Perceival and Kinsella
[2017] FCCA 123
•30 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PERCEIVAL & KINSELLA | [2017] FCCA 123 |
| Catchwords: FAMILY LAW – Parenting – where child has never met the Father – where Mother strongly opposed to this – where Mother alleges Family Violence – where Mother is intransigent – where benefit of contact outweighed by risks of same. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MR PERCEIVAL |
| Respondent: | MS KINSELLA |
| File Number: | WOC 469 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 15-17 August, 4 November 2016 |
| Date of Last Submission: | 4 November 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 30 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Beck |
| Solicitors for the Applicant: | Hansons Lawyers |
| Counsel for the Respondent: | Mr Alexander |
| Solicitors for the Respondent: | Verekers Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Humphreys |
| Solicitors for the Independent Children's Lawyer: | Helen Volk Lawyers |
ORDERS
The Mother have sole parental responsibility for X, born (omitted) 2013 (“X”).
X live with his Mother.
There be no contact or communication between X and the Father.
The Mother refrain from making critical or derogatory remarks about the Father or members of his family in the presence or hearing of X and do all things reasonably necessary to ensure that no other person makes critical or derogatory remarks about the Father or members of his family in the presence or hearing of X.
The Father refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or hearing of X and do all things reasonably necessary to ensure that no other person makes critical or derogatory remarks about the Mother or members of her family in the presence or hearing of X.
IT IS NOTED that publication of this judgment under the pseudonym Perceival & Kinsella is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 469 of 2014
| MR PERCEIVAL |
Applicant
And
| MS KINSELLA |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about X, born (omitted) 2013, who is 3 years old. X currently lives with his Mother, but does not spend time with his Father. The Court has to decide whether X should spend time with his Father, and, if so, under what circumstances. It is common ground in this case that X does not know who his Father is.
X's Father is the Applicant, and his Mother, the Respondent.
X's Father is 36 years old and lives in the (omitted) suburbs of Sydney. He works as an (occupation omitted). He is currently in another relationship with Ms K. They have had their first child. Ms K has three children from prior relationships who are aged 11, 8 and 4. They all live together with the Father and the Father’s relationship with Ms K commenced early in 2015. The Father has a child from a prior relationship, Mr C, who is 18 years’ old. The Father is not involved in Mr C’s life.
The Mother is also 36 years’ old. She lives in the (omitted) and describes herself as undertaking home duties. She holds a (qualifications omitted) ((qualifications omitted)). The Mother has another daughter living with her, A, who is 10 years old.
There is a dispute between the parents as to what sort of relationship they had. They are agreed that it started in early 2011, but the Mother says it ended in August 2011, whereas the Father says it ended in 2013. It seems clear that they were not in a relationship by the time X was born. It is also clear that the Father has not spent time with X since he was born.
X was born with a club foot. This has created challenges in parenting him and, as it turns out, creates quite formidable challenges in formulating orders in relation to X, should the Court decide that he spend time with his Father. X currently attends preschool one day a week. His Mother’s evidence is that he enjoys it very much, and socialises well with the other children despite his disability.
The Father would like to become involved in X’s life and to get to know him. The Mother is trenchantly opposed to this. She makes serious allegations about violence and abuse against the Father, directed not just to her but to her daughter, A, as well. The Father denies these allegations. Both parents were in the past cannabis users. It is highly likely the Court will find that both continue to use cannabis.
The present proceedings were commenced in June 2014. An Independent Children’s Lawyer was appointed. Two family reports were prepared by Dr A.
There are characteristics of this case that are uncontroversial. X does not know his Father. The Father alleges that this is because the Mother would not allow the relationship to develop. She does not dispute that. She does not believe that it is in X’s best interests to know his Father. She has openly indicated to the Court that she will not comply with an order for X to spend time with his Father. There is no communication between the parents. There is no trust between the parents. Indeed, it is abundantly clear that the Mother loathes the Father and can see no benefit to X whatsoever in having the Father involved in his life.
Having regard to these background facts, the Court must decide what is in the best interests of X.
X was represented by his Independent Children’s Lawyer, Ms Volk. Ms Humphreys of Counsel appeared on behalf of the Independent Children’s Lawyer at the hearing.
Both parents were legally represented. At the hearing, Ms Beck of Counsel appeared for the Father and Mr Alexander of Counsel for the Mother.
By the time of closing submissions on day 4 of the hearing the following proposals emerged. The Independent Children’s Lawyer proposed sole parental responsibility to the Mother and that X live with her. From age 4, the Father be entitled to communicate with X by gifts and letters. By five and a half, this would progress to telephone communication. By 6, the Father would spend time with X on a supervised basis, gradually progressing in terms of time until it became unsupervised by the time X turned 7. The Father’s proposal was that there be equal shared parental responsibility but that X continue to live with his Mother. For a period of 24 weeks, there would be supervised contact at a contact centre each alternate weekend. Thereafter, it would progress to unsupervised for gradually extending periods until X commences primary school, at which time it would become alternate weekends from Saturday to Sunday, and then progress thereafter. The Mother’s proposal was that she have sole parental responsibility and that X live with her, and that there be no order for contact or communication between X and his Father.
The evidence
Dr A gave evidence in the Independent Children’s Lawyer’s case. She prepared two reports dated 21 October 2015 and 21 June 2016 - the latter incorporating the administration of psychological tests, and then the assessment of the results. Dr A was extensively cross-examined.
In the Father’s case, reliance was placed on his affidavit sworn 30 July 2016, the affidavit of his partner, Ms K, also sworn that date and an affidavit of the paternal grandfather of 14 May 2015. Each of the witnesses was cross-examined.
In the Mother’s case, she relied on her affidavit of 28 July 2016, and that of the maternal grandmother filed 29 July 2016. Both were cross-examined.
The applicable law
In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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;
(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;
(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;
(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;
(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); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said:
8. Sub-section (1) of s 65DAA is headed “Equal time" and provides:
“If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Outline of these reasons for judgment
The evidence of Dr A will be discussed first. Dr A’s evidence is both independent and expert. It becomes particularly important in this case, however, as the Court found the evidence of both parents to be unsatisfactory in so many ways. The Court will find that both parents suffer from significant attitudinal deficits and serious concerns exist about their parenting capacity, thus focusing the Court’s attention on the more reliable evidence in the case.
Some observations will then be made about the evidence of the witnesses generally, particularly the reliability of parts of their evidence as it relates to some of the contentious issues.
The evidence will then be considered from the perspective of the primary and additional considerations set out in the Family Law Act 1975. A discussion of parental responsibility will be set out, and then a determination about what order is in the best interests of X.
The evidence of Dr A
Dr A’s first report is dated 23 November 2015. She sets out matters of background un-controversially. The Mother’s attitudes about the Father spending time with X are summarised at paragraph 9 of her report:
9.Ms Kinsella justified her objection to X spending any time with his father in the same terms as in documents before the Court. She describes Mr Perceival as a “monster” who is selfish, narcissistic and abusive. She could not name any benefit to X from forging or maintaining a link with his father. She denies any child could have a meaningful relationship with Mr Perceival. She repeated the allegations raised her affidavits that Mr Perceival was abusive to A. She alleged he had said he would “break her like a dog”, and had constantly belittled A during their cohabitation – as a result of which A developed acute anxiety for which she is receiving psychotherapy.
It is important to record the Court’s view that the Mother’s attitude towards the Father, and about his having no relationship with X, remained unchanged throughout the proceedings.
At paragraph 10 of Dr A’s report, she records the Mother’s expression of guilt for having exposed her daughter, A, to maltreatment by the Father in these proceedings. That burden of guilt was also discernible in the Mother’s evidence throughout the case, but was a guilt that often manifested itself in overt anger towards the Father.
At paragraph 13, Dr A records:
She declared herself unwilling to obey such orders in order to protect X.
This reflected the Mother’s view that no contact was necessary in order to protect X from the Father. The Mother signalled to Dr A, and also to the Court, that she was trenchantly of the view that the Father presented a risk of harm to X and she was, in effect, prepared to be civilly disobedient in order to protect her son. At paragraph 14 Dr A asked the Mother to describe her fears of harm given that visits might be for short periods of time. She told Dr A:
He will turn X against us.
When Dr A met the Father she found him to be as outlined in paragraph 17:
Not an articulate man ... could not elaborate about his motivations or feelings eloquently. He seems not to have accurate understandings of child development or very good empathic perspective taking skill ... he also made comments which were rights-focused rather than child focused...
The Father had no concerns about X’s safety in the Mother’s care but he was concerned about her mental instability, and the risk that this could pose to X over time. At paragraph 18, he explained that even though he currently only sought regular contact, he would apply for a change of residence if he considered X to be neglected or abused by his Mother or if she consistently obstructed contact as he expected. In relation to the Mother’s allegations about his abuse at paragraph 19, Dr A records:
19.Mr Perceival denies all Ms Kinsella’s allegations of abusing A, saying the child was more likely to be distressed by her mother’s shouting at him than anything unkind he had ever said or done to A, whom he described as a “good kid” with whom he had an amiable relationship. He described himself as passive in the face of Ms Kinsella’s ranting at him. He expressed the view that Ms Kinsella had only wanted him to father another child (so she could stay on the pension and not work). He said that she “saw the opportunity” to throw him out when he was “a bit depressed” after his grandmother died. He claimed she had dismissed A’s father from her life in a similar manner.
It is clear to the Court that the Father maintained this view throughout the proceedings.
Dr A met the Father’s partner, Ms K. At paragraph 32 she describes her as she found her to be:
32.A sensible, realistic person who is child focused and well-intentioned towards X. She says her children are eager to meet X and welcome him to their family life. She refutes the suggestion that Mr Perceival is abusive or unkind to women and children.
Dr A observed X’s interaction, and these are recorded at paragraphs 23-27 of her report:
23.X was neatly dressed and groomed with a very cute hairstyle. He is a winsome child. He is rather small for his age. His receptive language seems age-appropriate. His expressive language development is not precocious but his desire to engage others socially by linguistic means seems normal. I did not hear him utter any phrases or sentences only individual words. His meaning seemed clear to his mother and sister but X would not be able to communicate his needs clearly to strangers.
24.X’s club foot has responded well to the treatment. No deformity is visible when he is shod (or even in socks) and his gait looks normal at a casual glance. His mother reports that X finds the corrective appliances and the physiotherapy aversive, but she has persisted to good effect. The foot remains malleable until age five (or even seven) so physiotherapy must continue to maintain the gains. She reports that X has no established daily routine and has always resisted routine. She reports that he tantrums when thwarted but is generally of a sweet disposition. He will not sleep alone, only with her. She is considering enrolling him in a pre-school program next year for the sake of his language and social development (which I encouraged despite her expressed fear the Court could construe this as indication of her want of maternal devotion)
25.Initially X and A were observed in the playroom with their mother. Mutually warm affectionate and trusting family relationships were observed. X was absorbed in play activities. He calmly tolerated a brief, abrupt separation from his mother in a strange place with an approved stranger (i.e. someone shown to be acceptable to his mother by a previous period of friendly group interaction). When Ms Kinsella left the room suddenly X did not notice and kept on playing happily until I drew his attention to her absence, whereupon we went to seek her together.
26.X responded quite differently when brought into a room containing his father, grandmother and great-grandfather – all strangers to him. He made no noisy, tearful protest but silently turned his face into my breast when I picked him up. When I put X down he walked to the door calling for his mother. He leaned his forehead against the door and rubbed his eye. He was the picture of dejection and quiet desperation.
27.X was clearly overwhelmed by the situation. His grandmother suggested a toy might help. His father did not try to approach X physically but made some friendly verbal overtures. His great grandfather seemed the most willing to accept that the child was too stressed to continue with the meeting. When X was taken out to his mother he reached out for her with every sign of joy and was quickly soothed by their reunion.
The Court observes that paragraphs 26 and 27 of the observations set out above clearly foreshadow some of the challenges confronting both X, and indeed the Court, if an order were to be made the effect of which would be to facilitate the establishment of a relationship between X and his Father.
Dr A also observed A, the Mother’s daughter from a previous relationship. A was 9 at the time. The importance of A in the present case is because of the Mother’s allegation of the abuse that the Father perpetrated on A. At paragraph 29 of her report Dr A records:
29.A said vaguely she was concerned that Mr Perceival might be “mean” to X. Further probing indicated she thought Mr Perceival might not feed X or change his nappy and he might threaten to hit X. She said “Mr Perceival told Mum to give X a slap on the bum.” She said Mr Perceival was mean to her but could not recall any specific instances. She denied physical abuse. A said Mr Perceival “said mean things to Mum….. like she should get a (omitted) Award” and was always “shouting and yelling at Mum” A said she felt “really scared in her tummy” whenever she saw Mr Perceival, that she had felt scared of him for three years while he lived with them and had often asked Mum to make him go away. A reported she does not see her own father and siblings but does not miss them.
Dr A had available to her a range of documents produced on subpoena. She refers to this information under the heading Collateral Sources at paragraphs 31-35 of her report. This is important background material which further demonstrates the complexity of this case:
31.FaCs entries include antenatal ROH notifications for X with regard to the mother being seen in hospital 31/1/13 with cannabis-induced vomiting. Medical notes indicate she informed hospital staff she was on anti-psychotic medication. FaCS suspected Ms Kinsella of doctor shopping to abuse prescription drugs. At the time of X’s birth Ms Kinsella was on high risk alert with the local CSC but declined support services. A call to Helpline 6/3/15 referred to an incident in 2013 when Mr Perceival allegedly threatened to kill the mother. No immediate risk of harm to the children was identified. The KiDS system revealed no records relating to Mr Perceival and A. (omitted) Public School records reveal no behaviour problems and normal progress for A.
32.A was been treated for anxiety by psychologist Ms T since February 2014, after the relationship between her mother and Mr Perceival ended. Treatment notes indicate A expressed fear Mr Perceival would return, would take baby X and that her mother would go to jail. No specific disclosures of abuse appear to have been made by A. The mother informed Ms T that Mr Perceival had been emotionally and verbally abusive to the child.
33.Hospital records 12/11/09 for Ms Kinsella indicate a polydrug overdose – paracetamol, benzos, Effexor, antihistamine – because she wanted to “sleep and not wake up” according to texts she sent. When she was discharged 14/11/09 anxiety and personality disorder were mooted. On Friday 20th November ICL Ms Volk confirmed that the mother has not complied with all requests for drug testing.
34.COPS records do not reveal police callouts to DV between Ms Kinsella and Mr Perceival, but on 19/12/14 she reported historical incidents of DV 2012-12 on the advice of Legal Aid– including reports about Mr Perceival harassing her sexually, making threats of death, harassing her post-separation and making comments indicating sexually deviant attitudes towards children. An incident is reported in 2009 in which she apparently warned off someone bullying her sister (which may be the self-defence incident she referred to at interview) and absconding from (omitted) Hospital 14/11/09 (after the OD described above).
35.Medical records for Mr Perceival indicate a history of treatment for severe depression starting from 2010 (when he was living with his grandfather in (omitted)) including referral to a psychologist with a Mental Health Care Plan in 2011. Notes 3/11/10 refer to him being confused, depressed and reporting dysfunctional family-of-origin dynamics and estrangement from his f.o.o. COPS records from 2000 refer to domestic conflict in (omitted) involving Mr Perceival and (it seems) his parents.
Dr A’s evaluation commences at paragraph 36 of her report. She described X as a lovable little boy who has special health care needs about which his Mother has apparently been diligent.
The Mother’s attitude, and the Court’s possible response, is set out at paragraphs 37-38:
37.Ms Kinsella attributes only hateful motives to the father in seeking contact with his son. Her claim that Mr Perceival is litigating because he resents paying her child support seems implausible, unless he has lost contact with reality or is unusually spiteful. To anyone capable of consecutive thought these proceedings looks like very costly revenge since the cost of litigation will far exceed the cost of child support payments, and the spend time with Orders Mr Perceival is seeking will not reduce his CSA assessment anytime soon.
38.If the Court is convinced by Ms Kinsella’s evidence that the father is a narcissistically self-absorbed “monster” capable of this degree of irrational malevolence, then he really is someone likely to harm a child psychologically and no contact with him should be ordered for X. For current purposes I have assumed that this is unlikely to be the Court’s preliminary finding and that supervised visits may be ordered, at least as an interim measure. I have framed advice accordingly.
The difficulties in establishing a relationship between the Father and X are discussed at paragraphs 39-41:
39.This father and child have no established relationship. If the Court considers best efforts should be made to develop this secondary attachment relationship, then it will be best to proceed in a manner that does not overwhelm the child at the very outset. X is not ready for separation from his mother. He would probably find even a 1 hour supervised visit with his father at Catholic Care (i.e. with a stranger in a strange place) very stressful at first. The father-son relationship would need to develop on a one to one basis before including other people in the visit.
40.Mr Perceival has no experience caring for small children. Judging by his parenting proposals he has unrealistic expectations about the needs and limitations of a young child. He may also need some guidance about how to play with a young child, and how to interact sensitively by taking cues from the child. He should be prepared to start with short visits which he is willing to end when the child’s cues indicate discomfort. Otherwise X will find visits aversive and resist contact with his father.
41.It will be misguided of the father to insist that visits occur in his local area. If the child arrives for a visit already tired and grumpy because of a long car trip or an interrupted nap this will not be a good beginning for the father-son interaction. Additionally, if Ms Kinsella finds the road trip costly and onerous this will increase her ire towards the father. Kids have radar for tension in their primary caregiver. X could pick up his mother’s hostile or worried cues and respond to his father as a fearful object. Since Ms Kinsella is already strongly of the view that Mr Perceival is harmful, any contact arrangements which increase stress for X will concomitantly increase her resistance and reduce the (already gossamer fine) chance that she will ever gladly facilitate a father-child relationship.
Dr A refers to an important theme that arose several times during her cross-examination, ie, that the benefit to X of establishing an attachment with his Father might be outweighed by the stress of the contact arrangements.
Dr A expressed concerns about the Father’s proposal, at paragraphs 43-44:
43.If Mr Perceival sincerely wants a good relationship with his son he needs to be prepared to put himself to considerable effort and inconvenience in order to produce the most favourable conditions for the child to feel safe and comfortable during visits, and to do so over a longer time period than he proposes in his application. The pace of progress he proposes is far too rapid.
44.Six supervised 2 hour visits are unlikely to be sufficient for the child-father bond to develop to any great extent, and would certainly not be sufficient to convince the mother she can confidently hand the child over to the father for an unsupervised 4 hour visit. This child has no settled routine (e.g. not set nap time) and cannot sleep without his mother or go to the toilet independently. He cannot explain his needs clearly to someone unfamiliar with his speech. Given the distance between the two homes it is not practicable or beneficial for X to travel to his father’s home during a 2 hour visit or even a 4 hour visit. He is not ready for daylong separations from his mother. He will certainly not become ready for overnight stays with his father within nine months of commencing visits (as his father proposes).
This becomes important because of the Father’s subsequent proposals in relation to X.
Dr A raises concerns about overnights at paragraphs 45 and 46:
45.The advice from the Australia Association of Infant Mental Health regarding the overnight separation of young children from their primary caregivers is that the less cooperative the primary and secondary caregivers are the older children should be since they may need to self-soothe to some extent if upset by the overnight separation. (AAIMH guidelines of overnight care of infants post-separation are available at If the child has an established relationship with the secondary attachment figure such that s/he accepts that person as a substitute comforter in the absence of the primary attachment figure AND if the two caregivers have a faith in each other and could communicate if problems arose, then the normally stress-hardy child might adapt readily to an overnight separation. Those favourable conditions do not apply here.
46.Under less favourable conditions children are more likely to be tolerate separation from the primary caregiver without ill-effect if they understand the concept of “tomorrow” (so they can predict reunion) AND if they are able to eloquently communicate their needs and wishes in words. Most children will achieve this level of communicative competence between their third and fourth birthdays – but very sensitive or anxious children may lack the requisite capacity for emotional self-regulation even after they reach school entry age.
She concludes at paragraphs 47-50 as follows:
47.If the mother’s allegations about the father’s behaviour towards her, towards A and towards X as a baby are true, they are very concerning and suggest he is not a suitable person to be entrusted with the care of a vulnerable young child. Spousal abusers are prone to act in manipulative and emotionally destructive ways towards their children. A man who treats one child with unkindness is likely to maltreat another child. The fact that he is praised by Mr R does not dispel all doubt about his parenting capacity: men ejected from one relationship often seek to rehabilitate their reputation and self-respect by acting like as a contender for Father of the Year Award in the next relationship, at least initially. The honeymoon phase may not yet be over for Mr Perceival, Mr R and their blended family.
48.On information currently available I cannot offer a concluded opinion about whether father is as harmful to children as the mother alleges or whether she is as emotionally unstable and drug-addicted as he alleges. It was beyond the scope of this assessment to conduct the comprehensive psychological evaluations of both parties which would be required to investigate the claims of each party, and other evidence on these matters requires testing.
49.Information currently available does give rise to speculation that the parenting capacity of both parents is impeded by their intrinsic characteristics - although not to an extent which has prompted the statutory child protection agency to intervene on behalf of A and X, who appear to be safe in their mother’s care. The mother did not present in current psychiatric crisis, but she is a very anxious person whose thinking may become clouded under stress. On one hand, if her objections about Mr Perceival are well-founded, then she is displaying due maternal protectiveness in firmly resisting X’s contact with his father.
50.On the other hand it may be that Ms Kinsella has warped views i.e. that because she finds Mr Perceival noxious he will be equally noxious to X whereas objectively Mr Perceival poses no immediate risk of serious harm. That is an empirical question which could be safely tested, at the same time as the sincerity of Mr Perceival’s paternal devotion was tested, by prescribing supervised contact (under the conditions most congenial to the child) and parenting skills training.
At paragraph 51, Dr A recommends that a fuller psychological assessment of both parents be undertaken in order to exclude child welfare risks associated with the psychosocial maladjustment, substance abuse, and abuse potential alleged for each parent by the other. She also foreshadowed that the report may also assist the Court in deciding whether time with the Father can ever progress, given the Mother’s fixed opposition to contact. She foreshadowed the possibility of an interim contact arrangement pending a further report, on a strictly supervised basis but then opined at paragraph 58 that:
It seems unlikely that spend-time-with orders will progress smoothly, but even if the Mother consistently contravenes orders a change of residence for X would be highly deleterious given the child’s young age and cannot be recommended unless the evidentiary material reveals a serious risk of harm in the care of the Mother which did not emerge during this assessment.
Dr A’s second report is dated 20 July 2016. There is no doubt that the purpose of this report was to provide the fuller psychological assessment that had been recommended in the first report.
Dr A found Mr Perceival’s attitude to have softened somewhat at paragraph 16. Thus, he presented:
…as somewhat better able than previously to appreciate the potential for X to be distressed by handovers – particularly if the Mother’s hostility and opposition continued unabated, which he expects.
Nonetheless, she was not confident that the Father would respond appropriately if, for example, X were intolerably stressed. At paragraph 17, Dr A records:
17.Mr Perceival explained that he had decided to apply for a change of residence since the mother is so resolutely opposed to contact. He claims Ms K supports him in this. She has been unemployed over the last 12 months due to her fibromyalgia and plans to continue as a full-time caregiver after the new baby’s birth. If X joined their household that would bring the tally of resident children to five.
The Father’s change in terms of proposal is somewhat disconcerting given the obvious feedback to him contained in the first report. Nonetheless, despite what he told Dr A for the purposes of the second report, his actual proposal to the Court had moderated by the final hearing but the Court queries whether it sufficiently reflected the complexities in this case?
As for the Mother, her trenchant views were unabated. She provided an update on X’s progress, however, at paragraph 23 of the report:
23.Ms Kinsella provided updates on X’s progress. Medical advice is that his foot is now “almost perfect” but he must still wear the callipers 16 hours per day. She described her previous struggles to get the appliance onto the child She says X now accepts the corrective device stoically, although he refuses to walk with it on, instead shuffling on his bottom. She has found it works better to put the “boots and bar” on in the late afternoon and have X sleep in it, so that X can move around unencumbered in the daylight hours. She reported X was progressing well otherwise and enjoyed the interaction with the other children at day care, although he was often very clingy to her in new situations or if something untoward happened. She illustrated with a recent incident of clinginess when he was delivered to day care and things were not quite as usual. From her account, she and the day carer worker were easily able to soothe and reassure X so that he separated without fuss.
The Mother explained in her evidence that that which Dr A described as calipers was in X’s case what was known as a Ponseti boot and bar.
Dr A administered a number of psychological tests. As regards the Personality Assessment Inventory, Dr A found the Father’s scores to be all within normal limits. As for the Mother, the only possibility raised was adjustment disorder with anxiety. Dr A thought that the anxiety related to the violence she experienced particularly during her pregnancy (as alleged by the Mother) which thus led her to possibly suffering post-traumatic stress disorder.
The Substance Abuse Subtle Screening Inventory (SASSI-3) was administered. The record suggested there was a low probability that either parent had a substance dependence disorder at any time. However, the possibility of false negative measurement error was suggested by high defensive responding scores for both. Indeed, the Court will find that both parents have minimised the nature and extent of their cannabis use.
Testing was administered in relation to parental capacity and attachment. The Father was found as presenting to be benevolent towards the children and willing to try to understand their views, but his capacity to apply appropriate developmental frameworks to understanding X’s predicament was inadequate. By contrast, the Mother exhibited a greater capacity to see things from X’s viewpoint.
The Child Abuse Potential Inventory was administered. Both parents endorsed relatively few of the items which reflect the features of abusive parents and on that basis there is no cause for alarm opined Dr A.
The Parenting Alliance Measure was administered. The results clearly indicated that both parents rated their co-parenting as dysfunctional. The results indicated no capacity to coordinate the logistics of childcare, gave no rise to hope of improvement and predict exposure to tension and conflict for any child moving between these parents. This testing is again strongly consistent with the impression of the parents formed by the Court after they gave evidence.
Dr A administered a structured decision-making tool to aid clinical judgment with regard to parental fitness to exercise parental responsibility known as ASPECT. The Mother scored much higher, thus clearly identifying her as the more appropriate primary carer for X. The Father’s score was much too low to consider him as a primary care giver. Of course, this needs to be understood in the context of him having no established relationship with X.
Dr A’s opinion commences from paragraph 56 of her report. She found neither parent to be in a current psychiatric crisis. As for the Mother, the diagnostic hypothesis generated by the test results suggested adjustment disorder with anxiety, the symptoms of which may also feature in post-traumatic stress disorder. She observed that this was consistent with the psychosocial history the Mother gave. Dr A was clearly alive to the issue of whether the Mother’s allegations against the Father were factually based. Importantly, she states at paragraph 59 of her report:
59.The Court may find that the different options for disambiguating of disputed facts about Mr Perceival’s alleged nastiness may not be differences which make a difference. The practical implications for Ms Kinsella’s state of mind with respect to parenting may be the same in every case. If her accounts of Mr Perceival’s are veridical, then Ms Kinsella is rational in wishing to exclude him and is showing appropriate maternal protectiveness. If she is delusional about Mr Perceival’s “harmfulness,” although she has not otherwise lost contact with reality, then the implication is that she will be irrationally immune to corrective feedback on that topic, but not necessarily harmful as a mother. If her allegation of DV is a malicious fabrication to exclude Mr Perceival (for reasons of her own) there are not necessarily any harmful implications for X’s care – except for her unwillingness to facilitate contact. Her attitudes would be equally intransigent under all three conditions.
Dr A continues at paragraph 60-62:
60.Aggregated information quantified in a structured decision-making tool identifies the mother as the more effective custodial parent. If the father were to argue that Mr R would be the primary caregiver should X change residences, then the Court would need to consider two obvious questions. Firstly, is it realistic or reasonable to expect that a woman with fibromyalgia could easily cope with three school age children, a new baby and a pre-school child who must have callipers fitted to him daily, despite his vehement resistance? Secondly, how would such a disruptive change improve X’s life?
61.X is little boy with special health care needs about which his mother has apparently been diligent, and which will require on-going vigilance for the next few years if he is to maintain the gains already achieved. He is reported to be progressing well and was observed to be normally socialised for age in November 2015. Although X was deemed to be a child with an agreeable temperament, an overnight separation from his mother would not be suitable, for several reasons. X would find an overnight separation from his mother stressful for the same reasons which apply to any pre-school child (as discussed in the previous report with reference to the AAIMH guidelines for post-separation overnight care of young children). An additional difficulty in X’s case is that he must use a corrective appliance for 16 hours daily. He finds this aversive but now yields to the inevitability of the “boot and bar” being installed by his mother each afternoon. It is most unlikely that X would cooperate so stoically with anyone else than his mother, particularly if he was distressed or resistant for any other reason – such as because he was protesting an inexplicable separation from his primary caregiver. This may change in time.
62.For example, once X’s club foot has been completely corrected by medical and allied health intervention such that he need no longer wear callipers 16 hours per day (likely not to be required past the age of 7), AND he has made a successful school transition (thereby demonstrating his stress-hardiness for a day-long separation from his mother), there may be some chance that X could establish a meaningful relationship with his father without compromising his health or welfare. At the present time, given the mother’s fixed opposition, X’s immaturity and special needs, and the lack of an established relationship with his father, the stress of executing any contact arrangements would greatly exceed the benefit to child – and could impede his medical treatment and developmental progress.
Dr A rules out a change of residence, even if the Court finds that there is no risk from the Father but the Mother still refuses to facilitate contact. She categorically states at 63:
The only reason to consider a change of residence at this time would be if the evidentiary material identifies a serious risk of harm for X in the care of his Mother, which did not emerge during this assessment.
At paragraph 64-65, Dr A opines:
64.If at a later stage in X’s development (say when he is >7 and no longer requires callipers) the mother still refuses to comply with contact Orders for reasons which the Court deems invalid, a change of residence might be re-considered but could not be recommended on the basis of this assessment. The mother offers X a more appropriate home environment amidst established affectional family ties, whereas a change of residence implies rupturing the sibling relationship between A and X and taking the child out of his comfort zone to live with strangers. Only proof of serious deficits in the mother’s parenting capacity – beyond unreasonable acrimony towards the father – would suffice to rebut the argument that changing residence would cause X more harm than good.
65.If the Court considers that plains should be made to establish a secondary attachment relationship between X and his father, I adhere to the advice given previously that it would be best to proceed slowly and cautiously in a manner that does not overwhelm the child at the very outset. I would firmly revise the recommended age parameters for beginning/progressing X’s time with his father upwards from the guidelines previously provided, given the lack of sensitivity to X’s predicament which the father still shows.
Dr A was clearly concerned about the Father’s insight at paragraph 66-68:
66.At interview the father proposed a change of residence as a means of overcoming the mother’s resistance to contact, without making any reference to the parenting challenges posed by X’s tender years and special needs. Proposing to take a young child with intense physical care needs away from his mother in order to live with strangers is patently inappropriate, and speaks of a woeful failure in empathy and parental duty of care. Mr Perceival showed no appreciation that X would be confused and distressed by an inexplicable separation from his mother and that since neither Mr Perceival nor Mr R have an established relationship with X the child would not find them acceptable substitute-comforters, and would thus be inconsolably distressed from the outset – and would probably become hysterical with any attempt to put his callipers on. Such an unfeeling proposal inspires no confidence that Mr Perceival would make decisions in X’s best interests.
67.It would be stressful for X to spend time with a stranger in a strange place without knowing the reason why, especially if the non-verbal cues his mother at handover spoke eloquently of her mistrust and dislike of the father. Following the line of argumentation that the less “cooperation equipment” the parents have the more “developmental equipment” a child must have in order to endure the transition between them, it is my concluded opinion that X will be not be stress-hardy for even a short daytime separation from his primary caregiver (mother) in order to spend time with a stranger (father) until he is able to understand an explanation of the reasons why this should happen, and until he has started to engage confidently with the wider world. This unlikely before he has completed at least two years of full-time school attendance. The requirement for daily administration of painful treatment (callipers) should have ended by the age of 7.
68.It would be misguided of the father to insist that any visits occur in his local area at an early stage in establishing the relationship, and certainly not until the child welcomes visits and attends gladly (for reasons explained at length in the previous report). Even with best efforts on Mr Perceival’s side, the father’s time is unlikely to progress smoothly from supervised to unsupervised visits under conditions which require the mother to deliver X to the handover venue. She is likely to find road trips to Penrith onerous and feel resentful. Kids have radar for tension in their caregivers. X would pick up his mother’s hostile or worried cues and respond to his father as a fearful object to be avoided. There would be tearful scenes at handovers – probably even at supervised handovers.
Dr A clearly foreshadows anticipated difficulties in implementing any contact arrangement. At paragraph 69-70, Dr A states:
69.Since Ms Kinsella is already of the view that Mr Perceival is harmful and to be avoided, any contact arrangements which upset X or threaten the success of his remedial treatment will concomitantly increase her resistance to Orders. It is my concluded opinion that Ms Kinsella will certainly not comply with any visitation program ordered while X is a pre-school child. Such Orders would probably lead to prolonged litigation and may prove unenforceable. No Orders can be imagined which are likely to enable X to form a meaningful relationship with his father at any time during his childhood, but if X is to be tormented by attempts to enforce “spend time with” Orders in the face of the mother’s fixed opposition, he could withstand the stress better as a school-aged child than a pre-school child, and better as a child in late primary school than a child in the infants’ grades. The more physically and socially independent X is the better the chance that he might feel psychologically safe and comfortable about developing a relationship with his father.
70.If the evidentiary material confirms the mother’s allegations about the father’s sadistic behaviour towards her, A, and X as a baby, then no attempt to re-connect X and his father will ever be warranted, as spousal abusers are prone to act in manipulative and emotionally destructive ways towards their children, and may be physically neglectful and/or abusive under normal parenting stress.
Her conclusion and recommendation is that there is no realistic prospect that X could develop a meaningful relationship with his Father any time soon and certainly not before he is in primary school and calliper free. A change of residence is unwarranted and would be deleterious to X. Her opinion was to maintain the status quo which of course was no time or communication.
Dr A was extensively cross-examined. The following points emerged from the cross-examination by Ms Humphreys, Counsel for the Independent Children’s Lawyer:
·The Mother’s concern that if he had time with his Father X would be turned away from her, was a trivial risk compared to the other risks in this case.
·Whilst in theory the Mother might undertake therapy to assist her to deal with her trenchant belief about the risk of harm to X in the Father’s care, even if the Court found such risk not to exist, the therapy would only sometimes work.
·X will always take his cues from his Mother and thus his Mother’s opinion or perception was important, whether validly based or not.
·In the circumstances, there is no point trying to order X to have time with his Father until he is old enough to be able to tolerate separation and process his Mother’s cues in another way.
·The benefit to X of a relationship with his Father must exceed the harm to him of seeking to establish it. The benefit to X was not clear in this case.
The following points emerged as a result of the cross-examination by Ms Beck, Counsel for the Father:
·The moderation of the Father’s proposal as at the hearing was an encouraging sign, but Dr A still retained concerns in relation to his empathic capacity.
·The Father’s proposal at hearing was more realistic than his previous ones.
·Even if the Court finds that the Mother’s allegations against the Father are false it would make no difference. The testing undertaken by Dr A was unrelated to possible false allegations. If the Mother’s view is fixed but delusional the irrefutable fact is she will not cooperate with orders made. Fixed delusional beliefs do not respond to factual rebuttal.
·Any Court-ordered therapy of the Mother should never focus on changing her views about the Father, but rather redirect her view as a Mother.
·Whilst in theory it is possible that the Mother’s malicious or deluded views about the Father have influenced A that does not explain the objective symptoms experienced by A and recorded by her counsellor. The counsellor attributed her symptoms to the abuse that A experienced from the Father.
·It was too strong a conclusion on the available evidence to say that the Mother’s systematic denigration of the Father in fact undermined A’s relationship with the Father. The objective symptoms were consistent with anxiety not denigration.
·The real risk in this case is of X prematurely rejecting his Father through an insensitive contact arrangement which exposes X to parental conflict.
·Whilst there is a risk that X would become alienated from his Father if the commencement of time were postponed until he was 7 or 8, the fact is that that cannot be counterbalanced with a stressful contact before then.
·If the Court did decide that it was best for X to spend time with his Father then two things would be necessary – firstly, that X would need to be completely free of any medical issue: secondly, that he is old enough to express his needs to a third person. In X’s case, Dr A opined this could not be before he was either 7 or 8, and there should be no overnight contact for now.
·The commencement of daytime-only contact before then was potentially counterproductive. He needs to be old enough to understand what is happening and why in the face of his Mother’s influence.
·The risk of alienation was an uncontrollable risk. No human agency can do anything about that. The Mother has a fixed negative view. X needs greater cognitive resources than he has now in order to be able to navigate his relationship with his Father. One option for the Court was in fact not to bring the Father into X’s life at all. There is a much better chance of succeeding from age 8 upwards.
Dr A framed the dilemma for the Court as being a choice between two bad alternatives.
The Mother’s view about no contact was long held and the passage of time has probably exacerbated the strength of her views. It is possible that the Mother has engaged in a retrospective reconstruction of past events such that events are actually worse than they actually were. That does not necessarily mean that the relationship between the parents was not abusive.
Mr Alexander, Counsel for the Father, cross-examined Dr A. The following dot points emerged from this cross-examination:
·There were no indicia to suggest that A had been coached in the disclosures that she made.
·X is a little boy who has started life with a physical disadvantage. Overcoming that is his priority. To expose him to stressful situations in the meanwhile is counterproductive, physically, neurologically and emotionally. The reality is that wearing a Ponseti boot and bar is a painful experience for X, and one that is imposed on him by his Mother. Dr A was concerned about doing anything that might undermine the attachment relationship between Mother and child even inadvertently. She acknowledged, however, that there was a risk of further undermining the chances of a longer-term attachment relationship with the Father.
·Whether the Mother’s concerns about the Father are objective or subjective, she will always be anxious about X’s time with his Father and this anxiety will always be communicated whether consciously or unconsciously.
In response to questions from the Court, Dr A explained that recognition contact was not an option in this case but cards and presents would be acceptable though it would be hard to control whether these actually get through due to the Mother’s agency.
In re-examination, Ms Humphreys for the Independent Children’s Lawyer explored the issue of the parental marijuana use. Dr A explained that she was very much aware of this issue but on all the aggregated material before her in this case it was of minimal impact on parenting capacity. Dr A confirmed that given the Mother’s fixed opposition any order for contact is potentially setting X up for failure. This was an unmanageable risk.
In general terms the Court accepts Dr A’s evidence. This is a difficult, complex case where X is exposed to the risk of at least psychological harm whether he is ordered to spend time with his Father or not.
Observation of the witnesses generally
Ms K, the Father’s partner gave evidence. She was an impressive witness. She had more insight into the needs of children generally than any other lay witness in this case. Of course, she has never met X. The Court is satisfied that if an order is made for X to spend time with his Father, Ms K would be an excellent support for the Father and for X.
The Father was often unresponsive in cross-examination. He minimised the potential for some of his communications with the Mother to be received as threatening and abusive. A strong impression is formed that he minimised the nature and extent of his abusive interactions with the Mother and with her daughter, A, during their relationship. Whilst the Court finds him genuine in his desire to establish a relationship with X, during the first months of X’s life the Father probably could have tried harder to establish a relationship but he was locked into a conflict with the Mother, and literally sucked into the vortex of her negativity. The Father probably minimised the nature of his relationship with his son Mr C. He lacked insight into the difficulties facing X in establishing a relationship with his Father. He was clearly naive in suggesting that, somehow, equal shared parental responsibility could work.
The paternal grandfather gave evidence in a matter-of-fact way. The Court is satisfied that he would adequately support the Father should contact and communication be ordered.
The Mother was in so many respects an unsatisfactory witness. She was often unresponsive in cross-examination. Her loathing of the Father was palpable in her evidence. Her disdain for the proceeding conveyed the impression that it was a wrongful intrusion into her life, A’s life, and X’s life. She was convinced about the truth and accuracy of the allegations of abuse she made against the Father pertaining to both A and herself. The Court finds, however, there is an element of exaggeration as well as retrospective reconstruction of the events. Nonetheless, the Mother experienced the Father’s actions and communications to be abusive and there is some objective basis to support this.
The Mother appears to hold a deep concern that the Father would do to X what he did to A, i.e, cause her to be anxious. There is probably some substance in the Mother’s concern in this regard.
The Mother minimised the nature and extent of her marijuana use, and the Court doubts very much whether her usage has ceased as she suggested. The Mother’s belief that the Father presents a risk of harm to X is genuinely held but its basis is only in part objective. She has allowed her loathing of the Father to create a quasi-toxic environment in her home. This environment is in part facilitated and encouraged by the Maternal Grandmother.
The evidence of Ms A, a friend of the Mother’s, corroborates in very general terms the Mother’s concerns but is based entirely on what the Mother told her.
The Maternal Grandmother gave evidence. She was an unimpressive witness. Many of the attitudes that the Mother described above were clearly apparent in the Maternal Grandmother. She was often unresponsive and unconvincing in her replies. A clear impression is formed in the Court’s mind that she is an active collaborator in creating a toxic environment in the Mother’s home and life so far as the Father is concerned.
Meaningful relationship
X does not have a meaningful relationship with his Father. The Mother has ensured that this is the case, but the Father could have done more, especially in the first few months of X’s life to have created the opportunities for this meaningful relationship to be established. The communications that took place between the parents at this time are in evidence. Much of the communication is childish, petulant and focused on their own needs rather than that of X.
As the quality of the communication deteriorated, it became easier and easier for the Mother to construe the text messages as threatening and abusive. She was entitled to form the view that the Father was disinterested in X’s life. The Father was entitled to form the view that the Mother was singularly against the Father having any role in X’s life. From X’s perspective, each of his parents were intensely selfish, self-absorbed and focused on their own interests. The fact is that his parents wasted the opportunity that existed back then and the situation is irreversible now.
However, the first of the primary considerations is expressed in prospective terms, i.e. “the benefit to” X in having a meaningful relationship with his Father. Dr A’s expert evidence urged the Court to consider the situation as being one which requires a net benefit to X, that is the emotional cost of re-establishing the relationship particularly in the face of his Mother’s resistance will be outweighed by the benefit of the relationship with his Father. Dr A opined that it was far from clear that this would be the case. The Father genuinely wants to establish a meaningful relationship with his son. The Mother genuinely opposes this taking place.
Both are fundamentally flawed in the approach they have adopted. The Father’s proposals throughout the course of this litigation reflect a real lack of insight. Even the proposal that he advances by the time of closing submissions reflect the “rights focus” that Dr A alluded to in her first report. The Father’s proposal was unrealistic given the formidable challenges in this case. It reflected an inability to understand what life is like for X now and how his life would need to change if his Father were to become involved in it.
The Mother’s perspective is also fundamentally flawed. Even if all of her allegations against the Father were found to be established (and they are not) there would not be the basis for excluding the Father from X’s life as she proposes. Her belief that there is no benefit to X is based on a distorted view of her experiences and A’s experiences and an inability to differentiate that from what X might experience with his Father.
This is a difficult case. There is clearly benefit to X in having a future relationship with his Father despite the Mother’s trenchant belief to the contrary. The real issue, however, is whether there is a net benefit to X in attempting to lay the foundations for a future possible meaningful relationship given the risk of emotional harm to him in so doing.
Protecting X from harm?
In the end result, the most that the Mother could do in articulating the harm that she fears for X in the Father’s care is that the Father would turn X away from her. Of course, this is the metaphorical pot calling the kettle black because in fact at least according to Dr A, there is the real risk that she will be the facilitator of this result and not the Father.
Having regard to all of the evidence, the Court finds that there is no risk of physical abuse or of psychological abuse if X were to spend time and communicate with his Father. By this the Court means that there is no risk that the Father would perpetrate such harm. As foreshadowed, however, the real risk in this case is the psychological harm that X would be exposed to in the process of seeking to establish a relationship with his Father given the Mother’s intransigent attitude.
Dr A was very clear in this regard – any attempt to do so should be measured for at least the next four to five years. To paraphrase Dr A’s evidence, X will be preoccupied with overcoming his physical disabilities in this period. To distract him with what the Court considers to be the almost certain risk of psychological harm as a result of being exposed to a parental conflict about a spends time and communication order cannot possibly be in his best interests.
The Mother has indicated she will not comply with Court orders. This means contravention proceedings. It might mean contempt proceedings. As deluded as the Mother may well be in her concerns about X, she is both determined and stubborn, and in this regard she has an ally in the Maternal Grandmother. The Court is convinced that there is nothing the Mother will not do in order to achieve her aims - even going to jail which is something that she obviously mentioned to A as that emerged in A’s discussions with her counsellor.
The fact that the Mother’s concerns have contaminated A is the surest possible indicator that it is likely to contaminate X, which means that everything Dr A has predicted as on a worst-case scenario is in fact highly likely. The prospect of seeking to create a relationship between X and his Father would, in this Court’s most regrettable view, not warrant the exposure to psychological harm that is inevitable in the circumstances.
This is a difficult case. The Court can only play with the metaphorical cards it has been dealt with. It is not possible to rewrite history. The Court cannot unlike many parents before it, reconstruct the past, but has to deal with the reality of the present in seeking to predict the future. The Court’s mandate is not to punish parents for being bad parents but rather, to make orders in the best interests of children so that they can make the best of the parenting they receive; good, bad, or something in between.
X’s relationship with his parents and other persons
Of course, X does not have a relationship with his Father. However, the relationship with his Mother, and A, appear to be healthy and sound ones. Dr A found the Mother to be diligent in attending to the special needs that X has. The Court was vigilant, it must concede, in its scrutiny of the evidence with a view to ascertaining whether there were unhealthy aspects of either X or A’s relationship with their Mother. There is no evidence to suggest this, however. Both X, and A, also appear to have a close and appropriate relationship with the Maternal Grandmother.
The extent to which each of the parents has participated in the child’s life
For all practical purposes the Mother has excluded the Father from X’s life. He pays child support as assessed. Clearly, there were earlier issues between the parents about financial support. The communications between them indicated that she thought his provision was less than adequate. The impression formed is that he felt that in the absence of having contact with X, he should do no more than he was assessed to do. The Court has already been critical of the parents for their childish behaviour very early in X’s life. The Mother should have created and the Father should have taken up opportunities to spend time and communicate with X.
Fulfilling obligations to maintain the child
The Court is satisfied that the Father presently pays child support as assessed and that this in a minimal way fulfils his obligations to maintain X.
The likely effect of changes in X’s life, including separation from his mother
This, of course, is one of the main issues in the case from the Court’s perspective. Curiously, but not surprisingly, the Father minimises the significance of this as is evident from the proposal he makes. It is interesting to observe that it was not expressly a part of the Mother’s case that X would not be able to cope with separation from her. Her case seemed to be framed more in terms of the Mother not coping with the separation rather than X.
The Court’s focus must be on X, and in this regard Dr A’s evidence was quite clear. Indeed, paragraphs 26 and 27 of Dr A’s first report could not be a clearer depiction of what it would be like for X to be taken away from his Mother’s care. It would need to be done with great caution and conservatism as Dr A opines.
It is not just the circumstance of X meeting and getting to know a stranger (even in a highly-supported environment of a supervised contact centre) but of doing so in a home environment of overt hostility. Whether this changes in the years to come, or not, does not necessarily mitigate the impact on X. Indeed, the best-case scenario for X is that he becomes more developmentally able to articulate his own needs, and his Mother becomes better able to cope with her own attitudinal limitations.
Neither is a certainty, particularly the latter. Of real concern to the Court is the Mother’s intransigence, as well as Dr A’s scepticism about the potential benefits to the Mother of some therapeutic intervention. The unfortunate reality in this case may well be that X will need a much higher degree of independence from his Mother’s influence than that which he might have at seven or eight years of age. It is possible that Dr A has underestimated the potency, and significance of, the Mother’s intransigence.
The issues of practical difficulty and expense
At one level, if this were any other case, the fact that the Father is in (omitted) Sydney and the Mother in the (omitted) would not create any significant issues of practical difficulty and expense. In this case, however, as Dr A points out, all it will take is relatively minor or innocuous issues of practical difficulty and expense for this to become an almost insurmountable obstacle for X, given his Mother’s resistance to the concept of any relationship with his Father.
What is manageable in other cases becomes at risk of being plainly unmanageable in this case. The Father’s proposal involves supervised contact at CatholicCare (omitted) for the first 24 weeks. Even if the Court put aside the fact that the Mother declined to undertake the intake for this as previously ordered the fact is that after 24 weeks it progresses to unsupervised time in the (omitted) region, something which the Mother is fundamentally opposed to. Whilst the Father makes an attempt to deal with the geographical issues of practical difficulty, the underlying emotional issues are far more significant in this case. Ultimately, this consideration is not determinative.
Issues of parental capacity
Dr A had concerns about the Father’s capacity to parent X. To be fair to the Father, he has had no experience with X. His partner Ms K does suggest there have been no issues on the home front, so far as her children are concerned. Dr A was concerned, to some degree, about the absence of the Father’s relationship with Mr C, his first son. The Court believes that the Father may have sought to minimise in his evidence the potential significance of, in effect, walking away from this relationship with Mr C and perhaps exaggerating what limited interaction there has been, in a direct sense, between them.
Nothing really turns on the nature of the Father’s relationship with Mr C. The Father was very young when Mr C was born. The Father continues to struggle with issues of maturity in this Court’s estimation, so it is perhaps not surprising that he did not maintain this connection with his first child. The Court concludes that Dr A was quite right to have concerns about the Father’s capacity to provide for X’s emotional needs. He would probably be a good Father, in terms of meeting physical and perhaps even intellectual needs. However, he repeatedly demonstrated in cross-examination, and indeed throughout the proposals that he offered to the Court during the course of this litigation, a lack of understanding about what it would be like for X to actually experience, or live out, the proposals that the Father advanced.
The Father minimised the potential implications on X of the issues that exist between the Father and the Mother, for example, at a minimal level is the lack of trust and inability to communicate and at a deeper level is her trenchant loathing of him. The Father’s proposal is that by the time X is in year two, he would be spending each alternate weekend with him as well as half of the school holidays. The Court accepts that this needs to be understood in the context of his proposal over the preceding years to increase the amount of time that he spends with his son.
The Court also accepts that the Father’s partner, Ms K, also appears to be a person who will provide much support and assistance to the Father. What is absent, however, as the Court has foreshadowed is an understanding of what the journey will be like for X, as he moves from having no relationship to then forging a relationship with a person who is in effect, a stranger, to eventually spending three weeks with him over the Christmas/December/January period - all in the context of traversing the hostile territory that exists between the parental homes.
Does the Father, for example, propose that he will attend a parenting program or seek counselling or some form of expert psychological assistance to equip him to assist X through this transition? The answer is no. Indeed, his orders propose that it is the Mother who attend on a psychiatrist or psychologist. Overall, Dr A’s concerns about the Father’s parenting capacity are well based.
To the extent that the Mother’s case involved raising issues about the Father’s mental health and drug issues there is little substance in this. The Court accepts from the evidence before it that in the past and indeed well before the relationship with the Mother, the Father did have some mental health issues. There is no evidence to suggest these are ongoing. To the extent that the Mother suggests the Father has continuing drug issues based on the evidence before it the Court concludes that these issues are no greater than those of the Mother.
Overall, there are issues about the Father’s parenting capacity. The Court would have grave reservations about his concerns to implement his own proposal for time. Those concerns extend to even the Independent Children’s Lawyer’s proposal.
Of course, the concerns about parenting capacity are not limited to that of the Father. Like the Father, the Mother probably would more than adequately meet X’s physical and intellectual needs. The issue is meeting his emotional needs. She sees no place for the Father in X’s life. Dr A opines that this is less than ideal but even this must be understood in the context of the alternatives such as what X would have to experience in order to have a relationship with his Father.
In order to be balanced, however, the Court does acknowledge the significance of a number of related issues. For example, it is plainly correct that the Mother’s hands are full with attending to the needs of a child whose physical life is dominated by the need to overcome a disability. Moreover, the Mother’s experience of the Father as being abusive both towards her and her daughter A, is not entirely without some foundation.
The Court has already found that she has exaggerated her allegations about physical violence and abuse. Nonetheless, there is enough material before the Court for it to conclude firstly, that the Mother would be well entitled to regard some of the communications between them as being abusive. Moreover, the evidence about A’s anxiety, and in particular the production of her counsellor’s file tends to create two strong impressions for the Court. Firstly, that the Mother started reporting the abuse that she asserts she experienced from the Father as early as 2014. Secondly, that A’s anxiety is most likely symptoms associated with a complex post-trauma reaction which involves the Father.
The report of Ms T, registered psychologist and her file is evidence that the Court accepts. Thus it will be seen that whilst there is much to criticise the Mother about her capacity to meet X’s emotional needs manifested in her trenchant belief that the Father should have no role in his life, there are some mitigating factors that at least help to understand her concerns (whilst certainly not justifying them).
Issues of maturity, sex, lifestyle and background of parents
The Court has already been critical of both parents for their immaturity at times. The mere fact that both parents were at least chronologically adults during their relationship and at the time of X’s birth, does not immunise them from immaturity. The communication between them was as the Court has already indicated both petulant and childish.
Parental attitudes
Much has already been said in these reasons for judgment that touch on the issue of parental attitudes. There is no point repeating these comments here. The Court believes that there may be some prospect of the Father’s attitude changing in the sense that he will begin to understand the formidable obstacles in X’s path if he were to resume the relationship with his Father. His Father seems determined to achieve that, however, notwithstanding these formidable obstacles. He has continued with this litigation, some would say, with admirable persistence.
This also suggests that he would persist in enforcing orders, and it is at that point that the risks for X crystallise. For it is also apparent to the Court that the Mother’s attitude will not change – not now, and not in the future: she sees no role for the Father in X’s life. That is an appalling fact that the Court must accept. Therapy is highly unlikely to change that. Orders of the Court will not change that. Reversing the existing residential arrangement is plainly out of the question, and the Mother knows that so she probably feels smugly safe in her intransigence. The only real prospect for X is that one day when he is old enough to decide for himself, he will search out his Father and seek to build a relationship with him.
Let it be very clearly stated that the Court finds the Mother’s attitude towards the Father appalling in the circumstances. That does not necessarily mean that her proposal to the Court is not in X’s best interests. The Court makes an objective assessment in this regard and feels not in the least bit hostage to the Mother’s intransigence. If the emotional cost to X of creating a relationship with his Father is ultimately so great that it outweighs the benefits to him of the relationship with his Father, then the option of no contact or communication becomes the obvious one. Dr A clearly did not rule this option out.
Family violence allegations and orders
There is no evidence that would lead the Court to accept the Mother’s allegations about the Father’s physical abuse towards her. The Court is inclined to accept, however, her allegations about verbal abuse given the extensive text message exchanges between the parties in evidence before the Court. This conduct falls within the definition of family violence contained in s.4AB of the Family Law Act 1975.
Particularly having regard to the file produced by Ms T, the Court accepts that A experienced the Father as abusive. She was traumatised by this and continues to suffer anxiety. This causes the Mother considerable concern a concern which perhaps understandably extends to X. The Father probably did not understand how what he was doing or saying might be experienced by A in the way that she has. Even though the Mother’s allegations about the Father’s conduct towards A are probably exaggerated there is enough substance to explain the trauma that A has suffered.
Much was made in the Father’s case about the Mother’s failure to report incidents of family violence which she alleges as and when they occurred. The mere failure to report or to report in a timely fashion is not determinative in this case.
Making the order least likely to lead to further proceedings
The Court regards this as a significant consideration on the facts of this case. The only order that is guaranteed to lead to no further litigation in the foreseeable future for X (apart from an appeal) is the order the Mother proposes. The Court accepts that the Father might in the fullness of time even if no order were made in the present litigation, seek to re-agitate this issue. In many ways, this is understandable. He would do well to carefully consider Dr A’s report, and wait for a time when X is much more developmentally articulate and independent.
By contrast, on either the Independent Children’s Lawyer’s proposal or the Father’s proposal, the Court believes that further litigation is inevitable. The Mother’s inflexible view will result in non-compliance. The Mother has been quite open before the Court in this regard. There is nothing in Dr A’s evidence to suggest that it is an empty threat. This means that an appeal, contravention proceedings or even contempt proceedings are almost guaranteed.
All of this needs to be considered from X’s perspective. He may not be old enough now to fully understand the nature of his parent’s conflict. As he gets older both his capacity to understand and his vulnerability to absorb his Mother’s world view is accentuated. Dr A’s warnings about the impact of continued conflict on X are very clear and unchallenged. Why, in those circumstances would the Court make orders that are the most likely to lead to further proceedings if it ultimately concludes that an order for no contact is in X’s best interests?
Orders in the best interests of X?
This Court has, with great reluctance concluded that the order that is in the best interests of X is that he have no contact or communication with his Father. Ultimately, the Court believes that the benefit to X in having a relationship with his Father will be outweighed by what he will have to experience in order to achieve it. The least of the worst alternatives for X is in fact no contact with his Father. In his own time he will be free to seek his Father out and in that regard there may then be a day of reckoning so far as X and his Mother are concerned. She will have to accept that risk.
If X finds his Father, in the fullness of time not to be the demon that his Mother portrayed and trenchantly believed, she will have to somehow explain that to him. In the meanwhile, however, the Court cannot expose X to the emotional trauma and the psychological abuse of the inevitable exposure to the ongoing parental conflict between his parents that would be the inescapable consequence of making the order that either the Independent Children’s Lawyer or his Father seeks.
As the years go by, the balance may well change but in the foreseeable future the Court with reluctance accepts that the Mother’s proposal is in X’s best interests. It is an option not ruled out by Dr A. Even the Independent Children’s Lawyer’s position was advanced with a measure of realistic pragmatism about the formidable obstacles presented by the Mother’s reticence. The Father’s proposal was, with respect to him and those advising him, never a realistic outcome in these proceedings having regard to the evidence as presented. The Father’s time may well come, but it is not now.
An order for sole parental responsibility is inevitable, in the circumstances.
The Court has considered the possibility of limited communication by way of cards, presents etcetera but is convinced that the Mother would thwart this.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 30 January 2017
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