Raby and Fisk and Ors
[2009] FMCAfam 294
•3 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RABY & FISK & ORS | [2009] FMCAfam 294 |
| FAMILY LAW – Children aged 7, 5 and 3 – interim arrangements for children to spend time with father – parties living in Brisbane prior to separation – mother has relocated children from Brisbane to Adelaide – mother asserts relocation necessary to escape abusive relationship with father – allegations of serious family violence – both parties assert that the other is violent and manipulative – assessment of risk – presumption of equal shared parental responsibility – should father’s time with children be professionally supervised – impact of mother’s anxiety – benefit of children having meaningful level of relationship with both parents – assessment of mother’s capacity to facilitate and encourage relationship as between father and children – should children be independently represented – role of grandparents – best interests. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA |
| Goode & Goode (2006) FLC 92-286 M & M (1998) FLC 91-979 M & S and the Separate Representative (1996) FLC 92-655 A v A (1998) FLC 92-800 Re K (1994) FLC 92-461 Bright v Bright (1995) FLC 92-570 In the marriage of Patsalou (1994) 18 Fam LR 426 JG & BG (1994) 18 Fam LR 255 |
| Applicant: | MR RABY |
| First Respondent: | MS FISK |
| Second Respondents: | MR R & MS R |
| File Number: | BRC 7595 of 2008 |
| Judgment of: | Brown FM |
| Hearing date: | 30 March 2009 |
| Date of Last Submission: | 30 March 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 3 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr McGinn |
| Solicitors for the Applicant: | Websters Lawyers |
Counsel for the first Respondent: | Ms Parker |
| Solicitors for the first Respondent: | Norman Waterhouse Lawyers |
Counsel for the second Respondent: | Ms Bosko |
| Solicitors for the second Respondent: | All Family Law |
ORDERS
The children [X] born in 2002, [Y] born in 2003 and [Z] born in 2006 be independently be represented in these proceedings.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children [X] born in 2002, [Y] born in 2003 and [Z] born in 2006 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The independent children’s lawyer, when appointed, be provided with a copy of these reasons for judgment.
The mother attend for further assessment with Dr B, psychiatrist or such other psychiatrist as may be nominated by the independent children’s lawyer when appointed, and that prior to such further assessment either Dr B or the psychiatrist as nominated by the independent children’s lawyer be provided with a copy of the report from the children’s contact centre and Ms Cole’s family assessment report together with any other documents as deemed necessary by the independent children’s lawyer including a copy of these reasons for judgment.
UNTIL FURTHER OR OTHER ORDER
The aforesaid children live with the mother.
The children spend time with their father as follows:
(a)On alternate weekends commencing 11 April 2009 from 11:00am on Saturday until 5:00pm the following Sunday.
(b)Other than the periods of time during which the children are in transit the periods specified in order 7 hereof, take place at the home of the paternal grandparents and subject to their general supervision.
The handover at the beginning and end of each period set out pursuant to order 7 hereof occur at the [C] Children’s Contact Centre.
The father’s time spent with the children be subject to his availability as a result of his employment and where necessary the father be permitted to alter arrangements for his time spent with the children by giving the mother notice in writing one week prior to the arranged time for him to spend time with the children such that he might make up any missed weekends on the following weekend where necessary.
Each party facilitate and encourage telephone communications between the children and the other party at the request of the children or the other party and each party provide a telephone contact number for this purpose.
The matter be adjourned for further consideration and if necessary to allocate a date for final hearing on 19 May 2009 at 9:30am when it is anticipated the independent children’s lawyer will be appointed.
IT IS NOTED that publication of this judgment under the pseudonym Raby & Fisk & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
BRC 7595 of 2008
| MR RABY |
Applicant
And
| MS FISK |
First Respondent
| MR R & MS R |
Second Respondents
REASONS FOR JUDGMENT
Introduction
Mr Raby “the father” and Ms Fisk “the mother” are the parents of [X] born in 2002; [Y] born in 2003; and [Z] born in 2006.
These proceedings are concerned with interim arrangements for the care of the three children pending finalisation of the parties’ competing applications, particularly the terms and conditions on which the children should spend time with their father and paternal grandparents, Mr R and Ms R – “the paternal grandparents”.
At this stage, the father wishes to spend time with the children on alternate weekends from 5:00pm Friday until 5:00pm the following Sunday. He also wishes to spend longer blocks of time with the children – up to one week in length – during any school holiday periods which may arise prior to the final hearing of the matter.
Currently, the three children concerned are living in Adelaide with their mother. She moved to Adelaide, from Brisbane, where the parties previously lived in controversial circumstances, in May of 2008, shortly after the parties finally separated. Although both the father and mother are originally from Adelaide, they lived in Brisbane since early 2004.
At present, the father lives in Brisbane. He is an [occupation omitted] He has plans to move to Adelaide in future and transfer his base of employment to this city. Until that occurs, he proposes travelling regularly to Adelaide to see the children concerned. When he is in Adelaide, he will be staying with his parents at their home in [S].
As a consequence, if the court makes the interim orders which he seeks, he will be content for all of his time with the children to be subject to the supervision of his parents. In addition, given the antipathy and suspicion which exists between him and the mother he would suggest that the children be exchanged between the parties at the children’s contact service at [C].
The father’s position is that the mother is unrealistically and abnormally anxious and resistant to the prospect of him spending any time whatsoever with the children. He regards what has been described as the mother’s “hyper-sensitivity” to the issue as being psychologically or psychiatrically aberrant and pose a threat to the ongoing wellbeing of the children, particularly in terms of their ability to maintain a meaningful level of relationship with him, both in the short and long term.
In those circumstances, he would want orders made that would require the mother to attend for a further psychiatric assessment by Dr B, who has previously been involved with psychiatrically assessing both him and Ms Fisk. In addition, it would be the father’s position that the parties’ current circumstances warrant the children concerned being represented in this case independently of their parents.
The paternal grandparents became involved in these proceedings on 22 September 2008. They are now respondents in the proceedings. If orders are made along the lines sort by the father, they will be content. Obviously, if this is the case, they will be seeing and interacting frequently with [X], [Y] and [Z].
In the alternative, the paternal grandparents would seek some specific orders, in their favour, which would allow the children to see them overnight, on at least one weekend per month, if the court was not disposed to make the orders sort by the father.
The mother does not dispute that she is highly anxious at the prospect of the children spending any time with their father or paternal grandparents. It is her case that she has ample and reasonable grounds to be so. She characterises the father as a violent, manipulative and emotionally abusive person and parent.
It is Ms Fisk’s position that the father has been physically violent towards her in the past, in the presence of the children concerned. As a result of their direct experience of him, the mother contends that [X] and [Y] are fearful of their father and have no wish to spend any time with him.
In addition, it is Ms Fisk’s case that, up until this stage, the paternal grandparents have been essentially disinterested in pursuing a relationship with the three children concerned. Further, as [Z] was born in Brisbane, it is her case that he has never met Mr and Ms R Senior and has no relationship with them.
In these circumstances, the mother doubts the bona fides of the paternal grandparents and has no trust in them whatsoever to supervise properly any periods of time which may occur between the father and the children concerned. Further, it is Ms Fisk’s case that the father and the paternal grandparents are closely aligned with one another. As a result, she argues that Mr and Ms R Senior are likely to lack insight into their son’s manipulative and emotionally abusive personality and the dangers it poses to the children.
As a consequence of these matters, the mother contends that the court would be derelict in its responsibility to promote the best interests of [X], [Y] and [Z], particularly in terms of protecting them from the psychological consequences of being exposed to family violence, if it made any orders other than those which provided for the children to interact with their father in a rigorously and professionally supervised setting.
It is also the mother’s case that the court must have significant regard to the emotional impact of any orders it makes on her, particularly as she is and has been the children’s main provider of care, certainly since the parties’ separated in May of 2008.
The mother contends that she will have grave difficulty in emotionally accommodating, at this stage, any outcome other than supervised time and it would not be in the children’s best interests if the court does not pay proper regard to her likely level of anxiety, arising as a result of the children spending time with their father.
The father disputes any suggestion that he is a violent and emotionally abusive person. To the contrary, it is his case that it is the mother who is psychological labile. Essentially, he has grave doubts about her current psychological wellbeing, particularly in terms of her capacity to encourage and support a proper level of relationship between him and [X], [Y] and [Z].
To this end, he has concerns that the mother is unduly influencing [X] and [Y] against him to satisfy her own emotional needs, which are distinct from the children’s best interests. As such he urges the court to take urgent action to ensure that the children’s relationship with him is repaired.
As a result of the parties’ respective views of each other, at an earlier stage, it was arranged for each of them to be psychiatrically assessed by Dr B, who is a consultant psychiatrist. Dr B saw the parties separately in December of 2008.
Dr B was of the view that neither party suffered from any psychiatric illness. However, he proffered the following opinion regarding their respective personalities:
“… Mr Raby is the more calmer and detached of the two parties with Ms Fisk more likely to adopt a paranoid stance in confrontations with blaming of Mr Raby and hostile expression of such blame.”[1]
[1] See report of Dr B dated 16 December 2008 at page 8 annexed to the affidavit of Georgina Parker filed 19 January 2009
Otherwise, in general terms, Dr B considered that, if the parties were not in a situation of confrontation with the other, each would make a suitable parent who would not pose a threat to any of the children concerned in this case.
As a result of this assessment, the mother no longer has any confidence whatsoever in Dr B and believes that he is biased against her. As previously indicated, she does concede that her anxiety is high and she is currently seeking therapeutic assistance in regards to it.
In these circumstances, she acknowledges that her psychiatric wellbeing is a relevant consideration for the court, particularly given what has been recommended by an independent expert psychologist, Ms Cole, who has prepared a family assessment for the court in this case.
In all these circumstances, the mother contends that it is appropriate that another consultant psychiatrist be engaged in lieu of Dr B. It would be her preference that a psychiatrist with experience in assessing parent/child attachment be retained to this end. She would propose
Dr J.
The father is opposed to Dr J becoming involved and has no criticisms of the assessment prepared by Dr B. Rather, he contends that it is likely the mother has a preference for another psychiatric assessor because
Dr B has not been completely sympathetic to her position.
The mother is also opposed to any order which would see the appointment of an independent children’s lawyer in this case. It is her position that each of the parties is currently represented and likely to remain so and, as such, all relevant and required evidence is likely to be led before the court.
In addition, each of the children is of a tender age and therefore lacking in insight into the difficulty issues which currently confront the court. As such, the appointment of an independent children’s lawyer will add little to the proceedings but will represent a significant cost to all concerned, which is not warranted.
On 22 October 2008 it was ordered that the father spend two hour periods of time, with the children, on a fortnightly basis, subject to the supervision of the director of the [C] Children’s Contact Service or her nominee.
The father has now spent six such periods of time with the children between late December 2008 and early March of 2009. A report has been prepared by the supervisor concerned detailing observations of the father and children’s behaviour together.
This report was made available to Ms Cole, who interviewed the parties and observed each of them (including the paternal grandparents), with the children in late January and early February of 2009.
Ms Cole’s family assessment report was released to the parties around 12 March 2009 and is the last significant piece of evidence available prior to the court’s interim determination as to what are the appropriate arrangements for the father to spend time with the children in the period leading up to final hearing.
Ms Cole’s report is a lengthy and apparently thorough one. She makes the following recommendations:
“Ms Fisk undergo a psychiatric review, with particular emphasis on obtaining more information regarding her capacity to manage the recommendations as set out below.
The children continue to spend regular supervised time with their father, awaiting the outcome of the trial. Given the extent of the reported concerns, and the nature of the allegations, this would need to be in a professional supervised setting.
If the court does not place weight on Ms Fisk’s safety concerns for the children, there be a gradual move towards the children spending longer periods of time with their father, and unsupervised time.
… A slow and cautious approach is recommended, given the children’s young ages and respective of vulnerabilities, so as not to overwhelm them and jeopardise their development.
With regards to the paternal grandparents’ application to spend time with the children, at this time, their suggestion of a few hours now and then is considered more realistic than their formal application of one weekend per month.”[2]
[2] See family assessment dated 12 March 2009 at pages 23-24
In her assessment, Ms Cole cautioned that Ms Fisk might not be able to manage any of these recommendations, even the proposal that any time between the children and their father occur in a professionally supervised setting.
Ms Cole described her impression of the mother as being a person whose ‘functioning deteriorated throughout the assessment, and [who was] presenting as highly anxious and disorganised.” As such,
Ms Cole was of the view that the mother’s condition presented “a real concern for the children’s mental health …”.
On the other hand, Ms Cole thought it highly likely that all three children would benefit from spending some time with their father. She was impressed with Mr Raby’s positive presentation to her and his capacity to engage and remain attuned with [X], [Y] and [Z]. She found him to be “child-focussed”. As such, she conceded that he was likely to be frustrated at her primary recommendation in the matter.
In order to assist the mother coming to terms with her anxiety, Ms Cole recommended that she undergo a regular and intensive process of counselling to help her to cope with the father becoming re-engaged in the children’s lives and care. I have been advised that Ms Fisk is currently receiving such counselling.
As is apparent from the orders, which he seeks at this stage, the father does not accept the validity of Ms Cole’s primary recommendation regarding the need for his time with the children to be professionally supervised until the final hearing. It is his position that Ms Cole has failed to put the mother’s current apparent emotional condition in the context of her behaviour during the parties’ relationship, particularly in the period after separation.
The father asserts that Ms Cole has failed to appreciate the likelihood that the mother is, at best, unconsciously encouraging the children to have a negative view of him or is, at worst, actively attempting to alienate them from him. In this sense, he asserts that Ms Cole has failed to consider the implications of section 60CC(3)(c) and (4) of the Family Law Act to the mother’s conduct, particularly in respect of unilaterally removing the children from Brisbane to Adelaide.
In addition, the father submits that Ms Cole has failed to give proper consideration to the possibly serious consequences, for the children, if they do not have a proper and meaningful relationship with him in future.
The father is fearful that, as a result of the combination of the mother’s negative attitude towards him; the infrequency of his interaction with the children since the parties’ separation; and the possibility that he will be only able to spend brief periods of time with the children, in the somewhat stilted and artificial circumstances of a children’s contact centre; there is a very real risk the children will lose their respective paternal relationships and begin to regard him as essentially a dangerous stranger.
The function of the court, at this stage, is to determine interim arrangements for the care of the three children, pending a more thorough and exhaustive hearing of the parties’ respective claims, which will involve their cross examination. At the final hearing stage, the professional opinions of Ms Cole, Dr B, and any other professional witness, will also be subjected to more thorough scrutiny.
Necessarily, the hearing at the interim stage is brief, involving only the examination of affidavit material. As such, the court must be wary of becoming involved in disputed factual circumstances, which are more properly left to the final adjudication stage. It is difficult, if not impossible, for a court to determine disputed factual issues on the basis of affidavit material alone.
This particular case has generated a considerable amount of affidavit material. It has also precipitated extreme emotion from each of the parties concerned, particularly the mother, who was visibly distressed through most of the proceedings.
At this juncture, the respective positions of each of the major actors in these proceedings, appear irremediably polarised. At this stage, it is necessary to set out the evidence of each of the parents so that the extent of the dichotomy between them is apparent.
Evidentiary chronology
The father commenced these proceedings, in the court’s Brisbane registry, on 19 August 2008. At that stage he wished the parties to have equal shared parental responsibility for [X], [Y] and [Z] and for the mother to return the children to [B], a suburb of Brisbane within a fortnight. If this eventuality occurred, he sought to spend time regularly with the children on weekends; two overnight weekday periods per month; and on a number of specified special occasions.
The father was born in 1965. The mother was born in 1967. They began to live together in 1996. It is common ground that the date of their final separation is 1 May 2008. The parties have never been married.
It is also common ground that the parties began their relationship in Adelaide, where both have significant familial connections. They moved to Brisbane, in connection with the father’s employment, in March of 2004. The parties purchased a home in [B] in December of 2005.
On the parties’ separation, the father left the [B] property, which remained occupied by the mother and the three children concerned. Again, it is common ground between the parties that Ms Fisk and the three children vacated the [B] property on or around 28 May 2008 and relocated to Adelaide. This relocation was not discussed between the parties and, as a result, did not have Mr Raby’s acquiescence either impliedly or explicitly.
The father’s position is that he did not see the children at all between 1 May and 28 May. It is his case that he attempted to obtain the mother’s agreement to his spending some time with the children but she resisted all his overtures in this regard.
In particular, it is the father’s position that the mother sent him a “barrage” of emotive voice and text messages, which made it clear that she regarded Mr Raby as having abandoned her and the children and that he would “lose” so far as future arrangements for the care of the children were concerned. In particular, the father alleges that the mother indicated that she would “block” him out of her and the children’s lives.
On 15 May 2008, the father visited [X] at his school believing that this was the only way he would be able to see the child. On this occasion, Mr Raby deposes that [X] disclosed that his mother had been ‘lying” to him ([X]) about his father.
The father’s position is that the nature of his employment involved a roster of three to four days work followed by three to four days off. As a result, it is his position that he was extensively involved with providing for the children’s needs, on his rostered days off. By implication, it is his position that, certainly as of 1 May 2008, he had a close and loving relationship with each of the children concerned and was closely involved in their day to day routine.
It is his position that the mother has clearly demonstrated her antipathy towards him and made real her threat to exclude him from the children’s lives by unilaterally relocating them from Brisbane to Adelaide. The fundamental underpinning of his case, at this interim stage, is that Ms Cole has either misunderstood or underestimated the significance of the mother’s actions in this period and afterwards.
The mother responded to the father’s application on 30 September 2008. On both an interim and final basis, she sought that she should have the sole parental responsibility for the three children concerned. She also sought that the three children remain living with her in Adelaide. She had no concrete proposals whatsoever as to how the children would spend time with their father.
Rather, she sought injunctions that would restrain Mr Raby from attending at her home; any kindergarten, school or childcare facility attended by the children; and from harassing or stalking her.
In addition, at the interim stage, she sought orders directed the father to obtain a psychiatric assessment of his health.
The mother’s position is that the father was abusive and violent throughout the parties’ relationship from 1999 onwards. She complained of being kicked and kneed in 1999, resulting in bruising. Police were involved but the mother stated she declined to lay charges against the father.
The mother asserts the father engaged in violent and volatile behaviour, around the time of her pregnancy and the birth of [X], involving breaking and throwing furniture. She also states the father threatened to kill her and fabricated a complaint to police that she had threatened him with a knife. Overall, her description of the father is of a violent and unstable person. It is her case that the father’s behaviour resulted in several separations between the parties.
The mother’s case is that the father’s behaviour intensified again around about the time she became pregnant with [Y]. This resulted in him being charged with assault and unlawful detention around 30 January 2003. Ms Fisk made a statement in respect of the matter, alleging she had been bruised on her cheek and arms as a result of the father’s behaviour, which also included a threat to kill her.
In February of 2003, the father apparently commenced proceedings in the Family Court at Adelaide in respect of arrangements for [X]’ care. On 7 March 2003 the mother advised police that she did not wish to proceed with any criminal charges against Mr Raby and the charges against him were dismissed. The father later discontinued his Family Court proceedings and the parties considered reconciliation in the period prior to [Y]’s birth.
This period also relates to the collapse of [A], by whom both parties had previously been employed. In conjunction with her then family law proceedings, the mother obtained a medical report, dated 1 April 2003, from her treating general medical practitioner, Dr R.
The mother disclosed to Dr R the various stressors in her life at this time, which included complaints of abusive spousal behaviour on the part of Mr Raby. She complained of depression and indicated that she had been referred to a domestic violence counsellor.
Dr R found that Ms Fisk did not have clinical anxiety but was a caring and responsible parent.
It is the mother’s case that the father was essentially disinterested in both [X] and [Y], after her birth and the care of the children devolved solely upon her. She also complains that the father made an unwarranted and malicious complaint of “child abuse” to Families SA in an attempt to intimidate her. It is her case that this is a clear example of the level of emotional abuse, of which the father is capable.
The father obtained employment with [omitted] in Brisbane in early 2004. On the mother’s case, it was she who was the pro-active parent in ensuring that the father had some level of relationship with [X] and [Y]. To this end, she travelled to Brisbane with the children during 2004 and early 2005. It is her case that the parties reconciled in July of 2005, around about the time that [Z] was conceived. The father places the reconciliation earlier.
The mother’s case is that she felt unhappy and unsupported in Brisbane. She complains that she was punched in the face by the father, which resulted in her sustaining a black eye. This assault allegedly occurred in the late stages of her pregnancy with [Z].
The mother complains that the father did not react well to the birth of [Z] and his behaviour towards her again deteriorated. It is her case that she became increasingly fearful of the father’s erratic behaviour and fearful for her safety.
The mother complains that, when [Z] was around six weeks of age, the father arranged for police officers and mental health workers to attend unannounced at her home for the purpose of having her psychiatrically assessed, on the basis of allegations that she represented a threat to the safety of the three children concerned. It is her position that this was a pre-meditated action on the part of the father, designed to undermine her and, as such, represents emotional abuse.
Thereafter, Ms Fisk arranged for a nanny, Ms O to assist her with the care of the children. Ms O is a citizen of the United Kingdom, who was on a working holiday in Australia at the time. It is the mother’s case that Ms O was exposed to the father’s increasingly irrational and strange behaviour.
It is the mother’s case that she began to form the view that the father was in the grip of some form of mania. She deposes that the father behaved oddly at a doctors’ surgery, with [X], which resulted in the police being called and the father being handcuffed. She was concerned at the implications of this for [X], particularly as he had been diagnosed with Asperger’s disorder.
The mother complains that in August of 2006, the father abandoned her and the children whilst the family was on an excursion to the beach. The mother’s case is that the older children were detrimentally affected by the father’s increasingly erratic behaviour. She was also concerned that the father was physically abusive towards [X], particularly in regards to screaming abuse at him.
The mother complains that, in the latter stages of the parties’ relationship, the father became increasingly controlling of her, particularly in regards to financial matters. It is her case that the father did not allow her to have access to any proper level of funds in order to support herself and the children. It is her case that the father also continually threatened to kill her, which threats she took seriously. As a result, she became increasingly fearful that her life was in danger.
It is the mother’s case that the parties did not separate in any rational or considered manner. Rather, she asserts that the father effectively abandoned her and the children, when he moved out of the family home without telling her where he was going.
She is also critical of the father for removing furniture and household effects, from the [B] home, whilst she and the children were away from it. In all these circumstances, it is the mother’s case that she had no real alternative other than to leave Brisbane, where she had little familial and emotional support, in order to flee an extremely abusive relationship.
The mother concedes that she was emotional and distressed during May of 2008. However, she denies any suggestion that she told
Mr Raby, either impliedly or directly, that she would block him out from any further involvement with the family.
It is her case that she became particularly anxious when she learnt that the father had attended at [X]’s school. It is her case that any telephone interactions between the parties were manifested by the father being threatening and abusive towards her, rather than vice versa.
The mother’s case is that the father finds it difficult to “tolerate” the children for more than short periods. It is also her case that the children have clear recollections of their father’s erratic behaviour and of him having verbally abused and threatened her. As a result, it is her case that the children have seen her:
“… deeply effected and distressed as a result of the father’s behaviour, including crying, sobbing and begging the father to cease his behaviour and to consider my feelings and the children’s feelings.
The father has had no experience of caring for the children on their own for other than very short periods. I observed during the relationship that the father would become agitated and intolerant of the children within a short time of the father being around the children. He particularly had difficulty interacting with [X] if [X] became upset or anxious and the father has acted in a punitive and inappropriate manner with [X] in the past.”[3]
[3] See mother’s affidavit of evidence filed 30 September 2009 at paragraphs 151 & 152
On this basis, the mother opposed any application that she and the children be compelled to return to live in Brisbane. In addition, she proposed that the only viable option for the children to see their father was within the controlled and supervised circumstances of a children’s contact centre. It is the tenor of her case that she remains extremely anxious and frightened about the prospect of the father having any direct interaction with either her or the children.
The mother has obtained a statement from Ms O, who has returned to live in the United Kingdom. Ms O refers to a tense atmosphere in the parties’ family home in the early part of 2006. Her statement contains matters of complaint about Mr Raby, which Ms Fisk has disclosed to her. It is clear that Ms O is not particularly well disposed towards
Mr Raby, whom she describes as being irrational. In all the circumstances, particularly at this interim stage, I do not think Ms O’s statement can be given any weight.
The parties’ competing applications, in respect of the issues arising from the mother’s relocation of the children from Brisbane to Adelaide, were fixed for interim hearing before the Federal Magistrates Court at Brisbane on 6 October 2008.
Prior to this hearing, the mother’s solicitors obtained reports from the [B] Domestic Violence Service, Ms P a counsellor and Dr C, a general medical practitioner in [B] all of, whom the mother had consulted prior to leaving Brisbane.
The mother consulted the [B] Domestic Violence Service on 23 and
26 May 2008and provided the worker concerned with a similar history to the one set out in her court affidavit. The mother did not apply for a family violence order.
Ms Fisk has been attending counselling sessions with Ms P since December of 2006. She complained to Ms P about the father’s alleged violence towards her and his unusual behaviour. Ms P saw the mother on seven occasions concluding on 23 October 2007. Ms P’s impression was that the mother benefited from the counselling sessions with her.
The mother consulted Dr C on 13 March 2008. She had not previously seen the doctor concerned. The reason for the consultation was apparently that Ms Fisk had been feeling unwell with sinus pressure and a sore throat. She was prescribed an anti-biotic. In the context of this consultation Ms Fisk raised concerns about Mr Raby’s “aggressive and paranoid” behaviour.
Dr C reports that she was genuinely concerned at this situation and contacted the mental health acute care team at the Prince Charles Hospital about the issue. She advised Ms Fisk to seek advice from the psychiatric unit regarding her concerns about Mr Raby’s alleged behaviour. She also advised the mother to take all necessary steps to protect herself.
The mother has also obtained a medical report from Dr R, who was her treating general practitioner in Adelaide between early 2001 and mid-2004. More recently, Dr R re-examined Ms Fisk in September of 2008, after her return to Adelaide and in the lead up to the Brisbane interim hearing.
Dr R had provided an earlier report in respect of the discontinued family court proceedings of 2004. To Dr R, Ms Fisk gave a history of having been the victim of an abusive marital relationship, both in 2003 and more recently. She described having contemplated suicide, whilst living in Brisbane. Ms Fisk’s history was also that she had been the main parental carer for the three children concerned.
Dr R described the mother, in September of 2008, as being tearful, obviously anxious and distressed. Dr R’s diagnosis was that the mother had, and continues to have, a major depressive disorder, which had improved since she had removed herself from the relationship with
Mr Raby. In these circumstances, Dr R opined that there were significant risks, particularly for [X], [Y] and [Z], if the mother was compelled to live in Brisbane again against her will.
On 28 November 2008, the mother filed an affidavit from Ms G, who was apparently a neighbour of the parties in Brisbane. Whilst Ms Fisk was in an advanced start of pregnancy, in respect of [Z], Ms G deposed that she saw Ms Fisk with a black eye.
Ms G does not depose directly as to her knowledge of how this black eye occurred. I presume she did not see directly the incident concerned. However, it is the implication of her evidence that the injury was caused by Mr Raby.
Ms G also deposes that she contacted police, at some time in 2007, as a result of her concerns regarding a domestic dispute between the parties. She alleges that Mr Raby behaved in an erratic and threatening manner around this time. She professes to have had concerns about Mr Raby’s mental health.
The father denies ever having threatened to kill the mother or of having physically assaulted her or the children. He denies being controlling regarding financial matters and asserts that the mother had access to the bank account into which his salary was paid.
It is the father’s case that it is the mother who has a propensity to behave erratically. He asserts that the 2003 charges against him by police were dropped due to an insufficiency of evidence rather than for some other reason.
The father denies ever having been handcuffed. It is his position that the mother became emotionally unstable following [Z]’s birth and was prone to pick arguments with him over trivial matters. The tenor of his case is that the mother has a hysterical personality.
In particular, Mr Raby has deposed that any raised voice allegedly heard by Ms G is that of the mother arguing with him, rather than vice versa. He specifically denies ever having inflicted a black eye on the mother and generally disputes the veracity and reliability of Ms G’s affidavit, which he characterises as lacking specificity in respect of dates.[4]
[4] See father’s affidavit filed 27 January 2009
In respect of allegations concerning his state of his psychological instability, Mr Raby relies on a psychological report of Mr Q, dated
14 May 2003, which was obtained in connection with the earlier proceedings between the parties in the Family Court at Adelaide.
In this report, the father complained to Mr Q that the mother had constantly suffered “mood swings” during their relationship and had a propensity to smash crockery. He also described an incident during which the mother had taken an overdose of prescribed medication following an argument between the parties.
Mr Q apparently applied some psychometric testing to Mr Raby, which indicated that he had no specific problems with anger and aggression. He described the father’s presentation, confirmed by the testing undertaken, as being “modest, unpretentious and retiring”[5].
[5] See affidavit of Ms B filed 27 January 2009
On 6 October 2008, the parties agreed on some interim orders in respect of arrangements for the care of the three children concerned. As a result, on this occasion, Jarrett FM made a number of consent orders. The most significant of which was that the children should continue to live with their mother in Adelaide. In addition, arrangements were put in train for the parties to enrol at a children’s contact centre in Adelaide.
At this stage, the parties both agreed to undergo a psychiatric assessment, no doubt as a result of the serious matters each had raised in respect of the other’s allegedly impaired psychiatric health.
Accordingly, at the interim stage, the father elected not to proceed with his application to compel the mother to return the children to Brisbane. It also seems to be the case that he began to investigate the possibility of transferring his employment with [omitted] from Brisbane to Adelaide.
On 22 October 2008, orders were made for the parties to enrol at the [C] children’s contact centre in Adelaide and thereafter for Mr Raby to have two hour periods of supervised time with the children at the centre and for a report to be prepared regarding the father’s interaction with them. A short time later, the parties agreed that Dr B should undertake a psychiatric assessment of them each.
The mother’s solicitor has issued several subpoenae directed to the South Australian Police; the Queensland Police; the Prince Charles Hospital; Families SA; and the Children’s Protection Service in Queensland. I assume the purpose of these subpoenae was to illicit documentary corroboration of the mother’s various complaints against Mr Raby.
Subsequently Ms Parker, the mother’s solicitor has deposed two affidavits, filed on 28 November 2008 and 25 March 2009 respectively, to which are annexed numerous photocopied documents. Ms Parker, who appeared for the mother during the most recent interim hearing, did not allude to any of these subpoenaed documents directly during this hearing.
On 22 September 2009, the paternal grandparents began proceedings in the court seeking to spend some time with the children concerned.
It was their case that they lived around twenty minutes drive from where Ms Fisk and the children have been living since their return to South Australia but, notwithstanding this state of affairs and their requests to Ms Fisk to see the children, she had not been prepared to facilitate the children spending any time with them.
Mr and Ms R Senior deposed that they had visited the family on two occasions in Queensland, being in 2004 and December 2005.
It was also their evidence that they had “bonded” with [X] and [Y] in the period prior to the children moving to Brisbane. They conceded they did not know [Z] in any real sense.
The paternal grandfather stated that he and his wife wished to
re-establish a relationship with the children and that they (the children) deserved to have the opportunity to be able to establish a close relationship with them as well as with other members of their wider paternal family.
It was the mother’s position that the paternal grandparents had had very little contact with her, the father and the children during the time the family had lived in both Adelaide and Brisbane. She characterised the paternal grandparents as being “odd”. She was critical of them for apparently having an interest in the musical theatre.
The mother also recounted an incident, in 1997, when she alleged the father’s sister Ms C had behaved in an aggressive manner towards her. She was critical of the paternal grandparents for not being more supportive of her during the period before and after the birth of [X].
The mother concedes that the paternal grandparents did visit the family in Brisbane on two occasions. However, it is her position that
Ms R Senior was unable to cope with caring for the children even over such a short period of time as forty minutes.
It is Ms Fisk’s position that there is currently no relationship whatsoever between any of the children concerned and their paternal grandparents. It is also her position that the father and his parents have been frequently estranged. The mother is highly concerned that the children will be greatly distressed if they are compelled to interact with their grandparents, whom she characterises as being infirm and elderly.
I had to deal with this aspect of the proceedings, on an interim basis, on 28 October and 21 November 2008. The position of the paternal grandparents was that they wanted an opportunity to spend modest amounts of time with the children.
They conceded that their level of relationship with them was not extensive. They proposed meeting with the children, in a “child friendly” environment, such as a play gym, where the mother could be discretely present so that they could introduce themselves to [X], [Y] and [Z] as their grandparents.
The mother was resolutely opposed to this application. It was her case that she was fearful of the paternal grandparents and did not trust them. Essentially, it was her position that the grandparents were stalking horses for the father.
Once again, the mother was greatly distressed during this aspect of the proceedings. At this stage, I was persuaded to take a cautious approach to the issue, particularly as by this stage the mother and father had agreed to engage Ms Cole to prepare a family assessment in the matter. On that basis, I declined to make any orders in favour of the paternal grandparents but rather directed that they should play a role in the family assessment process.
The first period of supervised time between the children and their father occurred on 27 December 2008. It is common ground between the parties that by this stage Mr Raby had not seen the children for over six months. At the outset of the first visit, the mother voiced to the workers concerned that she was feeling “extremely distressed” about the process involved.
During the first visit, [Y] apparently said to the supervisor concerned that she did not want to stay with her father because he was “scary”. Nevertheless, at a later stage, [Y] apparently asked her father to chase her around the room and laughed when she was caught and tickled.
It is always difficult to glean what sort of environment prevailed during periods of supervised time given that the reports concerned are usually an unadorned narrative of what took place. The impression I have is that the first visit was somewhat stilted. However, the father did play with each of the children concerned, although [X] in particular was unwilling to be drawn into reciprocating his father’s indications of affection.
The second visit, on 10 January 2009, ended prematurely. [X] indicated that he wanted to leave to go and see his mother. [Y] decided to go with him. [Z] remained behind with the father and the two played together for a period of one further hour.
The third visit occurred on 24 January 2009. Initially both [X] and [Y] told the worker concerned that they did not want to stay for the visit. However, after some encouragement from the mother, they were prevailed upon to stay and see their father.
Once again, [X] and [Y] ended the visit prematurely. [X] said he wished to go home. [Y] chose to leave with him. Thereafter the father and [Z] played together for around about twenty minutes, until the visit ended.
The fourth visit was on 7 February 2009. [X] refused to attend upon his father stating that he (the father) didn’t like him ([X]) or pay any attention to him. [Y] also refused to attend the visit stating that her father was “mean and does silly things”. Accordingly, this visit involved only the father and [Z]. It went well. When it concluded [Z] said “bye bye Daddy, I love you”.
The visit of 21 February 2009 progressed in a similar way to the one which preceded it. Again, [X] and [Y] declined to visit their father. Otherwise the visit between [Z] and his father progressed without incident and appears to have been a warm and friendly one.
The final visit was scheduled for 7 March 2009. At 9:30am, very shortly prior to the time scheduled for the commencement of the visit, Ms Fisk telephoned to indicate that [Z] was ill and accordingly the visit could not proceed.
This was the visit on which it had been arranged for Mr and Ms R Senior to meet with the children. Accordingly, from the father’s perspective, it was highly distressing that the visit did not proceed, particularly as the case was due back in court shortly.
Accordingly, to the credit of the contact centre concerned, it was possible to arrange an alternative visit. This occurred the following day. It precipitated further controversy between the parties.
[Z] was sleeping when the mother and children arrived at the contact centre on 8 March 2009. Ms Fisk asked the workers to see if Mr Raby wished to proceed with the visit notwithstanding the fact that [Z] was unwell. The father indicated that he wished the visit to proceed.
[X] and [Y] indicated they were willing to see their father and their grandparents for a “short time”. Ms Fisk was allowed to stay at the centre, in another room, because of the hot weather.
[X] was generally unresponsive to his father and paternal grandparents. First [Y] and then [X] indicated that they wanted to go home. [Z] was apparently asleep during much of the visit.
During the course of this visit, the father and mother came into contact with one another outside the toilet. On the occasion, the father reported to the centre’s manager that the mother made a verbal death threat to him. This has also apparently been the subject of a complaint to police.
Later, in the hearing of a supervising worker, the father complained to the children that their mother had “drugged” them up on Phernegan, as she had previously done. As I understand it, Phenergan is an antihistamine medication.
The mother has filed a further affidavit in respect of what she alleges what occurred on 8 March 2009. The father and the paternal grandparents have not. The mother denies that she has made any threatening comment or abusive gesture to the father. It is her case that the father is likely to have fabricated the allegation against her and this is further evidence of his abusive attitude towards her.
In this respect, she refers to what she believes was the father’s unwarranted notification to the Queensland mental health services in March of 2006 concerning her, which she asserts was later found to be completely unwarranted and therefore fabricated by Mr Raby. It is her case that this complaint of an alleged death threat is similar behaviour on the part of the father.
The mother’s case is that [Z] was extremely unwell on the weekend of 7 and 8 March 2009. Her affidavit makes reference to a medical certificate, from Dr L. This describes [Z] as suffering from “nausea, vomiting and tiredness”. No drugs were prescribed. Ms Fisk denies any suggestion that the children were drugged with Phernegan at the time.
In summary, both parties assert that the other is a highly manipulative and psychiatrically unstable person. The mother contends that the father is almost sociopathic in being able to change from appearing to be a reasonable and normal person in public to being one who is violent and abusive in private.
For his part, the father asserts the mother is dishonest and is more than capable of enlisting professional people and others to her seemingly plausible claims of being a victim, when there is no credible evidence to support such claims.
In this context, he contends that she is more than capable of co-opting [X] and [Y] against him, presumably to make good her alleged threat that he will have nothing further to do with the family in future. He contends that it can be no coincidence that [Z] is always delighted to see him, as given his immaturity, he cannot be subject to the mother’s manipulation and influence.
Needless to say both Mr Raby and Ms Fisk say that the other is more than capable of concocting accounts of the other’s instability and violence, with alacrity, when it suits them. This was the difficult background to the interim hearing and the context in which Dr B was asked to examine each of the parties.
The evidence of Dr B
The father saw Dr B on 9 December 2008. To Dr B, the father reiterated the matters raised with Mr Q, in 2003, that it was he rather than the mother, who had been the victim of family violence during the parties’ relationship.
Mr Raby confirmed that he had contacted the Queensland mental health services in respect of concerns he had regarding the mother’s mental health, when she had gone off and started smashing things. He confirmed around about this time that he had been subject to some police intervention, as a result of the mother’s complaint against him. It was his position that the police were generally unsympathetic towards him, presumably because of his sex.
To Dr B, Mr Raby complained that Ms Fisk had in the past hit him, kicked him, ripped his clothes and cut him with a knife. It was
Mr Raby’s position that contrary to what Ms Fisk had in the past stated, it was she who wished to control him, with threats and violence, rather than the other way round.
Dr B saw Ms Fisk on 2 December 2008. To Dr B, she complained of being in a controlling and abusive relationship with the father, which was characterised by him having essentially two different personalities, one who was positive and devoted, the other who was cruel and withdrawn. Ms Fisk confirmed that she had taken an overdose during the parties' relationship and had on occasions broken crockery during arguments with the father.
Dr B provided two reports in respect of each of the parties. However, in terms of his summary and assessment, the content of the two reports is essentially identical. Dr B wrote as follows:
“Ms Fisk will perceive Mr Raby as being controlling and abusive, with Mr Raby perceiving Ms Fisk in a similar manner. Despite such dysfunction occurring in the relationship, on a day to day basis there is usually normal functioning and the relationship can last for a prolonged period of time despite the significant problems when confrontation arises.
…
One reason that such relationships can continue for a prolonged period of time, despite the level of dysfunction occurring during the confrontations, is that both parties to varying extents use denial as a defence mechanism to keep from awareness the dysfunctional nature of their confrontations. This may explain why Ms Fisk and her partner, Mr Raby, have persisted in having such confrontations that are clearly dysfunctional, for a prolonged period of time. Denial also reduces the awareness of the individual as to their dysfunctional relating. Such denial is characteristic of Personality Disorders particularly where there are no other signs of mental illness. Having interviewed both
Mr Raby and Ms Fisk I can given an opinion to the court that it is quite clear in my mind that neither party suffers from any significant psychiatric illness. This refers to the severe depressions, schizophrenias, Bipolar Disorders, Obsessive Compulsive Disorders or drug and alcohol abuse type disorders.
…
In forming an opinion regarding the personality of both Ms Fisk and Mr Raby, it would appear from the documentation provided that Mr Raby is the more calmer and detached of the two parties with Ms Fisk more likely to adopt a paranoid stance in confrontations with blaming of Mr Raby and hostile expression of such blame. This is supported by the evidence of impulsive self harming behaviour by Ms Fisk, albeit only the few occasions of breaking dishes and an overdose.
…
In general terms I am confident to say that if the parties were not in confrontation with each other they would make suitable parents and neither would pose a danger to their children. This opinion is given on the basis that neither party suffers from a serious mental illness.”
The family assessment report
Ms Cole interviewed the parties and the children over lengthy periods of time in late January and early February of 2009. She also interviewed both [X] and [Y] but not [Z] due to his tender years. Later, she observed play sessions between all of the children and each of their parents and indeed Mr and Ms R Senior.
Ms Cole conceded that she did not fully understand [X] and [Y]’s views, particularly when she perceived there to be a contrast between their statements to her and their behaviour, when observed, with their father.
[X] described to Ms Cole incidents of apparent family violence, which he had observed his father inflicting on his mother. This included giving his mother a black eye; throwing hot coffee at her; and yelling. [X] also reported that his mother was “worried” at the prospect of the children being taken away from her by their father.
When asked about his father, [X] said that he was required to stay with him for two hours at a time and play with him but was able to ask to leave, which he always did. [X] was positive about his mother.
Ms Cole found [Y] to be a not particularly articulate child. Like her older brother, she was critical of her father, describing him as being mean to her mother. When asked about the prospect of contact with her father, [Y] indicated that she would miss her mum. [Y] also reported that her mother cried about dad.
[Y] also described Mr and Ms R Senior as being “mean” and indicated that they might try to take [Y] away from her mother as well. On a positive note, [Y] said that her father was sometimes good but could get madder and madder.
Ms Cole had no doubt that the children interacted positively with their mother. On the other hand, it was her view that the children’s interaction with their father was more complex.
[X] initially turned his back on his father. [Y] hugged him in a sideways manner. Only [Z] was excited and smiling at the prospect of seeing his father.
[X] rejected an affectionate advance from his father with the statement “we don’t want to for the whole day, my mum doesn’t like the smell of you.” However, after a while, [X] was willing to play with the father and [Z] on the floor in a positive way and later gave his father a “high five”.
In addition, whilst playing, [Y] was noted to be bright in mood and to smile at her father from time to time. She also sang and giggled, as well as seeking out her father’s attention. [Z] was apparently unaffected by any tension and readily initiated physical contact with his father. [X] was quieter but also laughed from time to time, as well as seeking out his father’s attention.
[Z] excitedly greeted his paternal grandparents. [Y] stood next to her grandmother and showed her [Ms R] her ponytail. [Y] also did a dance for her grandmother and showed her a picture, which she had drawn.
[X] was willing to shake hands with his grandfather. The two apparently exchanged stories about some shared memories. Each of the children was willing to respond to a request from both their father and grandparents for a hug when the time for the closure of the observation process arrived.
Although none of the parties concerned has had the opportunity to explore these issues with Ms Cole in cross-examination, it seems relatively clear to me at this point that there was some tension between [X] and [Y]’s oral statements that they did not wish to see their father and grandparents and how they actually interacted with them.
It is also of concern to me that [X] was well aware that he could terminate the process of supervised time, at the contact centre, whenever he wished. Again, I am not in a position to examine the evidence of the supervisor (s), who were involved in this case.
In general terms, I am concerned at the prospect of such a supervisor being placed in a difficult situation, arising when a child indicates a wish to leave such a session, which the supervisor in question is unable to resist. It may, in some circumstances, be unfortunate for young children to be able to dictate the circumstances of their intervention with a parent, particularly in the supervised setting.
In these circumstances, Ms Cole interviewed the mother regarding her likely facility to be able to encourage a relationship between the children concerned and the father. The mother indicated that she did not believe she would be able to facilitate such a relationship. Ms Fisk described suffering from migraine, nausea and vomiting at the prospect of the children visiting their father, even in a supervised setting.
Ms Fisk also acknowledged that she changed the children’s clothing, following them having spent time with their father, because she could allegedly smell Mr Raby on them. However, she also indicated that she did not believe that the children’s apparent negative reaction to their father came solely from her.
As previously indicated, the mother was distressed at the outset of the first period of supervised time between the children and their father. She indicated to Ms Cole that, prior to the visit, she had “tears running down my face”.
Obviously, the children must have been aware of her distress, in the context of going to visit their father. This concerns me, particularly given that [X] in particular understands that it is open to him to terminate his visits with his father of his own volition. As is clear from the contact centre records, [Y] has followed her brother’s lead in this regard.
The mother was also negative in respect of her views concerning Mr and Ms R Senior. The mother told Ms Cole that she could not “understand how these people (Mr and Ms R) can be suddenly involved in raising my children”. She described having endured having thirteen years of Mr and Ms R being “rude and nasty” to her.
As Ms Cole was canvassing these issues with the mother, she
(Ms Cole) noted that Ms Fisk’s presentation deteriorated markedly. In this context, Ms Cole asked of her whether she had had any suicidal ideation. Ms R confirmed such thoughts towards the end of the parties' relationship. Ms Fisk also apparently spoke of her hope to rebuild her and the children’s lives without pressure from the father and his parents to see the children.
Mr Raby clearly indicated to Ms Cole that he believed that Ms Fisk was unwilling to facilitate his relationship with the children. It was also his view, as a result of the alleged incident at the [C] children’s contact centre on 8 March 2009, that the mother’s mental health was deteriorating. In this context, he raised concerns about the safety of the children, whilst in their mother’s care.
Ms Fisk presented as being highly anxious to Ms Cole and fearful that Mr Raby would be able to trick her by appearing well and normal. The mother expressed to Ms Cole that the father had a personality disorder, which Dr B had failed to diagnose. Ms Cole was also concerned that Ms Fisk, whilst in this apparently anxious frame of mind, was able to discuss these complex and “adult” issues in the presence and the hearing of the children concerned.
Mr Raby described himself to Ms Cole as being placid and calm in personality. In her report, Ms Cole did not note any outward concerns in the father’s presentation to her. In addition, Mr Raby denied that he was the cruel and manipulative person described by the mother.
Ms Cole also consulted with Dr B, a paediatrician who had examined [X] whilst in Queensland. Dr B’s examination of [X] was the basis for the mother’s assertion that [X] suffers from Aspergers Disorder.
Dr B advised Ms Cole that initially he had a view that [X] had a tendency to develop this disorder but in his opinion, this tendency had been averted, in no little part due to the mother’s impressive parenting of him. However, Dr B remained of the view that [X] was a vulnerable child, who was not likely to cope well with change or conflict.
A representative from [X]’ current school in Adelaide described him to Ms Cole as being usually happy but with a propensity to become withdrawn and shy. In academic terms, it seems that he is not progressing at the pace of most of his peers.
In regards to one of the central issues in this case – how each of the parties has responded to the responsibilities implicit in being a parent – Ms Cole was unwilling to express a definitive opinion, deferring to the judicial process to determine the respective level of credibility of the parties concerned. However, in this context, she did strike a note of warning in her report. She wrote as follows:
“It is difficult to comment on whether one or both parents may have not met the responsibilities of parenthood, without a judicial opinion regarding the credibility of the parties. The children’s comments raise some concern that their mother had inappropriately discussed her concerns regarding Mr Raby with them, but it may be that this has occurred in the context of high levels of anxiety for the children’s safety, should her reports about Mr Raby’s aggressive and threatening behaviour towards her, and the children (see below) be accurate).”[6]
[6] See family report at page 17
In the overall context of her report and its recommendations, Ms Cole was obviously highly influenced by the mother’s extreme display of anxiety, coupled with her history of being the victim of an extreme level of protracted family violence. However, once again, Ms Cole indicated that it was not her role to make specific findings in respect of whether this violence had or had not occurred.
Clearly, if either the claims of violence were fabricated or exaggerated by Ms Fisk, it would be Ms Cole’s view, I think, that the mother’s behaviour towards the children and her inability to shield them from her feelings of antipathy for Mr Raby amounted to extremely poor parenting.
During the course of their consultation together, Ms Fisk indicated to Ms Cole that she was opposed to the children spending time with their father because they would “end up like Mr Raby”. Ms Fisk also described her vehement opposition to what she described as “co-parenting” and apparently indicated some level of fear that she might lose the children to their father.
As previously indicated, Ms Cole was impressed with the father’s presentation during interview. She also found that he had engaged successfully in play, during the observed interaction. She also considered that he had a child focussed attitude. Accordingly, overall, Ms Cole was “confident” regarding Mr Raby’s capacity to be a positive influence in the children’s lives.
Ms Cole regarded [X] as a temperamentally sensitive child. In this context, she was gravely concerned at the potential for all the children, but particularly [X], to be severely affected by the extreme level of conflict between their parents. Protecting the children from this conflict, including the high possibility that the mother would expose the children to her intense distress, was one of the major motivating factors in Ms Cole’s report and its recommendations.
I agree with Ms Cole’s assessment that the information presented, both to her and to the court, at this stage, is contradictory, inconsistent and unclear. It is in this context that the court must assess the level of risk, which may result to the children, as a result of any orders which are made. In this context, Ms Cole cautioned the court not to easily dismiss what [X] and [Y] had conveyed to her.
Although both [X] and [Y] had been observed to play with their father and to readily seek out his attention and encouragement, both children expressed to Ms Cole, in interview, a reluctance to see their father and described difficult memories of him to her.
This dichotomy is one of the central issues in this case and goes to the court’s responsibility to assess potential risks to the children. Two hypotheses emerge. Firstly, what Ms Fisk and the children say is true. Secondly, Ms Fisk is not truthful and the children have been either directly coached or influenced by their mother.
Ms Cole did not discount the second hypothesis, although she did urge caution in respect of interim arrangements for the children, particularly given the mother’s obviously elevated level of anxiety and the implications that this would have, in turn, for the children’s psychological well being.
The legal principles to be applied
The service of [X], [Y] and [Z]’s best interests is the most important consideration in this case [Family Law Act s.60CA]. The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people are most usually the parents of any child concerned but also include other relatives, specifically grandparents [section 60B(2)(b)].
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order, both at the interim and final stage, is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61(DA)].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence or abuse [section 61DA(2)].
The court has a discretion not to apply the presumption at the interim stage, if circumstances exist which make it inappropriate for it to be applied [Section 61DA (3)]. The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
However the court must not utilise this discretion in an arbitrary fashion. Rather it is to be applied, at the interim stage, in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption [see Goode & Goode (2006) FLC 93-286 at 80,903].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
It should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible [section 61DB].
By application of the law, if the presumption applies, the court is required to consider firstly whether the children concerned should live with their parents for equal periods of time, provided this outcome is both likely to be in the children’s best interests and reasonably practical.
If the court rejects equal time, it is then required to consider the children living with each of their parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the children’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the child concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
In the overall context of this case, the following additional considerations contained in section 60CC(3) are likely to be relevant to the determination of the children’s best interests at this stage:
The views expressed by the children. In this regard the court is directed to consider the maturity of the children concerned and any factors which might be influencing those views [section 60CC(3)(a)];
The nature of the relationship any child concerned has with each of his or her parents and any other person, including a grandparent [section 60CC(3)(b)];
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between any child concerned and the other parent [section 60CC(3)(c)];
Practical considerations in respect of “contact” arrangements [section 60CC(3)(e)];
In assessing the various considerations arising under section 60CC (2) & (3) the court is required to assess the degree of participation of the parents concerned in the lives of their children both before and after separation.
This assessment includes how much time and communication each parent has had with the children; the degree of their involvement in long-term decision making; and their fulfilment of financial obligations towards the children, both before and after separation [section 60CC (4) & (4A)].
In addition, the court is also required to consider how the parents have each facilitated the involvement of the other in these aspects of their children’s lives. These considerations emphasise the benefits for children of effective co-parenting and the obligations on parents to facilitate it.
In particular [section 60CC(4A)], directs that the court must have regard to events which have occurred post separation in respect of how a parent has either facilitated or failed to facilitate the involvement of the other in spending time or communicating with any child concerned. These considerations are relevant to whether a parent has or has not displayed an appropriate attitude to the responsibilities of being a parent [section 60CC(3)(i)].
The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them. [see Goode & Goode (supra) at 80,903].
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the children concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[7]
[7] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
In Goode & Goode the Full Court directed that in determining interim hearings, after identifying the competing proposals of the parties; the issues in dispute; and any agreed issues; the court should:
Consider the section 60CC matters relevant and, if possible make any relevant findings of fact;
Decide whether the presumption in section 61DA should be applied or if it is rebutted because:
There are reasonable grounds to believe child abuse or family violence has occurred;
Or, in interim proceedings only, it would not be appropriate to apply the presumption;
If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
If neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in section 60CC;
If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for the child concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child’s parents are not appropriate psychological role models for children [see In the marriage of Patsalou (1994) 18 Fam LR 426].
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as denial, embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life and represents a grave threat to the welfare of children.
However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned [see JG & BG 18 Fam LR 255 at 261]. Obviously the latter behaviour is the more damaging, so far as children are concerned.
Again these are factors which the court must bear in mind in examining issues of family violence in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to a child.
The fundamental task for the court is to assess prospective dangers for the child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement.
However, if a child has been traumatised by exposure to family violence or some other form of abuse, it still may be extremely damaging for the child to be brought into direct contact with the perpetrator of this abuse and violence, even in the most protected and supervised of settings [see M & M (1988) FLC 91-979 at 77,081].
Finally, the definition of family violence in the Family Law Act has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable [section 4].
It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons. Regrettably, it is also not unknown for parties to fabricate allegations of violence, either to satisfy emotional needs or in an attempt to influence the outcome of proceedings to that parties’ advantage.
At this stage, due to the truncated nature of the interim hearing and in spite of the plethora of evidentiary material, I am not in a position to conclude definitively one way or the other whether the father has been violent towards these particular children and their mother or whether it is the mother who is exposing them to emotional abuse by her attempts to undermine their otherwise viable relationship with their father.
Although I cannot resolve them, I have to have regard to the nature of both these sets of allegations in determining the appropriate interim arrangements for the children’s care. Necessarily, this process must involve an examination of the potential level of risk implicit in any of the possible outcomes and the possibility that any of the allegations made are true.
I cannot completely eliminate the potential risk of some level of risk befalling [X], [Y] and [Z] because there is some potential harm in the outcomes proposed by both the father and the mother and indeed in the options which fall in between their respective proposals. The court’s task is to balance these potential risks against one another.
In essence, the court should not make a particular order, regarding the children, if it thinks there is an unacceptable level of risk coming to the children implicit in such an order.[8] This task does not entail an obligation or duty on the court to resolve such an issue definitively, either at the interim or final stage.
[8] In this regard see M & M (1998) FLC 91-979
However, in determining any unacceptable risk question, the court must give real and substantial consideration to the overall facts of the case concerned. In particular, it should look to the nature of events alleged to have occurred. In so doing, it should examine the allegations involved and note to whom they have been made and when and the context of such allegations.
It should also consider questions of corroboration and the possibility that particular types of allegation may be made for tactical reasons.[9] The task for the court involves an estimation of the magnitude of the various risks involved and a consideration of how those risks can be best managed, in all the circumstances of the particular case.
[9] See M & S and the Separate Representative (1996) FLC 92-655 at 82,713
Clearly there is a risk to the children if they are exposed to a violent and sociopathic father, in opposition to the strong views of the children concerned, particularly if this exposure exacerbates the understandable anxiety of the mother and so undermines her ability to parent effectively the children in question.
There are also significant risks to the children of potentially severing an otherwise worthwhile relationship between them and their father, which may not be able to be sustained in the artificial and limited circumstances of a children’s contact centre, particularly if both [X] and [Y] are able to readily terminate such interactions with their father.
Given what has already occurred at the [C] centre, it is difficult to see that a future regime involving the centre is likely to maintain even the barest embers of a relationship between the father on the one hand and [X], [Y] on the other. The children have readily terminated such sessions in the past.
These considerations are intensified by the fact that the father did not see the children between May and late December of 2008, as a result of the mother’s movement of the children from Brisbane to Adelaide. This action raises considerations of section 60CC(3)(c) and (i) and 60CC(4A).
There is a tension between the protection offered to a child by supervised contact, with the potential detriments occasioned by the artificiality and implicit limitations necessarily arising from such supervision. Supervision can of itself impact on the long term emotional wellbeing of any child concerned, by reason of an almost inevitable curtailment of one of his or her parental relationships.
No matter how well a contact centre is run, supervision has limitations. It may not provide sufficient time for the fostering of an appropriate parental relationship. It may exacerbate rather than reduce tension for a child, particularly if that child is led to believe, for whatever reason, one of his or her parents wishes the process of supervision to be unsuccessful.
In addition, such supervision may prevent the parents concerned managing their own parenting relationship with one another. Finally, contact centres are likely to be unable to provide supervision indefinitely. Their involvement with any family may be at best be a temporary or stop-gap measure.
Obvious cases which call for some form of supervision include: cases where a parent has a serious and diagnosed psychiatric illness; cases involving a previous abduction; allegations of sexual abuse; cases involving drug and alcohol addiction; cases where there is no relationship between parent and child. This list is not intended to be exhaustive.
In addition, in cases where there is a high level of suspicion and apprehension in the residential parent’s household, supervision may be the only viable outcome because otherwise excessive anxiety on the primary care-giver’s part may adversely impact on that parent’s ability to care for the children concerned.
Considering these issues is a part of the court’s task in assessing the magnitude of the level of risk involved to a child and determining whether it is one which is unacceptable to be taken by the court. The court must also formulate appropriate responses to the level of risk involved.
There may also be cases where the court determines that there is no unacceptable risk of harm coming to a child by reason of the process of that child spending time with one of his or her parents per se. However, the court must then consider whether there will be indirect harmful consequences to the child as a result of any such contact because the other parent either believes that some harm will inevitably occur and so his or her level of anxiety becomes so extreme that it will have a significant impact on that parent’s capacity, as the resident parent, which will inevitably impinge on the best interests of the child concerned.
In these cases, the court has been directed to take steps proportionate to that circumstance.[10] In many cases, there will be elements of overlap between whether a residence or primary care giving parent’s anxiety, about a child spending time with the other parent, is objectively based or whether he or she has a flawed but nonetheless genuinely held view that some form of abuse has occurred and is likely to re-occur in future.
[10] See A v A (1998) FLC 92-800 at 87,996
In either case, whatever orders are made for the child to spend time with the other parent require careful consideration and involves the balance of the likely benefits to a child’s emotional wellbeing of maintaining a relationship with both his or her parents with the potential detriments, which may occur if his or her primary carer is unable to cope psychologically with a particular “contact” regime. In determining where the balance falls, the child’s best interests remain the sole determinant.
Conclusions
a) Whether the children should be independently represented
This is a complex case involving significant mutual allegations of family violence. In addition, both parties have raised issues concerning alleged psychiatric or psychological illness or personality disorder in respect of the other, which each asserts is likely to have significant implications for the future wellbeing of these children.
Above all, it is a case which raises controversial issues to do with the possible alienation of [X], [Y] and [Z] from their father who, up until the parties separated, has shared a household with the children for the vast majority of their lives. Whatever controversy exists between
Mr Raby and Ms Fisk, I do not doubt the father’s professed love for the children and his desire to remain involved in their lives in future.
In my view, these are factors which militate in favour of the children being represented independently of their parents.[11] Already disputes have arisen between the parties regarding the appropriateness of a psychiatric expert. The independent children’s lawyer can act as an honest broker in the resolution of such disputes.
[11] See Re K (1994) FLC 92-461
I acknowledge that each of the parties in this case is well resourced and more than competently represented. In addition, I acknowledge the large amounts of evidence, which have already been marshalled by each of the parties. However, given the acrimony implicit in the proceedings to date and the complexity of the issues raised, I consider that there are benefits to the children arising from them being independently represented in these proceedings.
b) The presumption of equal shared parental responsibility
In this case both parties assert that the other has inflicted family violence on him or her. The police have been summonsed to their premises in the past. In addition, on at least one occasion, the father has been charged with an assault of violence against the mother albeit that the charge was subsequently withdrawn.
In all these circumstances, I think it reasonable to believe that some form of family violence has occurred between the parties in the past. Accordingly, the presumption created by section 61DA should not be applied at this stage.
In addition, given the extreme level of suspicion and animosity present in the parties’ parenting relationship, it seems to me to be axiomatic that it would not be in [X], [Y] and [Z]’s best interests for the presumption to be applied.
At this point, the parties are clearly incapable of making any mutual decisions pertaining to the children’s interests and have diametrically different views as to what will be best for them. Section 61DA is directed to the allocation of parental responsibility. It does not apply to parenting time, which is dealt with more specifically by section 65DAA.
c) Family violence
Both Ms Fisk and Mr Raby make significant allegations, about the other spouse’s potential to engage in irrational and violent behaviour against him or her, in the context of marital argument. None of these complaints has resulted in a substantiated criminal conviction or in a family violence order being made after a contested hearing or which has become final as a result of court order [section 60CC(3)(k)].
The mother has made complaints of violence to many professional persons and has exhibited symptoms of anxiety and depression to those persons. However, there is no independent corroboration of her having sustained any physical injury, apart from Ms G’s testimony, which is challenged by the father. Accordingly, it is not beyond the bounds of possibility that the mother has exaggerated her concerns about family violence for the reasons opined by Dr B.
Given Mr Raby’s presentation to Ms Cole and the fact that both she and Dr B believe that the greatest potential for the children to be exposed to family violence is if their parents come into direct contact with one another, I do not consider that the risk of the father either abusing these children or exposing them to family violence to be one which is unacceptably high, if an order is made for him to spend some level of time with [X], [Y] and [Z].
At this stage, on balance, I think it unlikely that Mr Raby will be directly violent to any of the children. I accept Ms Cole’s assessment that he is child focussed and has a reasonable level of competency, so far as being a parent is concerned. In my view the risk is also diminished if the children see their father in the presence of Mr and
Ms R Senior.
The mother makes some complaint that the father has been abusive towards [X]. [X]’s complaints are somewhat inchoate. However, the main thrust of the mother’s complaints concerns the inter-personal relationship between her and Mr Raby. Clearly if the parties do not come into contact with one another, the prospect of the children being exposed to this behaviour is minimal.
d) The children’s level of relationship with those who are significant to them
Clearly, at this stage, the children’s most significant relationship is with their mother, who has provided the vast majority of their care up to this stage.
In my view, the children also have a significant relationship with their father. They have occupied the same household with him over many years. In the case of [Z], he seeks out his father’s attention with both enthusiasm and alacrity. [Z] obviously knows his father very well and loves him very much.
Obviously however, the relationship between [X] and [Y], on the one hand, and their father on the other, is currently extremely stressed. The causation of this state of affairs is unlikely to be able to be reduced to one factor alone. The children have had only limited interaction with their father since May of 2008.
When the children have come into contact with their father, in a supervised setting, they have each utilised the opportunity to withdraw from their father. It seems likely that the mother’s attitude to the father plays at least some part in the overall dynamic.
In contrast, when [X] and [Y] came into contact with their father, under the aegis of Ms Cole and with her encouragement, [X] and [Y] have been capable of having some level of positive and mutually enjoyable interaction with their father. In my view, this is significant.
It leads me to the provisional conclusion that all three children are capable of benefiting from having a meaningful relationship with their father. Certainly this was Ms Cole’s view, albeit one hedged with notes of caution, particularly regarding how Ms Fisk was likely to react to such a proposition.
It seems clear that the children do not have a particularly well formed relationship with their paternal grandparents. I suspect that this is as a result of a combination of factors, chief of which are the fact that the parents concerned have lived interstate for several years and, in the past, Ms Fisk has mistrusted Mr and Ms R Senior. However, I find it difficult to give a high level of credence to Ms Fisk’s assertions regarding the alleged malevolence of the paternal grandparents.
It is Mr and Ms R Senior’s position that [X], [Y] and [Z] have a right to have some form of relationship with them in future because they are part of the children’s wider family and, as such, are likely to be significant to their ongoing care, welfare and development.
These were themes which were taken up by Treyvaud J in Bright v Bright[12], which seems to me to be relevant, although it pre-dates the applicable legislation. His Honour said as follows:
“His Honour was at pains there to point out, as I do now, that it is very important for children’s proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is a part a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
In deciding this dispute between the grandparents, on the one hand, and the parents, on the other hand, I am required by law to treat the welfare of the child E as the paramount consideration. I have pointed out that as a matter of general principle children develop better when they recognise that they have a place not only in the home in which they live but in the wider family.”
[12] See Bright v Bright (1995) FLC 92-570 at page 81,658
It seems to me that Mr and Ms R Senior have the potential to be highly significant to the three children concerned. I do not doubt that the paternal grandparents love the three children concerned. They are, after all, their kith and kin. Grandparents are naturally curious about their grandchildren and vice versa.
Our society recognises the corner stone of the family in the development of children. As Treyvaud J points out, family is not a concept just confined to the parent child relationship but encompasses grandparents, uncles, aunts, cousins and indeed great grandparents.
e) The children’s views
[Z] is three years of age. Clearly he is too young to be able to articulate any view as to his preferred outcome in these proceedings. [X] and [Y] are older being seven and five and a half years of age respectively. But they remain immature children.
As such, [X] and [Y] are likely to lack insight into the complex dynamic between their parents, most recently adversely intensified by the parties’ separation and these acrimonious proceedings.
As such, I believe that I must be cautious about attaching an undue amount of weight to the views provided by [X] and [Y] to Ms Cole simpliciter. There seems to me to be a significant possibility that the children have been either consciously or perhaps more subtly influenced by reason of Ms Fisk’s obvious feelings of animus towards Mr Raby.
Like Ms Cole, I am struck by the dichotomy between what the children said to her in private and how they interacted with their father, albeit after some coaxing and encouragement on both his part and that of Ms Cole, during the observed interaction.
The mother graphically described her distress, which must have been obvious to the children concerned, prior to them meeting their father for the first time in the supervised setting. After this visit, the mother removed the children’s clothing and washed it because it supposedly contained traces of the father’s “smell”.
It seems likely that such a gesture would clearly indicate to [X] and [Y] their mother’s desire to expunge all traces of their father, no matter how infinitesimal, from their lives. How could the children fail to pick up on the significance of these behaviours and respond to them, particularly given their degree of emotional proximity to her?
The children clearly have the closest and warmest level of rapport with their mother. Since May of 2008, they have been subjected to significant upheaval. In all these circumstances, it would be difficult to dismiss the possibility that [X] and [Y] are not expressing their own clearly articulated views, but are echoing those of their mother.
In this regard, it is particularly noteworthy that both children expressed their concern at the possibility of being removed from their mother’s care by either their father or paternal grandparents, when there is no application to this effect and no realistic possibility of it occurring at this point. It seems to me to be highly likely that this is more a fear of the mother than the children concerned and one which she has somehow, whether innocently or otherwise, planted in their minds.
f) The mother’s capacity to encourage and facilitate the children having an appropriate level of relationship with their father
The mother concedes that she has no such capacity at present. It is her position that this is both an understandable and reasonable position on her part. In this context, it seems likely that the mother has no capacity to shield the children from her distress, at the prospect of the children coming into contact with their father, in any form whatsoever.
This is relevant when consideration is given to whether or not the process of professional supervision of the children should be continued. In some way or other, [X] and [Y] have been given to understand that they may terminate any such process of supervised time of their own volition. When asked about spending time with his father, [X] told Ms Cole “…I can ask to leave, that’s what I always do.”[13]
[13] See family report at page 6
In the context of Ms Fisk’s compromised facility to encourage the children to have any level of relationship with their father, this comment of [X] and his and [Y]’s frequent withdrawal from the supervised contact process are noteworthy. I am concerned that both have the nature of a self fulfilling prophecy, which obviously will be satisfactory to Ms Fisk. As such, I am concerned at the very real prospect of any further orders for supervised time between [X], [Y] and their father to be rendered nugatory.
If this proves to be the case, [X] and [Y] will be deprived of the benefit of having a meaningful level of relationship with their father, until such time as some alternative method of parent and children being able to interact together is devised. Ms Fisk is incapable of proposing or indeed considering any such alternative and, in my view, is not likely to change her attitude in this regard for the foreseeable future, notwithstanding any process of counselling upon which she embarks.
There are two primary considerations provided by section 60CC(2). One does not enjoy pre-eminence over the other. Which of them is given the greater weight must depend on the overall circumstances of the case concerned.
For reasons already provided, I do not think that there is an unacceptable risk that either the father or indeed Mr and Ms R Senior will expose [X], [Y] or [Z] to family violence, neglect or abuse, particularly if the father’s time with the children occurs at his parents’ home.
The mother complains that in the past the father has become impatient with [X] because of his particular vulnerabilities, arising as a result of his suspected Asperger’s Disorder. The father denies these allegations, which are not independently verified.
[X]’s complaints to Ms Cole about his father’s alleged misconduct appear to relate to matters arising between the parents rather than involving the direct application of violence to [X]. Ms Cole described [X]’ account of the handcuffs incident as being confused. In these circumstances, I believe I must treat the alleged threat of violence to the children with some degree of caution.
Accordingly, in all the circumstances of this case, I consider that the benefits, which the children are likely to derive from having a meaningful relationship with their father, should be given more significance than the need to protect them from being exposed to family violence.
I draw some solace, in this regard, from Dr B’s opinion that, if the parties do not come into direct contact with one another, there is little prospect of the children being exposed to any further episodes of family violence.
g) The mother’s anxiety
I accept that Ms Fisk is currently anxious and vulnerable. This was her presentation in court, as well as to Ms Cole, Dr B and her own general medical practitioner, Dr R. For the reasons already provided, I am also concerned at the mother’s currently compromised capacity to shield the children from her anxiety, which the father characterises as being abnormal and which is certainly beyond ordinary parameters.
In my view, the only completely adequate way to shield the children from the mother’s anxiety is if no order whatsoever is made for the children to spend time with their father, in the short to medium term. The question for the court is whether such an outcome will serve the best interests of the children, given its overall weighing and balancing of the applicable section 60CC factors, particularly the weight given to the benefits the children are likely to derive from having a meaningful relationship with their father.
Given the fact that all three children, but particularly [Z], have the potential to maintain a meaningful level of relationship with their father and given that these relationships have been placed under significant stress, as a result of the mother’s movement to Adelaide and the consequent interruption of these relationships, in my view, this is not a viable outcome at this stage because of the potential it holds to lead to an either total or close to total extinguishment of the paternal aspect of these children’s family relationships.
The mother is likely to be more able to cope with supervised periods of time but, in my view, is likely to remain both resistant to such an outcome and liable to continue to manifest her distress and anxiety about such an outcome to the children, which is likely to render the process of professional supervision ineffective.
At this stage, the fundamental task for the court is to balance the likely benefits to [X] and [Y], both in the short and longer term, of maintaining an appropriate level of relationship with their father, with the potential detriment which may be occasioned to them, if Ms Fisk finds it difficult to cope with the necessary regime to enable the maintenance of such a relationship.
For the reasons already provided, I am concerned that professionally supervised time is not a viable option in this case, primarily because [X] and [Y] perceive they have the imprimatur to derail such a process and the time available for it is too short and infrequent to lead to the possibility of any normalisation of the children’s paternal relationship.
However, notwithstanding this conclusion, I agree with Ms Cole’s assessment that a slow and cautious approach needs to be adopted, given the potential for the children to be emotionally overwhelmed by too precipitate an approach and the particular vulnerability of the mother to become excessively anxious.
Dr R is a general medical practitioner. She opined that, in September of 2008, Ms Fisk had a major depressive disorder. This was not Dr B’s view, who saw her in December of 2008. He did not think that she demonstrated any significant psychiatric disorder. He reported as follows:
“The two times that Ms Fisk has been prescribed an antidepressant appear to be in the context of a recent crisis which quickly passes. This is likely due to the passage of time not due to any specific effects of the antidepressant. In psychiatry one must be careful with the use of the word depression as it can mean both a mood state of feeling as well as a clinical diagnosis. Other words such as sad, upset and repressed could also be used to describe her mood and life situation in the marriage. She did not describe sufficient symptoms or duration of symptoms for a diagnosis of a Major Depressive Disorder.[14]
[14] See report of Dr B at page 6
In all these circumstances, I believe I must be cautious about too readily accepting Ms Fisk’s assertion that she will not be able to cope with the children spending any time whatsoever with their father. Clearly this is her preferred outcome in the case and, as such, she is likely to have a significant level of motivation to wish to achieve it. As such, once again, I am concerned that it may be analogous to a self fulfilling prophecy on her part.
h) Practical considerations
For the time being Mr Raby is living in Brisbane. Fortunately, his employment enables him to access affordable air travel and, as such, he is able to travel to Adelaide regularly. Accordingly, he is able to assume responsibility for the “tyranny of distance” considerations, which arise in this case.
For obvious reasons, the parties in this case are incapable of making appropriate arrangements to exchange the children between them.
I also consider that the extreme level of tension between them, which is likely to impact on all three children, makes the exchanging of the children within the confines of a police station or at some location frequented by the general public, such as a fast food restaurant, clearly inappropriate. Their relationship is too volatile for this.
Neither party can suggest any mutually acceptable and neutral intermediary, who can ferry the children between them and act as an honest broker. Clearly Mr and Ms R Senior would be unacceptable to the mother in this regard. She herself can suggest no alternative.
The only feasible options, as a location for the exchange of the children, is at a children’s contact centre, at which the children may pass through a metaphorical “airlock” between their parents, which is professionally overseen. This of itself creates logistical difficulties.
As I understand matters, the hours of operation of the children’s contact centre at [C] are limited. It is open for handover between 5:00pm and 6:30pm on Fridays; 10:00am and 11:30am on Saturdays; and 4:00pm and 6:00pm on Sundays. Accordingly, it is not possible for the centre to offer a service for handover on two occasions on any one day.
I have come to the conclusion that the father’s proposals for the children to spend time with him are too ambitious, given the complex dynamic of this case. Certainly, they are not in line with the recommendations of Ms Cole and I believe that, at this interim stage, I would be imprudent to easily dismiss these recommendations.
My preference would be for the father to spend a long day with the children, each fortnight, with the children to be exchanged in a neutral and supervised setting. This is not possible given the hours of opening of the [C] centre and the lack of alternate handover mechanisms.
The mother’s anxiety makes a period involving overnight time problematic. Certainly, I think, she will not easily cope with the periods of time envisaged by the father. As Ms Cole recommends, I must proceed slowly and cautiously within the logistical constraints applicable.
These factors lead me to the conclusion that the father should spend time with the children from 11:00am on alternate Saturdays until 5:00pm the following Sunday. This will enable the utilisation of the [C] Children’s Contact Centre for the exchange of the children, which seems to me to be an escapable essential.
It seems to me to be the least of the evils arising for the father to have a longer period of time with the children concerned than that the court should dispense with the mechanism for a controlled and neutral place of handover given the dynamics of the parties’ current relationship.
The chief benefit of such an outcome will be that the children will be able to have a more normal and longer period of interaction with their father in a domestic setting. They will be able to play outdoors; eat meals together; and Mr Raby will be able to tend to their every day needs, such as putting them to bed and overseeing ordinary hygiene. Such an environment is likely to lead to the children having a more meaningful level of relationship with their father, in the sense that the children are likely to perceive that Mr Raby is involved in some significant aspects of their day to day care.
The major deficit of such an arrangement is that it will heighten
Ms Fisk’s anxiety. It is a frequent occurrence that a parent becomes particularly agitated at the prospect of a child being away from him or her overnight as this is obviously the time at which a child is most vulnerable, particularly to night time anxieties.
I am well aware of all these difficulties, in this particularly case. However, on balance, I think it will be of benefit to [X], [Y] and [Z], if they have the opportunity to spend time with their father overnight, on a fortnightly basis, until there can be a more extensive inquiry into the various matters raised by each of the parties.
Other matters
One of the central and unknown issues in this case is how the mother will cope psychiatrically and psychologically with orders for the children to spend time with their father. As such, the requirement that Ms Fisk undergo some form of further psychiatric examination in the light of both Ms Cole’s report and the interim orders seems inescapable.
Ms Fisk does not appear to resist such an examination but is opposed to Dr B undertaking it. Given Dr B’s involvement in the matter to date it would seem to me to be both sensible and preferable that he continue to be involved in the matter. However, I will defer to the expertise and judgment of the independent children’s lawyer in this respect, when he or she has been appointed.
Summary of conclusions
The children should be independently represented, given the level of complexity arising in this case. Dr B is best placed to undertake any further psychiatric assessment of the mother deemed necessary, subject to any view formed by the independent children’s lawyer.
It does not appear to constitute an unacceptable risk to the children, if they spend some time with the father and paternal grandparents at this stage. As such, the likely benefits of the children maintaining a meaningful relationship with their father should be given pre-eminence by the court at this interim stage.
The views of the children, particularly [X] and [Y] should be approached with caution and should not of themselves be determinative of the amount of time the children spend with their father. This is because of the dichotomy between the children’s views, as expressed to Ms Cole in the assessment process and how they actually interacted with the father during the observed periods arising from the family assessment.
The concerns about family violence are significant in this case. The court must make orders proportionate to the degree of risk involved, bearing in mind that the best interests of the children concerned remains paramount.
In this case, at the interim stage, the court is unable to make definitive findings regarding who of the parties has been the main protagonist of such violence, it being the position that the father and mother both assert that the other is violent, emotionally voluble and manipulative, particularly of professional persons.
However, it seems likely that the chances of the children being directly exposed to family violence again will be minimised, if not excluded, if the parties are restrained from coming into direct contact with one another.
Any process of the children continuing to see their father in a supervised setting is likely to remain problematic. Firstly, such a process is unlikely to be conducive to the children maintaining a prerequisite level of meaning in their relationship with their father.
Secondly, the older children are likely to perceive that they either have their mother’s imprimatur to withdraw from such a process or alternatively they may believe their withdrawal is necessary to sustain their mother’s ongoing emotional equilibrium. Either way such a process has a high possibility of miscarrying, as it has done on several occasions on the past.
The mother’s anxiety is a highly relevant consideration in this case. The children have been both exposed to this anxiety in the past and are likely to be exposed to it in the future, regardless of the outcome of these proceedings. The court must balance the likely benefits to the children of maintaining a relationship with their father with the potential detriments, which may arise if their mother is unable to cope psychologically with a particular “contact” regime.
In this case, given the likely unviability of a supervised regime for [X] and [Y] and the present level of vulnerability of their paternal relationships, the court should give greater weight to the likely benefit of the children maintaining a meaningful level of relationship with their father, notwithstanding the implications of this for the mother’s ongoing psychological health and the import of this on her capacity to parent the children effectively.
However the amount of time, which the court determines the children should spend with their father must take into account both the vulnerability of the children concerned and the susceptibility of the mother to anxiety. The mother’s level of anxiety is likely to impact on her capacity to parent the children adequately. A balance must be struck between these concerns and the likely benefits the children will derive from interacting with their father and the optimal parameters in which this can occur.
The court is required, in considering the best interests of the children concerned, to give consideration to how the mother has parented the children in the period since separation, particularly in terms of her involvement of the father in decision making and how she has facilitated the children’s level of relationship with their father.
In this context the mother concedes her capacity to encourage a relationship between the children and their father is so poor as to be practically non existent. Her actions in relocating the children from Brisbane to Adelaide were not conducive to their paternal relationships being maintained. These factors call into question the mother’s level of insight into the responsibilities incumbent in being a parent.
Given the father’s lack of involvement in the children’s lives between separation in May 2008 and now, it seems highly likely that the court needs to take some steps to ameliorate the relationship between particularly [X], [Y] and the father and ensure that the obviously warm and healthy relationship between [Z] and his father is maintained.
For logistical reasons, it is not possible for the father to spend regular and shorter daytime periods of time with the children at this stage. Any handovers, between the parties, need to occur in a highly controlled setting. For these pragmatic reasons, time between the father and children needs to occur on an overnight basis, each fortnight.
The paternal grandparents do not currently have a strong relationship with the children. However, their biological relationship with the children makes them potentially relatives of significance to the children in the future. As such, the children are likely to derive some benefit from knowing and engaging with their paternal grandparents in future.
However, at this stage, the court’s primary focus should be on the children’s relationship with their father and how this may be best maintained in extremely difficult circumstances. In this regard, the best outcome would seem to be for the father to spend time with the children at his parent’s home, subject to their general supervision.
This may but is unlikely to assuage some of the mother’s concerns in this case, particularly that the father will respond improperly to [X]’s particular vulnerability arising from his susceptibility to Asperger’s Disorder.
There can be no perfect outcome in this case. However, I think that the outcome, which I propose at this stage, will best serve the interests of [X], [Y] and [Z] in the conflicted and difficult circumstances, which presently prevail.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and nineteen (319) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 6 April 2009
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