STAPLETON & BRYANT
[2017] FamCA 1005
•17 November 2017
FAMILY COURT OF AUSTRALIA
| STAPLETON & BRYANT | [2017] FamCA 1005 |
| FAMILY LAW – CHILDREN – Final parenting orders – parental responsibility – with whom the child lives – time the child should spend with either parent – order that the child live with the mother – order that the child spend time with the father in accordance with her wishes – where the father is at liberty to email the child once per week to an agreed email account – where the presumption of equal shared parental responsibility is rebutted – order that the mother have sole parental responsibility – whether a vexatious proceedings order should be made against the father on the application of the mother pursuant to s 102QB of the Family Law Act 1975 (Cth) – application pursuant to s 102QB dismissed. |
| Evidence Act 1995 (Cth) s 140 | |
| Attorney General(NSW) v Wentworth (1988) 14 NSWLR 481 Bryant & Stapleton [2008] FamCA 451 Bryant & Stapleton [2010] FamCAFC 5 Bryant & Stapleton [2016] FamCAFC 12 (11 February 2016) Cannon & Acres [2014] FamCA 104 | |
Rice & Asplund (1979) FLC 90-725
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle [2017] FamCAFC 210
Potier v Attorney General (NSW) (2015) 89 NSWLR 284
Stapleton & Bryant [2015] FCCA 2923 (18 August 2015)
Stapleton & Bryant [2016] FamCA 242
| APPLICANT: | Ms Stapleton |
| RESPONDENT: | Mr Bryant |
| INDEPENDENT CHILDREN’S LAWYER: | Clark Family Lawyers |
| FILE NUMBER: | MLC | 553 | of | 2007 |
| DATE DELIVERED: | 17 November 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 7, 10, 11, 12 & 13 April and 8 & 9 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Vivianne Morkos |
| SOLICITOR FOR THE APPLICANT: | Harper Buscombe & Madden |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Pierre Baume |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Clark Family Lawyers |
Orders
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
The mother have sole parental responsibility for the child S born … 2003 (“the child”).
The child live with the mother.
The child spend time and communicate with the father in accordance with her wishes and the mother facilitate any request by the child to spend time and/or communicate with the father. Text messages, phone calls and any such other use of social media communication is to be initiated by the child.
The father be at liberty to email the child once per week to an agreed email account.
Should the child wish to spend time with the father, all changeovers occur at Suburb H McDonald’s and or such other place agreed in writing between the mother and the father.
The father be restrained by injunction from the following:
(a)Abusing, belittling, insulting, or otherwise denigrating the mother to or in the presence or hearing of the child or permitting any other person to do so;
(b)Abusing, belittling, insulting, or otherwise denigrating the child;
(c)Using any form of physical discipline toward the child;
(d)Communicating with the mother by way of “self-destructing emails” or any other form of written communication that cannot be retained by the mother;
(e)Using any “self-destructing emails” or email tracking software for emails he sends to the child;
(f)Attending the child’s school, other care providers or extra-curricular activities, other than to attend sporting events in which the child is competing which are not training.
Paragraph 10 of the mother’s Amended Initiating Application filed 13 May 2016 for the father to be declared a vexatious litigant and be restrained by injunction from filing any further applications without first seeking the leave of the Court is dismissed.
BY CONSENT IT IS ORDERED THAT:
The father be at liberty to receive school reports, newsletters, notices and photo order forms at his expense (if any) and the mother ensure that the school is authorised to provide such documents and information to the father.
The mother notify the father as soon as practicable of any serious illness or injury requiring hospitalisation of the child.
Upon written request by the mother to complete an Australian Passport Application for the child, the father shall complete all relevant sections of the application and return same to the mother within 14 days of receipt.
THE COURT FURTHER ORDERS THAT:
In the event that the father fails to or refuses to complete the child’s passport application within 14 days of receipt of the application then pursuant to section 11 of the Australian Passports Act 2005 (Cth), the mother is authorised by this Court to apply for, obtain and maintain the child’s Australian Passport [together with any necessary visas] in the absence of the consent and/or signature of the father.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stapleton & Bryant has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 553 of 2007
| Ms Stapleton |
Applicant
And
| Mr Bryant |
Respondent
REASONS FOR JUDGMENT
introduction
The parents bring competing applications for final parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) for the only child of their relationship, the child aged 14. The mother’s application was initiated in the Federal Circuit Court after the father brought a contravention application which was subsequently dismissed in the Federal Circuit Court.
On 21 September 2015, Judge Riethmuller amongst other orders made an interim order suspending the child’s time spent with the father. These proceedings were transferred to this Court from the Federal Circuit Court by Judge Riethmuller on 16 November 2015.
Historically, final parenting orders were made by Dessau J on 19 June 2008 and final orders were made by consent in the Federal Circuit Court by Judge Riethmuller in February 2011.
There was no issue between the parties that there was a change in circumstances warranting a revisiting of the orders.[1] On the mother’s case, supported by the Independent Children’s Lawyer, the child was refusing to spend time with the father because she was in fear of being alone with him after an incident which occurred when she was spending time with him in July 2015. On the father’s case the child was not afraid of being alone with him, had been influenced by the mother and was at risk in the care of the mother and had attempted self-harm in December 2015.
[1] Rice & Asplund (1979) FLC 90-725.
Since the proceedings were transferred, there have been numerous pre-trial hearings and a series of applications filed on 23 December 2015, 8 January 2016, 10 February 2016, 17 March 2016 and 29 March 2016 which have been referred to in Reasons for Judgment delivered by Justice Cronin on 15 April 2016.
The trial was interrupted because it required hearing time beyond the 4 days initially estimated by the parties and was part-heard from April 2017 for a further 2 days in June 2017.
The Applications
The mother seeks the following parenting orders in her Amended Initiating Application filed 13 May 2016:
·That all previous parenting orders be discharged.
·That the mother have sole parental responsibility for the child.
·That the child lives with the mother.
·That the child spend time and communicate with the father in accordance with her wishes and the mother will facilitate any request for time and/or communication upon request by the child. Text messages, phone calls and any such other use of social media communication is to be initiated by the child.
·The father be at liberty to email the child once per week to an agreed email account. The father is to be restrained by injunction from using any “self destructing emails” or email tracking software in relation to emails he forwards to the child.
·That should [the child] wish to spend time with the father, all changeovers occur at [Suburb H] Mcdonald’s [sic] and or such other agreed place from time to time.
·That the father be restrained by injunction from the following:
(a)Abusing, belittling, insulting, or otherwise denigrating the mother to or in the presence or hearing of the child or permitting any other person to do so;
(b)Abusing, belittling, insulting, or otherwise denigrating the child;
(c)Using any form of physical discipline toward the child;
(d)Communicating with the mother by way of “self-destructing” emails or any other form of written communication that cannot be retained by the mother;
(e)Attending the child’s school, other care providers or extra-curricular activities.
·That the father be at liberty to receive school reports, newsletters, notices and photo order forms at his expense (if any) and the mother ensure that the school is authorised to provide such documents and information to the father.
·That the mother advise the father as soon as practicable of any serious illness or injury requiring hospitalisation of the child.
·Pursuant to section 102QB of the Family Law Act 1975, the Respondent Father be declared a vexatious litigant and be restrained by injunction from filing any further Applications without first seeking leave of this Court.
·Upon written request by the Mother to complete an Australian Passport Application for the child, the Father shall complete all relevant sections of the application and return the same to the Mother within 14 days of receipt.
·In the event that the Father fails to or refuses to complete the child’s passport application then the Mother be authorised by this Court to apply for the child’s Australian Passport without the consent of the Father, and if necessary, the Registrar of this Court sign such application in his stead.
·That the father pay the mother’s costs of and incidental to this application.
·Such further or other orders as deemed necessary by this Honourable Court.
The father seeks a number of different sets of orders in his Outline of Case filed 3 April 2017. The orders sought by him in his Case Outline were confusing and clarification was sought during his closing submissions as to which orders he was seeking. At one point the father provided an alternative proposal to the Court, however ultimately withdrew it because the mother and Independent Children’s Lawyer did not consent to the orders. He submitted that as his proposal was “rejected” he withdrew it. The father submitted that he therefore continued to seek the orders contained in his Outline of Case.
Firstly the father seeks orders “if the court finds the applicant has prosecuted knowingly false child abuse allegations or has deliberately recruited and aligned child [sic] against the father or has contrived to expose the child to family violence to record it or has allowed her husband to do so then”: -
·The child live with the father
·The father have sole parental responsibility
·The mother has no contact
·Mr Stapleton be permanently restrained from contact with child under s 68B
In the alternative the father seeks “if the Court finds that the child abuse allegations are not substantiated” then orders made 21 February 2011 are “hereby reinstated and take full force and effect after the father’s spend time with is suitable [sic] introduced” and the child live with the paternal grandparents for a six month transition with an increase in time with him every three weeks until the child lives with the him. The father seeks that he have sole parental responsibility for health and extracurricular activities and the mother have sole parental responsibility for education and religion in relation to the child. In relation to the time the child spends with the mother his proposal provided that:
The mother attend therapy with a view to overcoming her fears and lack of insight into how these might influence [the child] such that after a 3 months suspension of contact the mother might resume her parenting role with contact phased back in accordingly to between [sic] the parents and counsellor.
In submissions the father argued that these orders were sought in circumstances where there had been a “deliberate attempt to cover up the child harming”.
The paternal grandparents did not participate and were not witnesses in the trial.
The father also added to this proposal his preference to the child attending Family Bridges relationship reunification program however the father conceded in submissions that he did not provide any evidence of this service. The father also provided a number of other orders in his Case Outline with direct reference to the Family Bridges program. Ultimately in submissions those proposals were not pressed.
The Independent Children’s Lawyer in the Case Outline filed 4 April 2017 proposed the following orders, representing the preliminary view of the Independent Children’s Lawyer:
·That all previous Parenting Orders in relation to the child [S] born … 2003 (“the child”) be discharged.
·That the mother have sole parenting responsibility of the child.
·That the child spend time with the father in accordance with the child’s wishes on a day basis only.
·That the time spent periods be supervised by paternal grandparents provide the usual undertaking.
At the conclusion of the trial the Independent Children’s Lawyer supported the mother’s parenting proposals.
The Independent Children’s Lawyer did not take any view about the mother’s application to have a vexatious proceedings order made against the father.
Background
I am satisfied on the balance of probabilities of the following factual background.
The parties have a long history of litigation and final parenting orders were made by Dessau J on 19 June 2008 after a judgment delivered on 18 June 2008.[2] The father appealed some of those orders. The appeal was dismissed by the Full Court on 14 October 2008.[3]
[2] Bryant & Stapleton [2008] FamCA 451.
[3] Bryant & Stapleton [2010] FamCAFC 5.
In relation to the mother’s parenting capacity, Dessau J found:
I also do not accept the picture of the mother built up by [the father], as a person virtually incapable of offering the child any stimulation at all, but instead, a sad, isolated existence in which as he and his family put it, the child would be “emotionally stunted”. Having always been in her mother’s primary care, the child is anything but emotionally stunted. [The father] is the first to say that. Of course the thrust of his evidence is that she has been “saved” by her time with him. That over-simplification is not insightful on his part.[4]
[4] Bryant & Stapleton [2008] FamCA 451.
Further her Honour found that there was no question that each parent has “much to offer their daughter” and her Honour also found:
I am confident that each is capable of parenting the child on a day to day basis. All of the evidence leads me to conclude that. Although the mother is the more cautious, and the father the more “laissez-faire”, neither style is fundamentally flawed or detrimental to the child’s well-being.[5]
[5] Bryant & Stapleton [2008] FamCA 451, 43.
The 19 June 2008 orders provided for the parties to have equal shared parental responsibility for the child. The orders provided for the child to live with the father on a two weekly cycle and provided separate orders until the child commenced primary school and upon the child commencing primary school. Prior to commencing primary school the child was to live with the father from Friday morning until Tuesday morning in week one and in week two from Thursday afternoon until Friday afternoon.
Once the child commenced primary school, the orders provided for the child to live with the father on the same days and changeover was to take place at the commencement and the conclusion of school. The child was to live with the mother at all other times, save for times on special days including birthdays. The father could also communicate with the child each Wednesday and Sunday via telephone. The orders provided that save in the case of emergency, the parties were to communicate with each other in relation to the child by e-mail or SMS.
On 18 February 2009 the mother filed an Initiating Application seeking final orders including that the child attend B School for the purposes of Prep to Year 12 and that the mother pay the costs of the child attending B School. The father filed a Response to Initiating Application on 25 February 2009 seeking a number of orders including that the father have sole responsibility for the decision as to which primary school the child attends. He also sought an order that in default of agreement the parties attend a family relationship centre or Relationships Australia for the purposes of discussion in relation to which secondary school the child attends and failing agreement the father be responsible for the decision.
On 25 February 2009 Dessau J made a number of orders. Orders were made by consent that the parties ensure that the child commence school at J School for grades Prep to 12 and that the mother would be responsible for all tuition fees and school expenses with respect to the school. An order was also made by Dessau J dismissing the father’s application to disqualify her Honour.
The last final parenting orders were made by consent by Judge Riethmuller in the Federal Circuit Court on 25 February 2011 when the mother filed an Initiating Application on 15 February 2011 seeking a recovery order for the child to be returned to her. The mother also sought that the father’s time with the child pursuant to paragraph 2 of the orders made by Dessau J on 19 June 2008 be suspended.
The orders of 25 February 2011 provided that paragraphs 2B, 3 and 9 of the final parenting orders made by Dessau J on 19 June 2008 be discharged and provided for a number of other orders. The orders that were discharged related to the times the child lived with each parent and discharged an order requiring the parties to keep the other informed of their e-mail addresses and landline telephone numbers. The new final parenting orders provided that the child would live with the father during school terms from the conclusion of school or 3:30pm on a non-school day on Friday until the commencement of school or 8:45am on a non-school day on Tuesday each alternate weekend. In the alternate week the child was to live with the father during school terms from the conclusion of school or 3:30pm on a non-school day on Thursday to the commencement of school or 8:45 on a non-school day on Friday, each alternate week. The orders provided for the child to live with the father at various times during school holidays, Christmas and special days. The orders provided that the child live with the mother at all other times and provided for the child to also live with the mother on special days and Christmas. The orders also provided for the child to communicate via telephone with the other parent while in the other parents care on Wednesdays and Sundays, or by the child telephoning the other parent upon her request. The notation to those orders stated that “the effect of these orders is to regulate the detail of the operation of the orders of 19 June 2008 and not to effect any significant change to the substance of those orders”.
On 17 July 2015 an altercation between the father and the child occurred at the father’s home when the child was spending time with him and he returned the child to the mother that night. The child told the mother that the altercation had occurred and that she was fearful of the father. The child refused to see the father. The mother took this seriously and contacted the police with respect to the matter, and thereafter refused to allow the father to resume contact in person or by telephone.[6]
[6] Stapleton & Bryant [2015] FCCA 2923 (18 August 2015).
In July 2015 the father filed a contravention application in the Federal Circuit Court complaining that the mother had failed to facilitate the child spending time with him. This was ultimately dismissed by order of Judge Riethmuller on 18 August 2015. On the first return date of the father’s contravention application being 12 August 2015, the mother filed an Initiating Application which sought interim orders to suspend the child’s time with the father, sole parental responsibility and final orders that the mother be excused from specifying the child’s spend time with periods with the father until the interim resolution of the matter.
A s 11F Child Inclusive Conference was held with family consultant Mr X who interviewed the parents and the child on 13 August 2015. He subsequently gave evidence before Judge Riethmuller during an interim hearing which was conducted between 13 and 14 August 2015. The father was represented by counsel who cross examined the family consultant. In the trial before me, the transcript of the cross-examination of that hearing was admitted into evidence (Exhibit J) pursuant to s 69ZX(3) of the Act.
On 21 September 2015 Judge Riethmuller made a number of interim orders including that “the child’s telephone time with the father” as set out in Order 4(a) of the Orders made on 25 February 2011 was to recommence and that the father was at liberty to attend the child’s sporting events. A notation to the orders provided that the sporting events do not include regular training/practice. In addition Order 6 provided:
All other physical spend time/live with periods between the Father and the child be otherwise suspended unless otherwise agreed in writing.
The parties also consented to an order on 21 September 2015 that the father be restrained by injunction from sending or attempting to send self-destructing emails to the mother.
The father lodged an appeal against the interim orders made on 21 September 2015 and this was dismissed by Strickland J on 11 February 2016.
Interim Orders were made by Judge Riethmuller on 16 November 2015 transferring the matter to this Court. The parties were also ordered to attend upon Mr E for the preparation of a Family Report to commence on 23 December 2015. The father was to be solely responsible for paying Mr E’s fees.
Senior Registrar FitzGibbon found in his Reasons for Judgment delivered on 4 February 2016 at paragraph 9 that there was an appointment made with Mr E for a family report but the scheduled appointment did not occur, as the father cancelled it.
Following a contested interim hearing on 28 January and 4 February 2016 the Senior Registrar made urgent interim orders on 4 February 2016 that the child be enrolled in L School Ballarat commencing Term 1 2016, and the father’s application to discharge the Independent Children’s Lawyer was dismissed.
The father made an application to review the decision of the Senior Registrar. Notwithstanding the interim orders previously made, the father also raised issues about the preparation of a family report before Cronin J and there was a dispute about the funding of the report. Ultimately Cronin J found on 15 April 2016 that the issue as to who should prepare the family report should be revisited and determined by the trial judge in this Court.[7]
[7] Stapleton & Bryant [2016] FamCA 242, 164, 168.
The mother was also ordered by Judge Riethmuller to attend upon a psychiatrist for the preparation of a report providing an assessment of her psychiatric state including significant stressors and its impact upon her capacity to parent. The entire cost of the report was to be borne by the father. The mother attended upon psychiatrist Dr D. This was also an interim issue before Cronin J in April 2016 before the matter was set down for trial in this Court. It is referred to at paragraphs 147 to 159 of his Reasons for Judgment.[8]
[8] Stapleton & Bryant [2016] FamCA 242.
On 25 January 2016 the father filed a Contempt Application in this Court alleging that the mother breached the orders made 25 February 2009 and 19 June 2008 by enrolling the child in another school without his consent. This application was made before the interim hearing commenced before the Senior Registrar on 28 January 2016 which was adjourned part heard until 4 February 2016 when the Senior Registrar delivered his Reasons for Judgment the same day.
On 1 March 2016 before me in the Judicial Duty List the father originally sought to adjourn his Contempt Application to obtain legal advice. However he ultimately sought to withdraw his application following an indication that the mother would not seek any order for costs. Accordingly I made an order that the father’s Contempt Application be withdrawn and there be no order for costs.
The father filed Applications in a Case on 23 December 2015, 8 January 2016, 10 February 2016, 17 March 2016 and 29 March 2016 all of which were heard by Cronin J on 6 April 2016 when he reserved his judgment. The applications were dismissed by His Honour on 15 April 2016. The mother also sought interim orders which were dismissed by His Honour on the same date. In summary the father sought orders including that the Independent Children’s Lawyer be discharged, that the orders of the Senior Registrar dated 4 February 2016 be reviewed and whether there should be a return to the previous parenting orders made by Dessau J.
On 10 June 2016 I made trial directions and also an order that the parties attend upon and at the direction of a Family Consultant nominated and appointed by the Director of Child Dispute Services of the Melbourne Registry for the purposes of the preparation of a family report. The parties ultimately attended upon family consultant Ms M for the preparation of a family report.
No report from Dr D was adduced in evidence in the trial. At paragraph 60 of the family report prepared by Ms M she reported that the father stated that he had not engaged with the psychiatric assessment undertaken by Dr D as there was “no point” without all the relevant information and the mother had failed to disclose her medical history to him. The father further reported that he could see no benefit in paying for the report as ordered, as the Independent Children’s Lawyer had “corrupted” the situation and persisted with the appointment in the absence of the relevant information.
The child currently lives with her mother and the mother’s estranged husband Mr Stapleton at the former matrimonial home, owned jointly by the mother and Mr Stapleton because the mother could not survive financially when she lived with the child alone. The mother acknowledges that she had no power to the house where she lived with the child for several months before moving into the home with Mr Stapleton and she acknowledged that the conditions in the rental property where she had lived with the child had been unhygienic. Mr Stapleton is assisting the mother financially and has a good relationship with the child. The mother and Mr Stapleton have informed the family consultant that they are not currently engaged in an intimate relationship. The mother and Mr Stapleton have three adult children who do not live at the family home although both adult daughters have lived intermittently with the mother and the child. I note the historical findings of Dessau J as to Mr Stapleton at paragraphs 89 and 90 of her Reasons for Judgment.[9]
[9] Bryant & Stapleton [2008] FamCA 451.
The child spent time with the father at the home of the paternal grandparents on Christmas day 2016, but has not spent time alone with the father since 17 July 2015 when the incident occurred at the father’s home when the child was spending time with him. The father lives alone in the former family home.
A report was prepared by Mr O from Child Protection in the Department of Health and Human Services (“the Department”). The Department have at no time issued a protection application in the Children’s Court or sought to intervene in any proceedings. I note that this report is untested as Mr O was not a witness in the trial and was not cross-examined, but it forms part of the background to these proceedings.
The report from the Department was prepared in response to an order made by the Senior Registrar on 29 January 2016 under s 69ZW of the Act. This order had been made because of a Notice of Child Abuse, Family Violence, or Risk of Family Violence which was filed by the father in this Court on 23 December 2015 (Exhibit N). The father relied on this Notice in his Case Outline.
At the beginning of the trial the father objected to the report from the Department prepared by protective worker Mr O being admitted into evidence although he referred to that report in his affidavit
He subsequently sought to cross-examine Mr O, but the report writer was not a witness in the trial and was not available for cross-examination.
The report is part of the background to the trial. I do not rely on this report for the purposes of making any findings but I set out the content of the report in summary, because it records relevant notifications, investigations and outcomes by the Department:
13/04/2015-14/04/2015
Child Protection received a report in relation to child’s living conditions. The reporter was also concerned child had withdrawn from school activities and tennis. The reporter was provided no new information from the last report and previous follow up conducted revealed no concerns for child. No further involvement taken by Child protection as concerns can be raised in current Family Court proceedings.
27/05/2015-28/05/2015
Child Protection received a report raising allegations that child was living with no power and gas at mother’s residence and mother was a hoarder. The case was closed at the intake stage as there was insufficient evidence provided to warrant Child Protection involvement.
29/07/2015-31/07/2015
Child Protection received a report in relation to the child being pushed by the father onto the bed which resulted in a sore leg. The child was also reported to be fearful of contact with the father. The case was closed at the intake stage as it was assessed child is safe in the mothers care.
26/08/2015-1/09/2015
Child Protection received a report in relation child raising concerns father grabbed and pushed her, which were similar to concerns raised in July 2015. It was also alleged the father verbally abused the child. The child made no reports to her school about the physical incident and it was reported that he child refused to complete a VARE. The case was closed as there was insufficient evidence. The school was also monitoring child’s wellbeing and current Family Law proceedings determined to be appropriate for the care of the child.
09/10/2015 – 16/10/2015
Child Protection received a report around historical concerns in relation to mothers living conditions and mental health, and alleged psychological and emotional abuse of the child by the mother. Child protection closed the case as there was no information to substantiate concerns raised. It was reported that throughout the report numerous concerns have been raised with no substantiations.
15/12/2015-23/12/2015
Child Protection received a report in relation to the child’s mental health and an alleged incident of self-harm, which also included allegations of the child being coached by the mother. It was assessed that the case proceed to closure as the child was engaging with a counselling and that the child’s mental health stability would be discussed through family assessments conducted through the Family Court proceedings.
On page 7 it was reported that “The Department spoke with the child who denied all allegations that she has self-harmed”. Further it was reported that “No marks were observed on the child to confirm self-harm”. The Department assessed that there was “insufficient evidence to corroborate the allegation that the child is self-harming”.
In relation to an alleged incident of family violence of the father towards the child the report stated:
The Department spoke with [the child] who has stated that she was scared of her father because [the father] pushed her and then raised his hand threatening to smack her… [the child] stated that he has smacked her on the arm before but hasn’t told anyone about it.
Issues at Trial
The issues in the trial were as follows:
(1)Parental responsibility for the child;
(2)With whom the child should live;
(3)The spend time arrangements for the child;
(4)Whether a vexatious proceedings order should be made against the father pursuant to s 102QB of the Act.
Central to the issues in the trial was the cause of the child’s reluctance to spend time with the father. The father claimed that the mother was responsible for “alienating” the child from him and the mother maintained that the child’s attitude was as a result of an incident which occurred when the child was spending time with him in July 2015.
To the extent that the child’s views were expressed to the family consultants Mr X and Ms M and the Department, the father did not accept the reports.
The father argued that the child was at risk in the care of the mother because of the influence of Mr Stapleton and the negligence of the mother which in combination was “alienating” the child from him. He also relied on an alleged self-harming incident in December 2015 which he reported to police as evidence that the child was at risk in the care of the mother.
Evidence
The documents relied upon by each party, as detailed in their Case Outlines, are listed in Annexure A. The following witnesses were cross-examined during the trial:
·The mother;
·The father;
·The family consultant, Ms M; and
·Mr Q Bryant, the father’s brother.
The father in his Case Outline relied on a number of documents and affidavits that were filed prior to my pre-trial directions. The documents listed in Annexure A are those that were filed in compliance with my trial directions.
Although an application was foreshadowed there was ultimately no application made under s 69ZT(3) of the Act and accordingly s 69ZT of the Act applies. Section 69ZT of the Act provides that certain provisions of the Evidence Act 1995 (Cth) do not apply to child-related proceedings.
The mother relied upon two judgments of Dessau J in 2008. The father in his Case Outline filed 3 April 2017 objected to Dessau J’s judgment being relied upon. The judgments were not successfully appealed and I have had regard to both of them.
The father had filed an affidavit from his brother, Mr Q Bryant, the timing of which did not comply with procedural orders made for the filing of affidavits because it was filed late. It was required to be filed on 23 January 2017 but was filed on 2 March 2017. Counsel for the mother and the Independent Children’s Lawyer objected to the father relying on this evidence, but I granted leave for the father to rely on the affidavit because he maintained that it was significant for his case. I ruled that the father could rely on his brother’s affidavit. The mother and the Independent Children’s Lawyer cross examined this witness and I granted the father’s application for the use of the video link given that the evidence was not lengthy and the witness resides in the United States of America.
The father objected to the evidence of the family consultant Ms M despite including this as a document relied upon in his Case Outline. I ruled that her evidence was admissible and he was given the opportunity to cross-examine the family consultant.
The father also purported to rely upon a family report by Dr K without reference to a date in his Case Outline. He did not file any report. A report from Dr K was part of the evidence before Dessau J in 2008. I note that in hearing the pre-trial controversy about the report writer, Cronin J without deciding the issue of who should prepare the family report referred to the fact that in the 2008 defended hearing before Dessau J the evidence of Dr K “did not find much favour”. After quoting from the Reasons for Judgment of Dessau J in 2008, Cronin J said at paragraph 167 of his Reasons for Judgment that it would be unwise to use Dr K in these circumstances.[10] There was no report of Dr K in evidence before me.
[10] Stapleton & Bryant [2016] FamCA 242, 164-168.
Standard of Proof
When determining what orders the Court should make, the relevant standard of proof is the balance of probabilities.[11] Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
[11] Evidence Act 1995 (Cth), s 140.
Evidence of the mother
In her affidavit, the mother deposed that the incident on Friday 17 July 2015 triggered the current proceedings. She deposed that the child “was very upset on Thursday night when she realised she had to go back to [the father] the next day. She said she did not want to go but I knew because of the Court Orders she had to go”. There is no dispute that the father collected the child from school on Friday 17 July 2015.
The mother deposed at paragraph 9 and 10 of her affidavit:
[The child] told me they went to his parents’ house, then to practice tennis at the indoor courts and then to a table tennis competition. She said he told her at table tennis that she was just a bitch because she would not practice properly and that she was disrespectful and that her hair looked dreadful. When they were finally home he told her to “get off the fucking ipad” and called her “a lazy bitch” or “idiot” because she had not helped carry things from the car.
At about 9:30pm that night, without any prior text or email, he dropped her off to me. I heard frantic knocking at the door and when I opened it, [the child] was there, shaking and crying. Apparently [the father] had been talking dreadfully to her and then pushed her on the left shoulder, causing her to fall back on her bed and hurt her knee as well. She said she hurt her knee because she had not been ready for the push. [The child] said that [the father] grabbed her around the waist and she thought he was going to hit her. [The child] told me she screamed and tried to kick him away. She had sent me three emails from her iPad but I did not see them until after she arrived. She said she was planning to climb out of her bedroom window to run away. [The father] then said “you are becoming disrespectful like your mother” and as punishment he was returning her to “her mother” and he drove her to me. [The father] did not even wait to see that [the child] got inside with me safely.
The three emails sent by the child to the mother were in evidence as Exhibit F and were dated 17 July 2015. The first email was sent at 8:50pm and stated:
He won’t give me dinner I’m locked in my room and he’s calling me really mean names i [sic] don’t want to be here but don’t I don’t want him to be mader :(:(:( [sic]
A second email was sent two minutes later at 8:52 and stated:
I’m freezing and starving :( [sic]
The third email sent at the same time at 8:52pm read:
Put more money on this cause idk [sic] where my phone is :( [sic]
The mother deposed that the following morning the father sent her “a self-destructing email” as though nothing had happened and reminded her that the child should be living with him at that time. The mother deposed that the child was too frightened to attend tennis or basketball on the weekend, thinking that he would be there and that he would grab her and take her. She deposed that the child was also concerned about whether the father would attend at school.
The mother deposed that she contacted the police on the afternoon of 18 July 2015 and explained what had happened and made enquiries about an intervention order for the child. She was advised that the police could make an application on behalf of the child but that there was no officer available until Wednesday 22 July 2015.
At paragraph 15 of her affidavit the mother deposed that when the father realised that the child would not be returned to him on the Saturday he went to the police and asked them to carry out a welfare check. The mother deposed that the father attended with the police and that they asked the child what had happened and she reiterated to the police what she had told the mother which was that the father had “threatened to hit her and had abused her”.
The mother deposed that she subsequently contacted the police station on Monday, 20 July 2015 and she and the child were to attend at 4:30 pm. She deposed that the police officer suggested she wait until the appointment on Wednesday 22 July 2017 before considering taking the matter any further.
The mother deposed that her adult daughter Ms T attended an appointment with the child at the police station. The mother deposed that the child was advised by the police officer that if she completed a video recorded interview that the father would see it in court and that the child became quite distressed about this and declined to be interviewed. The mother asserts that on this basis the police officer said they would not apply for an intervention on her behalf.
The mother deposed at paragraph 20 of her affidavit that the child had refused to spend time with the father since this incident until recently where he approached her at sporting events in November and December 2016 and the child attended at the paternal grandparents’ home on 14 December and 25 December 2016 with other members of the paternal family.
The mother made an application for an intervention order on 29 July 2015 against the father naming the child as the affected family member.[12] The mother deposed that the matter was listed on 5 August 2015, but that it was adjourned as the father had not been served.
[12] Affidavit of the mother filed 9 January 2017, Annexure SMS-5.
The mother deposed that there was an incident between her and the father on 18 October 2015 whereby the father hit her in the stomach. She deposed that on 18 October 2015 she attended Ballarat YMCA to collect the child who had been swimming with friends. She described seeing the father’s car in the carpark. She deposed that she arrived at 5:05pm and could not immediately see the child and chose to wait outside on a bench near the bus stop. She deposed to waiting until 6pm and then walking back into the centre and trying to get the child to come out as the centre was about to close. She deposed that as she was walking on the path back to the centre the father was there walking towards her. She went on to depose that as the father walked past her she “felt a blow” to her stomach.[13] She deposed to reporting the incident to the staff at the YMCA and that they called the police on her behalf and the police attended and took a statement from her. She deposed that police applied for an intervention order on her behalf against the father (Exhibit L). She deposed:
…[b]ecause the Police then had their application, my original application which included [the child] seemed to get lost and though the Police had originally indicated they would include the child on their application, this did not end up happening.[14]
[13] Affidavit of the mother filed 9 January 2017, par 72.
[14] Affidavit of the mother filed 9 January 2017, par 74.
Exhibit B indicates that the intervention order application in relation to the child was struck out on 28 October 2015.
The mother denied the allegations of the father that she had run over his foot or assaulted him in June 2014. She denied that she had smacked the child in the circumstances described by the father in his affidavit.
The mother deposed that she is currently living with Mr Stapleton and they are separated under one roof. She deposes they live in a house they jointly own. She deposed that she is looking for rental accommodation but that she has experienced difficulties.
The mother deposed that the father does not contribute to any school or sporting fees for the child. The father confirmed in cross-examination that he does not pay Child Support and has not paid Child Support since 2015 through the “official Child Support”. It was not clear what was meant by this statement. He claimed that the mother in fact owed him Child Support. No evidence was provided to support this assertion.
The father asserted that unknown to the mother, he had spent Christmas 2015 with the child and relied on photographs and an affidavit from his brother who resides in the United States but who frequently visits his extended family at Christmas. The mother deposed in her affidavit that the child spent four hours on Christmas night in 2015 with the paternal family but that the father was not there as “this was requested by the child”.
The mother was given leave to adduce some brief evidence in response to the father’s affidavit and the affidavit of Mr Q Bryant because both affidavits were filed late and I ruled that the father could rely on the affidavit of his brother Mr Q Bryant.
The mother referring to the affidavit of Mr Q Bryant gave evidence that the dates appeared to be incorrect at paragraphs 9 and 11 of his affidavit. The mother maintained that there was a family holiday with the child involving a tennis tournament in 2014 rather than 2015. She also maintained that the arrangements for Christmas in 2016 were made between the child and Mr Q Bryant, the paternal uncle and that she was not involved.
Regarding the extended family photo which the father claimed was taken at Christmas 2015 when he was present (Annexure HB 10 of the father’s affidavit) the mother maintained that this photograph was taken at Christmas 2014. She produced Exhibit A being a photo of the child taken at the father’s extended family Christmas celebration in 2015. She maintained that the child had told her that the father was not present for this occasion. The mother maintained that a comparison of Exhibit A and Annexure HB 10 of the father’s affidavit would indicate that the child is approximately a year older in the photograph from 2015 (Exhibit A).
She deposed that the child did spend time with the paternal family for Christmas in 2016 and deposed in paragraph 57 that the paternal uncle, Mr Q Bryant, collected the child at 12:40pm on Christmas Day and she was with the paternal family until approximately 9:30pm. She deposed that it was her understanding that the father was also present during this visit.
Alleged self-harm incident
In relation to the father’s allegation that the child self-harmed on 13 December 2015 and that he viewed a conversation between the child and her friends on Instagram, the mother deposed that the father has never provided screen shots of the conversation despite requests.
The mother deposed at paragraph 63 of her affidavit that the father contacted Victoria Police to conduct a welfare check on the child in relation to this alleged incident and that the police attended her property on 14 December 2015 and spoke to both her and the child separately. The mother deposed that “the child confirmed to the police that she had not attempted suicide, had not engaged in self harm”. It is not clear whether the mother was present for this conversation. The mother deposed that the police “left the premises without taking any further action”.
The mother deposed at paragraph 64 of her affidavit that the child was interviewed by the Department over the alleged incident and that “the child denied any self-harming or suicidal thoughts”. Again it is not clear whether the mother was present for this conversation. However the s 69ZW report prepared by the Department makes reference to this incident and it was reported that the child denied all allegations that she self-harmed.
The mother at paragraph 62 of her affidavit denied that the child had any suicidal tendencies. She deposed that she took the child to a General Practitioner on 21 December 2015. The mother annexed a letter from the General Practitioner (Annexure SMS6) which stated:
This is to certify that [the child S] does not have any mental illness nor any suicidal thought. She did not make any attempt on her life
She does NOT need a mental health plan or need a referral to a pediatric [sic] psychologist/psychiatrist
(emphasis in original)
Exhibit H is a complete record from UFS Medical for the child as at 14 April 2016. There is a record of a progress note from Dr F on 21 December 2015. It provides:
ISSUES WITH DIFFICULT FATHER
[THE CHILD] USED INSTAGRAM TO DO A TEST WITH FRIENDS TO SEE IF THEY CARED BY SAYING SHE HAD CUT HER HAND/SUICIDE ATTEMPT
THIS DID NOT HAPPEN
FATHER ACCESSED HER INTERNET POSTS AND MADE WRONG ASSUMPTIONS
LETTER TO LAWYERS TO STATE SHE IS WELL MENTALLY AND DID NOT IN ANY WAY TRY TO HARM HERSELF
SEEMS HAPPY WITH MUM AND UNDERSTANDS ISSUES WITH WHO CAN ACCESS INTERNET ETC
FEELS 80%
(emphasis in original)
The mother at paragraph 65 of her affidavit denied deleting the child’s Instagram account.
Cross-examination of the mother
The mother consistently denied that the child has ever run away from her home.
When cross-examined about the various Intervention Order applications made in the Magistrates’ Court the mother was confused at times about the outcomes.
The mother maintained that a contested hearing was listed in May 2017 in the Magistrates’ Court for mutual applications for intervention orders. The mother maintained that there were current interim intervention orders made against each party. These were annexed to her affidavit.
The mother denied that she has “put ideas” in the child’s head that the father will take the child.
The father suggested to the mother that she had bribed the child with the purchase of a new mobile phone before the child spoke with the family consultant who compiled the s 11 F Memorandum in the Federal Circuit Court on 13 August 2017. The mother produced the receipt for the purchase of the mobile phone which was dated 21 July 2015 (Exhibit T).
In response to questions about whether the child had received any counselling after the alleged self-harming incident on 13 December 2015, the mother responded that the child was finishing sessions with U Group and some joint sessions with the father. She stated that the child had one term with the school counsellor and that the child did not want to return to V Group because the counselling was conducted during school hours and she did not want to miss school. She emphasised that she would not necessarily be advised of any counselling at school but that the child could seek assistance from the school counsellor at any time.
The mother was asked about when she first became aware of the Instagram messages which the father claimed had been sent by the child. The mother gave evidence that the first time that she became aware of these messages was when the police attended to do a welfare check after the father reported it to them. She stated that the child had told her that there were other messages and that the child told the doctor whom she had consulted at the first available appointment that it was a “trust test”. The mother denied that the child had any injury or that she required any medical attention when the father suggested to her that she should have taken the child to an emergency response site at a hospital.
In response to cross-examination by the Independent Children’s Lawyer, the mother stated that when the police attended for the welfare check, that there were no injuries to the child and no need to attend a doctor. She stated that at the time the child was attending counselling sessions ordered by the Court with the father at U Group and that she was aware that the father had spoken with Ms W about this. The mother said that she also spoke to Ms W and that Ms W was not concerned about the messages. The mother believed that the child saw Ms W a couple of days after the incident when the police attended. She conceded that at the request of the Independent Children’s Lawyer that she took the child to her General Practitioner and referred to Annexure SMS 6 of her affidavit.
In cross-examination by the Independent Children’s Lawyer, the mother explained that all decisions about the child have been much more difficult because of the difficulty she has had communicating with the father. She gave an example of the child wanting to be confirmed at church and the father’s response that “if she attends basketball tomorrow then she can be confirmed”. She stated that any request of the father is usually met with conditions. She stated that because of the extreme difficulties in communicating with the father, communication was confined to text or email and by telephone if an emergency and that Court orders were required. She explained that the father had been sending “self-destructing” emails which provided her with 60 seconds to read before they disappeared forever.
The mother presented as genuinely distressed when explaining that the child had said that she did not want to be alone with the father. She stated that no child should have to say that and that it was a dreadful situation. She stated that the child has not said that she wants to have contact with her father but it is up to her if she wishes to see him.
Evidence of the father
In response to the mother’s affidavit about the alleged incident on 17 July 2015, the father denied that he pushed the child and deposed that he has never hit her. He denied the mother’s allegation that he called the child a “lazy bitch” or an “idiot”. The father conceded that on that night he “growled” at the child and deposed that she was being disrespectful and unappreciative after he had asked her to put an iPad away which she had been using for several hours and he asked her to give it to him. He deposed that “the child went into a screaming panic attack backing away from me into the wall as though I was going to kill her”. He deposed he was “stunned” and had “never seen this”.
He denied at paragraph 19 of his affidavit that there was “any incident on 17 July 2015 that justified suspending contact for two years and none to permanently terminate all contact between the child and myself”. He deposed that the “mother has been trying for nearly a decade to stop my relationship with [the child], including 5 unsuccessful litigation attempts, and is attempting to do the same thing again now”.
In response to the mother’s affidavit where she deposed that the child had told police during a welfare check that the father had threatened to hit her and abused her, he deposed that he did not believe that the child has said that because he “did not do this”.
The father denied the allegations that the child is afraid of him, he deposed that it is “untrue”. In support of this he deposed at paragraph 5 that:
(a)On 15 August 2015 just a few days after the child alleged for the first time that she was scared of me, the child spoke and laughed with me at tennis for over 10 minutes, until the mother intervened, without the slightest hint of fear. This was recorded by the mother.
(b)the child has also been texting me with increasing regularity in recent times, without her mother’s knowledge.
(c)At Christmas gatherings the child and I have spent time alone together as if we had never been apart.
The father’s evidence was focused around allegations that the mother had “alienated” the child. He deposed at paragraph 7 that the mother has “actively taken steps to prevent me spending time with [the child]” and that the mother had:
·Cancelled the child’s sporting activities to prevent him having contact with the child;
·Taken vexatious intervention orders against me;
·Written letters to him “falsely informing” him that he cannot spend time with the child at sporting functions; and
·Before he filed his contravention she took the child from the school to prevent him from collecting the child as per the orders.
He also deposed at paragraph 8 that the mother has failed to take “positive steps” to ensure the child spends time with him. The father deposed in paragraph 63 that the mother has denied telephone contact between the father and child as per order 2 of the orders made on 21 September 2015. He also deposed that following the orders made on 21 September 2015 which provided for the father to be at liberty to attend the child’s sporting events, that the mother withdrew the child from tennis and all sports the “weekend after the Orders were published”.
The father denied at paragraph 37 of his affidavit that the child has refused to spend time with him and deposed that it is the mother “who has denied contact unnecessarily”. For example, the father deposed in paragraph 64 that the mother “deliberately prevented me from wishing [the child] a happy birthday”.
The father deposed at paragraph 9 that the mother has “failed in her duty of care of [the child]”. In support of this he deposed that the mother “failed to get adequate care for [the child]” because:
·The mother failed to get adequate care for the child after a self-harming incident in 2015; and
·The mother continues to attempt to cover up and downplay the incident.
He deposed at paragraph 67 that following the alleged suicide attempt that the mother ended counselling between the child and Ms W and that “as such the mother denied [the child] important medical treatment”.
Further, under a heading in his affidavit “DENYING THE CHILD MEDICAL ASSISTANCE” he deposed that in 2009 after a significant “change to the parenting schedule” the child suffered from “trichotillomania and debilitating enuresis anxiety”. He deposed that the child pulled out her eyelashes and had a “bald spot on her head” and that the child “couldn’t go outside because of her fear of not being able to find a toilet”. There was no independent evidence provided by the father about this allegation.
The father argued that the mother’s actions in “severing” his contact with the child occurred as a “pre-emptive attack” during a period when the child was refusing to stay with the mother.
The father deposed that on 22 October 2014 he obtained an intervention order against the mother as a result of an incident where the mother ran over him with her car, crushing his foot. He deposed that the “incident occurred when I asked the mother to live with me while she got her house in order”. He goes on to depose that “she became enraged, got into her car, drove straight at me and hit me”. He deposed that he was on “crutches and disability for 8 weeks”.
Exhibit 1 and Exhibit Q records that on an intervention order was made on 22 October 2014 in favour of the father against the mother by consent and without admission. This order was extended on an interim basis on 24 February 2016 by agreement with the mother (Annexure SM-7 of the mother’s affidavit). There is no evidence of any determination of the facts alleged in the complaint.
The father denied in his affidavit that he had included the child in a Viber telephone conversation with his brother, Mr Q Bryant where they discussed the court proceedings.
In response to the mother’s affidavit where she deposed that the child had starting recording telephone calls between herself and the father, the father deposed that the child told him in or about December 2015 that the “mother had put an application on her telephone that recorded telephone calls”.
The father responded to the mother’s affidavit where she deposed that the child attempted to call the father in January 2016 to ask him to sign her school enrolment form. The father deposed that the mother included the child in a conversation between himself and the mother and that by including the child in the conversation he believed “the mother was deliberately making me out to be difficult and not acting in the child’s best interest”.
I am satisfied that the additional proposals of the mother for parenting orders supported by the Independent Children’s Lawyer are in the best interests of the child.
I find on the evidence of the father that he has sent “self-destructing” emails to the mother. The father consented to the interim court order to restrain this conduct. Having heard the evidence of the father I am satisfied that the Court is required to restrain him from sending self-destructing emails to the mother or the child and that it is in the best interests of the child to make a final order including those proposals of the mother and the Independent Children’s Lawyer regarding emails.
I am not satisfied on the evidence before me and for the reasons previously outlined that the mother has proven that the father has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals and I do not propose to make the order sought by the mother that the father be declared a vexatious litigant and be restrained by injunction from filing any further applications without first seeking leave of this Court.
I certify that the preceding three hundred and eighty five (385) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 17 November 2017.
Associate:
Date: 17 November 2017
Annexure A
The applicant mother relied upon the following documents:
Notice of Risk filed 12 August 2015
Amended Initiating Application filed 13 May 2016
Affidavit of the mother filed 9 January 2017
Family Report prepared by Ms M dated 14 March 2017
Section 69ZW Report prepared by Mr O dated 29 January 2016
Transcript of proceedings on 13 August 2015 (Exhibit J)
Transcript of proceedings on 14 August 2015 (Exhibit J)
Transcript of proceedings on 12 October 2015 (not produced)
Transcript of proceedings on 14 October 2015 (not produced)
Stapleton & Bryant [2016] FamCA 242
Bryant & Stapleton [2008] FamCA 451
Bryant & Stapleton (No 2) [2008] FamCA 745
The respondent father relied upon the following documents:
Amended Response to Final Orders filed 29 May 2016
Affidavit of the father filed 24 February 2017
Affidavit of Mr Q Bryant filed 2 March 2017
Family Report prepared by Ms M dated 14 March 2017
Notice of Risk filed 23 December 2015
Bryant & Stapleton [2015] FCCA 3504
The Independent Children’s Lawyer relied upon the following documents:
Amended Initiating Application of the mother filed 13 May 2016
Affidavit of the mother filed 12 August 2015
Affidavit of the mother filed 9 January 2017
Transcript of proceedings on 13 August 2015 (Exhibit J)
Transcript of proceedings on 14 August 2015 (Exhibit J)
Child Inclusive Conference Memorandum to the Court by Mr X dated 13 August 2015
Family Report prepared by Ms M dated 14 March 2017
Amended Response to Initiating Application of the father filed 29 May 2016
Affidavit of the father filed 24 February 2017
Case Outline of the father dated 3 June 2016
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