Richard and Briar (No 2)
[2012] FamCA 1152
•27 April 2012
FAMILY COURT OF AUSTRALIA
| RICHARD & BRIAR (NO. 2) | [2012] FamCA 1152 |
| FAMILY LAW – CHILDREN – Best interests FAMILY LAW – CHILDREN – With whom a child lives FAMILY LAW – CHILDREN – With whom a child spends time - Best interests of child |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Richard |
| RESPONDENT: | Ms Briar |
| INDEPENDENT CHILDREN’S LAWYER: | Danielle Webb |
| FILE NUMBER: | MLC | 5660 | of | 2010 |
| DATE DELIVERED: | 27 April 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Dessau J |
| HEARING DATE: | 25 July 2011, 16 September 2012, 13-16 March 2012, 19-20 March 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Vohra |
| SOLICITOR FOR THE APPLICANT: | Forte Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Agresta |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Danielle Webb Lawyer |
Orders
That all previous parenting orders shall be discharged.
That the father shall have the sole parental responsibility for the child S Richard-Briar (“the child”) born … 2002.
That the child shall live with the father.
That the child shall spend no time with the mother.
That the child shall have no telephone communication with the mother.
That the mother shall be permitted to send the child a letter or card on four occasions each year, commencing in December 2012 on condition that:
a.The letters or cards be sent to an address nominated by the father (not to the father and the child’s home); and
b.That the letters or cards be opened by the father and only provided to the child if the father considers it appropriate to do so.
6A.That the father shall make the child available to Ms D for the purpose of having these orders explained to him, and that he shall forthwith make an appointment with Ms D.
That the mother shall be restrained by herself, her servants and/or her agents from:
(a)Approaching or remaining within 200meters of the child;
(b)Attending or remaining within 200 meters of the child’s home;
(c)Attending or remaining within 200 meters of the child’s school;
(d)Attending any of the child’s school functions; and
(e)Getting another person to do anything she must not do under this order.
That the mother shall keep the father informed of her residential address and contact telephone numbers.
That the father shall keep the mother informed of his mobile telephone number to be used by the mother only in case of an emergency.
That the father shall be permitted to renew the child’s passport without the mother’s consent.
That the father shall retain the child’s passport.
That the mother, Ms Briar (also known as … or …) born … 1966, her servants and/or her agents shall be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child S Richard-Briar born … 2002 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by maintaining the child’s name on the AIRPORT WATCH LIST in force at all points of arrival and departure in the Commonwealth of Australia.
That the father shall be at liberty to travel outside the Commonwealth of Australia with the child.
That the father’s solicitors shall forthwith serve a sealed copy of this order on the Australian Federal Police and the Marshal of the Family Court of Australia.
That pursuant to s 65D(1) of the Family Law Act1975, the mother, her servants and agents be and is restrained from instituting any proceedings concerning the child in any court exercising jurisdiction under the Family Law Act1975 (Cth), without first obtaining the permission of a judge of the Family Court of Australia sitting at the registry at Melbourne, if practicable such judge to be Dessau J.
That subject to paragraph 18 of these orders all other applications, including the mother’s Contravention Application filed on 13 July 2011 shall be dismissed.
That the appointment of the Independent Children's Lawyer shall be discharged.
That the father shall notify the Court and the mother in writing by 4.00pm on 11 May 2012 if he proposes to proceed with his applications for costs, and in the event that he does not, those applications shall also be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Richard & Briar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 5660 of 2010
| Mr Richard |
Applicant
And
| Ms Briar |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The child, S, is 10. He has been at the centre of litigation, off and on, for around six years. The history of the first round of litigation was set out by me in November 2008, in Reasons for Judgment at the end of a four day hearing.
I made orders then for the parents to share the decision-making responsibilities for the child and for him to live with his father. His mother was to spend time with him, but until mid-2010 one of her family members had to be in substantial attendance.
The need for some supervision of the mother arose because it was still soon after her three month abduction of the child early in 2008, when she had secretly taken him to Far Northern Queensland, changed his name, dyed his hair, and kept him from any contact with his father, until the Australian Federal Police found him and he was placed in his father’s care.
I observed in my Reasons for Judgment in 2008 that there was a significant need for the father’s trust in the mother to be re-built.
It is the father’s case now that events since 2008 have continued to undermine rather than re-build that trust.
In June 2010, the father started a new set of proceedings, seeking an order for supervision of the mother’s time with the child to continue. He said the child returned from time with the mother displaying concerning behaviour and conversation, and the child’s counsellor diagnosed him with post-traumatic stress disorder.
On 14 February 2011, the parents ended those proceedings with consent orders. They agreed that until February 2013, time to be spent by the mother with the child would be supervised at all times by the maternal grandmother, Ms J.
On 17 June 2011, the father filed a new application, seeking orders that the mother’s time with the child be supervised at a Contact Centre, or by her brother Mr RB, instead of by Mrs J. The father said that the maternal grandmother had not properly supervised.
At an interim hearing in July 2011, I suspended the existing orders for the mother to spend time with the child. I made orders permitting her to speak to him on the telephone, provided it was on loudspeaker in the presence of either the father or his wife, Mrs Richard, and for her to see the child only in Victoria, and only if supervised by her brother Mr RB. Otherwise I ordered another Family Report by Ms D.
In September 2011, I made interim orders, by consent, for the mother to see the child in school holidays, provided one of several of her family members supervised, and provided the mother did not stay overnight in the same house as the child. I fixed the March 2012 date for this trial to be heard to completion.
Unfortunately, in the meantime, in January 2012, when the mother’s brother Mr WB was supervising – and despite him trying to stop her – she unilaterally removed the child to Far North Queensland, where she took him without any supervision, and from where he was only returned to his father again as a result of a Recovery Order and the intervention of the Australian Federal Police. He was returned on 13 January 2012, three days after her holiday time with the child had been due to finish.
Upon orders of FitzGibbon SR on 19 January 2012, the mother has not been permitted to spend time with or communicate with the child since then.
There is no question that the child is suffering as a result of what has occurred and is occurring within his family.
From the mother’s perspective, the damage to the child is from not being permitted to see her regularly, and it could be cured by him living primarily with her in Far North Queensland, or being shared between his parents if she moves back to Victoria.
From the father’s perspective, the damage to the child is a direct result of the mother’s emotional abuse of him, in trying to undermine his relationship with his father, manipulating his emotions, and removing him from his father’s care. He now does not believe it is emotionally safe for the child to spend any time with his mother.
The father’s perspective is shared by the Family Report writer who now recommends – unlike in her previous three reports in this case – that the child should spend no time with his mother. The Independent Children's Lawyer supports that.
Some things are unchanged from the last hearing.
The child continues to love both his parents. There is no question that they both love him. He remains cared for well and properly in the safe and stable home of his father in central Victoria, with his step-mother and step-sisters, aged 16 and 12.
Sadly, just as in 2008, the child has continued to see relatively little of his mother, and she has continued to choose to live in Far North Queensland.
What has changed is that the child appears to be more upset and damaged than when I last heard the case. I have already noted that the parents have very different perspectives as to the reasons for that. That issue really lies at the heart of this case.
Another change is that the mother now says that she may be prepared to return to live in Victoria, something she refused to entertain in 2008.
The major change, as noted, is that unlike previously, the father, the independent expert and the Independent Children’s Lawyer (“ICL”) now say there should be no time at all spent with the mother. In 2008, it was still hoped that after a settling period, the mother’s time with the child would become unsupervised and frequent.
It was agreed that the evidence in this current case is to be confined to the period after those 2008 findings.
BACKGROUND
The father, Mr Richard, is now aged 46. He is a health professional at G Child and Adolescent Mental Health Service. In October 2010, he married Mrs Richard, a teacher. Her daughters, aged 16 and 12, live with them in each second week, and with Mrs Richard’s former partner in the other week.
The mother, previously known as “O” Briar, has now reverted to her birth name of “I”. She is a qualified teacher and is working 11 hours per week at a school in Far North Queensland. She is presently aged 45. R, her 20-year-old daughter from another relationship, lives with her and studies at University.
The father and the mother started to live together in May 2001. They married on in 2004 and separated in May 2006. The child was born on in 2002.
MATERIAL RELIED UPON AND ORDERS SOUGHT
The father relied upon the following documents:
·His outline of case filed 9 March 2012
·His Amended Application filed 20 February 2012
·His affidavit filed 20 February 2012
·The affidavit of his wife Mrs Richard filed 2 March 2012
·The affidavit of the child’s treating psychologist Dr V filed 16 February 2012
·The affidavit of his treating haematologist Dr W filed 21 February 2012.
Dr V gave her evidence by video-link from America. Dr W was not required for cross-examination.
The mother relied upon the following documents:
·Her case outline filed 12 March 2012
·Her Response filed 10 August 2011
·Her affidavits filed 2 March 2012 and 12 March 2012
·The affidavit of her daughter Ms R Briar filed 10 March 2012
·The affidavit of her mother Ms J filed 6 March 2012
·The affidavit of her friend Ms U filed 10 March 2012
·The reports of Dr Y, one in relation to the mother and one in relation to the child, being attachments “D” and “E” to the mother’s affidavit filed 2 March 2012
·The affidavit of her brother Mr WB filed 9 September 2011.
Ms U was not required for cross-examination.
Ms Vohra, counsel for the father, objected to various parts of the mother’s material. There was no dispute about the objections. They were listed and marked as exhibit H1.
The mother represented herself. She is intelligent and articulate and was across the material. Still, I am conscious that it is not an easy task, particularly given the nature of the issues in this Court.
A number of times, the mother referred to the “resource imbalance” between herself and the father , in reference to the disadvantage to her in “fighting” this case. The father is, however, far from a rich man. He has had some family help with legal fees, but also claims significant disadvantage when it comes to monies expended on legal fees. I shall return to that.
The ICL relied upon the reports of Ms D dated 30 August 2010 and 6 March 2012.
RELEVANT LEGAL PRINCIPLES
Section 60B(1) of the Family Law Act1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the detail below.
Section 60CC(4) provides that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the Court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe a parent has abused the child or engaged in family violence, and if it does apply, it can be rebutted if the Court is satisfied it is not in the child’s best interests.
THE ISSUES
It is most appropriate to discuss the issues in this case under the umbrella of the s 60CC considerations, starting with the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
If the mother’s case is accepted, the father has been emotionally abusive to the child, in stopping him from having ready access to a relationship with her. Nevertheless, she still proposes that the child should spend substantial time – up to equal time – with him. Against that backdrop, I do not accept she genuinely believes he has been abusive to the child. In any event, none of the evidence supports it. To the contrary, it supports the father as a loving and sensitive parent, in whose care the child finds stability and security.
The expert, Ms D, was clear in her evidence, based on interviews and observations over six years and four reports, that the father and the child share a strong and sound relationship.
The father’s case is that it is the mother who has been emotionally abusive to the child, so that she should not spend any time at all with him now. There is evidence of that, including from experts. There is also evidence of a meaningful relationship – the child lived with his mother until he was six – but I now need to carefully weigh the risks to him of spending or not spending time with his mother.
(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;
I have the child’s expressed views to the Family Report writer, to his own therapist, and to a psychologist to whom his mother took him for another assessment. I also have each parent’s account of his views, the accounts of various family members, as well as evidence from both parents of behaviour belying his views.
There is agreement that the child misses his mother. The father has never claimed any differently. Since the child came into his full-time care four years ago, the father has said that the child missed her, wished he could see her more frequently, wished she was not living so far away, and wanted the predictability of regular time with her. The father’s evidence about that has been consistent and open, and gives me faith in the reliability of his account of the child’s needs, and his sensitivity to those needs.
The father’s wife, Mrs Richard, is an impressive woman. She agrees that the child has missed his mother and wished that she did not live so far away. She was very clear however that mostly she did not discuss such matters with him. They were matters that he discussed with his father.
When cross-examining Mrs Richard, the mother suggested that as the child mostly chose not to discuss those feelings with his step-mother, it demonstrated that he was not close to her. That is not fair. Mrs Richard said that she sees herself as a caring and loving support in the child’s day-to-day life, but with boundaries, as she is not his parent. She is satisfied that his father takes the appropriate role in talking about intimate family issues directly with the child.
The mother strongly argues that the child’s yearning to be with her is obvious from his statements and his behaviour, but he feels “powerless” because his father does not “listen” to him and does not “give him a voice”. Her perspective is that the child is an intelligent, articulate 10-year-old, and his views must be accepted and followed.
It is essential to consider the context of the child’s views. Ms D was very clear about that. She emphasised her professional opinion that just because a 10-year-old child expresses a view, that in itself cannot determine the matter. She pointed to the various complexities that must be taken into account in assessing the weight to be attached to the child’s views.
In particular, Ms D pointed to the child generally being happy and settled with his father, and sharing a strong relationship with him. His periods of unhappiness, or of being unsettled, have always followed time with his mother. The mother says that is because he does not want to leave her. The father, supported by Ms D, believes it is because the mother manipulates and confuses the child by undermining his relationship with his father.
Recent events in January 2012, when the mother over-held the child and took him to Far North Queensland, have dramatically “upped the ante” when it comes to the views the child has purportedly expressed to his mother. She said that in both September 2011 and January 2012 the child threatened that he would kill or harm himself if he had to return to live with his father. Certainly, the child did repeat a threat of self-harm to the Australian Federal Police and to his father, upon the return to his father in January 2012.
Again, context is important. I shall refer to it in more detail later, but for current purposes I note that no maternal family members gave evidence of witnessing or overhearing such threats or distressed behaviour on the child’s part in September 2011, or during the family beach holiday in January 2012, despite their roles in supervision.
Notably, the only current supervisor called by the mother, her brother Mr WB, said that the child seemed entirely happy during the December 2011/January 2012 holiday, until the last moment when the mother said they were going to Far North Queensland. Then he became teary, and said that he did not want to return to his father’s care. There had been absolutely no inkling of that until then, at least not in front of Mr WB.
The other family supervisors were not called. The mother said that there had already been too many demands on them. I did not regard that as an adequate explanation, considering her description of a very loving and supportive family who were concerned about the child in his father’s care, and concerned that he was being kept from his mother. I infer that they could not have added anything to support the mother’s claim in relation to the child’s threats of suicide or self-harm, or the distress she said he showed.
The child’s half-sister, R, swore that the child repeated those threats to her on the telephone in the days after his mother took him to Queensland. I note that she said she specifically “questioned” him about it. I do not know the nature of the questions or any degree of suggestibility.
What I do know is that in her affidavit, R seemed to be doing her mother’s bidding. She went well beyond her own observations. She asserted that her mother “was acting to protect her son from potential self-harm, and further traumatisation and took legal action to do so.” She swore as to her mother’s belief at the time, and that “indeed it was [[the child]] who begged my mum not to return him to his father’s.” She believed he was “telling the truth” and she believed her mother “acted correctly”.
I cannot place much import on R’s evidence as an independent, unbiased account. Moreover, she was overseas at the time. Any contact with her mother and the child was only by telephone or Skype.
Otherwise, by way of context, I note that when the child saw his therapist Dr V in late January 2012 – about two weeks after his return to his father – although his behaviour appeared to be quite “different” than at their last meeting in December 2011, he did not talk at all of self-harm. I do note there was another child present. But again, when the child spoke alone with Ms D, some six weeks later, he made no such comments. In fact he told her he was “happy”. She also observed though that his behaviour was “different”, in that he simply would not talk about his mother. I shall return to that.
I fully understand that the mother looks at things through the prism of her genuine sadness at being separated from the child. I understand that she finds it hard to accept the evidence of his father and step-mother, and the independent evidence of Ms D and the child’s therapist Dr V, that on a day-to-day basis the child is settled, happy, secure and part of a sound family and community life with his father in central Victoria. It would be very painful for her to be able to admit that to herself, let alone to the Court.
The mother’s perspective that the child grieves deeply for her, that he is constantly telling his father about that, that he is extremely unhappy in his father’s care, and that the father simply refuses to listen to him, is simply not supported by all the evidence. That said, the fact that he does miss his mother is also unmistakable and a very important matter for me.
(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);
(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:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The evidence was voluminous. The mother’s main trial affidavit contained 126 paragraphs and 17 attachments. The father’s trial affidavit was 290 paragraphs long with 14 attachments. The evidence proceeded over a number of days. It can be distilled into themes, similar to the previous hearing.
As in the last trial, the mother referred to the father’s incapacity to care for the child’s cleanliness. She swore that the child was recently delivered to her dirty, with head lice, worms, and other significant signs of a lack of hygiene.
Her claim was unsupported. Ms D has seen the child a number of times over the years. Of course, he could be presented to her in “neat condition” just to impress her. However, Dr V has also seen him very regularly. There is no suggestion in the material that he is neglected in the way that the mother’s dramatic description would suggest. In fact, this aspect, rightly, took little time in the evidence. I accept Mrs Richard’s evidence that the child, like the other children in the family, and those at their school, occasionally has head lice and receives the appropriate treatment. He is properly cared for.
The mother claimed, as she had previously claimed, that the father has been relentlessly pursing a strategy to excise her from the child’s life; that he is controlling, refuses to listen to the child’s views, and will not be satisfied until he has total control of the child, to her exclusion. That theme recurred with great passion – and colourful expression – throughout her affidavit and in the Court.
The evidence did not bear out those claims. The father has always openly admitted that the child misses his mother. For years he has agreed to orders for the child to spend time with her (albeit with supervision when the circumstances have demanded it). The experts have consistently noted the strength and ease of the child’s relationship with his father. There is no suggestion he is fearful of him, or coached by him as to what to say. In combination, that evidence puts a lie to the mother’s claims.
She also complained that the father has tried to exclude her family members from being involved in the child’s life. To the contrary, he has consented to many orders with their involvement as supervisors. He has been disappointed by them a number of times. He must have been frustrated too by very harsh and unfounded criticisms by them of him. The relationships have not been easy.
The mother swore that the father “has a long-standing history of mental health problems”. If she meant that he has at different times sought personal counselling, that is accurate. But her suggestion of “mental health problems” somehow impacting adversely on his capacity to care for the child was unfair, and without any support on the expert evidence.
Finally, in closing submissions, the mother cast doubt on the father’s longer term capacity to care for the child, citing an uncertain prognosis for his chronic lymphocytic leukaemia. It was a nasty swipe. His treating doctor’s evidence, unchallenged by the mother, was that he is functioning in “a normal manner” and his prognosis “remains good”. There was no other evidence or question about it.
As in 2008, despite those serious criticisms of the father’s capacity to care for the child, the mother again says they should share the child’s care, and that she is willing to “negotiate” with the father. She says they should “co-parent” the child, and she is willing to do whatever is necessary in order to “communicate” with him to make that possible. If that is her position, and I shall return to whether or not it is a realistic prospect, I cannot find that her profound criticisms of his parenting are genuine.
As for her day to day care of the child, the mother’s case remains that she looked after him perfectly well for the first six years of his life, and she has raised 20-year-old R with great success.
The father has not taken issue with the mother’s day to day care of the child, but does take issue with her capacity for genuine insight into the child’s emotional needs, and her capacity to place them ahead of her own. He does not accept that things proceeded as successfully as she claimed for the child in her care before 2008. But that part of the child’s life was dealt with in my previous judgment.
The mother’s pain at being separated from the child is palpable. That pain informs every part of her evidence. I include in that, various exaggerations, inherent conflicts, and blind spots.
First, it seems that, unfortunately, the mother has not developed any significant insight into the consequences of her own actions.
I was critical of her in 2008 for failing to genuinely appreciate the impact on the child of the abduction. She now concedes that it was “wrong” and “a mistake”, but her concession did not give full comfort. She still blames the father for her “need” to abduct the child. In passing, she did mention the realisation of the impact on the child of being removed from his father, but still, by far, her admission that it was “a mistake” seemed to arise more from the consequences it had for her being separated from the child since then, than from a true understanding of the child’s needs.
The mother still could not concede, at least not with any conviction, that swearing a six-year-old child to secrecy, changing his hair colour, making him use a different name, keeping him totally out of touch with his father and half-sister R – with the whole episode ending when he was seized by federal police – was other than just “a happy holiday” for the child.
Any hope that her insight into the child’s needs may have improved has been shattered by events since my Reasons for Judgment in November 2008.
First, the mother chose to remain in Queensland, thousands of kilometres away from the child. In 2008, I noted her insistence to remain a long way away, and that she could have explored her chosen lifestyle closer to the child. But I nevertheless included orders that envisaged her spending very regular time with him if she did decide to stay in Victoria. I made orders for each alternate weekend from Friday until Monday, each Wednesday after school, and half school holidays, in what I said was the “hope that when the dust settle[d] on [that] hearing”, she may have re-thought her position about moving so far away from him.
I emphasised then, as I emphasise now, the mother’s freedom of movement. She can live wherever she chooses. The relevance of her choosing to live so far from the child is that it puts a lie to her claim that it is the father who has done everything that he can do to stop the child from having a relationship with her. It also casts an obvious and very serious doubt upon her insight into the child’s needs. She cannot on the one hand argue her concern for his serious grief reaction to being without her, and lay the full blame on the father for failing to “hear” his plight, when on the other hand she has chosen to live so far away from him.
Objectively, it is hard to understand her motivation for staying so far away, reducing the time she could have spent with her son. She is only teaching 11 hours per week, so it is unlikely that she has needed to stay for the furtherance of her career. She says she is very close to her family. Although her mother has since moved close by in Queensland, her siblings remain a long way away. I emphasise again that she can choose wherever she lives. It is just that she blames everyone but herself for her separation from the child.
The truth of it is that she chose not to return to Victoria for just “supervised” time. The pity is that she failed to appreciate that the very regular times with the child would have been to his benefit, and would have helped meet his need to see her. Moreover, the supervision only required the “substantial attendance” of her mother or another one of her family members, apparently not an unpleasant prospect, given she claimed they were close. And, it was all with a view to an automatic transfer to unsupervised time in mid-2010.
In a similar vein, the orders of 2 September 2010 noted that the mother was entitled to contact Dr V to discuss the child’s progress in therapy, and to have input into that therapy. The mother chose not to take up the option. She complains that Dr V is biased against her, not having met or spoken with her. Whether or not Dr V is biased is something that I will deal with below. But the fact that the mother did not avail herself of the opportunity to speak with Dr V is a decision that lay with the mother herself, not Dr V. The mother cannot see that.
Although her “internal script” continues to be how the father has kept up his deliberate strategy to exclude her and her family from the child’s life, by “repeatedly taking away” the contact times she should have been having with the child under the orders, that account is again devoid of insight.
It is true that there have been interruptions to the time she was to spend with the child. And it is true, as she complains, that the father has brought the matter back to court several times. It is essential however to consider the reasons. She, not he, has been the source of the problems.
In ordering the period of supervised time between mother and child at the end of the last hearing, I said that “Trust does need to be re-built.” I noted that the mother’s conduct in taking the child, and her conduct throughout the proceedings, led me to the conclusion that some supervision was necessary. I concluded (at para 129):
…It is in [the child’s] best interests to have the protection of supervised time for the next 18 months or so, but the best outcome for him will be if trust is re-built so that his mother can then spend unsupervised time with him.
Under those 2008 orders, the mother’s first unsupervised holiday time with the child was due in July 2010. On 24 June 2010, the father filed an application seeking that the unsupervised time should not go ahead and that the mother should see the child instead in a Contact Centre. I am satisfied that this was not a capricious or ill-considered application on his part.
The father was concerned by the child’s behaviours when he returned from time with his mother. He was unsettled, aggressive, and spoke about topics which suggested that his mother had been undermining the father’s care, and his relationship with him. For example, after time with his mother in January 2010, the child told his father that he and his mother had practised throwing rocks and stones at windows so that “he could smash windows until he was allowed to go and live with his mother.”
In addition, throughout 2009 and 2010, the father had been taking the child for therapy with Dr V, as he was concerned about the child’s behaviour. She diagnosed the child as suffering from post-traumatic stress disorder. Thereafter, a further report was prepared by Ms D. She recommended only supervised time with the mother.
In September 2010, FitzGibbon SR made orders for the mother to see the child at a Contact Centre in September, and again in the 2010-2011 summer holidays. She refused to see him there.
The case was listed for hearing before me to start on 14 February 2011. The parties settled that day. They agreed for the mother to spend time with the child, but that all time and all telephone calls were to be supervised by the maternal grandmother, until February 2013. On that basis, the mother was to spend two weeks with the child in one lot of school holidays, one week in another, and three weeks over the summer. She was also to have telephone time with him. The mother, the maternal grandmother, and their servants or agents were restrained from taking the child to see any counsellor or therapist. I shall return to the reason for that order.
The father started the next lot of proceedings (these proceedings) on 17 June 2011. He then sought sole parental responsibility for the child, and that the mother’s time with the child be supervised either at a Contact Centre, or by particular relatives in stricter circumstances than previously.
The father had remained concerned about the child’s behaviour following periods with his mother. He remained concerned about the sorts of things the child was saying, again suggesting that his relationship with the child was being undermined by her. He was concerned by similar behaviour after telephone calls, and it seemed the mother was not being adequately supervised.
His application was finally prompted when, in June 2011, the child was overheard reciting numbers during a telephone call with his mother, Mrs Richard saw him surreptitiously writing down numbers, and the following day the father found a piece of paper under the child’s bed, with the mother’s mobile telephone number written on it.
I can accept the father’s evidence about that telephone call, because the mother saw nothing wrong with the child having her telephone number, and did not deny that they had been discussing it. She could not see that in a tightly supervised situation, it was inappropriate for her number to be given directly to him, effectively on a secret basis, particularly given the cloud of secrecy that had been orchestrated by her in 2008 to effect the abduction.
It was then the events of January 2012, just shortly before this hearing, that brought into sharpest focus that the mother still lacks insight into the child’s needs, that she is the author of her own misfortune, and that the hope of the father being able to trust or have any faith in her putting the child’s interests ahead of her own is irreparably damaged for now.
As already noted, the mother described the child as being very distressed at the prospect of returning to his father, when he spent time with her in September 2011. She said that he threatened to harm himself if forced to return.
It is very hard to accept that as true.
The mother could not satisfactorily explain why, when she said she believed the child, she had done nothing to bring such a serious concern to the attention of the father, the ICL, Ms D (whom she saw in early December 2011), Dr V, or even Dr Y, the psychologist to whom she had unilaterally chosen to take the child some nine months before that.
The mother’s brother, Mr RB, supervised her September school holiday time with the child. He was supposed to be present throughout. He certainly did not make contact with the father, or the ICL, or anyone else so far as I know from the evidence, to inform them that he had overheard such a serious threat from the child. The mother did not call him as a witness. I have already noted that her explanation for that failure was inadequate, and I can infer that he would not have supported her claim that the child made such a serious threat in September.
The child did though return to his father in an emotional state after the September period with his mother. The father said the child returned home “withdrawn and preoccupied”. He was aggressive towards his pet dog, reluctant to engage in conversation, surly and distant, and he wet the bed. The father described him as “hyperactive, manic, loud, scattered, demanding constant attention…disconnected” and that he seemed unable to engage in normal conversation with him. He settled after a week.
Ms D saw the child in October 2011. She said he presented with his father as previously observed, showing “a close, loving, relationship” and one “characterised by a natural warmth and affection.” She referred to a secure attachment to his father, and “an ease and spontaneity in their interactions”.
The child described to Ms D that he felt “loved” by both his parents. He also loves both of them. He did not feel the need to look after them but did say he felt “sorry” for his mother, “because she doesn’t get to see me most of the time.” The child spoke to Ms D about a “cancelled” trip to see his mother in July 2011, but did not appear “unduly worried or concerned”. He said that his mother might feel sad “a bit” that she had not seen him and likewise the child said he felt sad for mum “a bit”. He said he looked forward to the fortnightly telephone calls with his mother.
The child said he felt “happy” when he saw his mother but “very sad” when he says goodbye because he is not sure when he will see her again. When he leaves his father to see his mother he is not “sad” because he knows he is coming back.
He spoke positively about his step-mother Mrs Richard.
The child told Ms D that it would be better if his parents lived in the same town and he could have one week with each parent. He said he wanted to live “half-half” with each parent as it would be “fair”. He told the report writer that if he has to stay with his father and see his mother he would feel “a bit annoyed” but “would feel better if I knew that it is definitely not going to be cancelled as it has been.”
The child that day nominated his mother as his “favourite person” and “the kindest person”, in response to specific questions to that effect. He said he is “happy” with her. Ms D noted at the time that whilst those comments reflected the child’s views on the day, and indicated his feelings about his mother, they should not be interpreted as stand-alone comments. They needed to be placed in the context of all his other comments about his life, and all the other observations, including the happy, settled life he describes in central Victoria, and his happy relationship with his father, step-mother and step-sisters.
Importantly, given the mother’s claims as to the child’s very distressed mental state in the September 2011 school holidays, when Ms D saw him in October, she found him to be “relaxed, friendly, at ease,” and he spoke openly to her. She found that he was “neither cautious nor hesitant,” and when she explained that living arrangements are made by adults and not by him, she said he responded to the effect “That’s the way the world works.” Ms D said that he did not say that in the despondent manner of a child who felt powerless or without a voice, as the mother interprets, but that he said it “quite phlegmatically”.
Dr V has been the child’s treating psychologist since 2008. She saw him on 2 December 2011. She was asked if then, or in the course of treating the child, there had ever been any evidence of a potential for self-harm. She said there had not.
Dr V said that when the Federal Police contacted her in January 2012, just after the Recovery Order had been executed, they asked whether the child was at risk of “self-harm”, as he had threatened in front of them. She said it was a term that a child of his age would not use of his own accord. In any event, when she had seen him on 2 December 2011, he had said nothing at all to that effect. Instead, he was at that point “really on his way to recovery”. He was absorbed with school and sport, and there was no suggestion at all that he was “bitterly unhappy with his father” or wanted to get away. She said he seemed “happy-go-lucky”. She had no concerns at all about him then, except for her concerns in relation to the time he was spending with his mother.
The mother’s account as to why the child did not present to the experts with any issues or symptoms that made it clear he had threatened to harm himself in the September 2011 holidays, was that he was safe in the knowledge that he would see her again in January, and therefore he could cope. Given her claim that his time with her was frequently “taken away” by the father unreasonably cancelling it at the last minute, and that it was a cause of concern for the child, it is not logical that he would have had that confidence. It is more likely that he said nothing about it because it was his mother’s embellishment, suggested by her to him, rather than his reality.
That brings me to the events of January 2012. The child was in his mother’s care from 26 December 2011. He was due to be returned to his father on 10 January 2012.
The mother’s time with the child was to be fully supervised by family members. The orders were very clear as to the degree of vigilance required in the supervision. It is obvious it did not occur at that level.
The family were holidaying together, but it is apparent that the mother was spending time with the child, out of sight and out of earshot of her family members. She said that the sort of supervision envisaged by the orders was simply “unreal” and “unworkable”. It is not surprising that the father no longer sees maternal family members as appropriate supervisors.
The mother says that on 3 January 2012, in the family holiday home, the child again told her that he would kill himself if he had to return to live with his father. Distilling her account, it was that he desperately wanted to live with her, but his father would not listen to him. He had no voice. He was powerless. He saw no way out other than self-harm. Upon her questioning, he described how he would kill himself – that he would take tablets, or use a knife to slash his throat. The mother changed her version as to when he gave those details, so it is not clear whether it was purportedly in September 2011 or January 2012, but in any event that is the gist of what she says he said.
As noted, not one of the mother’s family members gave evidence that they heard that, and Mr WB’s evidence was that the child had seemed happy and normal up until just before he left with his mother some six days later.
It is hard to unravel exactly what occurred in the days after 3 January 2012. It seems that on the following day the mother prepared an application to the Court for the child to remain in her care. She prepared and swore an affidavit. On 9 January, she came to the Family Court Registry at Melbourne and spoke to a Registrar. The Registrar listed her application to be heard with this trial. That is, it was not given an urgent hearing date before 13 March 2012.
The mother took off with the child that day. The father has referred throughout the material to what happened then as “another abduction”. The mother has baulked at that description. She has consistently said it was not an “abduction”. She is probably right. However described, it does not significantly lessen the blame on her. At a time when the child was due to be returned to his father, she over-held him. She drove with him over a number of days from Melbourne to Far North Queensland. It was wrong on so many levels.
First, she showed no regard for court orders. Her claim that she believed that by just filing the application she was permitted to take him, was nonsense. She said that the father had acted in that way previously; that is, filing applications and then stopping her from seeing the child. It is a complete misrepresentation of how and why the father had stopped contact.
The mother is extremely intelligent and I am left in no doubt that she knew full well that the simple act of filing an application did not allow her to keep the child with her.
The fact that she cancelled her return airline ticket to Queensland that day, and instead hired a car to drive over a number of days, satisfies me that she was consciously “fleeing” with the child. She said she could not afford to buy him a ticket, but her evidence did not satisfy me that it was cheaper for her to forfeit her own pre-paid airline ticket, and to pay for petrol and accommodation for her and the child to travel over something like three days. The reasonable inference is that she knew she was likely to be stopped if she tried to fly. Indeed the father alerted the police at the airport on 9 January 2012, and he himself waited at the airport that night until all Cairns flights had departed. And in seeking a recovery order on 10 January 2012, the father did issue subpoenas to the various airlines.
The mother did not show sincerity in relation to her professed serious concerns as to the child’s welfare. Had he genuinely threatened that he would kill himself, and had she genuinely been concerned, she would have and should have acted in a responsible way to ensure immediate professional help and treatment for him. She would not have waited almost a week in holiday mode. She would not have taken him away. She would have contacted someone to do with this case, or the father, with whom she says she is willing to have open communication. She did not seek any medical or counselling help for the child until some days later in Queensland (after she had spoken to her mother). Instead, she acted in a way that could only have added to any emotional burden that the child may have been carrying.
She did contact the father, but only after she had over-held the child and was travelling with him. Under the guise of giving the child his “voice”, she embroiled him in difficult messages to and discussions with his father. A boy of just 10, who had supposedly said he would kill himself if returned to his father, was on the road with his mother and placed in the middle of various emotional telephone calls with his father.
As already noted above, what the child said (or did not say) to people other than his mother, is an important consideration.
The mother’s brother, Mr WB, described the child as “very happy”, “excited” and “pleasant” in the days of holidays leading up to the evening he was leaving for Far North Queensland with his mother. Despite the very concerning conversation the mother said she had with the child on 3 January 2012, Mr WB had absolutely no inkling of that, nor of any distress, until just a moment or two before his departure. Only then, the child was crying, and he told his uncle that he wanted to go with his mother and would kill himself if he could not.
Mr WB was in an invidious position. It was “on his watch” as supervisor that the mother announced that she and the child were leaving, and she did so despite him “begging” her to reconsider her actions. He was criticised for not acting promptly enough to ring the police or the father, and for not successfully stopping his sister from leaving. Those criticisms were unfair. As soon as she left, he did ring the father and then the police.
It was unfortunate though that Mr WB told the police that he did not believe the child was “at risk” with the mother. It was either misguided family loyalty, or a misunderstanding of the broader concept of emotional risk.
The fact that the child repeated his threats of self-harm to the Australian Federal Police would be of enormous concern, but for the fact that it was in the extraordinarily distressing and disruptive setting of being removed by the police (again), and the fact that he used language that is not normal for a child of only just 10. It smacks much more of the mother’s influence than it does of the child’s genuine feelings.
Neither Mr WB’s wife, nor his brother Mr RB and his wife, all supervisors over that period, were called to give evidence that they had overheard the child threatening to kill himself. It was sad that the mother was alone in court throughout the proceedings. I have already noted that in the absence of any other material about it, I can infer that they would not have helped her case. In any event, she said that she did not discuss the child’s dramatic assertions with any of them. She felt the imposition on her family members had already been very profound.
It simply did not add up that she would not have confided such serious concerns to close, loving, and interested family members.
I have also already noted, in considering the child’s views purportedly expressed to R at this time, that I can place little weight on her evidence. R did try valiantly to be loyal and supportive to her mother’s case, but her discomfort in trying to support the unsupportable was at times palpable. She looked uncomfortable, her answers were sometimes slow in coming, and at times she struggled with the right words.
The child was certainly profoundly distressed when taken into the care of the police on 13 January 2012. His father went to hug him but the child pulled away yelling, “Don’t touch me, don’t touch me, don’t talk to me.” He turned his back to his father and squashed himself against the wall. He yelled at his father “I hate you”. He said he hated him because he had not let him see his mother for the last four years. Also, because he had taken him away from his mother when he was four, and she did not know where he was and was “so scared”.
I note that the account of the father keeping the child from his mother for the last four years, accords directly with the mother’s own account, but not the reality. Similarly, the account of the father taking the child from his mother six years ago, and of her being scared, again directly accords with her account, one that I rejected as inaccurate in my 2008 Reasons for Judgment. The comments smack of the mother’s influence.
The child continued the oppositional behaviour towards his father, although he did not run away, and he boarded the flight to Melbourne without any coercion. At first he would not speak to his father and was “grumpy”, but according to the father, he was “not distressed”. His demeanour warmed during the flight, although his overall manner was “quiet, withdrawn and sullen.”
Over the next days, the child and his father had various discussions. When his father used the word “abducted”, the child said that he would not use that word. Again, that is exactly what the mother has said.
The child complained that his father “wouldn’t listen”. He spoke to his father about wanting to kill himself and wanting to live with his mother, and he suggested that the father “Put one of those document thingies into court saying what I just said, that I want to live with my mum and all that stuff.” The child spoke of having “no voice”, and of his voice not being heard, again just as his mother does. He asked to see the court documents. The father refused to show him such inappropriate material.
The father described the child’s demeanour before the Christmas holiday with his mother as “happy, loving, communicative, polite, friendly and positive.” He had made plans for the remainder of his summer holidays and insisted that his father arrange a birthday party with his friends upon his return.
The father said that for about the first three weeks after his return, the child’s behaviour and interactions with his father and step-mother were “fairly normal”, so long as they were involved in an activity that the child enjoyed. If at home and not fully engaged, however, the child became “morose, sullen, surly, withdrawn and irritable, and muttered things to himself.” His father described him as “apathetic and uninterested in his usual activities, as well as unusually oppositional to doing household activities.” He said his behaviour settled after some weeks.
The father expressed the concern that some of what the child had said gave a real indication that he was being told what to say by his mother. He used words and expressions that aligned so closely with hers, and he appeared confused and muddled at times or corrected himself in what he was saying.
Although the child spoke to his father of his distress at living with him, and of his desire to self-harm, it is hard to accept that his behaviours and his conversations were indicative of his true feelings. It is more likely that they showed his complete confusion of loyalties and emotions arising from a damaging time with his mother. It is the latter proposition that is supported by the experts in this case.
Dr V saw the child on 28 January 2012. She saw him with another child. She said she was cautious not to see him alone because the police had told her that the child’s description to them of her was that “my dad pays her to say things to courts.” The concern naturally is that such an adult concept could only come from his mother. I accept from Dr V and the father that the child has enjoyed a good therapeutic relationship with Dr V, and would have had no concept of the payment arrangements. In fact, the father has not been paying for Dr V.
In any event, when Dr V saw the child in January 2012, she noted “dramatic changes” in his appearance and demeanour. The child was wearing dark sunglasses indoors. He kept them on for 30 minutes. His clothing and expressions were different. He diverted all eye contact, and his demeanour was “guarded”. His affect was “flat”, which she said was unusual for him.
Dr V said that the child arrived in his “usual clean attire with clean hair, fingernails and body”, but that during the session his body began to emit a “distinctive” body odour known “to accompany the H=ion of the pH metabolic ketone body.” She said it is known to accompany shock and dissociation, respiratory complications and panic attacks, unusual distress, or psychosis, and “is documented in the literature.”
Dr V said that although in her first two reports she had noted that the child met all criteria of an adjustment disorder and residue from post-traumatic stress disorder of childhood, he had also exhibited “dissociative features”. She said that his “over-reading” was an example of that: when reading, he did not have the capacity to filter the outside world and needed to be gently encouraged to hear or see what was happening in his immediate environment. In January 2012, her diagnosis moved from an adjustment disorder and complex post-traumatic stress disorder “to a more severe diagnosis of dissociation”.
Dr V said dissociation is directly related to trauma. She said she “cannot over-state” the “serious impact” of the mother’s recent abduction on the child’s future health prognosis. She said “fleeing” is a traumatic event. When feelings of “betrayal and confusion” are prevalent, a child blocks the knowledge and pain of confusing messages. Dr V said in extreme cases, identity alteration is manifested. People “de-personalise” or detach from their own thoughts.
Dr V expressed grave concerns that an increase in the child’s compulsive behaviours and dissociative responses would increase, unless there is a formal ruling that the “abductions” have not been in the best “and most healthful interest” of the child’s development. She said that it was “most alarming” that there is a “possibility” that the mother or someone in her sphere “coached him in potential methods of self-harm and runaway behaviour.” She believed the mother’s behaviour had a sense of orchestration about it, and that the child is “at grave risk of dissociation by being placed in this orchestrated traumatic scenario.”
Dr V noted that the child’s post-trauma symptoms were decreasing, but his “dissociative” features were still present. She expressed the professional opinion that his prognosis had gone from “hopeful to less hopeful since the last abduction.” She proposed that the child not see his mother at least for the rest of this year.
The mother was extremely critical of Dr V’s role in this case. She said she is biased, having been the father’s counsellor for some time before she started to see the child. The mother emphasised that Dr V has never seen or spoken with her, and has only one side of the story. She said that Dr V specialises in post-traumatic stress disorder, primarily arising from hostage, refugee and war situations. It was her case that Dr V was, effectively, predisposed to her diagnosis of post-traumatic stress disorder, but had overlooked how different the child’s situation was from those other trauma situations.
It is true that Dr V had previously counselled the father. It was for two years in about 2004 and 2005. She saw him infrequently. In 2005 she referred him and the mother together to see a psychiatrist. Several years later, in 2008, the child’s GP referred him to her. That does mean that she came to the task of counselling the child against that background. It does not necessarily mean any bias.
It is true too that since starting her work with the child, Dr V has not had the benefit of meeting or speaking with the mother, and although her role was specifically to counsel the child, that is definitely a limitation when it comes to evidence in these sorts of proceedings.
It is also true that at one point in her report, Dr V referred to the mother’s possible involvement in a “cult”. Although the mother is involved in organised religion in Far North Queensland, there is no reason to refer to it as a cult. Dr V was misinformed about that. I understand that left the mother concerned, but Dr V had spent substantial time with the child and counselled and diagnosed him well before that misinformation or misunderstanding. In itself, the error does not establish bias.
As to Dr V’s expertise, the evidence did not lead me to a finding that her expertise was misplaced in this case. Moreover, Dr Y, the expert to whom the mother chose to take the child for another opinion, actually agreed with Dr V’s observations of the dissociative features in the child’s behaviour. I shall come to that in a moment.
Otherwise, I consider Dr V’s evidence in light of Ms D’s evidence. Unlike Dr V, Ms D did have the advantage of spending time with each parent and observing the child with each of them. She came to the task with no previous association with any family member. Like Dr V, she had serious concerns for the child’s welfare, arising from his mother’s behaviour and the confusion that it instilled in him.
It was Ms D’s evidence that when she saw the child in late February 2012, she deliberately did not ask him directly about any threats of self-harm. He said nothing at all about it. She said that on all topics, other than his mother, he presented as “a happy boy”, and indeed he said he was happy. On topics relating to his everyday life with his father he was “animated and forthcoming”, talking about his family, his step-sisters, his paternal grandfather, his school friends, activities, pets and holidays.
On the topic of his mother, he was reluctant to say anything. According to Ms D, he was “guarded and cautious in his comments”. Ms D had never experienced that before with him.
The child told Ms D that he either did not want to talk about questions related to his mother, or that he “wanted to forget”. He would not speak about his holidays with his mother. He said “I don’t want to talk about it”, and “I want to forget about it.” He was asked if he still felt sad for his mother. He answered “Yep” and then added “I don’t want to answer that”. When he was asked if he felt sad for his father, he replied “Nup”. He told the psychologist he would like to live 49 per cent with his father and 51 per cent with his mother. He said he would be happy if he could live with both parents “…but that won’t happen”. He said his mother would not come back to live in Victoria. He said he liked Queensland more than Victoria because “I like the tropics”, and he showed excitement at the prospect of travelling to Europe and Africa with his mother, something he said they had discussed during the holidays.
It was against that backdrop that Ms D again emphasised that the child’s comments could not simply be taken at face value.
To explain why the child had not repeated his threat of self-harm to the experts, the mother suggested that the child had effectively been “bought” by his father since his return to Melbourne. She based that on Dr V and Ms D’s observations that he was wearing different clothing, which was “cool” or “hip”, and more mature and fashionable than previously. It was a suggestion without any substance. Both experts dismissed it.
I have no reason to believe the father had tried to influence the child to act as if all was well in his care. In fact, the father was quite open about how disturbed and distressed the child had been when he returned to his care. He did not appear to be down-playing or sugar-coating the issue. He seemed honest and forthright in divulging the criticisms the child then appeared to be making of him, and how forcefully the child appeared to be saying he wanted to live with his mother. And the child did not present to the experts as if all was well. Nor did he present as having been coached in any way by his father.
Ms D’s evidence was measured and fair, and she provided helpful insights into the confusion for the child.
As briefly touched upon, in December 2010, the mother unilaterally took the child to see a psychologist, Dr Y. She met with him in December 2010, whilst visiting Melbourne, to convey her concerns about Dr V’s diagnosis of the child as suffering post-traumatic stress disorder and an adjustment disorder. He assessed the child and the mother and subsequently saw R as well.
Dr Y performed various psychometric tests on the child. He found him to have intellectual capacities of a much older child than his chronological age. Dr Y had little conversation with the child about his father or his home life in central Victoria, and he did not meet the father at all.
In his evidence, Dr Y said that he did not disagree with Dr V that the child was showing signs of a dissociative disorder. He had simply taken the view that it was from not seeing his mother, rather than from anything she had done or was doing.
In his report, Dr Y had concluded that the child needed to feel loved by both parents and to have a settled and entirely predictable routine of significant times with both his mother and father. He said that the behaviours observed and reported by Dr V showed that the child had been troubled, but Dr Y said he differed as to how the problem should be addressed, emphasising the need for both parents.
When cross-examined, Dr Y had to concede that his views were simplistic, once he was advised of the extensive history in this Court, of the various previous attempts to ensure that the child could see his mother, and that Ms D had given three Family Reports recommending time between mother and child before the final report in which she had said there should be no contact at all.
Dr Y did say that, knowing Ms D’s work, he had been very surprised by her recommendation for no contact at all. Of course, the context of her three previous reports was unknown to him. When he saw the child and the mother, he had no material, except for the first page of the 2008 orders, given to him by the mother to satisfy him that she had the parental responsibility required to take the child to see him.
Nothing, however, surprised Dr Y more than hearing of the mother’s actions in January 2012. The final line of his January 2011 evaluation in relation to the child had been as follows:
It follows from such arrangements that neither parent should ever again ‘spirit’ him away from the other without warning or prior agreement.
It was clear that it had been so integral to his report that neither parent should “sprit” the child away again, that he was absolutely astonished when told of the mother’s recent behaviour. He was amazed that she had not, for example, contacted him or somebody else. Dr Y asked the mother rhetorically from the witness box as to why she would have acted that way.
Dr Y knew so little of this case in his assessment of the child that I cannot place any significant weight on his assessment.
For completeness, I note that the maternal grandmother referred to another psychologist, in her affidavit. She purported to offer the opinion of a Dr F, described as “a family member”, as to his observations of the child’s happy, symptom-free behaviour in his mother’s presence, and as a criticism of Dr V’s diagnosis. Without Dr F being called, that hearsay account of an opinion – by a family member in a social setting – is not one to which I can attach weight.
I do not accept as truthful the mother’s account that she recently over-held the child in order to protect him.
The real upshot of why she had taken him came through in snippets of her evidence. Several times, she said that she thought it would be good to have him living with her for some months before the hearing, essentially as an evidence-gathering opportunity. That strikes me as far closer to the real reason for her keeping the child, than any genuine concern that he was unhappy in his life in central Victoria, or that he would hurt himself if returned. In the context of all the evidence, the probability is that the idea of “self-harm” was one introduced by her to him.
I am satisfied that the father is well able to meet the child’s needs. He has been sorely tested. He has not been “at fault” in bringing this matter to court on several occasions. He has had to deal with the mother’s behaviours so clearly undermining of the child’s health and well being. He has had to cope with the child’s confronting behaviour as a result. He has had to deal with the fact that the mother and her family portray him as a very bad and uncaring father. He has had little financial support from the mother. He has had the expense of two recovery order proceedings as a result of the mother’s conduct. It must have been a nightmare for him, to have the child removed again, knowing the difficulties in retrieving him last time, and being aware of the difficult aftermath for the child.
Through all that, the father has clearly not undermined the child’s affection for his mother. He has never negated it. The child has obviously remained free to express his feelings in that regard. He has taken the child for treatment. He has sought his own counselling as to how to handle the child’s behaviour. He has been sensitive and caring to the child. At the same time, he has tried to maintain a full and active normal childhood for the child, and to run a normal family life.
Those findings are clearly supported in Ms D’s reports, seconded by Dr V.
The mother on the other hand has done nothing to dispel the distrust that resided in her capacity to properly care for the child, without emotional risk to him, back in 2008. To the contrary, although she dearly loves the child, she has still not developed appropriate insights into his needs, or into the consequences of her own actions, nor an understanding that it is her own deeds and actions that prevent her from seeing him in the unfettered way that she so dearly wants. She maintains her belief that the father and the legal system are to blame. She believes she cannot obtain “justice”, and that the father has the money to support litigation, whereas she does not.
What the mother is unable to see is that she has been given opportunities for the resumption of her relationship with the child, but she has not been able to grasp them.
(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;
Any interference with the mother’s time with the child brought about by the father, has been for good reason, as set out above.
Although the mother consistently claims that she genuinely and sincerely believes that the child needs his father as well as his mother, her actions have not demonstrated a true understanding of that.
(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;
If the child were removed from the stable environment of his father, there would be grave concern for his welfare.
If he has no contact at all with his mother, it will be very sad for him, but he will be away from influences that have impacted adversely upon him, and undermined his ease and contentment in his day-to-day life.
Ms D said it very succinctly when she referred to the risks to the child’s well-being as higher if he spends time with his mother than if he does not.
When it comes to the child seeing members of his mother’s family, I bear in mind that orders that have had them involved and engaged in his life have not been successful. Family members have not supervised on the basis required. The Court can have no confidence at all that the family, including R, will protect the child from his mother or her harmful ideas, concepts, and discussions.
In any event, the mother says that supervision is unnatural and that the onus on her family has been absurdly high and that they are not prepared to supervise further. Accordingly, if I decide that the child will not see his mother, he will not see the maternal side of his family.
(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;
This would be a consideration if the mother remains in Far North Queensland, and if there is to be regular time spent between mother and son.
It seems that the mother will only return to Victoria if she is having regular and unsupervised time with the child. It seems that she will not accept any time in a Contact Centre. In the past she has rejected it as time that was not worthwhile or realistic. There is no reason to believe that she has changed in that attitude.
The only other potential expense would arise if the child’s time with his mother were to be supervised by a paid agency. That was not suggested by anyone in this case. The parents could not afford it, but in any event Ms D’s position was clear – as was Dr V’s – that the child can now only be protected by not being exposed to his mother.
(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;
Relevant aspects of this consideration are woven throughout these Reasons. So long as the child could be emotionally safe, it would be ideal for him to be exposed to his parents’ different lifestyles and different dispositions. It is a question as to whether that can be achieved safely for him.
Although the child is articulate and intelligent beyond his years, he is still a little boy of just 10 and that was emphasised by Ms D in terms of how his views should be assessed.
(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;
(j)any family violence involving the child or a member of the child’s family;
(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;
These considerations are either not relevant or have been dealt with elsewhere.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This case has returned to Court numerous times. As noted, it has been at father’s instigation. I am not critical of him for that. I am satisfied it is because extensive efforts have been made to ensure that the child has his mother in his life, and those attempts have effectively been unsuccessful.
It is hard to be confident that, if there are orders for the mother to continue seeing the child, the matter will not continue to return to the Court.
The evidence supports that if the child lives in a settled arrangement with his father, without being disrupted by time with his mother and her on-going undermining of his relationship with his father, there is a much lower likelihood of further proceedings.
That in itself would not dissuade me from the child spending time with his mother if that were the appropriate course for his welfare.
CONCLUSION
The child S is 10. He is intelligent and articulate beyond his years.
Unfortunately, he has also had life experiences that are beyond his years. He was at the centre of conflict between his parents, who separated when he was only four. He was taken away by his mother when he was only just six. He experienced being taken into the custody of the Australian Federal Police. His home was changed, to live with his father. His time with his mother since then, some four years ago now, has been intermittent, and filled with all sorts of confusing emotions.
There is no question that the child loves his mother and wants to spend time with her. There is no question too that when he has been with her, she has undermined his relationship with his father, unsettled him, and confused him.
I am satisfied that the child’s mental health has suffered directly as a result of the time he has spent with his mother. Although she loves him dearly, and so wants to remain involved in his life, she simply does not demonstrate the insight into his needs that convinces me that she is able to protect him from emotional harm. To the contrary, the expert evidence satisfies me that she is the source of that harm, and that it is a serious threat to his well-being. I do not believe that she has deliberately set out to harm the child. She simply does not appear to understand the impact of her behaviour on him.
The child has, despite periods of quite serious behavioural upset after time with his mother, managed to enjoy a stable and healthy childhood in the care of his father, his father’s wife, and her children. He is happy at school and in his local community. He participates in sport and extra-curricular activities, and has good friendships.
I accept the evidence of the experienced and well-qualified Family Report writer that, sadly for the child, his need to see his mother is outweighed by the need to protect him from emotional harm in spending time with her.
I am satisfied that the presumption in favour of shared parental responsibility does not apply. If it did, the risk to the child’s welfare in his mother’s care would rebut it in any event.
The father will be responsible for making the decisions in relation to the child.
It is important that the mother is permitted to send letters or cards to the child, provided that they are vetted by the father to ensure that they are appropriate. I adopt the order proposed in that regard on behalf of the father.
I also adopt the orders restraining the mother from approaching the child, his home or his school, in the terms set out in the father’s proposal.
Otherwise, orders proposed on behalf of the father in relation to obtaining a passport for the child, being permitted to travel with him outside Australia, ensuring that there is a Watch List order in relation to the mother taking the child from Australia, and ensuring that each parent keep the other parent informed of contact details, are practical and reasonable.
It was also proposed on behalf of the father that I make an order restraining the mother from instituting any proceedings in relation to the child, without first obtaining the permission of a judge of this Court. I am satisfied that it is an order that would promote the child’s best interests. The litigation has been very long. The financial and emotional stress on his primary carer is obvious.
It is important however that the mother have the opportunity to return to Court if there are new facts and circumstances. Persuasive new facts and circumstances are likely to relate to her development of genuine insight into the child’s needs, and a genuine appreciation of the importance of his relationship with his father.
I do not propose making the mother’s capacity to return to Court dependent on the payment of costs, as requested by counsel on behalf of the father. I may make orders for costs, but I do not want to see considerations of the child’s best interests supplanted by questions as to the payment of costs.
The following costs orders are sought on behalf of the father against the mother:
·The costs incurred of and incidental to her Application filed on 3 November 2011, on an indemnity basis, fixed in the sum of $7,986.
·The costs incurred of and incidental to his Application in a Case filed on 10 January 2012 on an indemnity basis, fixed in the sum of $16,844.30.
·Reimbursement of the expenses he incurred as a result of the second abduction, fixed in the sum of $1,789.
·Reimbursement for the wages he lost as a result of the second abduction, fixed in the sum of $1,104.
·Reimbursement for the costs he incurred to replace shoes and clothing purchased by the father which was not returned following her abduction of the child, fixed in the sum of $200.
Although counsel for the father made it clear from the start of the case that costs would be sought, issues about them were “lost in the wash” in the course of the hearing on the substantive issues. In fairness to the mother, I shall invite argument about the costs, whether orders should be made against her, whether it should be on an indemnity basis, and whether I should fix the amounts or have them taxed.
THE ORDERS
Otherwise, the orders I propose, subject to submissions as to form are as follows:
1.That all previous parenting orders shall be discharged.
2.That the father shall have the sole parental responsibility for the child S Richard Briar (“the child”) born … 2002.
3.That the child shall live with the father.
4.That the child shall spend no time with the mother.
5.That the child shall have no telephone communication with the mother.
6.That the mother shall be permitted to send the child a letter or card on four occasions each year, commencing in December 2012 on condition that:
(a) The letters or cards be sent to an address nominated by the father (not to the father and the child’s home); and
(b) That the letters or cards be opened by the father and only provided to the child if the father considers it appropriate to do so.
7.That the mother shall be restrained by herself, her servants and/or her agents from:
(a) Approaching or remaining within 200meters of the child;
(b) Attending or remaining within 200 meters of the child’s home;
(c) Attending or remaining within 200 meters of the child’s school;
(d) Attending any of the child’s school functions; and
(e) Getting another person to do anything she must not do under this order.
8.That the mother shall keep the father informed of her residential address and contact telephone numbers.
9.That the father shall keep the mother informed of his mobile telephone number to be used by the mother only in case of an emergency.
10.That the father shall be permitted to renew the child’s passport without the mother’s consent.
11.That the father shall retain the child’s passport.
12.That the mother, Ms Briar (also known as … or …) born … 1966, her servants and/or her agents shall be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child S Richard-Briar born … 2002 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by maintaining the child’s name on the AIRPORT WATCH LIST in force at all points of arrival and departure in the Commonwealth of Australia.
13.That the father shall be at liberty to travel outside the Commonwealth of Australia with the child.
14.That the father’s solicitors shall forthwith serve a sealed copy of this order on the Australian Federal Police and the Marshal of the Family Court of Australia.
15.That pursuant to s 65D(1) of the Family Law Act1975, the mother, her servants and agents be and is restrained from instituting any proceedings concerning the child in any court exercising jurisdiction under the Family Law Act1975 (Cth), without first obtaining the permission of a judge of the Family Court of Australia sitting at the registry at Melbourne, if practicable such judge to be Dessau J.
16.That all other applications shall be dismissed.
17.That the appointment of the Independent Children's Lawyer shall be discharged.
18.Such further or other orders that are deemed appropriate by this Honourable Court.
I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 27 April 2012
Associate:
Date: 27 April 2012
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Injunction
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Remedies
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Procedural Fairness
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Costs
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Res Judicata
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