SEYDL & HALLADAY (No.2)
[2019] FCCA 1625
•12 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEYDL & HALLADAY (No.2) | [2019] FCCA 1625 |
| Catchwords: FAMILY LAW – Children – best interests – where mother and Independent Children’s Lawyer seek final orders for restraint on father having time or communicating with three year old child – where findings of family violence made – where father perpetrates coercive controlling family violence against mother – where child at unacceptable risk of harm in father’s care. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC, 61DA(1), 65D |
| Cases cited: Bondelmonte v Bondelmonte [2017] HCA 8 Chappell & Chappell [2008] FamCAFC 143 Pegg & Pegg [2017] FCCA 402 U v U (2002) 211 CLR 238 |
| Applicant: | MS SEYDL |
| Respondent: | MR HALLADAY |
| File Number: | BRC 10660 of 2016 |
| Judgment of: | Judge Cassidy |
| Hearing dates: | 22, 23, 24 May 2019 |
| Date of Last Submission: | 24 May 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 12 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Downes |
| Solicitors for the Applicant: | Dodd Bedford & Associates |
| Counsel for the Respondent: | Mr Edwards |
| For the Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Mr George |
| Solicitors for the Independent Children's Lawyer: | McGarvie Family Law Practice |
ORDERS
THE COURT ORDERS ON A FINAL BASIS:
That all previous Orders be discharged.
That the child [X] born on … 2016 (“the child”), live with the mother.
That the mother have sole parental responsibility for the long term care, welfare and development of the child.
That the father be restrained from communicating with, or spending time with the child.
That the father be restrained and an injunction issue restraining the father from doing the following:
(a)Communicating with the mother by any means;
(b)Approaching or remaining within one-hundred (100) metres of the mother’s home or workplace;
(c)Attending upon the child’s day care or school/s;
(d)Removing the child or causing another person to remove the child from the mother’s care, the child’s day care or school/s;
(e)Posting any information about the mother and/or the child, and/or the Court proceedings, on any social networking sites.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Seydl & Halladay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BUNDABERG |
BRC 10660 of 2016
| MS SEYDL |
Applicant
And
| MR HALLADAY |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter, I have been asked to decide the future parenting arrangements for a little girl, [X] (“[X]” or “the child”). [X] was born … 2016 and is now three years of age.
This judgment should be read in conjunction with the Reasons for Judgment delivered in this matter on 28 March 2019, and published on 29 April 2019.[1]
The Proposals
[1] Seydl & Halladay [2019] FCCA 925.
The Independent Children’s Lawyer’s proposal
The orders sought by the Independent Children’s Lawyer (“the ICL”), were initially expressed in the Outline of Case filed 13 May 2019. Therein, the ICL expresses her position in the event of three possible findings of risk the Court may make. However, at the conclusion of the evidence, the ICL’s position was as follows:
a)The child live with the mother.
b)The mother have sole parental responsibility for the child.
c)The father be restrained from communicating with, or spending time with the child.
The mother’s proposal
The orders sought by the mother are set out in her Outline of Case filed 21 May 2019. Those Orders are in accord with the proposed orders of the Independent Children’s Lawyer. The mother also sought a restraint on the father:
a)Communicating with the mother by any means;
b)Approaching or remaining within 100 metres of the mother’s home or workplace;
c)Attending upon the child’s day care or school/s;
d)Removing the child or causing another person to remove the child from the mother’s care, her day care or school;
e)Posting any information about the mother and/or the child, and/or the court proceedings on any social networking sites.
The father’s proposal
The orders sought by the father are set out in a document entitled ‘Final Orders Sought’, which was handed up to the Court on the final morning of the hearing.
Inter alia, that document proposes the following:
a)The parents have equal shared responsibility for [X];
b)A graduating time regime in which the child would spend time with the father for the next two months in a two-week cycle –
i)In Week 1 – On Tuesday and Thursday from 3:00pm to 6:30pm to 6:30pm and on Friday from 12:00pm to 6:30pm.
ii)In Week 2 – On Tuesday and Thursday from 3:00pm to 6:30pm and on Saturday from 7:00am until Sunday at 4:00pm.
(One overnight in a two-week cycle)
c)Then after the time in 6.b) has elapsed, for the next two months in a two-week cycle –
i)In Week 1 – On Tuesday from 3:00pm to 6:30pm. On Thursday from 3:00pm to Friday at 8:00am.
ii)In Week 2 - On Tuesday and Thursday from 3:00pm to 6:30pm and on Saturday from 7:00am until Sunday at 4:00pm.
(Two overnights in a two-week cycle)
d)The time continues to increment on two-monthly basis to three overnights in a two-week cycle. Then, the father proposes from 18 November 2019, until the child’s fourth birthday in 2020, a two-week cycle in which [X] would spend four overnights with him.
e)When [X] reaches the age of four, the father proposes a graduation to a shared care arrangement on a 3 / 4, 4 / 3, two-week cycle.
f)Upon [X] starting school in 2021, the father proposes a shared care arrangement on a week-about basis.
g)The father proposes a number of specific issues orders including:
i)The use of “a communication book and/or email and/or app to be used/sent within an hour of the handover,” of the child.
ii)That where a parent makes an appointment with any treating medical professional etc. they shall advise the other parent of the appointment “straight after the appointment has been made, via email.”
iii)That both parents “must submit to a random tox screen, with the costs of the procedure covered by the parent requesting the test. The test will be used to look for drug and alcohol abuse and limited to the following two years.” The father envisions the testing would include a total of six tests per year:
·CDT two times per year;
·Fair Follicle Drug Test two times per year; and
·Hair Follicle EtG Test two times per year.
iv)That the child’s passport is to be “locked in an 8 digit key code safe,” at the father’s residence. “With each parent having 4 digits of the combination code”.
Alternative proposals
The High Court decision of U v U,[2] requires the Court to put to the parties an alternative position, if the Court is considering that.
[2] 211 CLR 238.
In light of the serious nature of the ‘no time’ order being sought by the Independent Children’s Lawyer and the mother, I asked the parties to address the scenario of a longer term supervised contact order, as contemplated by the family report writer, Ms B. I also asked the father to contemplate a scenario involving very limited periods of unsupervised time between the child and the father, being perhaps two hours per week on a Saturday, to enable a thread of contact to be maintained.
The father’s evidence was that he would not take advantage of an order for supervised time with the child for two reasons; the first being that the closest contact centre to the parties is in Town C and would require the child to drive over three hours round trip in order to spend the two hours of time with him. The second reason being that he did not feel supervision was appropriate because he is “not a criminal”. In relation to the second scenario, the father said that it would be “terrible” and would not allow him to maintain a “decent bond” with the child going forward. The father did not answer if he would attend that time, if I were to make such an order.
The Independent Children’s Lawyer and the mother were not supportive of either of those scenarios. The Independent Children’s Lawyer submitted that there should not be any opportunity, in the orders I make, for ongoing contact or communication between these parents in relation to the child.
Background
The chronology provided in the Outline of Case, filed by the Independent Children’s Lawyer adequately summarises the background in this matter.
The father is forty-five years of age and the mother is forty-three years of age.
The parties commenced a relationship in either 2015 or a date in 2016. I note that at no time did the parents live together. The parties’ relationship was short and ended in either June or August 2016, soon after [X]’s birth on … 2016.
In August 2016, a DNA test establishes that Mr Halladay is the father of the child.
The matter commenced in this Court in October 2016, when the mother filed an Initiating Application.
Orders were made by Judge Coates on 27 February 2017 that provided for the father to spend time with the child:
a)Each Tuesday for three and a half hours;
b)Alternate weekends on Saturday and Sunday for four hours; and
c)Alternate Fridays for three and a half hours.
On 5 July 2017, a Domestic Violence Protection Order (“DVO”) was made that named the mother as the aggrieved and the father as the respondent. The order included restraints on the father’s contact with the mother, including a restraint on attending the mother’s place of residence and/or employment. The order is in force until 4 July 2022.
The Court made orders in September 2017 that provided for time on special occasions, drug and alcohol restraints and testing as well as trial directions.
In May 2018, the father relocated to Town D for work and Orders were made by consent that provided for [X] to spend some weekend day time with her father and time using video calls.
The father filed an Application in a Case on 31 October 2018, seeking overnight time with the child. On 16 November 2018, the Court appointed an Independent Children’s Lawyer and ordered a section 62G family report.
On 6 February 2019, the matter was listed for trial for three days, commencing on 22 May 2019.
On 3 March 2019, the father does not attend changeover for the child and retains her without the mother’s consent until 13 March 2019, when Jarrett J Orders the child be returned to the mother. This occurred on 14 March 2019. There has been a stay of the Orders for the child to spend time with the father since that time.
The father disclosed at the final hearing that he has another child, conceived in the Country D in 2007. That child is [Y] and she is approximately twelve years old. There are no parenting orders in place in relation to [Y].
I understand the father’s evidence is that he became aware of [Y] when she was around twelve months old. He said that [Y] lives with her mother, who has relocated to Australia. The father asked for a paternity test to be carried out in Australia. The father was declared to be [Y]’s biological father in the week before the trial in this matter, in a child support application. The father now has a child support liability for that child.
Parenting arrangements
The parenting arrangements in this matter are somewhat unusual in that at no time did the parents live together. However, the Orders of Coates J in February 2017 provided the father with very regular daytime contact with the child. [X] was not yet one year old when those Orders were made.
The time was interrupted when the father relocated to Town D for employment purposes. The time was reduced to daytime every third weekend and some Skype time. This was between May and September 2018.
The father takes issue with the mother’s commitment to facilitating the video calls but otherwise the time with the father and the child seems to have largely proceeded as per the Orders.
Unfortunately the father withheld the child for eleven nights in March 2019 on the basis he was concerned for the child’s safety. Jarrett J ordered the father return the child to the mother and stayed the contact Orders until 28 March 2019. On that date I continued the stay until further order.
The father filed a Notice of Appeal on 16 April 2019, in respect of the interim Orders made 28 March 2019. That Appeal has not been finalised as of the date of delivery of this Judgment.
The final hearing was held on 22, 23 and 24 May 2019 in Town R.
The father has spent no time with the child, in accordance with Orders of this Court, since the child was returned to the mother’s care on 14 March 2019.
Education history of the child
[X] is enrolled with the Day care centre E five days per week. On the days that the mother does not work, [X] spends between three to five hours at day care.
Health and any Special Needs of the Child
The father has raised concerns about the child’s health and in particular, the management of her medical needs by the mother.
In turn, the mother has fears about the father’s perceived focus on engaging in medical interventions for the child and told the family report writer, “He wants to have [X] checked all the time.” The mother also stated she “…feels better equipped to discriminate when it is necessary to see a doctor…”[3]
[3] At [52].
The father raises the following issues:
a)The child has had four cases of scabies whilst in the mother’s care during the years 2018 / 2019.
b)The child has experienced continual reoccurring dermatitis, the cause of which, in the father’s view, has not been appropriately investigated or treated.
c)That the mother has used (and allegedly overdosed the child) with the drug Phenergan, causing the child to be handed over to the father in a “…“zombie” like … diminished mental state,” to the point the father considered the mother’s treatment a form of “child abuse, and lack of parenting skills,”[4] impacting on the father’s time spent with [X].
d)That the mother uses or has used cortisone and petroleum jelly based ointments on the days the child was in the father’s care.
e)That the mother has repeatedly failed to transfer to the father at changeovers, the child’s ‘Handover book’, to enable to the father to understand what medications have been recently administered or are required in his care.
[4] Affidavit of the father filed 2 November 2018 p.23.
The evidence
In an email to the mother’s solicitor and the ICL on 8 May 2019, the father confirms his views that the mother “…is neglectful when it comes to [X]’s care.” The father posits that the emergence of a rash on the child may have been brought on by “…being put back into her Mothers (sic) care, and the real and significant fear that [X] has of Ms. Seydl’s friend called “Mr Q””. I will discuss “Mr Q” later in these Reasons for Judgment. The father attaches a photo of the mother’s neck in that email, which he believes evidences an outbreak of scabies track and nest on her chin. That photo is included in these Reasons, below: (p.170 of Exhibit 7)
(image omitted)
In a further email on 26 April 2019, the father confirms neither he, nor any members of the paternal family, have ever experienced scabies. The father appears to place responsibility on the mother for the child contracting scabies and puts this down to “shear neglect, lack of care and hygiene, and hanging out with undesirables, like “Mr Q.” The expert records the father’s statement of having to act as “…a mini police officer to make sure [the child] is getting the attention she requires.”[5]
[5] At [44].
The father’s evidence at trial was that he does trust the mother in relation to [X]’s medical care, but that it would be “way better” for [X] to have two parents involved in her medical appointments than just one.
There is evidence the mother has provided some updates to the father in relation to the child’s health, as well as the medication to be administered. For example, on 25 May 2018, the mother wrote an email to the father, with the subject ‘Scabbies back again (sic)’:
“[X]’s rash reappeared again earlier this week so I got and (sic) urgent appointment with Dr F and he has confirmed scabbies (sic) again.
After Dr F consulted a dermatologist in Brisbane they have advised the below action plan.
Tablets to be taken first and 8th day.
Stromectol – ½ tablet for [X].
Advantage Fatty ointment – Cream to be put on red sports on her skin.
Phenergan 3 times a day.
It has been brought to my attention by the pharmacist last night that the last script given by Dr F for adults had the wrong measurement on it.
If you have any further questions, direct them to Dr F…”
The independent evidence I have is that the child has been attending upon Dr G since 16 July 2018. It was agreed between the parties that the evidence Dr G could have given is:
“…
b. [The child] has had eight consultations during that time (which is not outside the norm);
…
d. All [X]’s attendances have been for “minor ailments”, she has no major health issues;
e. [X] suffers from ecsema and is being treated with emollients and topical steroid cream. In Dr G’s view the ecsema is not extensive and could be categorised as mild or moderate. Currently [X]’s skin is pretty good;
f. Dermatitis is a term that is used intermittently with ecsema…
g. She is aware the father organised with the paediatrician to have allergy tests done for [X] but the mother was against it. In her view, she wouldn’t ordinarily send a child [X]’s age with her condition for allergy testing as it would be unlikely to change the treatment being administered, but it’s not inappropriate to do so;
h. She has met each parent, they each seem to provide appropriate care for [X]. She has no concerns that would enliven her responsibilities as a mandatory notifier;
…
m. Scabies is not caused by bad hygiene;
n. It is caused by being in contact with other people who are infected;
o. Its possible to have been treated and then be re-infected. The mere fact of recurrent infections would not cause her to worry about neglect.
…
r. It is a common condition in school age children and it is reasonable to think of it like nits,
…
t. Phenergan is recommended for use with scabies as it is an antihistamine so it settles the itch. It can help manage the scratching in a case of scabies… now Drs tend to recommend non-drowsy antihistamines.
u. Non-drowsy antihistamines would have been contra indicated for [X] as she was under 3 so in those circumstances treatment with Phenergan would be clinically sound but only for short periods during flare ups;
v. She has no concerns about [X]’s general health and wellbeing;
w. The parents have been consistent in seeking information about [X]’s attendances on the surgery whenever she is in the presence of the other parent. This contact is different to what they see with other parents. However the parents are never rude, the requests for information are simply unusual.” (Exhibit 5)
It was an agreed fact that the father received some contrary evidence in relation to Phenergan use from another doctor.
I accept the unchallenged, agreed evidence that Dr G could have given. I am not concerned by any aspect of [X]’s general health and wellbeing. I consider that both parents are able to provide appropriate medical care as required and recommended by the child’s treating medical professionals.
The photograph the father attaches to his email dated 8 May 2019, fails to prove the point the father makes that it shows a scabies nest and track on the close up of the mother’s face. However, it raises real questions about the father invading the mother’s space by taking this close up photo. There is no evidence of when the photo was taken but the father chose to use it as recently as 8 May this year, only a couple of weeks before this trial.
What is troubling is the ongoing, intense level of parental conflict centred on [X]’s health and wellbeing. The source of that conflict, is in my view, the father.
Domestic Violence
The father is the Respondent to a Domestic and Family Violence Protection Order (“the Protection Order”). The Police applied for the Protection Order on behalf of the mother. A five-year order was made on 5 July 2017. That order named the mother and the child and will expire on 4 July 2022. The father’s evidence, is that the child is not on the Protection Order and that he had her name successfully removed in 2017. The mother confirms that [X] was originally named on the Protection Order but was removed on 13 February 2018.[6]
[6] Affidavit of the mother filed 20 May 2019 at [60].
The mother told the family report writer that there has been an improvement in the father’s attitude towards her since the Protection Order has been in place. However there have been three breaches of the order, which the mother says the father entered pleas of guilty to. The mother described these breaches to the expert:
“88. … The first time was because he was sending aggressive emails and expressing uninvited affection towards her. He does not take no for an answer. He touches and gropes her and does not seem to be aware this is inappropriate…”
On 3 September 2017, the Queensland Police Service (“QPS”) subpoena records note a breach of the Protection Order occurred (p.33 of Exhibit 1). The note says:
“Modus operandi:
…THE SUSPECT IS A RESPONDENT IN A CURRENT DVPO AND THE INFORMANT IS THE AGGREIEVED. AT ABOUT 11AM ON 3/9/2017, THE RESPONDENT ATTENDED THE AGGRIEVED’S RESIDENCE TO COLLECT HIS CHILD AS PER AGREED CHILD VISITATION AGREEMENT. AFTER PLACING HIS CHILD IN HIS CAR, THE SUSPECT SLAPPED THE AGGRIEVED ON HER ARSE AND SAID “WHAT ARE YOU UP TO”. WHEN THE AGGRIEVED SAID “[Mr Halladay] DON’T TOUCH ME” THE SUSPECT SAID “YOU LOVE TO BE TOUCHED”…THE SUSPECT THEN ENTERED HIS CAR AND MIMICKED A GUN WITH HIS HAND AND POINTED HIS HAND IN THE DIRECTION OF THE AGGRIEVED AND MIMICKED TO “SHOOT” THE AGGRIEVED. THE INCIDENT CAUSED THE AGGRIEVED TO FEEL UNEASY AND SCARED..DV APPLICATION NO:… 327. DV CONDITION BREACHED: 1.MUST BE OF GOOD BEHAVIOUR TOWARDS THE AGGRIEVED.PREVIOUS BREACH: NO. SEVERITY: MODERATE. FREQUENCY: FIRST INSTANCE. ANY WEAPONS USED: NO. DAMAGE TO PROPERTY: NO. DRUGS AND/ORALCOHOL INVOLVED: UNKNOWN.”
I note that the child was present during that incident.
On 12 March 2019, the father filed an application in the Magistrates Court to vary the Protection Order on the grounds that the mother does not fear for her safety. The mother’s evidence is that the QPS is defending that application on her behalf and the matter is listed for trial on 29 May 2019.
The mother’s Affidavit evidence is that the Protection Order remains necessary. The father’s evidence at hearing was that he did not accept that the mother is afraid of him and he will persist with his application to vary the Protection Order.
Alleged stalking behaviours of the father towards the mother
The mother is concerned that the father engages in stalking type behaviours towards her. She deposes in her Affidavit filed 20 May 2019:
“133. Despite a protection order being in place, the father is encroaching on my workplace by seeking out third parties to gain personal information about me…”
Ms H, a Manager at the mother’s workplace familiar with the parents, deposes to an incident occurring after she finished an open inspection on Saturday, 11 May 2019. She says:
“4. [The father] parked his vehicle and proceeded to approach me and said words to the effect to me “can I speak to you off the record”. I replied with words to the effect “you can speak with me, but I may not answer your questions”
5. [Mr Halladay] then asked “is [Ms Seydl] seeing anyone”. I replied “no” in that I am not aware of her seeing anyone.”
Ms H continues that the father advised her that the child is afraid of Mr Q and asked her “what is [Ms Seydl] Studying (sic)”.
The mother further deposes to an incident in which she was out walking during 30 April 2019.[7] The mother’s evidence is that she received a telephone call from a Police Officer J. The mother agreed to meet the Officer to receive a summons and mentioned that she had seen the father drive past her during her walk. During her walk home, after receiving the summons, the mother noticed the father drive past her again and saw the Police Officer behind him. The mother says:
“138. I was walking into my street about ten minutes after I saw this when the police officer I had spoken to earlier, pulled up…”
The Officer had pulled the father’s car over to inquire why he was driving down that road. The mother continues:
“The officer advised me that when he introduced himself to [Mr Halladay], that [Mr Halladay] said, “I know who you are, why am I always getting picked on by the police”. The officer then advised me that the father had accused him of being romantically involved with me…”
[7] Affidavit of the mother filed 20 May 2019, at [136] – [138].
Previous conviction for Unlawful Stalking
On 22 August 2014, the father was convicted in the Town R Court for Unlawful Stalking. A conviction was recorded and the father was sentenced to nine months’ imprisonment to be suspended for three years. The stalking charge was not in relation to the mother but to a woman the father describes as a previous girlfriend.
I note that the QPS notes on p.57 of the bundle records “Relationship to offender: Stranger,” and on pp.60 to 61, the QPS notes record:
“…The victim has told Police that she has never had a relevant relationship with the offender, stating that their only relationship was as friends and as her working for the offender. The suspect stated in the interview that he had been in a relationship with the victim for a number of years…
Police believe on the balance of probabilities that the offender has raised the relationship in defence of the charge of stalking and that there is no relevant relationship in place…”
A restraining order was also imposed on the father in relation to that conviction, for a period of three years.
The QPS ‘Court Brief’ (pp.63 to 64 of Exhibit 1), in relation to that charge notes:
“Facts of the charge 1 of 1
The defendant is known to the victim as he employed her (occupation omitted) for approximately two years up until 2012. Since that time the defendant and victim remained friends however the friendship ended in 2013.
Between the 1st of March 2014 and the 4th of June 2014, the defendant has stalked the victim by attending locations where she lives, works and frequents on a near daily basis between those dates.
The defendant during that time has driven past the victim’s residence between three and four times a week…
…
On or around the 13th of May 2014, the defendant drove past the victim’s home when she was washing the car. He stopped and opened his window and said to her, “Hey, sexy”, at which point the victim has gone inside…
In addition to following the victim frequently, on or around the 5th May 2014, the defendant purchased a Samsung mobile phone… The defendant activated GPS on this phone and installed an application on the phone called [application omitted]. The defendant then wrapped this phone in a plastic bag and taped it to a magnetised bracket…While the victim was inside the shops, the defendant walked to her car and attached the magnetised bracket containing the mobile phone to underneath the driver’s side of the car.
Over the next three days, the defendant used his own mobile phone to access the [application omitted] and observe the victim’s location which was accurately mapped using GPS. The defendant used that information to attend locations the victim was at…
The defendant’s behaviour has cause the victim to become extremely fearful. Over the months of this offence, the victim has observed the defendant’s behaviour escalate … The victim has become fearful of leaving her house or allowing her family to leave their house…
…
[The defendant] later made full admissions to frequently going to the victim at various places and following her in his car, as well as twice attaching the mobile phone to the victim’s car and using it to access her location on multiple occasions. He could offer no reasonable excuse for any of the behaviour…”
The father pleaded guilty to the Unlawful Stalking charge. I understand his evidence during cross-examination was that he only did so because he felt it would be too expensive to resist the charge. His evidence was that much of what is recorded in the QP9 did not, in fact, take place. Although the father admitted to what I consider to be the most serious aspect of that offending; that he did attach a mobile device to the woman’s vehicle.
Risks to the child in the mother’s care
The mother’s use of alcohol and illicit substances
The father raises the risk of neglect and harm in the mother’s care arising from her use of alcohol and illicit drugs. If made out, such concerns would indeed be very troubling considering the vulnerabilities of such a young child in the primary care of functionally compromised caregiver. I note that the mother raises alcohol as being an issue for the father also.
In his evidence, the father did not accept there was no risk to [X] in the event that the mother’s use was determined to be historical. He commented to the expert that “he would like to have [the mother’s use of alcohol] regularly tested so he can be ‘a fly on the wall’”.[8] The father’s proposed orders would enact a mutual regime of ongoing drug and alcohol testing.
[8] At [40].
The subpoena records in relation to the mother’s criminal history indicate that:
a)The mother was convicted on … 1999 for using obscene language in a public place.
b)The mother was charged or otherwise dealt with for driving over the middle alcohol limit, but not over the high alcohol limit on … 2011.
The mother had a Blood Alcohol Concentration (“BAC”) of 0.126 on that occasion. Police intercepted the mother’s vehicle on that occasion as she was noted as speeding 93km/hr in an 80km/hr zone.
c)The mother was charged or otherwise dealt with on … 1994, for driving under the influence.
The mother had a BAC of 0.129. The QPS notes record (at p.73 of Exhibit 1) that the mother was involved in a traffic accident whilst driving under the influence on that occasion.
The subpoena records in relation to the father’s criminal history indicate that the father has also been charged or otherwise dealt with by the police for driving under the influence on three occasions. Those being:
a)… 2015. location K. The father’s BAC was 0.160 on that occasion.
b)… 2011. location J. The father’s BAC was 0.175 on that occasion.
c)… 2005. location K. The father’s BAC was 0.128 on that occasion.
I further note from the records that the father has also been charged or dealt with for driving without an interlock device fitted, being intoxicated in a public place (… 2013), and taking liquor from a premise to which a licence relates (… 2011). The father was convicted of the latter charge.
The mother concedes she has used illicit substances in the past. In an undated text message exchange between the mother and the father, the mother says:
“…
Drugs – I only used to take recreational drugs on odd occasions, years would go by without touching anything, Between 25 to 35 I didn’t touch anything and since then maybe there’s been 4 occasions. Most of those were in Darwin. (omitted name) and I never touched anything in brissy or anywhere else (sic).
Drinking – I mainly did on weekends last 6 years, previously before I did have a few wines during the week.”
The mother’s evidence is that:
“33. During our relationship, I had told the father that in my past, I used illicit drugs and methamphetamines and that I consumed alcohol excessively on weekends. I have not used any illicit drug and/or methamphetamine since April 2015…the majority of my drinking prior to becoming pregnant was on weekends. Since falling pregnant in or around August 2015 and prior to [X]’s birth, my alcohol consumption significantly decreased.
34. Presently, I rarely drink during the week, and if I do it would be one to two glasses of wine. On a Friday, Saturday or Sunday night, I may have one to two standard drinks, and on occasions maybe three over a 4 hour period. On 3 or 4 times a year, there may be an occasion where I may drink up to 4 glasses of wine on a night during the weekend.”
The father further deposed to concerns about the mother complying with his requests for her to carry out testing per the Orders. On 16 February 2019, the father wrote to the mother after she failed to complete a CDT test for alcohol use within forty-eight hours. The father wrote, inter alia:
“…
1. You say you followed my instructions, … yet upon finding out that they [the CDT centres] were closed you failed to make contact with me, for alternatives.
…
3. You have “failed” the CDT Alcohol test once again.”
The ICL’s written submission in her Outline of Case, was that the mother has indeed failed to strictly comply with the terms of past Orders for testing. On occasion the mother has failed to provide test results to the father on request. However, the ICL’s submission is that:
“19. … the tests returned disclosed by the parents to the ICL do not evidence current use of illicit substances or excessive alcohol consumption.”
The ICL’s subpoena tender bundle (p.82), contains a record in relation to the mother from Dr N on 5 February 2018, which notes:
“Came today for results
Said she drank Teqila (sic) (shared with friends) & a few glasses of light alcohol & wine on Australia day (sic) party with friends (once in a blue moon)
…”
On 12 February 2018 the mother saw Dr O, who recorded:
“Results were discussed and given
CDT result – WNL 0.6 on 2 occasions 1 week apart”
Dr O’s notes on 22 February 2018 also record the father contacting the medical practice, “Ex-husband requesting reasong (sic) apt was brought forward than as previously booked…”
The clinical notes from Mr P (p.86), record the mother’s results collected on 21 January 2018 were:
“Carbohydrate Deficient Transferrin 0.6% ( <1.4 )
Results between 1.4% and 1.6% inclusive are considered equivocal.”
The results collected on 7 February 2018 reported the same.
The expert’s view is that the risk to the child from the mother’s current use of drugs and alcohol is minimal, as there is no information suggesting the effects of these have impacted on the mother’s functioning or ability to care for [X].[9]
[9] At [107].
In my view, there is insufficient evidence for me to conclude that [X] is at risk in either parent’s care as a result of the use of alcohol or illicit substances.
The mother’s attitude towards the father
The father has concerns in relation to the mother’s capacity to support the child’s relationship with him.
The father identifies the mother’s perceived inability to facilitate video/telephone calls as an example of her lack of commitment to supporting the father/daughter relationship. The father has kept an extensive diary of these calls. For example:
“…
31/1/19, 6:11 pm – Mother failed to facilitate a proper video call. [X] was at her cousins (sic) pool, mother could not focus the camera on [X] or carry out the call properly. It was good to catch a glimpse of [X] having fun, but once again her mother has proven that she cannot co-parent. We will be seeking a makeup video call tomorrow night… Email to be sent as well.
1/2/19, 6:36 pm – Mother allowed a make up video call to take place this evening…[X] was distracted by the TV that was left on. So once again no communication took place….The orders surrounding the video calls will need to be well documented so that the Mother carries out the video calls in a mature and adult fashion and the child isn’t constantly bombarded with distractions…”
…
14/2/19, 6:33 pm – [Mr Halladay]: [X]’s mother failed to facilitate the video call tonight … I was left looking at this blank wall.”[10]
I note that the father also recounts some very positive experiences with the child during those calls.
[10] Affidavit of the father filed 27 March 2019, p.15.
The family report writer, Ms B, reported the father’s concerns also:
“31. The video calls that occurred with [X] while [the father] was living in Town D were mostly unsuccessful. Mr Halladay has watched his friends have calls with their children when their ex-partners have facilitated this well. He has noticed a marked difference with how these children can communicate with their father. Mr Halladay believes Ms Seydl did nothing to assist [X] to communicate with him. [X] would be jumping on the lounge while he was trying to talk to her. At most, [X] would speak with him for two minutes…”
The mother told the expert:
“49. When [X] would not talk to her father by video call, Mr Halladay would yell out ‘What has she done to you? And ‘Is there an adult in the room?” Ms Seydl was prepared to return [X] to the call three times. She felt this was enough and she allowed [X] to end the call if she continued to be distracted after this…
50. Ms Seydl would like [X] to spend enough time with her father to develop a relationship with him and enjoy what he can offer her. Ms Seydl hopes [X] can hold off spending longer periods with her father until she is old enough to understand how to cope with her father’s attitude and behaviour toward Ms Seydl. She thinks Mr Halladay has an issue with anger and he does not seem to understand the impact this has on other people…”
Counsel for the father tendered a USB containing three videos of calls he felt exemplified disappointing or failed calls and one positive video call (“Exhibit 3”).
In two of the videos in evidence, the child is either not on screen or appears to be looking at a television screen in the distance, without any interaction with the father. The father can be heard to say, “Is any adult in the room able to refocus the camera on my daughter please.” I accept that the mother did not attempt to facilitate the child’s engagement with the father in those two calls. In the ‘positive video’ example, the child is observed to be more engaged in conversation and play with the father.
‘Mr Q’
At the final hearing, the father maintained his concern about [X]’s safety in her mother’s home because of the child’s description of ‘Mr Q’. As noted in the interim Reasons for Judgment, at paragraph 20:
“20. … The father was concerned that the mother is associating with drug dealers and this ‘Mr Q’ is one such dealer whom the child has met. The father considers this person to pose a threat to the child.”
The father’s evidence, in his Affidavit filed 12 March 2019, was that he withheld the child from the mother’s care for eleven nights, from 3 March 2019 to 14 March 2019, as a result of the child disclosing that Mr Q had abused her.
Counsel for the father tendered a USB containing four audio recordings, which I accept are conversations the father had with the child about Mr Q (collectively, “Exhibit 4”).
The audio quality of Exhibit 4 varies; at times it is clear what is being said and at times it is very difficult to interpret what the child is saying. The father provided a transcription of Exhibit 4, which he prepared himself, and provided to the Court as an aide memoire. The father’s transcription interprets the child as saying the following in relation to Mr Q:
“[The father]: [X] are you scared of Mr Q?
[X]: Yes
[The father]: You are? What does Mr Q do to you?
[X]: He plays with me and every time I cry. He hurts my tummy
[The father]: Why were you crying? What did Mr Q do to your tummy?
[X]: He squashed my tummy and Mr Q hurt my tummy with his big long hands
…
[X]: He hit me in the head with a hammer
[The father]: Really?? Where was Mummy?
[X]: Mummy was at home in her room Mr Q come to our house (sic)
[The father]: Right so he came to visit the house? Did he drive a car or a motorbike?
[X]: A motorbike
…
[X]: It hurt, it hurt …”
The father’s transcription of Exhibit 4 goes on to detail further conversations the father had with the child about ‘Mr Q’. The father asked the child if Mr Q has tattoos and the child responded “Yes,” but could not describe them when prompted by the father. The father asked the child if she had watched a movie with Mr Q and her mother, to which the child responded that she watched the Minion movie with Mr Q and her mother was there.
In another transcription the child was interpreted to describe Mr Q as making funny sounds, having a beard, driving a motorbike, which [X] and her mother had been on; possibly without a helmet.
Timeline of the Mr Q incident
A timeline of relevant events is as follows:
| Date | Event | Source |
| Sunday, 3 March 2019 | Father withholds [X] from mother’s care | RF Affidavit f. 12.03.2019 [2] |
| Sunday, | Father sends email to mother, mother’s solicitor and ICL. Father says he knows he is on the mother’s ‘blocked caller’ phone list. Says on Friday, 1 March 2019, he tried to call twice as [X] wanted to ask her mother if she could stay over. The father believes the mother has a voicemail of the child asking to stay over. The father queried what would happen if his phone calls were in relation to an emergency. The father says the mother’s actions are of ‘great concern’ and questions if she should do Parenting Orders Program course again. Lastly the father says [X] has asked him again to stay overnight. He asks the mother if the child can stay overnight and handover can occur at 3:00pm on Monday afternoon. The father offers to email a ‘goodnight photo’ of [X] before bed. | Exhibit 11 |
| Sunday, | The mother sends email response to father, mother’s solicitor and ICL. “I do not agree for [X] to stay over night as I have concerns of my own. | Exhibit 11 |
| Sunday, | The father replies to the mother’s email response denying request for overnight time. Mother’s solicitor and ICL are copied into email: “Dear [Ms Seydl], Please elaborate on your concerns, as your previous email failed to do so. I also have concerns with someone that you are seeing, known to [X] as “Mr Q” and I now have on record that [X] is scared of “Mr Q” as he “crushes her belly she says” (sic) … I think that [X] will be safer in my care until all three of us, you, me, and “Mr Q” are able to sit down and discuss his involvement in [X]s (sic) life.” | Exhibit 11 |
| Sunday, 3 March 2019 ‘afternoon’ | The father says the alleged abuse came to his attention whilst child is in his care on the afternoon of the Sunday. Abuse consists of Mr Q having ‘very big hands’ and squeezing her tummy until the child became upset. [X] was ‘hit on head with hammer’, which he thinks could be a toy hammer. This was a ‘concerning revelation.’ Father believes the child is showing real and significant fear of Mr Q. | RF Affidavit f. 12.03.2019 [2]-[3] |
| Monday, 4 March 2019 | The father attends the Department of Child Safety, Youth and Women for an interview with an officer, in afternoon. | RF Affidavit f. 12.03.2019 & Exhibit 1 |
| Monday, | Father sends email to the mother, the mother’s solicitor and the ICL: “Dear [Ms Seydl], | AM Affidavit f. 07.03.2019 p. 35 |
| Monday, | Father sends email to the mother, the mother’s solicitor and the ICL: “The Town D Hours have now ceased as of 3pm Monday 4th March, 2019. The Town R Hours have been reinstated.” | AM Affidavit f. 07.03.2019 p. 41 |
| Tuesday, 5 March 2019 11:25am | Father sends email to the mother, the mother’s solicitor and the ICL, enclosing proposed “Parenting/Consent Orders”, saying: “…my aim in these orders is to play a larger role in [X]s life (sic) between todays date and the trial date. Too (sic) date your client has no valid reason for over nights to not be carried out, along with a substantial increase in [X]s time being spent with her Father. We would also like the issue of “Mr Q” resolved…he sounds like one of [Ms Seydl’s] past “ICE/Methamphetamine” drug dealers…” | AM Affidavit f. 07.03.2019 pp. 40 - 41 |
| Tuesday, 5 March 2019 1:32pm | The mother’s solicitor sends email to the father, copying the mother and the ICL. Email confirms that that mother is not willing to vary the Court Orders and says “…our client does not know “Mr Q” or whom [X] is referring to hence we can not (sic) comment further on this.” | AM Affidavit f. 07.03.2019 p. 40 |
| Wednesday, 6 March 2019 | The father says the child, whilst reading a book with him, disclosed Mr Q’s bike is (description omitted) and she went on his bike without a helmet and was scared as he went too fast. The child said the mother went on the bike too. Father sends email to mother, mother’s solicitor and ICL saying: (1) If you wish to have telephone contact with our daughter as per times outlined in the “parenting orders”, then please contact me through the appropriate number as I do not answer blocked callers. The father says that at 6:00pm [X] says “Mum I’m staying at Dad’s OK…” during a phone call with the mother. | RF Affidavit f. 12.03.2019 AM Affidavit f. 07.03.2019 RF Affidavit f. 12.03.2019 |
| Week of Sunday 3 March 2019 – Sunday 10 March 2019 | Whilst in the father’s care, The father says he now believes Mr Q is one of the mother’s, “previous Ice/Methamphetamines drug dealer boyfriends” | RF Affidavit f. 12.03.2019 [4] |
| Saturday, 9 March 2019 12:18pm | Email from the father to the mother. The father says: “Thank you for turning upto (sic) your very first swimming lesson since I was allowed to get into the pool with our daughter [X], and acting in a supportive role, its disappointing that its taken nearly a year for you to do so, and take an active roll in our daughters extra curricular activities in the roll as a supportive parent (sic).” The father denies [X] is distressed in his care after the mother raised a concern that this is the sixth day the child had not seen the mother, and child is used to seeing the mother every day. | RF Affidavit f. 12.03.2019 p.23 |
| Sunday, 10 March 2019 | The father says the child said she watched ‘Minions’ movie in the company of Mr Q and her mother. The child allegedly says she did not like Mr Q as he has a ‘scary laugh’. | RF Affidavit f. 12.03.2019 [7] |
| Monday, 11 March 2019 3:50pm | Email from the father to the mother. The father alleges the mother spent 30mins with child at (location omitted) swimming pool complex. The father offers makeup phone call for last night. Not once did you ask to give [X] a kiss, yes you did ask to give her a hug I declined considering the situation.” The father alleges the mother followed them, to his car and tried to make a scene. | RF Affidavit f. 12.03.2019 p.19 |
| Wednesday, | Mother’s Application in a Case filed 7 March 2019, for recovery of the child, is heard in Brisbane by Judge Jarrett. His Honour makes Orders for: · [X] to be returned to the mother’s care by 8:00am on 14 March 2019. · A recovery order to issue in the event [X] is not returned by that time. · All orders in respect of time between the child and the father are suspended until the next return date. | Orders made 13 March 2019 |
| Thursday, 14 March 2019 | The father returns [X] to the mother. | ICL’s chronology in Outline of Case |
The father’s evidence in relation to the child’s initial disclosure of Mr Q is somewhat inconsistent. In cross-examination the father was asked why he did not discuss the disclosure of Mr Q in his first email to the mother on 3 March 2019 at 2:41pm. The father said he was not aware of the existence of Mr Q at that time.
The father then accepted that the child disclosed the existence of Mr Q, the fact that he had abused [X] and some details of the alleged abuse, between the father’s first email at 2:41pm and his email to the mother at 2:55pm. A period of fourteen minutes. It follows that the father must also have formed the opinion, in that short period, whilst also viewing the mother’s reply email at 2:46pm, that the appropriate course of action was to withhold the child and advise the mother accordingly.
That evidence does not accord with the father’s Affidavit, filed 12 March 2019. Therein, the father deposes the first time he became aware of Mr Q was on 28 December 2018, when the child presented to his care with “significant grazes and injuries sustained to [her] elbows and knees.”
He alleges the child spoke of an individual in response to the father’s question of how she got grazed knees and elbows. The father says the child disclosed on 28 December 2018, she got hurt from “Mr Q” so that, “when the individual’s name came up again on the weekend of the 3rd March 2019, I knew I had to take action to protect [X].”[11]
[11] Affidavit of the father, filed 12.03.2019 at [18].
The father sent an email to the mother the next day, 29 December 2018 at 3:44pm. Therein he asks how the “big grazes on her elbow and knees happened whilst under [the mother’s] supervision.” That email contains a detailed litany of ‘grave concerns’ about [X]’s health in the mother’s care. The father says, “This is your final warning…I will be seeking a doctor’s report and having a meeting with child protection... you continue to show you just don’t care,” however there is no mention of the child making a disclosure that a man or Mr Q hurt her.
In the context of that email, I find it difficult to accept the father would not have revealed the child’s disclosure of abuse and the existence of a potential perpetrator.
In light of the timeline above, and the father’s conflicting evidence about when the child first made the disclosures at trial, I am troubled that the father’s withholding of [X] was, on the balance of probability, a deliberate act to achieve overnight time with the child rather than a protective measure because of the child’s “disclosures.”
Ms B records at paragraph 113 of the family report:
“113. In the absence of any problem with Ms Seydl’s care of [X], if it is the case that Mr Halladay is repeatedly critical and attacking in his communication with Ms Seydl, this could be viewed as him perpetrating coercive-controlling violence toward her.
…
Along with the ongoing criticism and attacks on her self-esteem, there is the potential threat of Mr Halladay influencing [X] against Ms Seydl, or him withholding [X] from her. It is noted this has now happened in the time since the interviews took place.”
The chronology allows for only one conclusion in relation to the Mr Q incident. The father withheld the child to coerce and control the mother. This conclusion is based on the evidence that the father did not mention Mr Q in the first email at 2:41pm on 3 March 2019 but asks for overnight time.
The father sends proposed parenting orders to the mother on 5 March 2019 at 11:25am, where his own evidence is “…my aim in these orders is to play a larger role in [X]s life (sic) between todays date and the trial date.”
This approach by the father makes it difficult to accept he has any real concerns about Mr Q.
The independent investigations of Mr Q
On 4 March 2019, whilst the child was being withheld from the mother’s care, the father attended at the Department of Child Safety, Youth and Women (“the Department”), at Town R.
The tender bundle of subpoena documents provided by the ICL (“Exhibit 1”) incorporates the Intake form and record of concerns from the Department taken on 4 March 2019, by the Officer. The concerns, at p.91 of that Exhibit are noted as:
“Concern details
Notified concerns
Record the notifier’s current and future worries for the child/ren including the alleged harm/risk of harm, complicating factors including child/ren’s vulnerabilities, family’s strengths and acts of protection.
The notifier is aware that [X] has spoken about a person who she named Mr Q.
The notifier is aware that [X] has said that she was scared of Mr Q and that he made her cry.
The notifier is aware that [X] said she was scared of Mr Q because he hurt her tummy with his big hands.
The notifier is aware that [X] also said that Mr Q hit her with a hammer.
The notifier is aware that [X] has said that her mother was home when this happened.
The notifier is aware that [X] has said that Mr Q rides a motorbike and (description omitted).
The notifier is aware that the mother has reportedly used “ICE””
The Independent Children’s Lawyer submitted a document agreed by the parties to be the evidence that the Officer would have given at the trial (“Exhibit 2”). Exhibit 2 states:
“The evidence that Mr S, Child Safety Officer, Department of Child Safety Youth and Women could give would be;
a. He was the officer that spoke to Mr Halladay;
b. He has a limited recollection of Mr Halladay;
c. The records in the subpoena bundle accord with his recollection;
d. He did not form the view that [X] had been harmed or there was any risk of harm to [X] on the basis of the interview with Mr Halladay;
e. It is likely that recordings were played to him, but he isn’t sure.”
The father and the child were interviewed by the QPS on 16 May 2019. Detective Senior Constable T, of the Child Protection Investigation Unit at Town R, gave evidence in relation to that interview. The Senior Constable’s evidence was that it was difficult to understand [X] and that small children may be less forthcoming with police officers, who are strangers to them. However, he was able get a little bit of “very vague” information from the child.
The best he could understand from [X] was that the child saw a person on a green motorbike, riding behind her father whilst they were driving in a car together. The child thought Mr Q went too fast. When listening to the audio and reading the father’s transcript, the Senior Constable agreed the father was asking leading questions and such questions would not be permissible in a police investigation.
He was not of the view that the information disclosed by [X] justified further investigation and so the file was finalised. The Senior Constable said he had spoken with the father to inform him the investigation was finalised and that the father’s response to him was that he would ‘take it further.’
I accept the submission of the ICL that the evidence before the Court does not allow me to make a positive finding that the child has been, or will be exposed to any unacceptable risk of harm in the mother’s care caused by Mr Q.
I am fortified in my conclusion that the withholding of the child by the father was coercive-controlling violence towards the mother by the evidence arising from the independent investigations of this incident.
The impact on the child of the withholding
I am troubled by the father’s evidence in relation to withholding the child. The father’s evidence was that he did not regret his decision to withhold [X] because of her safety, but did regret the effects that it had on his time with the child since.
The father describes the “torment” [X] would experience “wondering what has happened to her loving Dad,”[12] in the period subsequent to the Orders of Judge Jarrett made 13 March 2019, suspending all time with the father. When questioned by Counsel for the ICL in relation to the impact of withholding [X] from her mother for a period of eleven nights during the Mr Q incident, the father did not concede any negative impact on the child.
[12] Affidavit of the father filed 27 March 2019 at [28].
The mother deposed to the following in respect of the impacts on [X]:
“69. The effect on [X] of not living with me and seeing me for eleven nights … has affected her. Prior to this, [X] hardly spoke to anyone over the video/phone… but when she was retained by the father and the father allowed two phone calls, [X] spoke to me for half an hour the first time. The father was answering a lot of the questions for [X], and towards the end of the call [X] was crying…
70. Upon her return to me, whenever I have to leave her, she would say “are you coming to get me, are you coming to pick me up”. [X] also wanted the light left on at nighttime in her room…Prior to the father retaining her, [X] would have no need of light in or near her room.
71. [X] now often comes into my bed during the night, as she doesn’t want to be alone. I have found [X] to be more clingy…”
The father’s evidence was that the child saw the mother at swimming and was able to phone the mother whilst in his care. During cross examination, the father did not accept the mother’s evidence in relation to the impacts on [X], saying he could not know what happens in the mother’s household. His evidence was that [X], “slept nearly in excess of eleven hours,” in his care, to which I infer the father believes there was no unhappy effect on the child at all.
I note this was the second time the father withheld the child overnight from the mother. The first time being on Sunday, 10 February 2019, when the father says the child expressed a wish to stay overnight at his house. The mother did not agree to this overnight time. The child was returned to the mother the following day. The father expressed remorse for that incident at the final hearing, accepting that he should have followed the Court Orders.
In my view, the father demonstrated a lack of insight and willingness to accept any impact on the child of withholding her from her primary caregiver. This is in circumstances where he described the concern he had about the profound effect not seeing her father would have on [X]. Further, it is concerning the father’s actions were taken within three months of the final hearing date, where he no doubt anticipated such a decision would come under the microscope of the Court.
Risks to the child in the father’s care
The father’s attitude towards the mother
The Independent Children’s Lawyer and the mother submit I am able to make a finding the father’s behaviours and communications towards the mother constitute family violence, which places the child at risk.
I therefore consider the father’s history of behaviour, communication with and attitudes towards the mother are of central importance in this matter.
The evidence
The father’s evidence is that there has been a great improvement throughout the period of 2018 and 2019 with respect to his communication, in particular in the six months prior to the final hearing. The mother’s evidence was that the father has stopped swearing at her, but there is no marked improvement in his communication and his attitude to her.
I note the father has commented positively in relation to the mother’s parenting skills in his material. The father’s evidence in his Affidavit, filed 22 February 2017, was that:
“(3) I will also credit Ms Seydl, as being a fantastic first time parent with [X]. [X] is always dressed in weather appropriate clothing, clean, well groomed, well feed (sic), well looked after, and with any sign of illness she off to the doctors post haste (sic)…”
The father told the expert at paragraph 32 of her report that “Ms Seydl is a great mother.” The father affirmed that view at the final hearing, agreeing that the mother is a “loving and protective mother”.
Despite those positive reflections, the father maintains some concerns about the mother’s background. The father told the expert in the latest family report:
“32. …Her boyfriend committed suicide when [she] was 25 … and he is aware she took drugs at this time. She also ‘ended up shacking up with her first cousin.’ Mr Halladay questions what underpins this commenting “Hang on, where’s your moral compass? …”
He also expressed his concern about the mother’s attitude to drug testing and her reasons for cancelling a test, the expert notes:
“33. … This leads Mr Halladay to wonder, “At the end of the day who is she knocking about with”…”
The father’s evidence at hearing was that his own communication was not poor and that it was unfortunately the mother’s inability to communicate with him that rendered a sole parental responsibility order in [X]’s best interests. I accept the father has moved from that position and would ultimately prefer an order for equal shared parental responsibility.
Although a lengthy exercise, I consider it helpful to record examples of the father’s communication with and attitudes to the mother, in chronological order, to assist in understanding the improvement, if any, in his communication:
a)“Seriously go fuck yourself [Ms Seydl] you nasty loveless piece of shit…you don’t deserve to have a child you heartless cunt. So do us both a favour and have an abortion because the last person I ever want to see each weekend during visitation nights is your negative, broke ass, nasty, alcoholic, drug taking, UGLY FACE…you are a real piece of work…no wonder none of your relationships last…you are the one who needs FUCKING COUNSELING AND LOTS OF IT…I should have known all along this was a fucking BABY TRAP…I will pray for a miscarriage every night, just for that poor babies sake (sic) …” (22 October 2015).
The father apologised to the mother for that email and attempted to explain his behaviour saying “…I was intensely upset and heart broken…”
b)Via text message to the mother:
“LETS GET ONE THING STRAIGHT…YOU MIGHT HAVE MY DAUGHTER FOR THE FIRST TWO YEARS…AND GO SUCK WHAT EVER DRUGGIES COCK YOU WANT…BUT AT AGE 3 IM THERE TO PROTECT HER FROM ALL THE BULLSHIT YOU ARE GOING TO THROW HER WAY…YOUR DRUGS, YOUR ALCOHOL, YOUR NEGATIVITY, YOUR BLACK AURA…YOUR DAYS ARE NUMBERED!!! MARK MY WORDS
Suck a dick…ohhh I forgot you already are!!! Give it time…[X] will see the light. (sic)” (18 June 2016).
The father apologised for that email the next day.
c)On 23 December 2016 via email:
“Dear Slut,
You might notice a reduction in child support after today as I was fired from work…I hope your fuck buddy can pick up the tab…like I had to pay you while you lay on your back and spread your legs for your new fuckbuddy(s)…but you only work 3 days a week…hahaha…what a system.”
d)In a 17 point email to the mother:
“…6. You have been reported to be spending time in the company of other males along with [X] … you surround her with male company in greater time per week than me …
11. Even tonight … once again do your disappearing act, if you were on a date night or in male company once again, then you should have been honest…
15. … The fact is that you were raise (sic) by [omitted]… then when you moved to Australia you were raised by your mother, so the whole concept of the “Nuclear Family” is one that is very unfamiliar to yourself.
17. … you will continue to seek out male company in shitty short term relationships…and use them to replace the Father that you never really had …the only way you seem to get enjoyment from life is via alcohol and male company. I’d love to see if you could go sober for the rest of 2017, there’s a challenge for you… (12 January 2017).
e)Via email: “THANKS FOR NOTHING…KARMA IS A BITCH AND SO ARE YOU!!!...” (17 January 2017).
f)In a 13 point email, the father says the mother:
“[Has] completely proved me right in thinking that your previous drug use has effected your brain FOR GOOD…
1. Doesn’t have [X]’s best interests as a priority…
9. …you continue to be your normal ungrateful self.
10. Makes the rules up to suit herself…” (18 January 2017).
g)In a 7 point email to the mother:
“…2. …and it’s now, not OK to be out in public with you, I wonder why? Well I don’t have to wonder very hard…So thank you once again for moving the goal posts…” (24 January 2017).
h)On 9 February 2017 via email:
“…you needed a seed…and the seed needed to come from someone with a good family background unlike yourself, a good work ethic, some intelligence, financially stable, and had never touched drugs…so I was the perfect choice…Your aura is BLACK and you are the most NEGATIVE person I have ever met as well…You have no hobbies. You go to the gym at the expense of our daughter…Yet your fat ass and fat stomach continue to grow in size ive (sic) noticed …you’ve never been able to stop wearing your preggo dresses…You’re over 40 and live with your Mother. You’re over 40 and have no assests (sis), because you pissed it all up a wall or snorted it up your nose…”
The father continues with a 13 point litany of the mother’s perceived failures during the parents’ relationship (9 February 2017).
i)On 15 February 2017, via email:
“How about a quickie during your lunch break gorgeous…”
j)Via email:
“Should have put that sexy hot body of yours to work today and given that shaved pussy of yours a workout…” (20 February 2017).
k)Via email on 24 [X] 2017:
At 4:24pm: “Dear Looser, Instead of laying on your back with your legs apart for your fuck buddy. Why dont you actually do some really study on your bogus book keeping course…looser (sic).”
At 6:59pm: “Dear Fruitcake…you being the low life mother that you are just dumped into daycare after her shots. The fact you couldn’t advise me of the appointment time just goes to show how useless you really are. And the fact you couldn’t answer your phone when called once again goes to show how useless you are in communicating like an adult. But we both know the reason a slut like you couldn’t answer your phone was because you were stuck in a sticky situation. On your back no doubt…Its (sic) just a shame [X] ended up with you as a mother. A useless one at that. Who’s only claim to fame in life is being able to lie and babytrap (sic) a guy and get him to pay for it ALL…because you’re USELESS”
l)In May 2017, the father drives to mother’s house to do a ‘welfare check’ after the child fails to attend swimming for two weeks. The father stands at the mother’s door for ten minutes:
“…[Ms Seydl] came to the door dressed in only an oversized t-shirt, and started carrying on about how I’m not supposed to be there. She was acting very strange as if to hide something or someone… I stood there and gave her the finger for her photo, and called her a “slut” as she shut the door in my face...” (Affidavit of the father, 1 August 2017).
m)The father believes it is “amusing” the mother proposes courses, “and hoops that the father must jump through,” in order to spend time with the child when there is “nothing stopping [the mother] from hooking up with any alcoholic or junky boyfriend and introduce him into [X]s life (sic)…” (Affidavit of the father, 1 August 2017).
n)On 3 March 2018, the father asks the mother and her solicitor, in relation to his request for an update on the child’s milestones achieved during the week:
At 7:29am, “…Is there anything that I should be made aware of with regards to your client…incapacity to respond to the email below in a timely fashion? Is she actually able to parent our child [X]? Or has she become incapacitated during the week…”
At 9:37am, “…I don’t believe I am asking for very much, just a paragraph about our gorgeous daughter whilst in your care. You seem to have an issue with the concept of co-parenting along with communication how [X] is progressing, I hope that you can resolve this issue promptly and maybe seek out professional help…I feel that your current emotional involvement with a member of the opposite sex is taking away your emotional involvement and care of our daughter…”
At 9:54am, “…Please answer the questions in the email below, along with the name and contact details of the male you are currently engaging with, and whom [X] is around.”
At 11:25am, “Thank you for the very basic update…This is a perfect example showing how disconnected and emotionally unavailable you are when it comes to [X]…The only thing you have learnt in life [Ms Seydl] is how you can screw over other people for your own personal gain. The current predicament I now find myself in is a perfect example of this a.k.a. “baby trap”,… It is well known that [X] is left in your mothers (sic) care so that you can spend “quality time” with this male companion…”
o)On 17 March 2018, there is a long chain of emails between the parents in relation to the time [X] will spend with her father:
11:35am, mother says: “What hours did you want?”
11:41am, father says: “As you are fully aware I’m chasing 50/50. I will take all the hours I can get. Let’s cut to the chase, what extra hours are you going to allow as you seemed to be dressed up and hair dyed for a date…”
…
12:50pm, mother says: “We can change tomorrow to 9:00am to 2:30pm.
1:01pm, father says: Why are you stopping me from having her over night and you go have with your date and pick her up at 3pm? (sic) Why is it all on your terms and to suit your “extracurricular” life??? 3pm is fine for pick up…keep them round/whole hours thanks...”
…
2:24pm, the father says: “Typical…offer hours only to take them away. Still the wolf in sheep’s clothing …you will never change. I should of (sic) known this was just a little powertripping game of yours. You have fail (sic) to answer any of my questions today…”
…
2:38pm, the father says: “There is nothing confusing about it. It’s just as long as it all suits you and your new love life. Bring him along to today’s pickup if you have the guts. I think I should meet all the clowns you hang around with and parade in front of [X].”
2:45pm, the mother says:
“I’m just seeking confirmation on the hours below…a simple yes will do.”…
3:10pm, the father says: “And what if I say a simple NO. AND I SAY… I would like [X] Overnight (sic). And should you say no then I would like a reason why. FAILING THAT I would like [X] from 8am to 3pm tomorrow. And should you say no then I would like a reason why. Simple enough for you?”
3:45pm, the father says: “Once again you have failed to give any valid reasons. Which only goes to prove parental alienation.”
The email chain concludes at 6:37pm, where the father says: “Just an observation that your date/function that you got all dressed up for mustn’t (sic) of been that fantastic as you spent most of today emailing me. LOLLLL. Anyways [X] and I had an awesome day…P.s. you did look absolutely gorgeous today. Keep doing whatever it is you’re doing.”
p)“Please advise me who is currently looking after [X] as of 7.30pm tonight. I have reason to believe you are not … as someone else is. And make sure you have proof as this will come up down the track.” (17 March 2018).
q)“[X] was picked up from your place with that rash. Thank you for once again proving my point unequivocally…You always have to be on your little power trip. It’s OK your power trip will come to an abrupt end one of these days, which is great news for [X]…we both know that you don’t have [X]’s best interests at heart you only have YOUR OWN SELFISH INTERESTS…You really need a good hard look at yourself and your morals and ethics…once again I ask for the name and contact details of this new man that you are now seeing (this will also answer why you are emotionally unavailable when it comes to [X])…” (20 March 2018).
r)“After looking back over the video last night … something came to light and have a question for you; Are you pregnant? Or is this from water retention during your menstrual cycle? As I thought you were on the contraceptive pill … I liked your new dress by the way.” (21 March 2018). (p.80 of Exhibit 7). That photo is included below:
(image omitted)
s)The father writes: “Please provide valid reasons for not allowing our gorgeous daughter [X] to have an overnight with her loving Dad…”
In this email the father has inserted a cartoon from ‘dadsrights.org’, which depicts a female child asking a female adult, “So, dad’s older than you, he’s my parent too, he pays you, AND he still needs permission to see me? And I thought algebra was confusing” (31 March 2018).
t)“Can you please advise me whom the male is that you have introduced into [X]’s life that drives a grey vehicle. And also advise me as to when you will be introducing him to me. Thank you.” (1 [X] 2018).
u)Via email to the mother on 11 [X] 2018:
At 10:12am: “Dear [Ms Seydl], This is quite concerning to find out that our daughters (sic) primary place of residence was/is a habitat for scabies. What is even more concerning is the fact [X] has been seen by 3 doctors now…I look forward to taking [X] to my own GP to try and get this resolved once and for all… Please advise me of the “treatment” that actually took place at the Seydl household last night, and did this include the other man in your life that you surround [X] with?”
At 10:43am: “You have failed to answer the following, “Please advise me of the “treatment” that actually took place at the Seydl household last night, and did this include the other man in your life that you surround [X] with?”
Then at 10:56am: “Please provide a photo of this cream, and supply the individuals, whom had it applied?”
v)In relation to the mother’s medical care of [X]: “Thank you for proving once again that you are unable to co-parent in an adult like fashion and in [X]’s best interests…I will assess her whilst in my care as to whether or not she requires any medication as I am actually trained to, unlike yourself. You may get a buzz out of drugging [X] and looking after a ‘zombie’ like child…but I assure you I actually view it as a form of child abuse, and lack of parenting skills…” (11 August 2018).
w)Via email to the mother and her solicitor: “I have some grave concerns about our daughter [X] whilst she is in your care… I will be seeking a doctor’s report and having a meeting with child protection... you continue to show you just don’t care” (28 December 2018).
x)“…please advise me as to what is causing these cut like wounds on [X]’s big toes. As the (sic) seem to be forever present and are being caused whilst in your care…Updated photos attached.” (17 November 2018)
y)“Why can’t you supply a valid reason for the cause of [X]’s Toes (sic) being covered in severe sores and toe nails being worn … whilst she is in your care? …” (18 November 2018)
z)Via email to the mother on 24 November 2018:
At 9:37am: “…this was just you trying to appease your ego and spitefulness once again, all at the detrimental cost to [X], because you cannot co-parent…Seriously, you need professional help in the form of counselling, and working towards moving past what ever (sic) grief you have towards me. Please note it was you that walked out on the relationship not me.”
At 7:19pm “[X] advised me … she was not in your care last night … it was Nanny who gave her cornflakes for breakfast… this story appears to be correct as it took you over 55 minutes from your last email to drop off … (mind you her hair wasn’t done, and once again no footwear on her feet…”
aa)“Dear [Ms Seydl], As you are late to drop off, thus making us late to swimming … [X] will be in my care for an extra hour today” (24 November 2018).
bb)When requesting make up time from the mother via email on 1 December, the father asks: “If you are not in agreeance please validate as to why?” When the father fails to receive a response that day, the next morning he writes, “RESENT DUE TO NO RESPONSE” at 5:54am on 2 December. At 9:50am on 2 December, the father writes, “Thankyou for proving once again that you cannot facilitate [X]’s best interests…you have the ability to spend extra time with [X] though the week, yet you choose NOT TOO (sic), you dump her into daycare instead” (2 December 2018).
cc)“[X] made a comment today that she would be “getting a little baby brother or sister”, I asked [X], “Is mummy pregnant…” [X] said “Yes Dad”. Upon reviewing today’s video (screenshot attached) [X]s conversation looks to be correct. Can you please confirm or deny if you are infact (sic) pregnant … we have grave concerns for [X]s wellbeing due to your past indiscretions at how she was conceived…” A photo taken of the mother and child looking away from the camera is attached (22 December 2018).
dd)In reply to a Christmas email chain ending with a request from the mother to the father to stop emailing her: “All I can say is atleast (sic) our daughter has one parent whom is a fantastic role model for her, and that is me. As I don’t suffer from the hate, negativity, or spitefulness that consumes you day in, day out, [Ms Seydl]. I actually feel sorry for you… Just because you have never been the giving type (only the taking type) does not mean that my daughter will not be taught proper morals and ethics, especially whilst with me… Merry Christmas [Ms Seydl] enjoy your evening.” (25 December 2018).
ee)On 8 January 2019, the father was interviewed by Ms B in Town U and said:
“71. Mr Halladay reflected that his relationship with Ms Seydl was more like a one-night stand and that he was set up by Ms Seydl as a “baby trap”. He now thinks she was only with him, so she could get pregnant.”
ff)On 17 January 2019:
2:09pm, the father says: “Please advise me when you will be allowing [X]’s parenting time with her father to take place, as requested last Friday?”
2:55pm, the mother says: “At this stage it is not suitable.”
3:03pm, the father says: “Please supply a valid reason for your decision.”
gg)On Sunday, 10 February 2019, there was an incident where [X] was retained by the father overnight. Handover was to occur at 4:00pm that day. There is an email chain between the father, the mother and her solicitor, copying the ICL:
2:16pm the father says: “[X] has said that she would like to stay the night here with me. Would you be willing to allow this to happen…Should you say that you don’t want it to happen can you please provide a valid reason as to why you will not allow [X] to stay overnight with her loving Dad?
4:14pm the father says: “Please supply a valid reason as to why [X] cannot have her wish granted…”
4:29pm the father says: “And yet again you are unable to provide a valid reason for not allowing [X] to carry out overnights with me as she has requested numerous times now. [X] will be dropped off at 3pm Monday 11th February, 2019.”
4:32pm the mother says: “I do not agree, return [X] ASAP as per the current court orders.”
hh)The mother’s denial of a ‘50/50’ time arrangement demonstrates her “continual hostility towards a loving and caring father;” (Affidavit of the father, 12 March 2019),
ii)The mother is the “only individual that continues to stand in the way of a fair and just 50/50 outcome…” (Affidavit of the father, 27 March 2019).
jj)Via email to the mother’s solicitor and ICL: “… [the mother] is using the email address of my daughter … as her own. This is deceitful, dishonest and fraudulent and would also be classed as identity theft… keeping my loving and affectionate daughter … away from her …father on her birthday is absolutely heinous, and is just downright evil and spiteful…Karma awaits you” (11 April 2019).
kk)“We live in the 21st Century, where the Royal Childrens Hospital in Melbourne…had the technology 42 years ago to determine what a Childs dermatitis was caused by. Yet here we find ourselves in Regional Queensland 42 years later with a Mother from Country V and a Father from [location omitted] … and a Mother whom refuses to use modern day medicine to determine the cause…I feel that your lack of ability to deal with not only the Scabies outbreaks (4 times now, whilst in your care) and the continual reoccurant dermatitis can only be looked upon as Neglect and Child Abuse, and [X] staying in your sole care needs to be reversed for my poor daughter moving forward, so that proper Western medical investigations can take place and not just praying for witchdoctors to fix it… (sic)” (11 May 2019).
ll)The mother is allegedly untruthful in relation Mr Q: “If the mother sat a polygraph test she would fail;” (Affidavit of the father, 12 March 2019), “I have had difficulty accepting as truthful everything that [Ms Seydl] says … I am unable to accept that she knows nothing of … “Mr Q” (Affidavit of the father, 15 May 2019).
I note that the above is not an exhaustive list.
The “slut” incident
Ms B’s report notes an incident on the weekend of 8 December 2018. The mother told the report writer the father asked her, in front of [X], why she was dressed up and commented that her boyfriend must have come up from Brisbane. After the child’s visit with her father, the mother says [X] told her “you’re a slut mum.”[13]
[13] Family Report of Ms B filed 25 March 2019, at [89].
The expert explored the alleged incident with the father:
“35. In response to a question about why [X] might have called her mother a slut, Mr Halladay commented that he thought Ms Seydl would raise this issue. He recalled there was a time when he had returned [X] to her mother when [X] grabbed her mother’s face with both hands and told her “you’re a slut mum”. Mr Halladay was surprised that Ms Seydl did not immediately ask him about this. He explained that during [X]’s visit with him she had witnessed a child calling his mother by this name. Mr Halladay volunteered that he did call Ms Seydl “a slut” in the past, but that this was prior to [X]’s birth.”
The expert opines:
“100. It is highly concerning that [X] has returned from spending time with her father and called her mother a slut. As this is presumably not a word [X] would be familiar with, she would have difficulty remembering this at her age. It is likely [X] would only remember this word if she heard it repeatedly just prior to returning to her mother. It is unlikely [X] would remember hearing another child call his mother by this name. It is even more unlikely that she would then think to call her mother by this name, without their being provocation for this. It is possible [X] was coached to say this by her father. It is noted this is a word he uses to refer to the mother.”
The father denies he is the source of [X] calling her mother a “slut”. He accepts he previously used the term “slut” to describe the mother but said this was a long time ago and his evidence was that [X] has never heard him say this. The father disputed that [X] could have heard him use this word prior to a handover, as the child listens to nursery rhymes in his car.
Changeovers of the child
The father feels that he must video changeovers between the parents for his protection, telling the expert:
“76. … This is because Ms Seydl has alleged he has breached the Protection Order several times. She claims he stalks her by following her to her vehicle. This was determined to be technically a breach and Mr Halladay was fined a small amount for this.
77. [The father] believes the mother entrapped him to do this. He thinks it is important he says goodbye to [X] once she is in her car seat. It is important because she needs to learn how to properly greet people. Ms Seydl then claimed he was following her.”
In the mother’s Affidavit, she describes feeling anxious about the father’s use of a chest-mounted video camera. The mother described her experience of the father spending, “…the entire changeover pointedly focusing the camera on her. He videos everything in her car…”[14]
[14] At [86].
The mother’s perception is that the father uses changeovers as an opportunity to make provocative comments to her and record her reactions with the camera. Despite her request that the father not follow her to the car, and film her putting [X] into the car, she says he continues to do so.
The father was cross-examined at the final hearing in relation to this behaviour. Counsel for the ICL asked why the father could not stop at his front gate, hand [X] to her mother at the gate, let her go and wave goodbye to her. His evidence was:
“What was stopping me? The fact that I was teaching [X] to say goodbye… both parents were waving outside each other’s vehicles.”
I asked the father why he could not teach [X] to do this by saying goodbye at the front gate. His evidence was:
“It is just very strange, this this whole – from the very first time she parks over the road as all of a sudden you know, lets hit him with a breach. It was like, hang on, we’ve just carried out handovers without any complaints for the previous, I think it was 11 months, it’s just a set up.”
Conclusions in respect of the father’s attitude towards the mother
The father’s view is that [X] has not been exposed and would not be exposed to any negative view of the mother from him. He told the report writer he does not think [X] sees any conflict between the parents.
The mother told the expert:
“93. … [The parents’] communication is generally unsuccessful. She does not think Mr Halladay has any appreciation of the impact on her of the way he communicates with her. He berates her and then expects her to communicate with him as though nothing has happened.”
When questioned about the statement at 120.(a) herein, the father said he was now, “disgusted, repulsed”, by his comments. He was able to acknowledge a likely effect on the mother was she would feel “hurt” by this statement. However, the father would not accept that his statements more generally were the cause of the mother, (in my words), not wishing to have anything to do with him now. Rather, the father insisted these statements were made either before [X] was born or a long time ago and that the programs he has engaged in have changed this.
The mother deposes to the following effects on her:
“129. I feel violated and intimidated when the father informs me he has been reviewing videos of me, and then produces those pictures of me. I find it mentally exhausting having to deal with the vast volumes of emails the father sends, and his conduct is relentless, with the father making allegations and assumptions, regarding my relationships, parenting skills, medical appointments and treatments for [X]. I feel I will be criticised by the father, regardless of how I respond to his emails.
130. I do not believe he has any idea of the effect that his behaviour has on me which then, in turn affects my capacity to care for [X]. I am constantly second guessing myself, doubting the decisions that I make for her on a day to day basis, feel threatened and undermined in my mothering of [X] and generally feel that maybe I am not good enough, even though I think I am doing a good job with her.”
With regard to the emails in particular, I consider the volume and language used by the father to be appalling. Despite the father’s evidence, I do not form the view that his interactions with the mother have significantly improved.
I accept, at its highest, the father’s more recent communications (years 2018 to 2019 inclusive), may demonstrate some minimal improvement. Such progress may be taken to include the father no longer referring to the mother as, “slut” “bitch” “fruitcake” “loser” “piece of shit” or other pejorative terms. I also accept the father’s more recent communications do not sexually proposition the mother.
Regardless of such improvement, I consider the father’s history of behaviours and communication evidence a shocking pattern of denigration of the mother as a person and as a parent. That denigration continues to the present day, in which only twelve days prior to the final hearing, the father sent an email to the mother accusing her of “Neglect and Child Abuse.”
It is not one comment or behaviour of the father, but the collective pattern of relentless denigration of the mother which leads me to the conclusion that there is a complete and irrevocable communication breakdown between these parents. In my view, the evidence demonstrates that the father is the chief instrument of that breakdown.
Orders that I make in this child’s best interest will need to take into account that breakdown.
Family violence
Family violence is defined in section 4AB of the Family Law Act 1975 (Cth) (hereafter “the Act”), as:
“Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.”
(Underline emphasis added)
In the matter of Pegg & Pegg [2017] FCCA 402, his Honour Judge Altobelli considered the risk of psychological harm posed to two children in respect of the father’s negative views of the mother in that case:
“97. … Whilst the Court does not assess the risk of physical harm to the children from their father to be a great one, there is a risk of psychological harm. At the very least, the Court does not believe the Father has the capacity to control the ill feeling that he holds towards the Mother even now, many years after separation. If there were a benefit to the children in having a relationship with their father, any contact and communication would have to be carefully monitored.”
His Honour made the finding:
“107. The Father’s relentless campaign of denigration of the Mother, and his toxic communications with, and about her, probably fall within family violence in s.4AB of the Act.”
The father in this matter was cross examined in regard to his proposed orders evidencing a lack of trust in the mother and a desire to exert control over her personal behaviour and parenting. The father conceded an observer may view his proposed orders in that light. However, his evidence is there is nothing ‘sinister’ in his orders; he argues they are solely child focused and mutually restrictive.
The expert’s view is:
“113. In the absence of any problem with Ms Seydl’s care of [X], if it is the case that Mr Halladay is repeatedly critical and attacking in his communication with Ms Seydl, this could be viewed as him perpetrating coercive-controlling violence toward her. The concern about this is exacerbated if this continues to be focussed on Ms Seydl’s interactions with men. Along with the ongoing criticism and attacks on her self-esteem, there is the potential threat of Mr Halladay influencing [X] against Ms Seydl, or him withholding [X] from her…”
The impression I formed from the father’s evidence is that he perceives his behaviours towards the mother are protective of the child. Regardless of whether this perception is genuine or not and reasonable or not, I am satisfied the real effect of these behaviours is that the father has perpetrated family violence against the mother, as defined in the Act.
I come to this conclusion on the basis of the father’s repeated derogatory taunts and sexually harassing, stalking behaviours toward the mother. I view such behaviours as insidious and coercively controlling in their effort to gain information and exert control over the mother’s personal life and critically micro-manage the parenting of [X].
The assessment of the level of risk to [X] arising from my finding of family violence is central to the Orders I will make.
The Legal Principles
The principles governing the Court’s determination in this matter are set out in the Act.
Section 65D of the Act, subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”), gives the Court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s.60CC(2), the “primary considerations”, and s.60CC(3), the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and as a note to s.60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s.60B that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There are thirteen “additional considerations” set out in s.60CC(3) which I will refer to later in detail in these reasons.
I must also consider (to summarise), the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must 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 interest being treated as paramount (s.60CG).
I will also be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.
The primary considerations
Turning firstly to the application of the primary considerations set out under ss.60CC(2) and (2A):
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
…
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
Meaningful relationship
In the present case it is important that the child has a meaningful relationship with the mother.
The real question is whether it is important that the child has a meaningful relationship with the father. The reason I say that is because I consider the need to protect the child from being exposed to family violence, harm or abuse, may outweigh the benefit to [X] in having a meaningful relationship with her father.
During the trial the father was not able to concede that his behaviours and views towards the mother – past or present - could pose any risk of harm to the child, or the future safety of [X]’s relationships with both of her parents.
That lack of insight is of particular concern when the father has already completed the following programs:
· Parenting Orders Program;
· Triple P Parenting Program; and the
· Men’s Behavioural Change group.[15]
[15] Family Report of Ms B filed 25 March 2019, at [72].
The expert formed the view that:
“105. …there is unlikely to be much change in Mr Halladay’s behaviour in the future. He has already undertaken the appropriate courses, so further intervention is unlikely to bring about any substantial change.
115. If Ms Seydl’s report is accepted, Mr Halladay’s derogatory attitude toward her is indicative of how he has interacted with her from early on in the relationship. His history of jealousy and possessiveness toward Ms Seydl, and his criminal charge of stalking a previous partner, are potential indicators this will be an ongoing pattern of behaviour. A potential way of him doing this is to use legal disputes to harass and punish Ms Seydl … ”
I therefore accept the likeliest outcome is the father will continue to perpetrate coercive-controlling violence against the mother. I am fortified in reaching that view by noting the parents separated some time in 2016, in June or August of that year.
Despite the passage of time since separation, the father has been unable to control or modify his pervasive negative views of the mother and the parental conflict has been protracted.
The need to protect the child from harm, or being exposed to abuse, neglect or family violence
There is no suggestion the child is at risk of physical harm in the father’s care. The father has raised issues of neglect and risk in the mother’s care in relation to her health and medical treatment, which I have already made a finding about.
However, in my view, there is a need to protect this child from being exposed to family violence. [X]’s exposure to family violence results from her witnessing her father’s interactions with her mother and being exposed to the father’s persistent negative views of the mother. This exposure will only increase as [X] matures and forms a clearer understanding of the dynamics between her parents.
The expert records the potential risks for [X] if she continues to be exposed to these behaviours:
“99. The only issue identified for [X] is the parents’ report she is exposed to hostility between them. There is minimal information to suggest this has impacted detrimentally on her yet. As this is [X]’s primary experience of her parents interacting, it may not be overly disturbing to her because she is used to this. Notwithstanding this, it could still be a stressful experience for her. It is likely it will become a stressful experience for [X] that she will feel she is the cause of.”
And she continues:
“117. If it is determined there has been domestic violence perpetrated by Mr Halladay against Ms Seydl, the potential risk for [X] will be her being withheld from her mother, receiving negative messages about her mother, exposure to her mother being treated in a derogatory manner, being manipulated by her father, exposure to unnecessary medical interventions, or intrusive investigations if child abuse complaints are made. [X] may be used to communicate threats to her mother. Arguable time with [X] is already being used by Mr Halladay to harass and criticise Ms Seydl.”
Ms B elaborated at the hearing that there a risk [X] will be exposed to her father’s negative views about her mother, which she will then apply to herself; impacting on her self-esteem and sense of self.
Accepting that [X] is at risk of being exposed to family violence in her father’s care, the expert continues:
“122. If it is determined that there is, or will be, an ongoing risk of Mr Halladay behaving in a coercive controlling manner toward Ms Seydl, it may be necessary to restrict [X]’s time with her father. This should depend on the level of risk determined. Arrangements will need to protect Ms Seydl from having to communicate, or have direct contact, with Mr Halladay…”
I consider there is an ongoing risk of the father behaving in a coercive-controlling manner and find that the risk of exposure to family violence, or the effects of family violence in the father’s care in the future, is an unacceptable risk for the child in the father’s care.
My assessment of the risk is such that, per ss.60CC(2A) of the Act, I must give greater weight to the need to protect [X] and find that in this matter, there is no benefit to [X] in having a meaningful relationship with the father.
The additional considerations
The Child’s Views
This consideration is set out in s.60CC(3)(a) as follows:
“(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 father’s evidence is that the child has repeatedly said she would like to stay overnight with him. The father denies ever coaching [X] and says “she is a high functioning little girl who can answer her own questions.”[16] I note that the expert confirmed the child could not engage in a formal interview process with her due to her age, despite appearing to have excellent language skills.[17]
[16] Affidavit of the father filed 12 April 2019 at [45].
[17] Family Report of Ms B, filed 25 March 2019, at [94].
Even if I accept that the child has the capacity to, and did in fact express a desire to spend more overnight time with the father, I am not, on any view, bound by those wishes. As the High Court said:[18]
“34. … In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child [something approaching a decisive status], but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests.
35. The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child’s siblings. Section 60CC requires that attention be given by the court to these matters.”
[18] Bondelmonte v Bondelmonte [2017] HCA 8 at [34] – [35].
Given the child’s age this is not a weighty consideration, in any event.
Child’s Relationship with Significant Persons
This is a significant consideration in this matter and is set out in s.60CC(3)(b) as follows:
“(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);”
The child’s relationship with the father was summaried by the Family Report writer, Ms B:
“96. … [[X] appeared] “confident in exploring the environment using her parents as a secure base to do this”
101. Mr Halladay presented as skilled at engaging with [X]. [X]’s delight at seeing her father, and readiness to leave with him, suggests her experiences with her father are positive. Mr Halladay has engaged in numerous groups to increase his knowledge of parenting strategies and address any issues in his interactions with Ms Seydl.
118. [The expert notes [X]] “…seems comfortable in her father’s care and there are no problems to suggest she cannot be cared for, or comforted, by him.”
I am able to find the child currently has a very positive relationship with the father. That view is supported by the evidence of both parties and the Independent Children’s Lawyer.
The concern raised by the mother and the Independent Children’s Lawyer is for the future safety of the child’s relationships with both of her parents. On the evidence before the Court, I share that grave concern.
However, the orders sought by the mother and the Independent Children’s Lawyer would result in [X] being separated from a significant person in her life. In light of the serious nature of the orders I am being asked to consider, I invited the expert to explore the potential emotional and psychological impacts on [X] and the risks to the child in spending no time with her father during her childhood.
Specifically I requested the expert address any complications of [X] being excluded from understanding and relating to one side of her genetic being.[19]
[19] I note the mother’s evidence is that she “remain[s] close to the father’s Mother…who lives in Victoria…I also provide her with pictures of [X]. She came to [X]’s third birthday party recently.” Affidavit of the mother filed 20 May 2019 at [12].
Ms B’s evidence at the hearing was:
a)In the short term there would likely be minimal impact on [X]. That is because, at her age, the child is too young to question the disappearance of an adult and [X] has security in her relationship with her primary attachment figure, the mother. The father’s relationship, whilst a positive one, is not to the level of the primary caregiver’s.
b)In the longer term, the impacts of no contact with a parent during childhood are largely theoretical and depend on the added-value of the relationship to the child. It should be balanced against the potential benefits of that relationship, including:
i.[X] having the opportunity, during her childhood, to experience the father and paternal family;
ii.[X] not developing a feeling that she has missed out on these experiences; and
iii.The ability to gain a better understanding of who she is and where she comes from.
Counsel for the father put it to the expert that a ‘no time’ order would have a “devastating impact” on the child, given their current relationship is a positive one. Ms B did not agree. The expert concluded that [X] was not likely to feel abandoned in the event a ‘no time’ order is made, as she will have the benefit of the secure relationship with her primary caregiver, the mother, and the child may be supported by having the decision explained to her in age-appropriate terms.
The Parenting and the Discharge of Parenting Responsibilities
In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s.60CC. I consider, under this heading, the following paragraphs of s.60CC(3):
“(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
…
(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 consider the father’s decision to withhold the child was a serious example of coercive and controlling behaviour that amounts to domestic violence. No doubt, both parents can maintain the child. However, for the reasons set out in this judgment, I consider the child is at an unacceptable risk of emotional harm if she has any contact with the father.
Effect of Any Changes in the Child’s Circumstances
Section 60CC(3)(d) of the Act requires the Court to consider:
“(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;”
I note that a no contact order would be a significant departure from what time [X] has spent with her father. However, the evidence of Ms B allayed my concerns about the impact a no contact order would have on the child.
Family Violence
Section 60CC(3) relevantly provides as follows:
“(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;”
I have already made findings in respect of family violence and have discussed the same in light of the primary considerations. Therefore it is unnecessary to consider this issue again.
Orders that are least likely to Result in Further Litigation
The father proposed, in his final orders submitted on the last day of the hearing:
“(3) That in the event that family dispute resolution and/or mediation, does not result in an agreement, neither party shall rely upon satisfying the principles of “Rice V Asplund case” to object to the party bringing any application seeking to vary orders, given the young age of the Child and their likely significant change in their routine and development”
I have found that there is a complete breakdown of communication between these parents as a result of the coercive-controlling family violence perpetrated by the father.
In my view, to anticipate these parents will be able to negotiate or mediate in this child’s best interest in the future is fanciful. The final orders proposed by the Independent Children’s Lawyer and by the mother are the least likely to result in further litigation.
Parental Responsibility
Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence.
I have already found the father has engaged in coercive-controlling family violence, such that the presumption is rebutted. Furthermore, I am also satisfied there is a complete breakdown of communication between these parents as a result of that violence. As noted by the expert, [X] and the mother’s care of [X], appears to be a direct source of the breakdown in communication.
I accept the ICL’s submission, in line with the Court’s comments in Chappell & Chappell [2008] FamCAFC 143, that the entrenched dispute between the parents enlivens the real potential for deadlock in future decision-making.
The real potential for deadlock was evident to me when hearing the father’s evidence in relation to the parents deciding on a school for this little girl. In my view, an order for equal shared parental responsibility will ensure that [X] remains embroiled in litigation for the remainder of her childhood.
Accordingly, an order for sole parental responsibility is necessary to ensure the best interests of this child are met as she matures. In my view the primary carer of the child is best equipped to make those decisions.
Conclusion
I am satisfied that the Independent Children’s Lawyer’s and the mother’s proposals are in the child’s best interests for the following reasons:
(a)Despite his evidence, I do not consider that the parenting and behaviour programs completed by the father have had any significant impact on his capacity to control or alter his interactions with the mother. I do not assess there is likely to be any improvement in the parents’ communication or level of conflict in the future.
(b)I find that [X], and communications about [X], are being used by the father as a conduit to exert a relentless campaign of coercive control over the mother. I have already found these coercive controlling behaviours constitute family violence, as defined in the Act.
(c)The father has demonstrated minimal insight into how his communication with and behaviours towards the mother constitute family violence. I have also formed the view that the father did not accept the family violence would impact upon [X] in the future.
(d)I am persuaded the mother’s capacity to care for and nurture the child will inevitably be compromised by the father’s family violence towards her. The risk that [X] will take on this negative view in relation to herself, or become a pawn in the parental conflict, is high.
(e)Should the father spend any time with the child, the risk that [X] will be exposed to family violence is, in my view, an unacceptable risk and outweighs the benefits to this child of having a meaningful relationship with her father during her childhood.
I will therefore make the orders sought by the Independent Children’s Lawyer and the mother.
I certify that the preceding two-hundred (200) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 12 July 2019
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Duty of Care
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Negligence
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Fiduciary Duty
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