Renovic and Bennett

FAMILY COURT OF AUSTRALIA

RENOVIC & BENNETT

[2007] FamCA 1553

FAMILY LAW – CHILDREN – Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Mr Renovic

RESPONDENT:

Ms Bennett

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

FILE NUMBER:

SYF

4101

2005

DATE DELIVERED:

14 December 2007

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

3-5 December 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Cleary

SOLICITOR FOR THE RESPONDENT:

Christopher Mackay

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stewart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

Orders

The Orders made in the Local Court Family Matters in Proceedings … on 7 March 2005 are discharged.
All current parenting orders are discharged.
The child E born … April 2002 (hereinafter referred to as “[E]”) live with the mother.
The mother have sole parental responsibility for E.
That the mother continue with the therapy undertaken with Dr M for herself and the child and attend all sessions appointed by Dr M for this purpose. She is to facilitate the like attendances by the child.
The mother and father each keep the other advised of their current contact details including postal and residential address and telephone numbers and each advise the other of any change to these details no more than 48 hours after the change takes place.
The mother keep the father advised in writing of all issues relevant to E’s health and education.
The mother authorise any school attended by E to forward to the father copies of all school reports, newsletters and photograph applications issued in respect of E.
The mother hand to the child unopened all letters, mail and other items addressed to E by the father.
The mother provide E with current information about the father’s postal and residential address as and when requested by E to do so.
Neither party denigrate the other or the other’s family or to the best of their ability allow any other person to denigrate the other or members of the other’s family to or in the presence or hearing of E.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Both parties contribute equally to the costs of the Independent Children’s Lawyer in these proceedings including but not limited to the costs of Dr W within seven days upon receipt of a written request from the Independent Children’s Lawyer to do so.
The Independent Children’s Lawyer is hereby discharged.
All current applications other than as provided for above are dismissed and the proceedings are removed from the Pending Cases List.
Both parties have liberty to restore these proceedings to the list in relation to the implementation of these orders on seven days’ notice.

AND THE COURT NOTED

The costs of the Independent Children’s Lawyer in these proceedings are $12,764 together with costs of Dr W.
The exhibits may be returned upon the usual undertakings.
All material produced in response to subpoenas be returned to the party who produced it.

IT IS NOTED that publication of this judgment under the pseudonym Renovic & Bennett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4101 of 2005

MR RENOVIC

Applicant

And

MS BENNETT

Respondent

REASONS FOR JUDGMENT

Introduction

This case is representative of those tragic cases where the upholding of the best interests of the child will severely affect the ability of the father to have a full and rewarding ongoing relationship with her but the task of this Court is and has always been to regard the child’s interests as the paramount consideration and to uphold and support them notwithstanding the effect that that might have on others. That the Court seeks that end does not in anyway diminish the enormity of the sense of loss that a father will feel in these circumstances and in particular this father who has in my opinion always done the best he could (whatever the deficiencies of that effort) to demonstrate his love for his daughter in a way he thought was appropriate.
This case was commenced by an application filed by the father on

30 September 2005 seeking different orders to those previously made relating to the child spending time with him both as to the periods during which and conditions under which such time should be spent. The orders sought by the father were amended and finally set out in a case outline document and were:
“1.The parties including [E] will attend further 6 months of the consultation with the new appointed Family Psychiatrist/ Psychologist in order to develop the corrective action, progress path and the strategies for improving the child’s relationship with each parent, the quality of the contacts with the father, in accordance with the Single Expert Report/ Conclusions and Recommendations, prepared by Prof. [Dr W], dated 31 July 2006.
2.The parties including [E] will continue to attend every subsequent consultation with the Family Psychiatrist/ Psychologist for as long as the Specialist considers is necessary in order to verify the positive improvement in the relationships between the child and each parent and that the current situation concerning the negative influence to the child is corrected to the satisfaction of the Family Psychiatrist/ Psychologist.
3.The mother shall pay costs of the visits to consultation with the Family Psychiatrist.
4.That [E] (born […] April 2002) has supervised contact with her Father until 31 May 2008 each Saturday on 3 out of every 4 weekends for 4 hours from 09:30 am to 13:30.
Noted:
a)Contact to be assisted by Ms [G] of [S Facility].
b)Ms [G] will, unless otherwise advised, collect the child from the Mother’s residence at 09:30 am and return her at 13:30 to the Mother’s address [in B]
c)There is no restriction on where the Father chooses to spend contact with the child, provided the supervision is passive during the contacts and conducted in accordance with the Single Expert Report/ Conclusions and recommendations/ page 21, prepared by Prof. [Dr W], dated 31 July 2006.
5.That from 31 May 2008 until 31 December 2008 [E] has unsupervised contact with her Father from 09:30 am until 14:00 each Saturday on 3 out of every 4 weekends.
6.That from 01 January 2009 until 31 March 2009 [E] has unsupervised contact with her Father from 09:00 until 17:00 each Saturday on 3 out of every 4 weekends.
7.That from 01 April 2009 until 30 June 2009 [E] has unsupervised contact with her Father from 09:00 am on Saturday until 16:00 on Sunday each alternate weekend.
8.That from 01 July 2009 [E] has unsupervised contact with her Father from 17:00 on Friday until 17:00 on Sunday each alternate weekend.
9.That from 01 July 2009 [E] spend 3 weeks continuous holiday with her Father within June-August period and 3 weeks continuous holiday within December-January school holiday period in Australia or overseas.
10.Notwithstanding the above
a)[E] will spend Father’s Day with the Father from 10:00 until 18:00
b)[E] will spend not less than 5 hours with her Father on her birthday on […] of April each year at times to be agreed between her and her Father.
11.Noted [Orders 2, 3, 4, 5, 6 and 7]:
a)There is no restriction on where the Father chooses to spend contact with the child.
b)The father will, unless otherwise advised, collect [E] from and return her to the place to be agreed between the parties.
c)The Mother will provide the Father with the Medical Certificate within 5 days of the child’s visit to the medical practitioner stating the reasons and during what period the child is not able to attend the scheduled contact with the Father, as ordered by the Family Court.
12.The name on the Child’s Birth Certificate to be changed from [E Bennett] to [E Bennett Renovic].
13.The Mother will provide the Father within the next 7 days with the written advice of details of the child’s accommodation and daily routine including the child’s attendance to the kindergarten, pre-school, school. Any change to these arrangements shall be communicated to the Father within 7 days after the change has occurred. The Mother will continue to provide 12-monthly update of this information and 6-monthly update on child’s nutrition starting from 15 August 2007.
14.The Father will be given the contact details of the relevant persons at kindergarten, pre-school, school and other places where [E] spends significant periods of time in order to make enquiries about her well-being, behaviour pattern and educational progress.
15.The Mother will provide the Father within 7 days with the written advice of details of each child’s visit to the health practitioner.
16.The Mother will consult the Father in advance about any significant decision concerning the child’s health and development.
17.Maternal grandparents shall be excluded from changeovers.
18.The contacts between [E] and the maternal grandparents shall be conducted under professional supervision by an independent person in order to protect [E] from the negative influence by the maternal grandparents.”
On the hearing the father proposed that there might be an extension of the period of supervision.
The father did not seek an order that the child live with him.
The mother in her amended response sought different orders and the orders sought on trial were those set out in her case outline document and which opposed the father having any contact with the child at all.

The Issues

Whether the mother should have sole parental responsibility.
If the mother were not to have sole parental responsibility whether the child should have shared equal time with the parents or whether the child should spend substantial time with the father or, if the mother’s case were made out, any time at all.
If the child were to spend time with the father what conditions (if any) needed to be put in place in order to promote the best interests of the child.
By what name the child should be known.

Background Facts

The father was born in Yugoslavia in 1958 and is now aged 49 years.
The mother was born in Australia in 1962 and is now aged 45 years.
A relationship commenced between the parties in 1994 but the parties did not cohabit. The relationship continued until 1995 when it terminated.
The relationship resumed in 2001 and continued until 2002 but the parties did not cohabit.
In 2001 the mother informed the father that she was pregnant. The mother alleges that the father said that he did not want to marry the mother and would not support the child and would have nothing to do with the child.
The child E was born in April 2002. She has a heart murmur. E is now five years and seven months of age.
The parties disagreed as to the naming of the child, which disagreement continues.
Following the birth the father attended at the hospital took photos of the child and learnt how to bath the baby and change her nappies.
In June 2002 the father was asked to sign a birth certificate with the child’s name specified as E Bennett. He did not agree to the name E but signed in any event, he says, under threat that he would not be named as the father on the birth certificate.
In June 2002 the mother informed the father that he could see the child each alternate weekend.
The father informed the mother that he would provide $2000.00 in July 2002 toward the expenses of the child’s birth and he subsequently does so. The father then departed overseas on a work-related visit and returned in September 2002 .
Between September 2002 and August 2003 the father has irregular contact with the child. The mother asserts that she became concerned at the rough way in which the child was handled.
The father concedes that he did not pay any child support apart from the sum referred to above and one or two other small payments until late 2006 when he commenced paying child support except for a period when he was unemployed. It is noted that he states that he provided some clothing and toys for the child during this period. The father says that child support is presently paid.
The parties set out a series of difficulties in arranging for the child to spend time with the father and eventually that was arranged on the basis that the maternal grandfather of the child initially supervised the contact. His supervision continued until 2004 when supervision of contact was undertaken by the mother’s mother.
In August 2003 the mother cut off contact between herself and the father and did not attend any of the occasions on which E spent time with the father. Indeed the mother’s evidence is that apart from communication through solicitors or during counselling she has thereafter no conversation with the father.
The mother asserts that from 2003 E demonstrated unusual behaviour on her return from contact.
In 2005 the father sought orders in relation to contact in the Local Court Family Matters and the matter was mediated to a conclusion and an order made on

7 March 2005
which provided:
“1.     That the child [E] born […] April 2002 (“[E]”) live with the Mother.
2.     That the parties have joint responsibility for decisions concerning [E]’s long term care and welfare. The parties agree that [E] will attend [B] Primary School.
3.     That until [E] is 4 she have supervised contact with the Father 3 out of every 4 Saturdays for a period not less than 2 hours, at times and dates agreed between the parties.
4.     From the time [E] turns 4 until she turns 5 that she have supervised contact with the Father on 3 out of 4 Saturdays for a period not less than 3 hours at times and dates agreed between the parties.
5.     That when [E] turns 5 she has unsupervised contact with the father as follows:
a)For a period of 6 months for 2 hours each Saturday and Sunday on 3 out of 4 weekends at times and dates to be agreed between the parties, such contact to be suspended during school holiday periods.
b)Thereafter, for a period of 6 months for 4 hours each Saturday and Sunday on each alternate weekend, such contact to be suspended during school holiday periods.
c)Thereafter, for a period of 12 months, from 9 am until 4 pm each alternate Saturday, such contact to be suspended during school holiday periods.
d)Thereafter, for a period of 12 months, each alternate weekend from 9 am on Saturday until 9 am Sunday, such contact to be suspended during school holiday periods.
e)Thereafter, each alternate weekend from 9 am on Saturday until 4 pm on Sunday, such contact to be suspended during school holiday periods.
f)Such other contact as agreed between the parties.
6.     Supervised contact will be supervised by a person nominated by the Mother. The Mother will use her best endeavours to arrange for the maternal grandfather to supervise contact as often as possible. The Mother will use her best endeavours to request that the maternal grandparents take a passive role in the supervision to allow the father a chance to bond with [E].
7.     The parties will attend on [Ms C] of the Family Relationship Service for advice on strategies for improving [E]’s relationship with her Father and will follow any reasonable recommendations made by Ms [C] in that regard. The Father will pay the cost of the parties’ attendance on Ms [C].
8.     Notwithstanding the above, [E] will spend Mother’s Day with the Mother from 10.00 am until 6.00 pm.
9.     The Father’s unsupervised contact is conditional on the following:
a)A report prepared by a child psychologist to be agreed between the parties, 1 month before unsupervised contact is to commence that [E]’s health, development and relationship with the Father is such as to warrant unsupervised contact. The parties will share the cost of the psychologist’s report.
b)The Father attending a parenting course at […] on an annual basis between now and when unsupervised contact commences. He is to provide the Mother or her solicitor with certification that he has completed the Course, such certification to be signed by the Course co-ordinator.
c)That the Father ensures that [E] has her own bedroom for overnight contact.
10.    Without admissions, the parties are restrained from:
a)Physically disciplining [E] including using unnecessary force such as pushing, grabbing, poking, shouting and threatening [E];
b)Using any other name for [E] other than [E].
c)Making racist or sexist comments in the presence or hearing of [E];
d)Abusing or threatening [E], each other or each other’s families;
e)Denigrating each other or each other’s families in the presence or hearing of [E].
11.    The Mother will provide the Father with copies of reports from any paediatrician or heart specialist attended by [E]. The cost of the specialist visit and any referral from the GP will be shared equally between the parties.
12.    The parties will do all things and sign all documents to authorise [E]’s GP, cardiologist and paediatrician to release [E]’s medical notes to the Mother’s solicitor. The notes will be retained by the Mother’s solicitor for a period of 1 month during which time each of the parties can attend the Mother’s solicitor’s office to inspect the notes.
13.    Within 14 days of the date of these orders, the Mother will provide the Father with written advice of details of [E]’s accommodation and daily routine and will continue to provide 12 monthly updates of this information.
14.    The Father is restrained from:
a)Taking [E] to the gun club during periods of contact;
b)Taking [E] horse riding without the written consent of the Mother;
c)Removing any of his guns from the safe within his house while [E] is in his care or storing guns in [E]’s room.
15.    The Father will provide the Mother within 7 days’ notice of his intention to go away so that the Mother can make alternative arrangements for [E] during the Father’s contact periods.
16.    The parties will notify each other of their current contact details including addresses and phone numbers and will advise each other of any change to these details no more than 48 hours after such change takes place.”
Counselling did take place for one session with Ms C as provided for in the orders in March 2005 but a second session fixed for September 2005 and involving the mother and the paternal grandmother and the father aborted the mother asserts upon the father delivering part F of an application filed by him in this Court at that time.
Between the making of the orders and the matter being commenced in this court the mother details a number of examples of incidents which are said to have occurred on the child’s return from contact. She also asserts that the child returned home variously tired, sick, bruised, and “hyper” which I take to mean hyperactive. It is also asserted she had bad dreams and reverted to baby talk and on one occasion had problems with loss of control of the bladder. She, the mother, says the child was involved in self harming behaviour. The mother also refers to conduct of the child at a Daycare Centre where she was said to be harming other children.

Credit

The father in giving his evidence made admissions against his own interest. He was prepared to admit to some fault in creating the present situation for the child (in particular his rejection of the child’s name E and his refusal to use that name), albeit less fault than the mother. He saw the mother with her mother as chiefly responsible for the present problem. He also took every opportunity to say something critical of either of them in his unresponsive answers to questions. His responsive answers were more frequent than those of the mother.

The mother’s evidence was redolent with long self-serving and non-responsive answers. The maternal grandmother’s evidence seemed to follow the same pattern. Both of them took every opportunity in unresponsive answers even after being warned to denigrate the father.
On some occasions where credit is a relevant issue and the evidence conflicted I preferred the evidence of the father however the father has alleged that much of what is said by the mother is related to her by the child concerning contact experiences is not correct. He was not present during those discussions. Even if the child’s accounts of contact were wrong I accept that they occurred and represent a child giving effect to her distress and unhappiness, and perhaps on some occasions a desire to say what she conceives might please her mother.

The Mother

The mother’s evidence was comprised in her affidavit and that of her mother augmented by evidence given under cross examination of each of those witnesses by the Independent Children’s Lawyer, Mr Stewart. On each occasion the father who was representing himself was given the opportunity to ask questions but declined to do so. Mr Stewart in an entirely appropriate way ensured that all relevant areas of the mother’s evidence were tested notwithstanding the failure of the father to cross examine.

The Father

The father’s evidence was given in a number of affidavits which had been filed in the proceedings and which had been filed from the date of the commencement of the proceedings to the date of hearing. The father also called to give oral evidence a Ms Y who had supervised a period during which the child E had spent time with the father, a period of early contact which appeared positive for the child at that time.

The Independent Children’s Lawyer

The Independent Children’s Lawyer called Dr W who had prepared three reports and put before the court the reports of the main and most recent contact supervisor Ms G, which concerned in excess of 20 occasions of contact.

Relevant Law

Legal principles

The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

Section 60CC Considerations

The overarching requirement of the legislation is to do what is best in the child’s interests. In determining that question I have to have regard to the following considerations.

Primary considerations

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

Dr W’s evidence is that in the ordinary run of cases children benefit from having a relationship with both parents. This accords with not only common sense but the rights of the child and received medical opinion but also the legislative policy of the Family Law Act.
The question arises does and can this child have a meaningful relationship with her father at this time without harm to her. Dr W in his report made in 2006 says that the child has a quite distant relationship with her father to the point where she barely acknowledges his presence at times. She can be spontaneous with him but not affectionate Dr W reports. He describes the nature of their bond as tenuous and such that if she wants assistance she will go to someone else rather than him. Dr W concludes in his 2006 report that this relationship is largely as it is because E’s mother and Grandmother have undermined her relationship with the father and have put negative perceptions of the father in the child’s mind.
The father substantially agrees with this and a subsequent report made by Dr W.
The reports of the persons who supervised access and which the father says were 70 per cent right (and which on further inquiry, seemed only likely in his mind to be wrong to the extent that some of the conversation might have been to the effect of the words used rather than in precisely those words), paint a bleak picture of the life of this young girl spending time with her father. With some exceptions, and they appear few, the contact demonstrated no warmth in the relationship. They appeared mechanical in nature.
The child inter alia makes the following comments:
a)On a number of occasions she asks to go home at the beginning or shortly into the period of contact with the father. The father in his evidence agreed this happened on a number of occasions but said that the problem went away as contact progressed.
b)The child has said to the father “You are not my father” on a number of occasions during some contact.
c)The child has said to the supervisor “I don’t want to see [the father] I want to go home”.
d)The child has said to the father “you are a robber and a liar.”
e)The child has said to the father “I do not want to live with you.”
f)“I wish the wind would blow you away.”
g)On occasions the child says to the father “don’t touch me.”
h)On one occasion the child has said to her father “my mum is not bad” and in response to the father saying “Am I?”, has nodded.
i)On one occasion the child has said to the father “don’t touch me I hate you.”
j)In May 2007 the child said to the father “I want to go home.” When he did not accede to her request she poked him with a stick on more than one occasion and the child in a state of distress said “I hate you I want to see my mummy.” In response to the father saying “you are my daughter and I want to spend time with you” the child is reported as saying “No mummy is my daughter … no she is my mummy and I want to see my mummy” and again on this occasion as the father tried to help his daughter into the car for her homeward journey she said “don’t touch me.”
k)In August the child continues to reject intimacy with the father asking that the supervisor sit next to her in the car and that the father “not touch her”
l)In September there is a further incident where the child insists at the commencement of contact that “she does not wish to see [the father]” and later insists on sitting next to the supervisor and asks that she put her seat belt on.
The child seems on the reports to communicate with the father directly on occasions but some occasions seems only able to communicate effectively with the father through the supervisor. Although the mother suggests that this conduct is a result of the conduct and deficiencies of the father, the expert evidence suggests that this attitude is a product of a number of factors namely:
a)Firstly there is no doubt that the mother and her mother who play a significant part in the child’s life have clear antipathy to the father. They were at pains to point out in their oral evidence that they did not say anything to the child about the father but the child would have been left in no doubt of their attitude and indeed under cross examination they conceded that the child could probably see through their pretences undertaken for the purpose of facilitating contact with the father.
b)The father for his part, is, I think no less rejecting of the mother and her mother. Indeed his admission that he had not even read their affidavits and his expressed wish not to cross examine them appeared to be an expression of disdain for them as much as a conviction that no useful purpose would be served thereby.
c)I note that the evidence of Dr W is that even had that been the only thing contact might occur if the child herself had developed a relationship with the father which was positive even if that relationship was a “secret” one in the sense that she did not display it to her mother. His evidence is that this is not the case here and that the continuation of contact will continue for the child the bleak experience that it has become.
d)The father in Dr W’s view lacks empathy so far as the child is concerned. His conduct in refusing to call his daughter by the name she has traditionally been called for reasons related to his dislike of the name and because it had been chosen without his consent have led him to engage in almost child like behaviour insisting on the use of another name to the great distress of the child. He was unable to see the situation from the child’s point of view, and only in cross-examination to grudgingly accept that such conduct would cause her distress.
e)Equally the father was unable to accept that calling the child’s mother a liar and her grandmother a snake might cause the child singular distress. He was not tuned to the emotional needs of the child. His responses were described as “mechanical”. The father does not, says Dr W, display emotional responses. He is reserved. It is Dr W suggests easy for E to see him in some way as “bad” and “mean”. The child has so described the father.
f)The father had been advised by Dr W to undertake counselling in the hope that he might benefit from it in learning to deal with his daughter and her treatment of him. He declined to do so and his explanation is that he was awaiting the advice of Dr M who was conducting therapy with the mother and child and was to include him at a later stage. It was said that this waiting for something to happen lends weight to the view that the father sees parenting as being a constitutional attribute and therefore a skill with which he needs no assistance. I think that is probably a bit unfair on him given that he did undertake a positive parenting course and was prepared to admit that some of the problems in the relationship with his daughter were exacerbated by his inexperience.
Dr W made it clear however that whatever the deficiencies of the father as a parent they are less significant for the future of the child E than those of the mother.
The mother is described as having an enmeshed personality with the child. She is anxious and concerned about the child.
Whilst courts have long had experience with cases in which children develop separation anxiety in relation to a parent this case is one Dr W says where unusually the mother develops separation anxiety in relation to the child. There is no doubt, he says, that this anxiety would communicate itself to the child notwithstanding the best endeavours of the mother to conceal it.
The evidence of Dr W was based in part on discussions with Dr M who had been working with the mother and E at trying to overcome this problem. Minor progress had occurred but at an extraordinarily slow pace. The therapy had come to a standstill.
Dr M was concerned at statements made by the mother that she was spending more time with E at pre school. The mother seems to have a lack of parental confidence and in the words of Dr W is “joined at the hip with the child.” He describes the child as living in a dysfunctional family which is at the most dysfunctional end of dysfunctional families. He says that he had given serious consideration to a notification to the Department of Community Services and in the end had decided against that course.
Dr W takes the view that the father seems dysfunctional in his parenting ability at present and although he demonstrates a positive attitude toward parenting is not capable of taking over the care of E even if she did not have the present emotional problems she has.
He emphasised that the mother needs to have serious help to overcome her problem. Dr W expresses great concern about E’s social development and her capacity to be appropriately integrated into a school and to benefit both educationally .and socially without inappropriate interference from the mother. He says in his report of 22 November:
“I am extremely concerned about [E]. Her relationship with her mother can only be described as highly dysfunctional but her mother appears to have no insight into this or into the serious risk that her daughter has a high likelihood of significant psychiatric or personality problems in the future.”

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Dr W made his major report in July 2006. In that report he said that E was flourishing intellectually but was clearly quite troubled. “She showed features of emotional (insecure) as well as disruptive (oppositional defiant) behaviour of quite worrying intensity particularly in 2005.” He says that he formed the view “the reasons for this are not nearly as simple as the imitative/insecure response to the father which the mother and grandmother hypothesise”.
Dr W goes on to say:
“There are at least three factors which have contributed to her disturbed behaviour. The first is that she has been rather over protected by her mother and grandmother, and she has learned to dominate her mother reasonably effectively such that when she is feeling insecure, she probably becomes rather oppositional and defiant. A second factor is that her father has probably been rather heavy handed with her out of inexperience rather than intent, although I think it is unlikely that this has been to the degree that the mother and grandmother allege. However their talk in her presence about the father’s aggressiveness and dangerousness has probably fuelled similar behaviour in E, again when she has been feeling at her most insecure. Finally, the palpable tension experienced by the mother and the grandmother about contact has contributed to E being quite insecure at the time of departure for contact and upon reunion which has been associated at times with clinging behaviour and at other times oppositional defiant behaviour.”
The distress which has been occasioned to the child in the present situation which is also evidenced by the reports on contact is such that a continuation of contact will constitute a continuation of that distress which may in the words of Dr W build to a point of crises for the child. He takes the view that the only way of providing some relief from the stress under which the child is living is to end face to face contact at this time. He says clearly that this will not be an end to this child’s problems but it may provide some form of relief in which other programmes for the alleviating of the dysfunctional nature of her family situation might bear fruit. Certainly he thinks they are unlikely to be successful in the present situation if the present contact were to continue. In his oral evidence Dr W refers to the sort harm that can be caused to a child where contact is enforced against desire and he points to likely results for the child as including the generation of anger and distress.

Additional considerations

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The child has expressed the desire not to have contact with the father. I do not think at her age they should be given much weight. These expressions are I think a symptom of her malaise in an intolerable situation.

(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

E is described by Dr W as having a dysfunctional relationship with her mother which is at the extreme end of dysfunctional style occasioned by the mother’s separation anxiety. She is, according to Dr W, becoming quite controlling of her mother. Dr W believes she will be able to intimidate her mother at quite an early age.
E is on the evidence without a meaningful relationship with the father. It seems that throughout her life she has seen her father only in an artificial environment. E finds her father a difficult man to cope with. The father’s insensitivity in dealing with an incident where E kicked another child by referring to her as “crazy” when speaking to that child would have been distressing to E. Dr W points out that whilst the father has a somewhat sardonic means of expression the child could cope with that if there were trust of the father by the daughter but that is not apparent.
In the father’s mind the child’s Grandmother has caused considerable difficulty for him. Her evidence revealed extreme antipathy to the father. Dr W says of her that where you have a parent (the mother) who has difficulty separating from a child you will usually find that they have a dominating mother. It is his view that E’s grandmother is very dominating and has made the daughter very dependent upon her and he observes that that is a problem which needs to be dealt with by the child.

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

Orders for contact have been complied with. The parties have lived in a highly conflicted state and there has been no communication between them of significance. It seems it is presently beyond the capacity of the mother to encourage the child into a close and continuing relationship with her father since her own anxieties get in the way and although she gives lip service to such encouragement she says that she believes that her daughter knows how she feels. The father is also critical at times of the mother.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The orders proposed in this matter will have a beneficial effect on reducing the level of stress which is presently E’s lot. It is my hope that the implementation of the undertaking given by the mother in Court through her counsel that she will continue with the therapy with Dr M not only for the treatment of the child but more particularly for treating her own problems, will be able to produce positive results. To achieve that the stress for her and the child must be relieved says Dr W.
It is hoped that with alleviation of stressors and successful therapy the danger to E foreseen as an extremely concerning result of the ongoing unchanged care of the mother will be averted.
The orders will deprive the child of the potential for benefit from the relationship with the father, a benefit not presently much apparent in the practical expression of that relationship. It is hoped that with the orders I propose to make concerning communication about and with the child the time will come when the child will be able to have a meaningful relationship with her father. I have to weigh conflicting disadvantages to the child in, on the one hand, depriving her for the time being of the potential for a meaningful relationship with the father against the continuation of a situation which in the words of Dr W is likely to lead to a serious crisis for the child.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There are not practical difficulties at this time or attendant expense which would prevent contact on a regular basis.

(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

As set forth above it is suggested that either the father or the mother could provide for the child’s intellectual needs. The emotional needs of the child are subject to real concern as to their satisfaction because the deficiencies in the relationship between the child and her mother and the child and her father as adumbrated in the expert reports filed. The father clearly does not have an understanding of those needs or the impact of his conduct on the child’s emotional wellbeing. I do not consider that the grandmother has any greater capacity to meet the needs of the child than the mother. In addition, the grandmother’s use of emotive terminology in describing the father’s behaviour to the child as “fondling her” although the subject of denial as to intent to mislead in cross examination, was, as Dr W suggests I believe, a reflection at the least of her mindset to say anything that could be critical of the father in a way which would cause the greatest concern.
There is no reliable evidence before me which would indicate that there is any other significant person whose capacity I would need to consider and although some short evidence was given by the mother of the role of her brother in E’s life as a role model it was so general in nature as to be unhelpful. The brother did not provide affidavit evidence and was not called to give oral evidence.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The father is Serbian from the former Yugoslavia. He, in his evidence says that there are no particular aspects of the culture and tradition of the land of his birth which would be substantially divergent from the culture of Australia but that in due course he would like to take E to Europe for a holiday.

(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

It seems that the mother adequately provides for the physical needs of the child. The father pays child support for the child. The father has, I am sure, in very difficult and restricting circumstances and with embryonic skills and limited understanding, done his best to fulfil a role as a parent but at the present time he could not be considered on the evidence of Dr W as suitable to care for E even had she not the problems to which he refers. I am sure that his parenting is not a demonstration of oppositional obstinacy but is born of a real desire to fulfil the role of parent, a real affection for his daughter and a desire to contribute to the ability of his daughter to achieve her potential.

(j) any family violence involving the child or a member of the child’s family

This is not a matter which is of relevance in these proceedings.

(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

Not applicable.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The Court is placed in this matter between the Scylla of finality and an end to dispute benefiting this child and the Charybdis of depriving the child for some time at least of the opportunity to seek benefit from contact with her father. In the end I take the view that an end to the current dispute is likely to be of longer term benefit to this child than the benefit of contact with her father. That contact seems to be providing no or little current benefit to her and on Dr W’s evidence would if continued be likely to lead to a crises in the child’s life. Dr W’s assessment was that the process of negativity would accelerate and destroy the relationship of the child with the mother, her only presently available carer. Any further contact at this time with the father would have to be supervised and if therapy with Dr M were to continue it is likely given the antipathy between the parties that the Court would be obliged to make a further determination or determinations in applications which on the history would probably arise as a result of the continuing contact.

(m) any other fact or circumstance that the court thinks is relevant

The father has asked that the Court make an order changing the surname of the child. The law requires that in considering the change of a name the welfare of the child is the paramount consideration. In addition the Court has to take into account:
a)any embarrassment to the child
b)any confusion of identity
c)effect a change in name would/may have with the parent whose name the child bore prior to the change
d)contact father has had with the child
e)degree of identification with the father and mother
f)father’s wishes and in all the circumstances make that decision which best promotes the child’s best interests.
Given the child’s age, the fact that the child has had her present surname since birth, is aware of who her father is, and the present nature of her relationship with her father it does not seem to me particularly given the orders I propose to make likely to provide any long term advantage to the child to change her surname. Given the attitude of the child’s mother and grandmother to the father such a change would excite their condemnation and disapprobation to a degree which would be an occasion of further distress to the child and that is to be avoided in her interests. There is no doubt that this child identifies with her mother and does not on the evidence have a close identity with the father although she knows that is who he is. It will be open to the father in his communications with the child to reinforce his identity and relationship to her.

Section 60CC(4) & (4A)

It is clear from the absence of communication between these parties apart from agreements come to as a result of negotiation concerning the welfare of the child in the pre litigation days of her life (such as the agreement on the primary school) there has been little involvement of the father in the making of decisions for the child. Little opportunity has been afforded to him. He has with some minor exceptions taken advantage of the opportunities made available to him to spend time with the child. The mother has substantially complied with the orders of the Court in providing contact albeit that such contact was subject to limiting conditions. It is clear however that she has not afforded the father the opportunity of being involved apart from to a limited extent in the early times of the child’s life in decision making on matters affecting the long term welfare of the child. This of course is a necessary corollary of the total failure of communication between the parties.

Parental Responsibility

Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
In this case the parents of the child have a long history of non-communication each blaming the other for that state of affairs. Whoever is at fault the fact is that neither of them has communicated with each other, other than through solicitors or counsellors since 1983. Each of them whilst saying that it was the fault of the other agreed that communication would be difficult if not impossible and agreement less likely. Having regard to the history of the relationship and the level of dispute as evidenced in the affidavits, the expert reports before the Court and the oral evidence and the history of this matter I take the view that communication between the parties in an effective manner is highly unlikely and consultation between them let alone agreement is an entirely unrealistic hope at this time. On the history of the interaction of these parties and their attitude to one another all one could reasonably expect from such consultations as would be required to take place to make the sharing of joint parental responsibility for this child something meaningful and realistic is conflict. For reasons referred to it is time for conflict about this child to cease in her interests.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility. In this case I have decided that the mother should have sole parental responsibility, and so the question does not arise under that section.
There remains then the following issues for determination:
a)With whom should the child live and on what conditions if any?
b)What time should the child spend with the father if any and on what conditions?
c)By what name should the child be called?

Balancing of all considerations under Section 60CC and the defined issues

Section 61DA

The parties being unable to communicate in any meaningful way and there being no current evidence of that situation changing the decision of the Court is that the mother should have the sole parental responsibility for the child. Shared parental responsibility would require consultation and, if it is to be meaningful a capacity for agreement between the parties. All that one could expect in this case on the history, is significant disagreement if there was any capacity to communicate at all. Such disagreement would undoubtedly add to E’s present burdens.

Section 65DAA

There is clear evidence that the continuation of contact given the mother’s deficient relationship with the child and the likely effect of continued insistence on contact with the father against the clear desire of the child would bring her no benefit and possibly substantial detriment. There is no means available to the Court given that there is no alternative proposal as to the child’s living arrangements to change the situation in which she finds herself. The path of least harm to the child is the one which must be followed in this case and on the evidence that path is clear. The father has proposed that therapy continue with a continuation of the present contact supervised for a period but inquiry of the expert revealed that such a course would be unlikely to improve the situation. With that regime in place for some time now the contact had only deteriorated for E. It would be perfectly understandable for the father to have a feeling that there has been an injustice wrought upon him in circumstances where he is deprived of the capacity to see his daughter for what might be a considerable time largely (but not solely) because of the nature of the relationship the child has with her mother and grandmother. The remit of this court however is to do what it thinks best serves the welfare and interest of the child and in making these orders it is to that that the Court has had to have regard.
Orders have been urged upon me by the Independent Children's Lawyer to maintain a channel of communication between the child and the father. I hope that if the child is relieved of the tension of the face to face contact the father might be able in this way to keep him in her mind and she develop to the point where she wants to meet with him. The father will need to be tactful and careful in his correspondence with her but I think there exists the possibility of a renewal of the relationship provided that contact is kept. I will be ordering that the mother facilitate that contact. The father might be well advised to take some counsel on how to effectively communicate with the child and I am sure, given his previous experience, he will listen carefully to what he is told.
The mother has had to sit through a lot of evidence in relation to the serious deficiencies which exist in her parenting style and in her relationship with her daughter. She appears to have listened attentively to that evidence which for her was probably not easy to receive. I hope it has given her some of the insight she is said to have been lacking and also a real desire to rectify the situation.
She has indicated through her counsel that she recognises that she has a need for therapy so that E might benefit and that the child will benefit from continuing therapy herself. She has offered an undertaking that she will continue with therapy with Dr M for both herself and the child so that her relationship with the child can be made an acceptable one.
I propose to make an order to that effect and I urge upon her careful attention to the process. There are potentially two great gifts she could give to E: the restoration of her confidence and her capacity to part from her and an even greater gift would be to find a way for her to have a meaningful relationship with her father.
I urge upon the father that he seek further assistance in developing those skills in empathy and effective communication which hopefully will one day make it possible for him to play a full role in his daughter’s life.
I am asked to make an order for the reimbursement of the Independent Children’s Lawyer and there is no opposition to that order. I agree with the submission that that cost should be shared equally between the parties.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate

Date: 14 December 2007

[2007] FamCA 1553

14 December 2007

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