outspoken.
The expert psychological evidence is now consistent. The experts believe that there may be some possibility of orders for face to face contact on limited and circumscribed occasions which should be brief on days such as birthdays, Christmas and other significant occasions. This ought not to be at the Contact Centre as I find that the father does not pose a threat to the child.
The psychologists were subjected to intensive cross-examination on behalf of the father. They accepted (and in fact I find) that the father was spoken of in a negative form in the home and that there are strong negative views of the father expressed in the home. Mr P and Dr W agree that the child will never be comfortable expressing a positive view of her father at home, but disagree with the assertion of the father’s counsel that her life is bleak. They say that her life in relation to her father is bleak but otherwise she has good activities and her life is otherwise progressing well.
They continue however that the child has a well entrench animosity towards the father, and the mother’s behaviour, whether brought about from a Delusional Disorder or deliberate inculcation, amounts to psychological abuse of the child. The experts say this psychologic abuse which exists on balance, if circumscribed, is not such as should bring about a change of residence. I accept that evidence and make a finding in those terms.
Mr P observes that if moved, the father would need to possess a capacity to sooth an emotionally distressed child. I have concerns about whether the father would be able to provide this support for a number of reasons. First is the child’s clear animosity towards him which has been expressed over a long period of time and second, whilst the father would have a desire to do so, I am not sure that he is fully equipped in that regard (although he may learn).
The evidence of the experts is that if a change occurred there is a role for all members of the family. Dr W expresses a view that if there is to be such a change he believes it is highly probable that the child would simply not accept that change and return to the care of the mother. Mr P’s evidence is that he does not accept that the child should be removed from the mother. The inculcating of hate in children of a parent is appalling behaviour and abuse of the child but in the circumstances of this case is not a sufficient reason to change residence bearing in mind his observations of the child, albeit of some years ago.
It was put to both psychologists that it would be better to give the child “a shot” at a change of residence. Both psychologists express the view that on their observations of the child this would not be wise approach as there are positives of the child living with the mother, such as attending school and otherwise developing well.
Evidence was given by Dr N and Dr R together in the same form as that with Dr P and Dr W. Dr P was sitting in court during the course of this evidence and was called upon, at one stage, to comment in relation to the impact of the limited time proposed by he and Dr W yesterday. His evidence is that he does not think such time, in a limited context would adversely impact on the child.
The evidence of Dr R is contained in his report dated 25 February 2005 and the notes of the conference of experts dated 29 June 2007. The evidence of Dr N is contained in his report of 14 November 2006. All of this material was read into evidence.
Dr N concluded the following in his report:
That it is unlikely [the father] suffers a significant psychiatric / psychological disorder/illness. There is certainly evidence he drinks alcohol in quantities that, in some section of the Australian community, would be called “moderate”. However, having three drink/driving offences points to at least some problems with alcohol use. Having said that, there was no further evidence apart from [the mother’s] history, that he has an alcohol problem. I am aware of no evidence that [the father] has a drug problem (illicit or licit).
Turning to [the mother]/she clearly has both psychiatric and psychological problems. There are obvious psychiatric abnormalities on examination. She had abnormalities of effect in that she inappropriately laughed, she had abnormalities of noted speech and grunting. Further, there is a significant disorder of content of thought surrounding her views of [the father](and to some extent her first ex husband and possibly her father). Her views are very strongly negative to say the least and are based on illogical thinking. It is, of course, acknowledge that some of what she told me is accurate and there is no suggestion of her telling lies. However, it is the totality of what she said about [the father] that forms my opinion that she suffers Delusional Disorder. Unfortunately, it is my opinion that her beliefs are so strong that [the child] is influenced – effectively a shared Delusional Disorder. A feedback loop is therefore set up, ie [the mother] has delusions re: [the father] – due to emotional closeness [the child] shares these beliefs – [the mother] uses [the child’s] distress as “evidence” against [the father].
It is my opinion that continuing the custody arrangements as they are at the present will cause increasing harm to [the child].
Dr N goes on to suggest that the child should spend equal time with both parents and if she does not settle down quickly she should not immediately be sent back to live with her mother. I note Dr N saw the mother in July 2006.
Dr R saw the mother on 2 February 2005 (almost three years ago now). In his report he says of the mother:
With regard to [the mother], her past history and recent interviews would suggest no frank mental illness such as psychosis or mood disorder to explain her separation from [the father] or her total opposition to his contact with [the child] …
Dr R goes on to express the view that the mother is unlikely to soften her position and accept the father.
Both psychiatrists are concerned about the child’s failure to identify her aunt and her family who were outside, as they would have expected as normal behaviour.
Dr R does not diagnose the mother with Delusional Disorder but does not dispute the diagnosis of Dr N. He does however disagree with Dr N insofar as to the possibility of a diagnosis of shared delusional disorder of the child is concerned. Neither Dr N nor Dr R diagnosed the child as having Shared Delusional Disorder and neither doctor has seen the child. It is not open for me to make such a finding in the absence of that evidence.
Submissions were made on behalf of the father that I should treat the child as having Shared Delusional Disorder. That is not the evidence of the psychiatrists. I make no such finding that the child has such a disorder.
If there is such a diagnosis of Shared Delusional Disorder[5] the normal treatment is to separate the patient from the person with the Delusional Disorder. The evidence of the doctors is that this is usually done by way of legal incarceration of the person with the psychiatric illness.
[5] Folie A Deux
It is significant to note that Dr R shares the view of the psychologists that if there was harm happening to the child it would have manifested itself by now.
Evidence was given by Mrs RS, the principal of the child’s primary school, L Primary School, in accordance with her affidavit of 28 June 2007. In her evidence Mrs RS confirms the evidence of Ms S in respect of a meeting on 18 May 2007 with the exception that Mrs RS does not believe she used the term “wildly exaggerated” and believes that she would have used the expression “mutual conflict” rather than bullying. Mrs RS cannot recall being informed about a history of alleged bullying of the child at her previous school.
The evidence of Mrs RS was essentially that the child coped well at school and was a good student. She says she was a conscientious and determined student. Mrs RS’s interaction with the father was appropriate in terms of meetings arranged by him and his visit to a teacher. Mrs RS was only aware of one instance where there was a “bruise” on the child’s arm and this apparently arose out of a game of “Chinese burns”. The bruise was of minor consequence. The child had significant days off school in the last year but they were explained not such that caused her significant concern.
The mother had informed Mrs RS that the child was nervous of the father and the school put in place strategies to assist the child.
Evidence was given by one of the child’s year six teachers from L Primary School, Ms PE. Ms PE relied upon her affidavit of 28 June 2006. She gave evidence as to the bruising saying that it was more of a red mark from the “Chinese burn”. She did not observe bruising such as would cause her concern.
Ms PE was at the meeting with Ms S on 18 May 2007 and substantially confirmed the material set out in Ms S’s report with the exception of the use of the word “wildly exaggerated” and similarly to Mrs RS, described the issues not as bullying but as “mutual conflict”.
Ms PE was aware of the time that the child had off school and says it fell into two categories, namely “explain medical absences” and “some attendances in relation to experts for court” this teacher was not overly concerned by these absences or the academic impact of these absences upon the child.
Ms PE observed no signs of distress in the child and says that it appeared that the child mixed well with other students and although the child had some difficulty with the changeover from year five to year six, she had eventually managed to make new friends.
In terms of the conflict of evidence between the mother and the teachers with regard to the mother’s use of the term “large amount of time off school” and “bruising” I find that the mother exaggerated her concerns in that regard.
The evidence of Mr Z, a teacher at N Primary School, was read into evidence without objection. His evidence primarily contained the school reports of the child for the year 2004. That evidence observed that:
[The child] had continued her consciences and determined approach to school work. She has freely given her time to help and encourage individuals in the class. She can be proud of her efforts and achievements this year. Well done [name]!
A Court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court must consider each of the additional considerations separately. A Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In this case the primary considerations set out in s 60CC(2) go to the core of the decision, although they must be taken into account with the additional considerations under s 60CC(3).
The meaning of the primary considerations has been considered by Bennett J in the recent unreported decision of G and C [2006] FamCA 994 in which her Honour said:
The primary considerations
65.The primary considerations echo the first two objects set out in s 60B. The primary considerations are set out in s 60CC(2) of the Act described as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
66.This is a case where both of the primary considerations are relevant.
The benefit of a meaningful relationship – as a primary consideration.
67.The correct interpretation of s 60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68.The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69.While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 [pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth)].
70.The arguments supporting the first possible interpretation include:
(a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b) The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;
71.The arguments supporting the second possible interpretation include:
(a) Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b) The primary considerations are described in the explanatory memorandum (paragraph 4) as follows:
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c) The whole of s 60CC calls for an evaluation of various factors by the court.
(d) Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e) The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.
72.My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [the child] into the future.
I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any ‘benefit to the child’ in having or continuing a relationship and whether such relationship is or will be ‘meaningful’”. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
Whilst this is a somewhat circular approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the Court make such a determination.
PARENTAL RESPONSIBILITY
At the end of the trial I sought submissions from all parties in relation to the issue of equal shared parental responsibility. The father and the Independent Children’s Lawyer support an order for equal shared parental responsibility. The aunt does not seek any parental responsibility. After explanation as to the meaning, the mother concedes that there ought to be an order for equal shared parental responsibility.
The mother had maintained that she should have sole parental responsibility for the child. Bearing in mind the findings above and in particular my concerns about the mother’s ability to make decisions which reflect the best interests of the child rather than the mother’s perceived needs, I do not believe that such an order would be appropriate. In any case as noted above, the mother has consented to an order for equal shared parental responsibility.
During the trial it was conceded by all parties that there are reasonable grounds to believe that a parent has engaged in family violence and that such a finding is almost invariably open to the Court. As such the presumption under s 61DA does not apply. This does not, however, mean that the Court is precluded from considering whether, in all of the circumstances, there ought to be an order for equal shared parental responsibility.
Having regard to all of the evidence and the consent of the child’s parents and the Independent Children’s Lawyer I am satisfied that it is in the best interests of the child that there be an order for equal shared parental responsibility. This order will be made by consent and will include a provision providing that the parents need to agree as to any proposed change of high school to which the child wishes to attend. The parents had explicitly agreed that they should be jointly responsible for determining the school which the child attends.
I will also be making an order that if there is a conflict with regard to parental responsibility the parents must, except in the case of urgency, endeavour to mediate or talk through such issues at a Family Relationships Centre or similar prior to commencing proceedings in a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
I do this in an effort to militate against further litigation which has been the focus of the parties and the child since September 2002. I find that the mother has, either through a Delusional Disorder or deliberate inculcation, isolated the child from the paternal side of her family. Having regard to all of the facts and circumstances of this case I am satisfied that those consent orders ought to be made. They will be made by consent.
UNACCEPTABLE RISK
There was a submission made on behalf of the father that I should make a finding that the child is at an unacceptable risk of abuse if she is to remain in the care of the mother. To that end, the Full Court (Bryant CJ, Kay and Warnick JJ) considered the question of unacceptable risk in Napier and Hepburn (2006) FLC 93-303.Bryant CJ and Kay J said:
79.The determination of whether the child may have been abused required some assessment to be made as to the father’s credit in relation to his strenuous denials that he has acted inappropriately with the child. The child’s evidence itself was incapable of being tested or necessarily being accurately interpreted. His Honour said that he was unable to reject the allegation as groundless. In doing so, he must by necessary implication have rejected the father’s strenuous denials, but nowhere does he explain why he has done so.
…
84.There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper
Their Honours went on to say:
99.Absent there being any reason not to accept the father’s denials, we are not persuaded that the evidence reasonably leads to a conclusion that unsupervised contact poses an unacceptable risk of harm to J.
Their Honours also said:
82.What potential there was for these events to continue to occur if they had previously occurred in the past, might well be diminished by the bright lights that have been shone upon the parties and their conduct, in the course of these proceedings.
From this decision it seems clear that establishing ‘unacceptable risk’ remains a challenge.
In the recent decision of Brown J in McCoy v Wessex [2007] FamCA 489 her Honour carefully set out the legal principals involved in relation to allegations of sexual abuse at paragraphs 22 to 40.
Her Honour carefully reviewed the law relating to unacceptable risk including the approach adopted by the Full Court in Napier and Hepburn (above) and Potter v Potter [2007] FamCA 350 and observed that:
38.The Full Court noted (at para 79) that the determination of the question of whether the child may have been abused required some assessment to be made of the father’s credit in relation to his strenuous denials that he had acted inappropriately with the child, and that even a finding to the allegations could not be rejected as groundless ought not lead inevitably to a finding of unacceptable risk.
What is clear is that trial judges have a significant obligation upon them to set out clearly the reasons why an assessment has been made as to the father’s credit in relation to his strenuous denials.
In this current case before me there is clearly a risk to the child if she remains in the care of the mother and equally there is a risk to the child if she is sent to the care of the father.
The father poses a risk to the child by virtue of his failure to acknowledge and deal with his use of alcohol. I do not find that he poses a risk to the child in terms of violence and/or abuse. He does not pose an unacceptable risk to the child in terms of spending unsupervised time with her or living with her. This does not translate to his home being the place the child ought to live.
The mother, in her alienation of the child from the father and her ‘demonisation’ of the father poses a risk to the child of abuse, the expert evidence is clear in this regard. The question is whether this risk in the circumstances of this case amount to an unacceptable risk. Having regard to the evidence, I determine that it does not.
“LIVES WITH” OR “SPENDS TIME” WITH ORDERS
As there is a consent order for equal shared parental responsibility I am obliged to consider whether equal time or substantial and significant time type orders ought to be put in place. For the reasons articulated in these reasons for judgment it is, in my view, not in the best interests of the child to spend equal or substantial and significant time with the father. In that regard I reflect on the facts and findings set out in these reasons and the considerations under s 60CC of the Act.
I accept the submissions of the Independent Children’s Lawyer that equal time or significant time would not operate as the mother would not facilitate arrangements and I am of the view that she is likely to positively engage in conduct to sabotage any such arrangement. There is a risk the child would simply not give effect to such an arrangement and would “vote with her feet”.
I will now set out my considerations as to what “lives with” and/or “spends time with” order is in the best interests of the child.
The first primary consideration is set out in s 60C(2)(a) which provides:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents.
I discussed the meaning of this consideration in Cave & Cave [2007] FamCA 860 where I discussed the term meaningful:
100.I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful” (see G and C [2006] FamCA 994) at paragraph 68). The evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
101.There is no statutory guidance as to what factors I should consider in determining what constitutes a “meaningful” relationship between a child and a parent. Some of the considerations I regard as relevant and which I take into account are:
(a) The nature of the relationship which has existed in the past between the parent and the children;
(b) The extent to which the parent in question has sought to be involved in the children’s lives;
(c) The attitude of the parent in question to the children, their primary carer and other significant persons in their lives;
(d) The general social behaviour of and the role model which would be provided for the children by the parent in question;
(e) The personal disposition of the parent in question, that is, is he or she able to engage in a meaningful relationship with the children and for the benefit of the children;
(f) What can be discerned from the evidence about the children’s view of the relationship, or if they are too young or unable to express a view, what is the most likely view they may hold having regard to their ages and level of maturity.
(g) The other considerations under ss 60CC (2) (b), (3), (4) and (4A) of the Act, insofar as they may have an impact on the relationship between the children and the parent.
(h) If orders are not made as sought by a parent, what would be missing from the lives of the children at present and into the future.
In this case the evidence of the psychologists is that there is a relationship between the child and the father but it is a totally negative relationship. The counsel for the father submits that there is a “clear benefit” from the child having a meaningful relationship with the father. That submission is not supported by the evidence of the psychologists. The psychologists hold significant concerns if the child is moved from a difficult but functioning relationship (where the child seems to be thriving outside her views of the father and some of those associated with him) to the care of someone whom she has a “deep rooted dislike and/or hate” and of whom she has expressed some fear over a period of time.
The submissions on behalf of the father are that the Court should “give it a go” to see what happens. In the circumstances of the age, maturity and strong views of this child there is a danger that such an approach would not enable the child to have a relationship of any significance and there may be no benefit to the child whatsoever. It is open for a child of this age and maturity, if she choses, to simply walk away from the arrangement. Enormous efforts have been put into place to encourage the child to have a relationship with the father over the last few years. This includes a number of endeavours through the Children’s Contact Centre, Ms S, the Children’s Contact Centre again and then during the course of this hearing. With the exception of possibly three occasions in early 2007 these endeavours to re-introduce the child to the father have been spectacularly unsuccessful.
I am satisfied that the mother, whilst expressing views supporting such time, undermines that time. I am not satisfied, on balance, that the state of mind of the child as she has at the moment (no doubt induced by the behaviour of the mother) is such as would predicate against there being a meaningful relationship notwithstanding the general benefit of such a relationship between children and their parents.
Section 60CC(2)(b) provides:
(b)The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
On the evidence I am satisfied that during the course of the relationship the father drank to excess and from the evidence I infer that the father still drinks at a level greater than that he would have the Court believe. I am satisfied there were some issues of violence during the course of the relationship and in that regard I refer to the matters set out earlier in these reasons. I have some concerns about the father’s evidence in terms of watching or being aware of the whereabouts of the mother. I do not find that the father stalked the mother but has a proper and reasonable desire to know what is happening in relation to the child. I am satisfied, on balance, that the father does not amount to a risk to the child of physical harm or expose the child to abuse, neglect or family violence.
Bearing in mind the strong views of the child in her hate and/or fear of the father, I am satisfied, on balance, that he poses a risk to her psychological well-being if she would be forced into his full time care or into significant time with the father. The child has made it clear to counsellors, psychologists and this Court that she does not wish to spend time with the father. With a child of this age and maturity, to force her into a living arrangement with that person would cause her harm and I accept the evidence of the psychologists in that regard.
Leaving the child in the care of the mother also exposes her to harm. She will be subjected to emotional abuse in terms of her views of the father and his family. There is no easy solution in this case, however I am not satisfied that the abuse posed by the mother does not amount to an unacceptable level of abuse such as would involve a change of residence. This is not to say that I, in any way endorse or support the mother’s behaviour with regard to this child which has continued from separation and continued to the date of the hearing. I believe it is likely that such behaviour will continue into the future.
I now turn to the additional considerations.
Section 60CC(3)(a) provides:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The child has expressed strong views that she does not wish to see the father at all. She expresses strong views in relation to her hatred of the father and her fear of him. I am satisfied that those fears are genuine although I am not satisfied that they are soundly based. There may be some issues of memory which impact upon the child, however I find that the mother has inculcated those views in the child.
I note that the child is a relatively mature young person who articulates her views strongly (and sadly and indicatively often in the language of an adult which I, on the evidence, particularly of the psychiatrists, infer as the language of the mother).
Irrespective of how those views came about, I am satisfied that they are her determined views. I am further satisfied that she is a child who has a maturity at a level such that those views ought to be taken into account. Those views ought to be given serious weight. Her expressions of hatred for the father are real and determined.
It was submitted by counsel for the father that the Court could take from the evidence of Ms S and from the evidence of the time the child spent with her father through the Contact Centre in 2007, that the child is verbalising a view but that it was not her real view. I do not accept that proposition. The child has consistently and persistently expressed the view that she does not wish to see the father and although much of the basis of that view has been improperly created by the mother, that view is real to the child. I note that the child is otherwise performing well at school and is well settled in her life.
The father’s submission is that a change of residence would enable him to change the views of the child. From the evidence before me and from what I have heard from the child, I find on balance that that would not occur. It is more likely that the child would walk away from this person of whom she has fear and for whom she has no desire to see.
The father submitted that the view of the child, in this case, ought to be given less weight than otherwise may apply because of the mother’s mental illness or positive alienation of the child.
Section 60CC(3)(b) provides as follows:
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child).
The child has no positive relationship with the father, despite efforts to put in place arrangements to enable that to occur. The child is unlikely to form a positive relationship with the father even if an attempt was made to change resident parents.
The mother has a close relationship with the child and meets most of the child’s physical and emotional needs, with the exception of the relationship with the father. The child appears to be adequately developing in the mother’s care. This must be seen in the light of the mother’s alienation of the child from the father and from the father’s family. The child has a closer relationship with her sister, R and that relationship is reciprocated.
Section 60CC(3)(c) provides:
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
I am satisfied that the father would, in the circumstances of this case, encourage a close and continuing relationship between the child and her mother. This would be affected by the mother’s approach to the child and whether she continues in alienating the child (either consciously or unconsciously) from the father and his family.
I am satisfied that the mother will not, in any meaningful way, facilitate or encourage any relationship between the child and the father’s family.
The mother’s behaviour with regard to alienating the child from her father has not been done in the child’s best interests, it has been done as a consequence of the mother’s determination to ensure that the father is not involved in the child’s life. The mother changed the child’s schooling in primary school from R to E Christian School and then to N Primary School without reference to the father and was prepared to change the school again and at one state to change that school in the middle of year six which was not in the child’s best interests.
It is submitted by the father that the alienation will be increased in its intensity. The alienation of the child from the father has been almost complete since separation. From the evidence and the findings set out above I infer that it will continue but I do not find that it will impact on the child in the significant way as alleged by the father.
Section 60CC( 3)(d) provides:
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The child has a close relationship with her mother who has been her primary carer since her birth. The mother lives at home with her elder daughter R who likewise has a close relationship with the child. R gave evidence of which I have significant concerns, in relation to these proceedings. Notwithstanding that evidence I am satisfied that R has a close relationship with the child and that relationship is significant to the child.
The mother has been in a relationship with Mr B for about three and a half to four years. From the evidence it is clear that the child accepts that person as a father figure. In addition there is some evidence that the child has at least some relationship with her maternal uncle and maternal aunt. The child has no relationship with her maternal grandfather.
The effect of changing the residence of the child will be significant and may not be effective. It is important that the child remain at high school and in that regard Y High School which has been the focus of her ambitions for some time. If the child’s primary residence is changed, it would not be difficult for the child to simply return to the mother’s home, and given the evidence before me I am of the view that that would occur. The evidence of the psychiatrists is that if the mother was suffering from a Delusional Disorder then the situation may require the incarceration of either the mother or the child to bring that disorder, if it exists in the child, to an end. That is not available for the Court to do with either the mother or the child.
Dr N gave some evidence as to the ability of the child to cope with a change of residence although he has not seen the child. The joint view of the psychologists is better for the child to remain where she is rather than the child to undergo the damage in a change of residence.
The father’s submission is that the child would quickly adapt to a change of residence. This is based upon a presumed diagnosis of the child having Shared Delusional Disorder. That diagnosis was not established. Further, the depth of the child’s antipathy of the father, and I prefer the view of Dr W in relation to the depth of the child’s antipathy towards the father, is such that I believe the child would not adapt quickly and would in fact be adversely affected, to a significant degree, by the separation from the mother’s care.
Section 60CC(3)(e) provides:
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There is not practical difficulty with the child spending time with or living with either parent, except the child’s fixed determination that she would not live with the father or spend time with him.
Section 60CC(3)(f) provides:
(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 care for the child except in relation to the child’s relationship with the father. The mother has no capacity to provide for the needs of the child in terms of her relationship with the father. I have discussed this earlier including her manipulation of the child against her father and her manipulation of the child’s emotions and reactions eg panic attacks.
The father would need significant skills to manage a change of residence including the skill to sooth the child, as was the evidence of the psychologist. I am not satisfied that the father has those skills or would be able to achieve those skills bearing in mind that he is the focus of the child’s fear and hate. The father would not be someone to whom the child would attach if she is distraught and/or upset.
Section 60CC(3)(g) provides:
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
The age and maturity of the child are such as would make an effort to change residence at this time unlikely to succeed. The child has live in a background of ‘demonisation’ of the father since at least September 2002. I am not satisfied that the father has the background and skills to manage full time parenting of the child, let alone undertaking that task contrary to the strong views of the child.
Section 60CC(3)(h) provides:
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) provides:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
For the reasons set out above I have concerns about the mother’s attitude to the child and the responsibility of parenthood demonstrated by her, and I simply repeat the findings I have already made during the course of these reasons. The mother’s attitude is damaging to the child and she risks the outcomes which concerned the psychologists as set out earlier in these reasons.
The child has a belief that she will succeed in life with her voice. That may or may not be the case. This Court cannot and will not make findings as to the ambitions of the child, that is for her. This court does have a concern that the mother is so emotionally entwined in the child’s success in that area that she has not put in place, and is unlikely to put in place any safety net in the event that the child’s ambitions are not met. I find that the mother is unable to distinguish her own ambitions from that of the child
I am not without concerns with regard to the father’s capacity and attitude to parenting. The question of the father’s alcohol use and its impact on his relationship with the child is of concern as is the evidence of the times he spends at hotels, particularly prior to separation. I reiterate my finding in the issues of violence set out earlier. The father, it appears, does not take his child support responsibilities seriously, although this is of minor concern in this case.
Section 60CC(3)(j) provides:
(j)any family violence involving the child or a member of the child’s family.
I reiterate on the earlier findings in respect of the father.
Section 60CC(3)(k) provides:
(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.
In the course of these reason I have discussed the various Family Violence Orders. On the evidence before me, insofar as they relate to those orders sought or made in favour of the mother, I find that they were initiated by her to ensure that the child did not have a relationship with the father. The mother gave vague evidence and made submissions about police evidence that would support a contrary finding. That evidence was not called and I infer that it would not have assisted the mother. The father had the benefit of a Family Violence Order which has now expired.
Both parties have been convicted of breaching Family Violence Orders, but both in circumstances of little moment.
Section 60CC(3)(l) provides:
(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.
This is a challenging factor to have regard to. The parties have been in litigation for many years and the parties have been unable or unwilling to resolve the conflict. A change of parenting would, it seems to me, almost inevitably lead to further proceedings particularly if the child simply moves back to the mother. The orders I am putting in place are the best I can do in particularly difficult circumstances of this case and the terrible circumstances in which the child has now been placed by her parents’ conflict.
I do intend to request the State Child Welfare Authority monitor the mother’s parenting of the child. In addition I will make orders to enable provision of these reasons, my orders and evidence be made available on the files and to the staff of the State Child Welfare Authority. I will also put in place orders to prevent the ongoing ‘violence counselling’ which is not necessary for the child.
Section 60CC(3)(m) provides:
(m)any other fact or circumstance that the court thinks is relevant.
I have considered all of the relevant evidence before me.
In coming to the conclusions in these proceedings I have considered the matters set out under s60CC(4) and s 60CC(4A).
CONCLUSION
For the reasons set out above I find that it is not in the child’s best interests for her to spend any significant amount of time with the father. However, the father should be entitled to communicate with the child by way of letters, cards and gifts. Whether the child chooses to read those letters and/or cards or to take the gifts will, bearing in mind the age and maturity of the child, be a matter for her. I have concerns that if such material were forwarded to the child care of the mother, they would not be given to the child. The mother cannot be trusted in that regard.
Accordingly, I will be making orders that the father, and for that matter the aunt, may forward letters, cards and gifts to the child care of her school. In addition, I will be making orders that the school forward to the father copies of all the child’s school reports, school photos and that the father be able to speak to the child’s teachers (not in the child’s presence) as to her progress at school. It may be that as the child becomes older and becomes more aware of her mother’s significant influence on her or her mother’s mental illness, that she will, of her own volition, wish to contact the father. By the processes I am putting in place, lines of communication will remain open and available to the child. I will also put in place orders such as will entitle the child to have access to these reasons once she attains the age of 18 years.
I find that the mother has alienated the child from the father and has taken every opportunity to do so since at least separation. The mother has sabotaged any effort to enable the continuation of or reform any relationship between the child and the father as a consequence of her own antipathy towards the father. I find the mother is manipulative in the way she deals with the orders and with people and that she has, to all intents and purposes, trained the child to reflect her own hate and antipathy of the father.
I find that the child will have difficulties both emotionally and psychologically as a consequence of the mother’s manipulative and destructive behaviour in terms of destroying the child’s relationship with the father and preventing the continuation of any meaningful relationship.
The Court is in an invidious position. The mother is emotionally damaging the child and has alienated her from the father. The father does not effectively offer a viable alternative in terms of a place for the child to reside. The child has strong views and has expressed those over a number of years. She is about to commence her second year in high School and has resisted all attempts to spend time with the father. Equal time or significant and substantial time is not an approach which is likely to meet with any success. The stark choices are to leave the child with the mother with the consequent risks associated with that course or try to move the child to live with the father. The expert evidence in respect of that course is that it is not in the child’s best interest.
Having regard to the evidence and the findings, and with some great sympathy for the father, I determine that the lesser of the two ‘evils’ is to leave the child with the mother and, in the words of Counsel for the Independent Children’s Lawyer, ‘leave the porch light on’ in the hope that the child of her own volition will want to discover the other half of her identity when she is older.
I certify that the preceding 338 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.
Associate:
Date: 18 December 2007
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Consent
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Statutory Construction
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Remedies
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