Stativa and Stativa
[2014] FCCA 464
•11 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STATIVA & STATIVA | [2014] FCCA 464 |
| Catchwords: FAMILY LAW – Parenting – mother’s application to terminate time between 5 year old child and the father – supported by the Independent Children’s Lawyer – father’s denigration of and undermining of the mother’s parenting – whether there is unacceptable risk of emotional abuse of the child – father seeks order for child to live with him. |
| Legislation: Family Law Act 1975 Evidence Act 1995 (Cth) |
| A & A (1998) FLC 92-800 B & B (1993) FLC 92-357 Burton & Burton (1978) 4 Fam LR 783 Champness & Hansen (2009) FLC ¶93-407 K & B (1994) FLC 92-478 M &M (1998) FLC 91-979 Napier & Hepburn (2006) FLC 93-303 PST & CPR [2006] FMCAfam 36 Re F (Litigants in person guidelines) (2001) FLC 93-072 Re L (Contact:- Domestic Violence) (2000) 2 FLR 334 Rice & Asplund (1979) FLC 90-725 U & U (2002) 2011 CLR 238 |
| Applicant: | MS STATIVA |
| Respondent: | MR STATIVA |
| File Number: | MLC 9079 of 2009 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 5 & 6 September 2013 5 & 6 December 2013 17 February 2014 21 February 2014 |
| Date of Last Submission: | 6 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 11 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Werner |
| Solicitors for the Applicant: | Taussig Cherrie Fildes |
| Solicitors for the Respondent: | Unrepresented |
| Counsel for the Independent Children's Lawyer: | Ms A Carter |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid, Melbourne |
ORDERS
Final orders
That all extant orders in respect of the child [X] born [in] 2008 (“[X]”) be discharged.
That the mother have sole parental responsibility for [X].
That [X] live with the mother.
Interim orders
That until further order [X] spend time with the father as follows:
(a)Each alternate weekend from the Friday at the end of school (or at 5.00pm if not a school day) until the Sunday at 5.00pm; and
(b)At such other times as may be agreed between the parties from time to time in writing.
Interlocutory orders
That the parents and [X] attend for family therapy as arranged by the Independent Children’s Lawyer and as directed by the Independent Children’s Lawyer and/or the therapist such to be reportable and with the Independent Children’s Lawyer to obtain a report from the family therapist on affidavit prior to the return date.
That pursuant to Section 62(G) of the Family Law Act the parents and [X] attend as directed on Dr N for interview for the preparation of an addendum family report with the interviews for the report not to take place before 1 February 2015 and that the Independent Children’s Lawyer be able to provide relevant documents, including these orders and reasons to Dr N.
These orders authorise Dr N to have access to the court file and all released subpoenaed material and discuss relevant matters with the Family therapist.
The matter be listed for mention and directions in the Federal Circuit Court at Melbourne on a date to be advised in April 2015.
There will be liberty to the parties or either of them or the Independent Children’s Lawyer to apply.
IT IS NOTED that publication of this judgment under the pseudonym Stativa & Stativa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9079 of 2009
| MS STATIVA |
Applicant
And
| MR STATIVA |
Respondent
REASONS FOR JUDGMENT
The Applications
These proceedings concern the one child of the parties, [X], born [in] 2008 (aged 5 years). It is immediately evident that [X]’s young life has been highlighted thus far by her parents’ litigation in respect of her and those parents’ conflictual and caustic personal relationship, during their marriage, and certainly post their separation. [X]’s parents separated when she had just turned one year of age. A previous trial in respect of [X]’s living arrangements was conducted by Whelan FM (as she then was) in 2011. Her Honour’s determination resulted in an appeal. There has been multiple litigation in respect of [X] travelling overseas with her mother. There have been proceedings in State Courts in respect of intervention orders. There have been contravention proceedings. There have been interlocutory applications.
On 18 August 2011 her Honour made orders inter alia as follows:
i)that the mother have sole parental responsibility for [X];
ii)that [X] live with the mother;
iii)that [X] spend time with the father on a “substantial and significant time” basis, currently being:
(a) from the end of school on Friday till the commencement of school on Monday each alternate weekend;
(b) overnights on the other Monday;
(c) for one half of school holidays;
(d) specific times at Easter, Christmas, New Year, the child’s birthday and Father’s Day, Orthodox Easter and Mother’s Day;
(e) that each of the mother and the father be restrained from denigrating the other in the presence or hearing of the child or permitting any other person from doing so;
(f) an airport watch list order;
(g) permitting the mother to travel to [R] with the child in 2012 for a period of four weeks.
The mother is now the applicant in an application filed 31 December 2012. The father filed a contravention application and initiating application on the same day but later than the mother. He is hence the respondent in this application.
On 19 December 2012 the mother obtained a State Court interim intervention order against the father which stayed the above orders in respect of [X]’s time with the father and which effectively prevented [X] and the father from travelling to Adelaide over the Christmas period 2012.
On 18 January 2013 I made interim orders as follows:
(i) the father’s contravention application be dismissed;
(ii) the final orders of Whelan FM remain in full force and effect;
(iii) both parties attend upon Dr N for the preparation of a further family report;
(iv) the appointment of an independent children’s lawyer;
(v) listing the substantive applications for trial on 19 August 2013.
The father subsequently made application that Dr N not prepare the Family Report but such report be prepared by his preferred expert,
Dr L, who had previously prepared two Family Reports in proceedings between these parties. That application was unsuccessful. It eventuated that Mr Stativa chose not to attend for the interviews with Dr N.
In May 2013 the mother brought an interlocutory application seeking an order for the father to be psychiatrically assessed. The father did not appear at that hearing. He provided no material in response to the application. Nevertheless, I determined that this application should fail on the state of the evidence then before me. In hindsight, however, and after hearing all of the evidence I now consider that psychiatric evidence in respect of both parents may have been of some assistance to the Court.
The father has at all relevant times represented himself in proceedings before me. He was provided with full information as to the procedure in the Court with an invitation to inquire of me at any time should he have any questions as to procedure. He was provided with copies of the relevant sections of Part VII of the Family Law Act 1975(“The Act”)[1]. The mother has been represented by solicitors and counsel. The independent children’s lawyer has been represented by counsel.
[1] Re F (Litigants in person guidelines) (2001) FLC 93-072
The father is 51 years old. He was born in [country omitted] and migrated to Australia with his family at the age of 10. He is self-employed as an [omitted] (his evidence was vague and at times evasive in this respect). There is no evidence that he is currently in a domestic relationship. He lives in suburban Melbourne. Mr Stativa impressed me as an educated and articulate litigant who competently ran his case including cross-examination. He at no time seemed daunted by the court room environment. He presented his arguments competently and cogently.
The mother is 41 years of age. She is from [R]. She is now in a relationship with Mr W. They are expecting their first child. She is usually in employment as a [omitted]. She also lives in suburban Melbourne.
Orders Sought by the Mother
In her case outline and at the commencement of the trial, the mother’s preferred position was that all time between [X] and the father be supervised with the cost to be met by the father. She proposed this to be an interim order with the matter “adjourned to a date 12 months after delivery of judgment for a consideration of whether [X]’s time with the father should continue and, if so, under what conditions, if any”. She proffered an alternative proposal that there be no time between the father and [X]. By the end of the evidence she argued only for the latter of no time between the father and [X] with communication limited to “card or letter” to be opened and vetted by the mother.
Orders Sought by the Father
The father also changed his position during the course of the trial albeit more dramatically than the mother. By the end of the evidence he was seeking orders as follows:
i)that he have sole parental responsibility for [X];
ii)that [X] live with the father;
iii)that [X] spend time with the mother each second weekend;
iv)injunctive orders that [X] not be left alone with Mr W and not be left overnight with third parties.
Variously throughout the trial and when pressed as to the orders he sought, Mr Stativa varied considerably in his responses. Despite his criticism of the mother’s parenting, he at one stage proposed that [X] spend all weekdays with the mother and all weekends with him. Other variations were offered to the Court during the course of the evidence.
Orders Sought by Independent Children’s Lawyer
The position of the Independent Children’s Lawyer also changed during the course of the proceedings. Initially, the Independent Children’s Lawyer was urging the Court to consider options such as supervision for the father’s time with [X] or reduced time. By the end of the evidence, the orders sought by the Independent Children’s Lawyer were the following:
i)all previous parenting orders be discharged;
ii)the mother have sole parental responsibility for the child, [X], born [in] 2008;
iii)the father have no time with the child;
iv)the father be permitted to send the child gifts and letters, and the mother shall determine upon receipt of same whether or not to provide same to the child;
v)the mother shall keep the father informed as to:
(i) her residential contact address;
(ii) any major illness or injury suffered by the child;
(iii) any hospital admission for the child;
(iv) the school at which the child attends; and
(vi) the mother shall forthwith authorise and request the child’s school to send to the father, at his expense, if any, copies of all school reports, newsletters and photo order forms.
Issues for the Court’s Consideration
On a first glance these proceedings may have been ignited by an isolated, unexceptional incident on 18 December 2012. The father says that [X] complained to him of being yelled at over the dinner table by Mr W. He confronted Mr W outside the mother’s home. [X] was present. The mother’s intervention order application resulted and police and child protection authorities became involved. The father was thus denied his trip to Adelaide over Christmas with [X]. Both parties then instituted proceedings in early January 2013. Ordinarily this Court might hope, particularly given a previous defended trial, that this incident could have been dealt with and put to bed without the resultant seven-day trial over many months. Indeed, taken in isolation, it is arguable that there have been a number of relatively minor, or arguably innocuous, skirmishes and mutual criticisms between these parties which are perhaps not unusual in the forum of a marriage breakdown and family law children’s litigation. There are, however, deeper and more complex issues at play here. They are most definitely of a psychological nature but usually grounded upon these factual skirmishes. Each parent argues that the other manipulates [X]’s emotions by denigration, falsehoods and innuendo in respect of the other parent. Each parent says the other is motivated by malice. Each says that the others behaviour is so consistent and regular that the child does, or potentially, will suffer emotional/psychological damage.
A prime issue for the Court is whether the father presents as an unacceptable risk to the emotional and psychological welfare of the child by continuing his “time with” relationship with [X]? This is the position of the mother and the Independent Children’s Lawyer.
There is also an issue as to whether the mother presents as both a physical and psychological risk to [X] by continuing as the primary parent and specifically in her capacity to provide proper day-to-day care of [X] in matters such as nutrition and hygiene in what the father sees as an attempt to alienate him from [X].
There is an issue as to whether Mr W presents as an unacceptable risk to the child in a physical and emotional sense.
Finally, there is an issue as to whether the mother should continue exercising sole parental responsibility for [X] in accordance with Whelan FM’s determination or whether that status should now shift to the father. Not surprisingly, neither party seeks an order for equal shared parental responsibility.
The Mother’s Case
The mother’s case rests very much on the father’s personality. She says that there is no material benefit to [X] in continuing a relationship with the father. The mother alleges that the father serially denigrates her and Mr W to the child such as to manifest substantial and regular behavioural and emotional difficulties for [X]. She concedes that [X] loves her father and in other respects has a beneficial relationship with him. She argues[2] that the father is “arrogant, high-handed and dictatorial in his parenting style”. She says that Mr Stativa is obtuse and lacks insight in respect of his daughter’s best interests and that he is “hateful and vengeful” to the mother. She says that the child habitually returns to her from Mr Stativa making unjustified complaint of her and Mr W. She says that this now manifests in unsolicited and unprovoked violence by [X] towards her, most strikingly evidenced by [X] recently physically striking out at the mother’s unborn child. She argues that [X] often refers to the father when exhibiting this behaviour she says that the father does not acknowledge his behaviour and will not accept psychological assistance to curb it. She says that the father compounds his behaviour by untruths in respect of the mother and
Mr W to this Court, thereby corroborating her allegations of denigration of her by the father to the child. She argues that Mr Stativa is overwhelmed by “hatred, bitterness and vengeance” to her, motivated by their separation. She argues that the likely result for [X] will be to assimilate and absorb her father’s distorted opinions of her and Mr W. She argues further that the father’s behaviour compromises her parenting of [X], best evidenced by his refusal to adhere to Court orders, notably including the following:
a)that he actively encouraged [X] to prefer an initial primary school other than that chosen by the mother pursuant to her entitlement under the previous orders;
b)that he has travelled with [X] to Adelaide without giving the requisite 30 days notice ordered by Whelan FM in that the father did indeed provide her with a “one-off” notice simply being in the generic form that he intends to travel with [X] at any time he sees fit during her minority and then claiming this to be “30 days notice” but ignoring the rationale and spirit of her Honour’s orders.
[2] Final submissions of counsel for the mother
She says such behaviour demonstrates the manipulative and distorted capacity and personality of the father.
Generally, she argues that the father’s rigid and uncompromising personality taken together with his propensity to denigrate the mother remains unabated from the orders of 2011 and that the father’s evidence in this Court is such that this Court could not be satisfied that the father will either undertake or benefit from any psychological assistance in the foreseeable future. She says that the father’s denigration of her and manipulation of [X] is likely to continue and hence options of interim orders, supervision, or reduced time with [X] are unlikely to assist in any tempering of his attitude and behaviour.
The Father’s Case
The father argues that the mother lacks the capacity to properly care for [X] on a day-to-day basis. He says that [X] presents to him with poor hygiene and that the mother does not provide proper nutrition for the child. He argues that the mother offers a home environment that is not morally acceptable on his standards and with specific reference to
Mr W and his adult son. He argues that Mr W has emotionally abused [X] by yelling at her. He says that [X] has suffered bruises in the mother’s household with the implication that they have been perpetrated by the mother or Mr W. He suggests that the mother is transient in her relationships with various men implying that she is not a good moral role model for [X]. He goes so far as to suggest a moral danger (or even the potential for sexual abuse) for [X] by remaining in the mother’s primary care.
Mr Stativa says that he is better able to discharge the obligations of parental responsibility than the mother. He is critical of the mother’s choice of primary school for [X]. He says that he could provide a private school education for [X]. His affidavits and evidence in Court make reference to and question the mother’s lack of commitment to religion in comparison to his own committed Christian adherence.
An important focus of the father’s case is that he argues the mother to be manipulative and specifically says that she will concoct false and malicious allegations against him to her own ends, with emphasis on the relatively innocuous event of 18 December 2012 which resulted in the mother obtaining an intervention order noting [X] as a protected person which suspended her Honour’s orders, and resulted in [X] and the father being unable to travel to Adelaide for Christmas 2012. In summary, therefore, the father returns fire to the mother, arguing that she is manipulative and selfish with the implication that she acts selfishly to the detriment of [X]’s relationship with the father.
Mr Stativa denies that he denigrates the mother to [X], whether it be directly, indirectly or subliminally and to the extent that he repeated frequently in his evidence that the mother is “not mentioned” in his household or to [X].
The Case of the Independent Children’s Lawyer
Effectively, the Independent Children’s Lawyer adopts the position of the mother. Ms Carter, of counsel, in her closing submissions said:
…it is hard to think of a case in which one parent has exhibited such a consistent, intense, unbridled and uncontained dislike of the other. Mr Stativa has criticised every aspect of her parenting from her – what he sees as her incapacity to care appropriately for [X] as an infant, her inability to appropriately clothe her, her inability to properly bathe her and attend to her hygiene needs, her inability, he says, to feed her, her inability to even appropriately launder her clothes, and nothing he says has improved. But in every aspect of her parenting he is quite clear too – he has been quite clear throughout these proceedings that he sees her as a grossly inadequate parent. in addition, his fixed belief continues to be that the mother is unable to put [X] first, that she has allowed [X] to be subject to abuse, even in circumstances, and I will come to this later, sir, where there is, in my submission, no evidence that the child has ever been abused. He takes the view that the mother has deliberately covered up abuse, that she has forced [X] to live with and to like her mother’s abusive boyfriend, in circumstances that he sees as being tortuous to [X].
He described the mother as lacking the instinct to protect and, in his oral evidence, said that someone who behaves in the way that she does, they are not a parent, and went on to say that the mother should never have had children. Despite him telling your Honour on a number of occasions that he doesn’t’ have a view of the mother as a person, in my submission, that is – it couldn’t be further from the truth. he has been relentless throughout these proceedings in his criticism of the mother as a person, describing her as manipulative, a liar, that she will lie until the day that she dies, that she’s deceitful, she’s selfish, she’s jealous, vengeful, very disturbed.
Ms Carter thus puts the father’s position at its strongest. She argues, however, that none of this is supported by evidence which the Court should accept. She continues that the mother is “exhausted” by this behaviour and continued litigation. She says that the father remains steadfast and uncompromising in his views and is prepared to selectively dwell on evidence (such as bruises) to argue a case which is without substance. Ms Carter submits that this behaviour is damaging to [X] and manifested now in her behaviour. She says that [X] demonstrates a “confused reality” with potential short and long-term “profound emotional and psychological confusion.” Ms Carter says that the evidence does not suggest any therapeutic solutions for the father as he is unlikely to attend or embrace such conditions.
Ms Carter acknowledges on the evidence that [X] loves her father and that there are benefits in that relationship but that these benefits are outweighed by the matters set out above. That is, in respect of the “twin pillar” primary considerations under section 60CC of the Family Law Act (1975) (“the Act”), the actual and potential unacceptable risk to the child of emotional and psychological abuse under section 60CC(2)(b) outweighs the requirement for the Court’s consideration of the benefit of the child having a meaningful relationship with both her parents under section 60CC(2)(a).
The Evidence
The Court had the benefit of a Family Report prepared by Dr N. She had prepared a report in previous proceedings. Both parties and [X] were interviewed and observed for that report. The father, however, refused to take part in the interviews with Dr N on this occasion following my rejection of his application for an alternate reporter.
Dr N was cross-examined vigorously by Mr Stativa and endured allegations of bias, against him in particular, and of a feminist propensity generally. Having considered Dr N’s report and having witnessed her cross-examination, I reject both allegations. The allegations of feminist bias were simply without evidentiary foundation. Dr N’s evidence was consistent and informed on both her previous dealings with [X] and the parents and the more recent interviews with [X], the mother and Mr W. Generally I found the father’s cross-examination of Dr N, vigorous as it was, to be of no assistance to him in casting doubt on the accuracy and veracity of
Dr N’s process, methodology, reporting or conclusions.
Dr N was also cross-examined by counsel for the mother and the Independent Children’s Lawyer.
The report is dated 29 April 2013. Dr N interviewed the mother, Mr W, and observed [X] with each of them. She did have the benefit of some of the documents prepared by Mr Stativa in this matter but not the presence of Mr Stativa himself and therefore could not observe [X] and her father together.
Dr N’s summary and recommendations are worthy of inclusion in these reasons as follows:
As indicated, there are significant limitations to this report and the conclusions that can be drawn. I do not have Mr Stativa’s account of the recent problems between them and I was not able to make any assessment of his relationship with [X].
The conclusions that I can draw confidently are that Mr W appears to have no significant psychopathology and clearly has a good relationship with [X].
While there was nothing in this assessment that suggested [X] has any significant emotional disturbance, her father was not present and on Ms Stativa’s account, it is likely that any disturbance could only be seen with how she manages the transition between her parents.
Nevertheless, Ms Stativa’s account was consistent with my previous assessment of Mr Stativa having a considerable lack of insight about his daughter’s needs and where, at the previous assessment, he took a most paternalistic and pejorative approach to Ms Stativa.
It may be worth reiterating the cautions in my last report, namely that, “[X] seems destined to face cognitive and emotional conflicts from being presented with her father’s single-mindedness and denigration of her mother. For a young child such as [X], who does not have the critical analytic skills to be able to appreciate the context of her father’s attitude, Mr Stativa’s beliefs and attitudes are very likely to be confusing and emotionally disturbing. Exposure to this type of emotional stress tends to impact directly on a child’s biological, emotional and psychological development.
In the text of her report, Dr N stated her awareness of the incident of December 2012. Dr N was armed with only Ms Stativa’s version of recent history as noted on page 4 of the report as follows:
At this assessment, Ms Stativa told me that she had become increasingly concerned about [X]’s emotional and psychological state as she suspected that Mr Stativa was denigrating her to [X] and this caused [X] to become increasingly confused and distressed. She traced [X]’s alleged heightened distress to a period when she believed that Mr Stativa had discovered that she had re-partnered. She believes that Mr Stativa had told [X] things about her mother and stepfather that have affected her emotional and psychological well-being.
Dr N noted Ms Stativa as “feeling much subjective stress.” She was also noted as “an intelligent and capable woman…”
Dr N observed Mr W as calm and measured in his thoughts and narrative and as showing emotional and physical support for
Ms Stativa. My observations of Mr W in the witness box accord with Dr N’s. She noted Mr W’s PAI clinical scales within the normal range indicating “his interpersonal style is likely to be as one of autonomy and balance.”
Significantly, Dr N observed Mr W and [X] as follows:
Mr W also seemed to delight in [X] and he appeared to be a very patient caregiver. [X] seemed to greatly enjoy directing him in their play together and the way she did this said much about their relationship. The interactions were infused with her trust in him and to take a consistently interested and patient approach to her.
Perhaps best exemplifying their relationship was one interaction in which [X] ran to Mr W and threw herself under his legs and when he pulled her through and into his arms, [X] threw her head back to snuggle into him and put her arms over her head to draw him into a hug. Her body language was replete with her trust in and affection for her stepfather.
The observations raised no concern about [X]’s relationship with her mother and stepfather.
Dr N observed [X] as “bright, curious, talkative and confident” and able easily to separate from her mother. The observations were also of a “warm and mutually enjoyable” relationship with the mother.
Dr N had prepared a third family report in the previous proceedings and after two reports from Dr L. I have all the reports in evidence before me. Dr N prepared the third family report with the advantage of an interview with Mr Stativa. She variously described the father as “rigid”; “easily irritated”; “arrogant”; and “egocentric”.
In cross-examination before me Dr N dwelled, to a degree on the potential responses of [X] to her previous observations of the father’s personality. Dr N observed that some children will “cope” with parallel lives and simply accept the personal and parenting differences of their parents. Others, however, may suffer emotional confusion and she sees indications of the same in [X]’s behaviour, as related by the mother.
Importantly, Dr N noted that [X] loves her father and “wants to see him”. Nevertheless, Dr N raised the possibility of adolescent and adult difficulties accruing to the child including depression, anxiety, antisocial behaviour and poor school performance should there be substance to the mother’s allegations and such behaviour by the father continue.
The recent allegation of [X] returning to the mother and hitting her in the stomach and then kicking her, together with making derogatory comments about the unborn baby and attributed to the father, were all raised with Dr N. In response, she offered some alternative explanations, including that the child may suffer some jealousy in respect of the unborn child. She then said “I wouldn’t put too much weight on it”.
The father also caused the two previous reports of Dr L to be tendered in evidence before me. Dr L was Mr Stativa’s preferred author of the Family Report in the current proceedings. Dr L was not required for cross-examination. His reports are dated 15 November 2009 and 24 March 2010. The report essentially relates the mother’s concerns in respect of the father’s personality and parenting style consistent with those currently before the Court. For example, at paragraph 58 of the first report it is noted:
[Ms Stativa] was forbidden by [Mr Stativa] to give her bread, even though doctors had advised that it was essential; there were days and weeks of this; [Mr Stativa]’s point was that the doctors and nurses here are in a third world country, and their opinions don’t count.
And at paragraph 60 the mother reports to Dr L:
Things have happened in the past because of [Mr Stativa]’s obsessions, and I don’t know what he’ll do about such things in the future. For example, with swine flu, many months after it had been a panic, I wasn’t allowed to take [X] anywhere where children might be present.
Similarly, Mr Stativa’s attitude appears similar to the present. At paragraph 72 of the report he says:
I want a manager who can control what needs to be done, looking after the home and the children without being told what to do. Someone who can control their own responsibilities…I’m not looking for 100 per cent defined roles, but would compromise, where things can be done without being negotiated every five seconds. Decisions should be communicated at some point to each other.
Dr L then endorsed an apparent agreement between the parties in the following terms:
Within that fundamental consensual position, the parents nonetheless proposed seven nights per fortnight in two blocks ([Mr Stativa]) and two nights ([Ms Stativa]). It was of concern that [Mr Stativa] showed little comprehension of the developmental demands of attachment for a 14-month old child, who had never spent a night away from her mother to this point. At the same time, [Ms Stativa] struggled to accommodate [Mr Stativa]’s stated desire to develop his parenting skills and competencies.
In the second report, Dr L noted the “continuing frictions between the pair (the parents), they developed the theme documented in the previous report about substantial differences between then in relation to developmental issues”.
Mr Stativa is noted as still being concerned as to [X]’s diet and the standard of care afforded the child by the mother. At page 4 of the report he is quoted during what seems to have been a joint interview:
You’re a part-time mother and you don’t look after her. Other people look after her more than you do. Do you understand that? You don’t look after her full time; other people do. There are other people bringing up our child. Do you understand that? The time I have is when I can teach her. I don’t know how you spend your time with her. That’s maybe why our daughter isn’t speaking. I speak to her slowly, so she can repeat words; I don’t know if you do that.
On page 7, Dr L notes:
When challenged to articulate a way in which each had contributed to the tensions between them, [Ms Stativa] provided an example, and [Mr Stativa] maintained that all of their hostilities were [Ms Stativa]’s fault. Even when repeatedly offered the opportunity to consider even a minor aspect of his own behaviour that was unproductive to collaboration, he declined. Throughout this assessment, it was concerning that his attitudes appeared to have hardened over time, in a manner that appeared either disingenuous or lacking insight.
At page 8, Dr L concludes:
To her credit, [Ms Stativa] made repeated attempts to conciliate and to acknowledge the importance of [Mr Stativa]’s role as [X]’s father. Having said that, I have concerns about [Mr Stativa]’s position, as in the following:
1) It is disturbing that [Mr Stativa]’s visible bitterness and resentment towards [Ms Stativa] appears to have intensified and rigidified over time, rather than receded. He displayed no insight during the assessment about the impact of the litany of contemptuous remarks he made where [Ms Stativa] (notwithstanding the substantive differences between them) repeatedly made efforts to conciliate;
2) Similarly, he appeared unwilling to consider, even when given numerous opportunities, the possibility that he even remotely contributed to frictions between the parents. In other words, he characterised [Ms Stativa] in virtually unrelenting terms as stupid, untruthful and incapable;
3) These two elements create critical impediments to parental collaboration, and, therefore, to [X]’s welfare.
Under the heading “Additional Recommendations”, Dr L says:
I recommend that [Mr Stativa] undertakes individual psychotherapy to address his lacunae in parenting beliefs, and to assist him to develop a preparedness to genuinely collaborate with [Ms Stativa] in a parenting partnership, on the basis of the following:
a) In my view, he appears to genuinely view himself as having little power in relation to her. In part, this reflects his position that she has not accepted his views about their daughter’s development;
b) in addition, I believe this position reflects his post-separation unhappiness about the closeness of the relationship between [X] and her mother, and views himself as having to fight to equalise his position;
c) finally, he characterised himself as having acted as the traditional breadwinner, having delegated daily parenting (as in the previous report) to [Ms Stativa], which gave her unilateral authority to make parenting decisions;
d) As a consequence, [Mr Stativa] deserves the opportunity and the skills to work with [Ms Stativa] on an equal footing.
Dr L stated that he was unable to recommend an increase in “contact”, given his concerns as to Mr Stativa’s parenting.
It is an agreed fact that Mr Stativa has not taken up the recommendation of Dr L that he undertakes psychotherapy.
The Mother’s Evidence
The mother relied on her trial affidavit filed 30 July 2013 and her affidavit of 31 December 2012
I had ample opportunity to listen to and view the mother give her evidence in Court. She was subjected to a very lengthy and often-repetitious cross-examination by the father. She demonstrated a calm and considered demeanour albeit at times upset as to the critical themes and nature of that cross-examination and criticisms in her personally and of her parenting of [X].
Her evidence in Court was consistent with the factual platforms of her affidavit. She described the incident of the 18th of December 2012 as confronting for herself and upsetting for [X] given that this verbal confrontation between Mr Stativa and Mr W took place with [X] in the presence of the protagonists if not in the arms of Mr Stativa. She justified the obtaining of the intervention order accordingly. Her affidavit outlined an escalation in [X] returning from time with the father armed with apparent critical or demeaning comments of her and coinciding in this escalation with her partnering with Mr W. She denied any ulterior motive of preventing [X]’s time with the father in Adelaide over the Christmas period. She says that the nature of the incident, its antecedents, and its impact on her justified the course she took which thwarted the much anticipated trip to Adelaide for
Mr Stativa and [X] and caused a hiatus for direct time for [X] and her father.
Ms Stativa was able to give detail of [X]’s behaviour in her household and upon the return from the father. She disputed the father’s assertions that she had concocted this evidence and that it was inconsistent with [X]’s speech abilities. In her affidavit of 21 December 2012 at page 3 the mother references an incident on 10 December 2012 as follows;
The child come (sic) back home in the evening from her father after spending 48 hours with the father. Both myself and my partner are playing together with the child laughing and having a good time.
After approximately and (sic) hour, we decided to go and get some ice cream. While we were all getting out of the house, to get into the car, to our surprise the child gets quite (sic) and then turns unexpectedly into a tirade, where she shouts and screams. I didn’t know what is happening. I started to talk to the child. She was saying that her father told her that both my partner and I must be quiet, or he will break all of us with a stick and will not fix us. She was repeating this over and over again in a very aggressive voice.
She continues in respect of 17 December:
Later in the day, the father rang me and instead of talking he was shouting. His voice was very aggressive. I was shocked as I did expect a normal conversation. He said that “the child is complaining that the mother’s partner is shouting at the child. He forbids the mother’s partner to have anything to do with the child. He is not tolerating this”. He said if the mother cant discipline the child he will take the child away from me. He finished by saying that if the mother’s partner doesn’t listen this is the last warning, he will “finish” with both me and my partner.
In the same affidavit Ms Stativa says of the confrontation on 18 December:
He than (sic) said to mother’s partner, that his daughter is not happy with the mother’s partner shouting at the chid and “he should keep his mouth shut when he is talking with the child”. He is not allowed to instruct the child when he is talking to the child. The child is not his daughter, she is nothing to him. He finish saying that “we can do this nicely or the hard way. I am telling both of you – this is the final warning”.
The mother’s affidavit then sets out a chronological litany of complaints about the father’s similar behaviour and her concerns as to [X]’s demeanour on return from the father. At paragraph 37 and in respect of 3 September 2012 she says:
When I disagreed with the father about his reasoning, he started to shout at me – with the child next to me – that I am “stupid”, “idiot cow”, and that “I need a psychiatrist” I was shaking and wanted to go in the house.
The mother deposes to [X] coming home to her on 30 October 2012 and repeatedly saying that “I don’t like the boyfriend”.
During the course of the trial the mother’s case was reopened where she deposed to a recent incident where [X] had returned from time with the father and proceeded to elbow and kick the mother in the stomach whilst making derogatory comments directed at the mother’s unborn child.
Ms Stativa portrayed Mr W as a committed and beneficial adult figure in [X]’s life and in their household. She denied any suggestion of actual or potential physical or sexual abuse. She described discipline in the household in accordance with normal standards.
My observations of Ms Stativa were of a loving and committed mother. I detected no sense of evasive or selective evidence despite the vigorous and intrusive cross-examination from Mr Stativa. She attempted to answer the questions fully and candidly and often was required to repeat her responses which she did consistently.
In areas of disputed fact I found her to be an honest and credible witness. I detected no evidence of her “covering” for Mr W’s alleged improper behaviour.
The mother adduced evidence from Mr W. He was cross-examined. He repeated the contents of his affidavit as to his commitment to both the mother and [X]. He impressed as having a calm demeanour. He repeatedly denied the allegations of abuse directed at him. He gave a plausible explanation for any discipline of [X] and denied specific or habitual “yelling” at her although he was able to give evidence of an ordered system of appropriate discipline in the household.
Mr W’s version of the incident of the 18th of December 2012 was consistent with that of the mother.
I found Mr W to be an honest and impressive witness.
The father’s evidence
Mr Stativa’s particular personality was immediately evident and paraded consistently throughout these proceedings. I view his personality as being empowered and assertive. He was often evasive and obtuse in his responses to cross-examination from counsel. He displayed a rigid and uncompromising attitude. He was unable to make any admissions against interest (although he consistently claimed that there was no evidence requiring him to do so). He was consistently negative and critical of the mother and Mr W. He steadfastly refused to refer to Mr W by name but preferred the term “the boyfriend”.
I am satisfied that on the balance of probabilities that Mr Stativa’s evidence was at times untruthful being on occasions directly so, and on others by way of omission or by selective response. For example, he was cross-examined at length as to his employment, his failure to lodge taxation returns, his failure to pay child support, and his income. His responses were entirely unsatisfactory and at times untruthful. He was vague and evasive as to the nature of his work; where he worked; the hours of his work; and his income. At the end of that cross-examination the Court was left none the wiser as to the actual nature of his employment (which of course is entirely relevant to his case that [X] live with him). He appears to conduct employment inter-State and internationally the details of which were not forthcoming. He pays no actual child support. He has not completed tax returns. His evidence as to his income varied substantially. His responses as to the failure to complete tax returns were in my view simply unbelievable and mainly revolving around the loss of a computer memory stick somewhere on the Indian subcontinent.
His evidence in Court rigidly echoed that of his affidavits but was perhaps even more forthright in its criticism of the mother and Mr W. He criticised the mother’s day to day care of [X]. He criticised her ability to provide appropriate nutrition and hygiene. He suggested that the mother maliciously concocted the allegations of [X]’s behaviour in order to damage his own relationship with [X].
Mr Stativa’s demeanour in the witness box was consistent with the observations of Dr L and Dr N. At times, his facial expressions exposed apparent enjoyment of the “contest”. His responses were often provocative, including some to the bench (such as an irrelevant suggestion that this Judge may not have a belief in God). His cross-examination of Dr N was provocative as to matters such as her alleged “feminist bias”. His responses in cross-examination were at times personal towards the mother’s counsel.
Even when confronted with apparent objective evidence conflicting with his own sworn evidence, Mr Stativa refused to retreat or make admissions. The prime example being his continued denial under oath that it was he who had made a notification to child protection of abuse or risk of abuse to [X] in her mother’s household. Given such an important credit issue, an application was made and leave granted to “open” the identity of the notifier on the Department of Human Services file. Mr Stativa was disclosed as the notifier. He continued in his denial and offered suggestions that a police officer in his presence may have been the notifier and that the departmental files are in error. Taking the evidence as a whole, and on the balance of probabilities, I do not accept this explanation.
My observations of Mr Stativa were regularly that his evidence was focussed on the mother and Mr W rather than on [X]’s best interests although he at all times maintained those to be his sole motive and interest.
Consequently, given the state of the evidence and my observations above, in issues of credit and disputed fact I generally prefer the evidence of the mother and Mr W. I find the father’s allegations in respect of the mother’s parenting capacity to be without evidentiary foundation and prefer that they are based on ulterior motive or as a factor of his pejorative attitude towards the mother generally.
Mr Stativa adduced evidence from his own mother and a number of his acquaintances or associates, each being on affidavit. They were not required for cross-examination. The themes of those affidavits are generally supportive of Mr Stativa in his parenting of [X] and in his relationship with [X]. It should be noted, however, that the mother,
Dr N and Dr L all acknowledge a loving relationship between [X] and her father and that she apparently enjoys his company. However, where issues of particular fact are in dispute and apparently corroborated by the father’s witnesses, I still prefer the evidence of the mother and Mr W. For example, the father’s witness, Mr Z, in an affidavit filed 11 January 2013 at paragraph 7 says:
On Monday, 17 December 2012, I have seen [X] at lunchtime and she is a very happy child. She come to me and told me that: “a big boy is shouting at her at mum’s home”. I become [sic] concerned for [X]’s safety and welfare. I told [Mr Stativa] what [X] just me and [Mr Stativa] already knew about it as [X] told him the same thing.
On consideration, the probity of such evidence must be seen in the light of Mr Stativa’s own evidence and the concerns that he subjectively formed. I do not necessarily suggest that [X] may not make such a statement to Mr Z, but consider it within the context of this matter and the allegations of the mother as to the personality and historical over-reactions of the father. The father asks me to accept this evidence as corroborative of what he says where [X]’s statements to him that she had been yelled at by Mr W. The issue for the Court however is perhaps not so much whether [X] made the statement to the father or even the veracity of the statement but, rather, the response by the father over an instance of verbal discipline within a household and family unit of which the child and adult are both ordinarily members. I must consider Mr Stativa’s resultant confrontation of Mr W and the mother in the presence of [X]. Within context and as to Mr Stativa’s level of insight into his child’s needs and the mother’s right to parent and impose discipline on her terms.
Affidavits of Ms A, Mr S and Ms P are similarly complimentary of
Mr Stativa’s relationship with [X] and, at times, equally significant in their criticism of the mother. By way of emphasis, it is not disputed that there is on its face a good relationship between [X] and her father. The issue for this Court is a more complex evaluation of the effect on [X], if any, emotionally and/or psychologically, of the father’s alleged direct an covert denigration of the mother to her and in this sense, I glean little assistance from the father’s supporting witnesses.
The Independent Children’s Lawyer Evidence
The Independent Children’s Lawyer caused the files of the Department of Human Services to be tendered in evidence.
The Legal Principles
The fundamental basis of my determination is that I must have [X]’s best interests as my paramount consideration.[3]
[3] S.60CA of the Act
I determine those best interests with reference to the objects and principles of the part of the Act set out in section 60B and by a more pragmatic reference of the probative evidence and the proposals of the parties to the mandatory considerations set out in 60CC of the Act.
Section 60B sets out the objects and principles as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents seeks an order that they have sole parental responsibility for [X]. That responsibility relates to the powers, duties and authority that parents have by law for their children. In a practical sense, it usually refers to the making of long-term and important decisions for children as opposed to day to day decisions. Matters such as education, religion, and medical procedure are often cited as examples.
The mother carries an order for sole parental responsibility in respect of [X] by reason of Whelan FM’s decision in 2011. Whilst the father at one stage in his evidence volunteered that “there has been no change in circumstances” I note that he is a litigant in person and that his evidence generally is critical of the mother’s discharge of her obligations in respect of [X]’s education thus far. He also makes some criticism in his evidence of the mother’s attendance to [X]’s religious and moral care. Consequently, I accept that he argues there is a change in circumstance and hence that he should have sole parental responsibility.
Section 61DA of the Act provides a presumption that parents have equal shared parental responsibility. That presumption does not apply if the Court is satisfied of family violence or abuse of a child within the broad definitions in the Act. Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the best interests of the child for the parents to exercise equal shared parental responsibility. The significance of the order for parental responsibility is that a Court must then enter onto a specific pathway of consideration being firstly as to whether a child spending equal time between the parents is both in the child’s best interest and reasonably practicable or, if the answer to either of those question is in the negative, then to consider whether the child spending substantial and significant time between parents is both in the child’s best interests and reasonably practicable. Substantial and significant time effectively provides that a child spend both weekend and weekday time with parents and be able to participate fully in the parents’ lives and, conversely, the parents participate fully in the child’s life and activities.
Given the nature of the dispute before me, the history, and the findings already made in these reasons above, I am satisfied that it is not in [X]’s best interest so that her parents have equal shared parental responsibility. Their relationship is historically conflictual. They are untrusting of each other such was clearly the state of affairs when the matter was before Federal Magistrate Whelan (as she then was). There is little optimism on the evidence for this situation to improve. Consequently, the only options remain for one or other of the parents to have the sole parental responsibility.
It is now clear that both parties and the Independent Children’s Lawyer seek a change to the existing status quo for [X]. In Burton & Burton[4] the Full Court stated:
… we’re of the view that no legal onus rests upon a party with whom a child is residing to show that a change would be detrimental to the child, and no legal onus rests upon a party seeking a change to justify the change either by establishing that a change would be positively advantageous to the child or in any other way. An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case. When weighing that factor, the quality of the status quo would require examination – and if a longstanding status quo is disturbed, then the factors which influenced the Court to come to that conclusion should be clearly identified.
[4] (1978) 4 Fam LR 783 at page 786
Legal principles – unacceptable risk
The crux of the mother’s case is that continued time for [X] with the father presents an unacceptable risk to [X] emotionally and psychologically. As Federal Magistrate Walters (as he then was) insightfully observed in PST & CPR[5]:
In my opinion, that which converts an unacceptable risk to an acceptable risk is often little more than confidence on the part of the Court that the contact parent will comply with such orders as it is minded to make in order to protect the child.
[5] [2006] FMCA Fam 36 at [71]
The principles for Courts dealing with issues of “unacceptable risk” have been developed over many years with a genesis in matters involving allegations of sexual abuse. I stress that such allegations are not at the forefront of my consideration in this matter although the father certainly raised the prospect of [X] being at risk of sexual abuse at the hands of males in the mother’s household. Nevertheless, I am of the view that the principles generally are applicable to unacceptable risk of psychological or emotional abuse as they might be to allegations of physical or sexual abuse. In 1998, the High Court in M &M[6] said:
Efforts to define with greater precision the magnitude of the risk which will justify a Court in denying a parent access to a child have resulted in a variety of formulations … this imposing array indicates that the Courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from (sexual) abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of (sexual) abuse.
[6] (1998) FLC 91-979 at page 77081
A previous full Court in B & B[7] observed:
…A finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated: “Even in such a case, however, there may be a risk of disturbance to a child who is brought into contact with the parent who has sexually abused her or whom the child believes to have sexually abused her.”
[7] (1993) FLC 92-357
Also in 1998, the Full Court in A & A[8], and after considering M & M and B & B, said at page 84,959:
The task which the Court was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband…
The term identified by the High Court in M & M as “unacceptable risk” provides the touchstone for such an inquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involved the assessment of the risk of future physical and/or emotional harm…
…The primary question which the Court should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father’s care.
[8] (1998) FLC 92-800
These comments of the Full Court in A & A[9] are particularly relevant to the matter now before me in that the mother, the Independent Children’s Lawyer and Dr N all allude to the potential risk for [X] into future if she continues to be exposed to the father’s alleged behaviour.
[9] Supra
These Courts have consistently understood and emphasised that the making of an order to sever the relationship between a parent and a child, or to order no time-with, should be a decision of last resort and after the consideration of all options, including the placing of conditions, such as supervision, on such time.[10] Further, the Courts acknowledge the prima facie importance of a relationship between a child and a parent to the extent that the Court should consider options such as therapeutic assistance in leaving open the door to reinstatement of time even after an order of no time-with.
[10] Sedgley & Sedgley (1995) FLC 92-623
In the English judgment of Re L (Contact:- Domestic Violence)[11] Dame Elizabeth Butler-Schloss observed:
In cases of proved domestic violence, and in cases or other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors, if any, of contact between the parent found to be violent and the child. In this context, the ability of the offending parent to recognise his past conduct, to be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration.
[11] (2000) 2 FLR 334 at 338
I consider her Honour’s comments to be equally pertinent to the more subtle abuses which I find the father to have perpetrated.
Notably, the argument mounted by the mother is solely that the father’s behaviour poses an unacceptable risk to the child. She does not specifically argue that her own parenting of [X] would be so negatively impacted by continuing time-with that vicariously [X]’s best interests are served by an order for no-time. Certainly, inferences were available to me from the evidence as to the mother being overborne by the father’s behaviour and “exhausted” by the process that such an argument may have been mounted. In any event, if it were, it remains first for me to determine whether there be such an unacceptable risk.
By definition of the word “risk” the determination of the Court must be prospective in respect of whether there is a risk and whether that risk be unacceptable. Obviously, that consideration rests on the current and historical evidence.
Further, it is incumbent upon the Court to consider any and all potential risks for the child. It may be that the cessation and denial of time-with between a parent (even if he or she be the perpetrator of the abuse) and child will be as serious as the risk of harm itself. As always, the Court must balance the evidence in its consideration. In U & U[12] the High Court accepted that it was “self-evidently true” that children benefit from developing and keeping good relationships with both parents. That entitlement of the child is displaced only if the balance of the best interest considerations favour otherwise.
[12] (2002) CLR 238 at 285
Other options for this Court include the imposition of supervision or the reduction of time between [X] and the father or limiting such communication to correspondence or other media. Such options should only be considered here if there is a finding of unacceptable risk to the requisite degree and as Kay J noted in K & B[13] that the mere existence of a possible threat to child is in itself insufficient justification to disrupt a relationship between the parent and the child, in that the consequences of denying time will almost inevitably cause some distress to the child.
[13](1994) FLC 92-478
Imposing a condition of supervision of time brings its own difficulties and inconveniences. It implies a negative message of the parent to the child and in my view (and often for practical reasons) offers only short term assistance and perhaps in conjunction with therapeutic interventions.
Finally, it is a mistake to confuse the function of this Court in determining “unacceptable risk” with the factual findings and standard of proof necessary in a criminal Court. As the High Court said in M & M[14]:
… it is a mistake to think the Family Court is under the same duty to resolve, in a definitive way, the disputed allegation of sexual abuse as a Court exercising criminal jurisdiction would if it were trying the party for a criminal offence…
[14] [1988] 166 CLR 69 at 776
The test for this Court is to determine, on the balance of probabilities, whether the welfare of [X] will be at risk or endangered psychologically or emotionally by continued time with the father and whether such risk is unacceptable.
In a sense, the father also argues “unacceptable risk” for [X] in the mother’s household. He does not, however, seek an order for no time. He does raise issues of potential abuse of [X] at the hands of the mother and/or Mr W and suggests a range of potential abuses. Effectively, the same considerations are to be applied to the father’s argument although, equally, it is open for me to find that he argues simply that [X]’s best interests are served by living primarily with him relative to the option of continuing to live mainly with the mother.
The task for this Court is to make findings of fact on the balance of probabilities[15]. Whilst no onus rests on a party to change a status quo and it is the child’s best interests which determine the orders, it remains that a party asserting a fact carries an onus of proof, and “the balance of probabilities” denotes a level of confidence to the point that a Court might be reasonably satisfied as to the alleged fact. In doing so the Court must take into account the following: (a) the nature of the cause of action or defence; (b) the nature of the subject matter of the proceedings; and (c) the gravity of the matters alleged[16].
[15] section 140 of the Evidence Act1995 (Cth)
[16] Section 140 of the Evidence Act 1995 (Cth)
The notion of unacceptable is best elucidated by the Full Court in Napier & Hepburn[17]which made it clear that the task for the Court is not to find a solution which will eliminate any chance of serious harm. Rather, it is to balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy relationship between a parent and a child not being permitted to prosper.
[17] (2006) FLC 93-303
Section 60CC factors
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents
This is a primary consideration together with that under s.60CC(2)(b). It is, however, only one among numerous considerations for the Court to reference and therefore assumes no determinative status.[18]
[18] Champness & Hansen (2009) FLC ¶93-407
The task for the Court here is to make prospective orders and those based on the quality of time between the child and the parent, rather than simply distributing quantity of time. In considering the prospective impact of the orders, however, the Court must address the current circumstances of the relationship.[19]
[19] McCall & Clark (2009) FLC ¶93-405
On the evidence before me, I am satisfied that [X] has a good, attached and successful relationship with her mother. She has been her primary carer. I do not find, on the evidence, that [X]’s occasional anti-social behaviour towards the mother is defined by that relationship. The observations of Dr L and Dr N are of a comfortable and dependent relationship. An issue for the Court remains whether any findings consistent with the father denigrating the mother to the child might impact negatively on that relationship?
Similarly, the evidence of the father and of his witnesses is of a comfortable, bonded and enjoyable relationship for [X] with her father.
S 60CC(2)(b) and (2A) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Recent amendments to the Act provide that I am to place “greater weight” on this consideration. It is, of course, at the very nub of each party’s argument.
The father argues that [X] has been subjected to verbal abuse by Mr W. He leaves open the suggestion of physical abuse by reason of the bruises he has observed on [X]’s body. He says that [X] is subjected to psychological abuse, being the implied aim of the mother to diminish or extinguish his relationship with [X]. He argues that there is risk of emotional, physical or sexual abuse in the mother’s household.
Conversely, the mother argues that [X] is subjected to emotional/psychological abuse by the father’s unrelenting denigration of her to [X]. She says that that risk is a continuing one and remains unabated over time and that the father has not acceded to suggestions for professional assistance. She says that the father’s behaviour is likely motivated by his vengeful attitude to her and Mr W.
Section 60CC(3)(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 and to the weight it should gives to the child’s views.
[X] is just five years of age. She would not be able rationalise the issues in respect of parenting and her relationships being ventilated by her parents. Dr N does note, however, that [X] positively wants a relationship with her father, and this is unsurprising, given the overtly good relationship between them. Nevertheless, at its most abstract, the issue before me relates to [X]’s youth and her inability to rationalise manipulation and denigration or vituperative comment in particular, if it be indirect or subliminal.
Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons.
Again, on the surface, the relationship between [X] and the father is a good one. The father’s witnesses have seen [X] happy and comfortable in the father’s care. She does not show any reluctance or hesitation in going to the father. He shows a keen interest in all aspects of her life indeed to the point where he feels able to challenge the mother’s rights of parental responsibility given her by her Honour’s previous orders. Counsel for the Independent Children’s Lawyer sees the father as empowered within the relationship whereby his parenting beliefs and model are, to him, unquestionable and inarguably correct. Undoubtedly, however, Mr Stativa wants what is best for [X]. The issue is the alleged “Machiavellian” course favoured by Mr Stativa in achieving his desired ends for [X].
The father urges the Court to find that [X]’s negative comments and behaviour towards the mother are consistent only with a poor relationship between [X] and her mother. Mr Stativa cites the fact of [X] physically assaulting the mother by variously hitting and kicking her stomach and it being directed at the unborn child. Mr Stativa pleads no involvement in this and argued at length that he was not aware of the mother’s pregnancy at the time of these incidents and did not become aware of that pregnancy until the announcement was made in Court. The parties agree however that Mr Stativa has been in the vicinity of the mother during some changeovers and the issue was the subject of much cross-examination of the mother at the trial. There is also the possibility that [X] may have mentioned to him the fact of her mother’s pregnancy. This is one of many issues of credit between these parents with the father urging the court to find that [X] is unhappy and uncomfortable in the mother’s family unit which includes Mr W and the unborn child. He says that [X] is prioritised in his home but not in the mother’s and that she is subject to unnecessary or improper discipline.
Section 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 on major long-term issues in respect of the child; and (ii) to spend time with the child; (iii) to communicate with the child.
Her Honour’s orders from 2011 give sole parental responsibility to the mother. Thus she chose [X]’s first primary school in 2013. She properly notified the father. His prompt response was to take [X] to visit other schools of his own choice. Whilst his desire to be involved in all facets of [X]’s life is admirable, his disregard of Court orders and the mother’s good graces is not. The first year at school is an important milestone for any child. Mr Stativa admits taking [X] to other schools after the mother’s choice had been notified to both he and [X]. In cross-examination he seemed oblivious to the likely impact on his daughter. He simply could not acknowledge the impropriety of him doing this given the clear intent of her Honour’s order for sole parental responsibility in the mother. His attempts to justify his actions were unconvincing and left him culpable as to a complete lack of insight into his daughter’s needs or as to a propensity for blatant disregard of Court orders, or both.
Similarly, much was made at the trial of an incident when the mother and [X] were in [R]. The mother was obliged to have [X] telephone the father. Due to time or telephone difficulties she did not telephone at the prescribed time. She attempted to contact the father later. He did not take up the opportunity to speak to [X] but relied on the “letter of the orders”. To be fair to the father, he says that the later offer of time coincided with him being asleep. I generally prefer the mother’s evidence in respect of this incident in what was a genuine attempt by her to put right her failure to telephone the father at the appointed time. The impression left by Mr Stativa in the witness box was that he now had “ammunition” in his argument against the mother rather than acknowledging her attempts to make later contact with him.
I am not satisfied that Mr Stativa has discharged his obligations for financial support of [X]. I am satisfied that his reluctance to disclose his employment and income details are an attempt to mask his failings in this regard. He says that he provides clothing and other items to the child (as a part of his criticism of the mother’s incapacity in this regard). He says that he has started a trust account for the child. Neither of these efforts relieve him of his responsibility to contribute to the ongoing financial support for his daughter. He has not lodged tax returns for some time. He was secretive and evasive about his employment and income. His own evidence though was consistent with him having the ability to obtain employment so as to contribute to [X]’s support. It does him no credit that he has not done so.
The mother has taken on the responsibility of primarily caring for [X]. It follows that she has taken on the majority of the financial support for [X] and quite obviously assisted by Mr W.
Section 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents and any other person or relative.
This is an important consideration given that the orders sought by the mother and the Independent Children's Lawyer would extinguish any direct contact for [X] with the father. This must be considered within the context of a relationship which [X] enjoys and which the father’s witnesses observe to be a successful one. Dr N concedes that there would be some “short term distress” for [X] if this relationship ceased. She opines, however, that the mother shows the skills, insight and understanding to be able to assist [X] through such a period.
The father’s orders also propose a significant change for [X]. His final proposal would have [X] living primarily with him and having time with the mother only each second weekend. Whilst he may have the skills to attend to [X]’s physical needs, I must consider the observations of the experts and my own observations of him in the witness box and other evidence as to his rigid views and style of parenting. These were noted with concern by Dr L and Dr N. My observations of the demeanour of Mr Stativa in the witness box and his responses in cross-examination give me similar concerns. He is, of course, entitled to a parenting style and particular views. This is not the reason for my concern, those of the impact of his rigidity on [X] if she was to be in his primary care.
On the mother’s case, a change to the father being the primary carer would give more opportunity for Mr Stativa to denigrate her personally and as a mother to [X], and give greater potential for [X] to become imbued with her father’s views of the mother and Mr W.
Section 60CC(e) - the practical difficulty and expense of the child spending time with and communicating with a parent and whether that practical time or expense will substantially affect the child’s right to maintain personal relations and direct contact on a regular basis.
This consideration is not relevant on the parties’ proposals.
Section 60CC(2)(f) – the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs.
Both parties have the capacity to provide for [X]’s physical needs. The father is culpable in not contributing financial support. I find his criticisms of the mother’s capacity specifically as to nutrition and hygiene matters to be unjustified and not supported on the evidence. Dr L and Dr N are both complementary of the mother’s parenting capacity. Indeed throughout much of this trial the father was proposing that [X] live with the mother during all week-days which in itself compromises his argument in respect of her capacity.
I find that the father’s criticisms of Mr W are also unjustified on the evidence. I have had the advantage of Dr N’s observations of Mr W. I have had the advantage of seeing and hearing Mr W in the witness box. I am satisfied that he offers a good adult role model in [X]’s home with the mother. There is no evidence before me that he attempts to assume any greater role than of assisting the mother and the child in a family unit.
SECTION 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, cultural and traditions of the child and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant).
It was put to the father in cross-examination that he is regularly demeaning of the mother’s [R] heritage and background. Whilst he denied the allegation, he did explain that his various oppositions to the mother’s applications to take [X] to visit her family in [R] are partly based on his belief that there would be a danger for the child being exposed to the “prostitution and child trafficking” which he understood to take place in [R]. He has regularly contested the mother’s applications to take [X] to [R] for holidays, even after she has returned promptly and in accordance with Court orders from previous Court-permitted travel and without any manifest issues for [X]’s safety.
It was a characteristic of Mr Stativa’s evidence that he would make statements which carried undertones of criticism. Whilst he may not have been direct or forthright in his criticism of the mother’s nationality, I certainly gleaned a lack of approval in many of his responses. Generally, he was unable to find any positives with the mother even when confronted with that direct question. Many of his responses were demeaning of her personal habits and character. He at all times exhibited a demeanour of superiority.
[X] at just five years of age is susceptible and vulnerable to the conduct that the mother attributes to the father. If such allegations have a factual validity then [X]’s age and immaturity is important. An older child or a teenager may be able to rationalise and dismiss pejorative comments or manipulative behaviour by a parent. That ability is not so likely in a child as young as [X].
Section 60CC(3)(h) – if the child is Aboriginal or Torres Strait Islander.
Not relevant.
Section 60CC(3)(j) and (k) – any family violence involving the child or a member of the child’s family and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant issues that can 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 orders; (iv) any findings made by the Court, or in proceedings, for the orders; (v) any other relevant matter.
Issues of family violence per se have been dealt with above. The mother obtained a state court intervention order, including the child, following the event of 18 December 2012. The father also applied for or considered applying for an order. There was much effort and time spent at the trial in respect of the background to the obtaining of the order, the various involvement of Victoria Police and particular police officers, notifications to the Department of Human Services, and State Court events. Suffice for me to say that, on the evidence before me, the confronting behaviour of the father on 18 December 2012 may well have justified such an application by the mother or Mr W. Various “threats” of resultant Court applications were probably mentioned by both the father and Mr W. The effect of the inclusion of the child in the order is now well documented. I accept that it is unfortunate that [X] did not have the opportunity to travel with the father to Adelaide at Christmas 2012. However, I am satisfied that the father was, at least in part, the author of his own misfortune. Mr Stativa says that his daughter’s statement that she was yelled at by Mr W at the dinner table justifies his confrontation of Mr W and the mother in the presence of [X]. I do not agree. The escalation of this innocuous incident has encapsulated more deep-seated issues between these parents.
Generally, and despite the father’s clear critical and negative attitude to the mother, this has not been a matter highlighted by actual violence or confrontation between the parents. The issues are more psychological and “hidden” in their intent and potential effect. As such, it matters little to me whether or not the state magistrate made findings of fact in respect of the incident of 18 December. What is more relevant is that it occurred; that [X] was present; and whether or not the father was justified in confronting Mr W and whether the father’s actions were reasonably commensurate with even his subjective belief that Mr W had yelled at [X] if, as Dr N opines, there will be manifestations in [X]’s behaviour and effect on her emotional welfare.
Section 60CC(3)(l) – Whether it will be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The mother’s case is simply that a continuation of time between [X] and the father will be so potentially detrimental to the child that there is a high likelihood of future proceedings. She says that the father continues behaviour which has been noted in previous proceedings and Court reports. She says that he has not addressed his behaviour. If she is right, then there would be a strong likelihood of further proceedings in this Court in respect of [X].
Mr Stativa is uncompromising in his views of the mother’s parenting. He is similarly uncompromising in his opinions of Mr W. He has demonstrated a strong tendency towards litigation in matters such as the mother’s travel overseas. He is ready to complain and act such as in the circumstance that gave rise to these lengthy and bitter proceedings. I have little doubt that Mr Stativa sees litigation as a preferred method of resolution and would bring further applications if he felt aggrieved by the mother’s parenting of [X].
Of course, the orders sought by the wife may themselves give rise to further proceedings. While she asks for “no time” for [X] with the father, and subject to the principle in Rice & Asplund[20], a change in circumstance of either parent or the child of sufficient materiality may always give cause for a further application. Counsel for the mother acknowledges this likelihood but says that the orders she seeks should insist on such a change in the father acknowledging and taking steps to rectify what she alleges is his damaging behaviour.
[20] (1979) FLC 90-725
The father argues that failure by the Court to make orders which address the mother’s current capacity limitations will also be likely to result in yet further litigation in that he asks me to infer that [X]’s relationships with her mother and Mr W are not beneficial to the child but highlighted by the mother’s lack of commitment to relationships and Mr W as an unsuitable role model.
Findings and Conclusion
On consideration on the evidence and on the balance of probabilities I am able to make the following findings:
a)
That the mother is a good, capable and insightful parent of [X]. In doing so I reject the allegations of the father. I am not satisfied that the mother deliberately concocts evidence or manipulates circumstance for her own ends or motive. In matters of credit or disputed fact I generally prefer the evidence of the mother and
Mr W over that of the father. I do so having had the advantage of seeing and hearing the mother give her evidence in a consistent and a believable fashion. The observations of Dr N are of a good and comfortable relationship for [X] with the mother and Mr W and therefore inconsistent with the father’s assertion that [X]’s behavioural manifestations in the mother’s home are caused by her inherently poor relationship with the mother and/or Mr W or as a result of their failings in capacity or in their methods of discipline. The father’s assertions in this respect are not based on any evidentiary platform and at times, in my view, amount to opportunistic allegations highlighted by bold assertions such as [X] being at potential risk of physical or sexual abuse in the mother’s home. Further, the father’s own various proposals for [X]’s time with the mother are inconsistent with the veracity of his allegations.
b)I am not satisfied that the bruises seen by the father on [X]’s body or his statement that [X] claimed to be “yelled at” by Mr W constitute abuse or improper discipline.
c)
I am satisfied that the father has denigrated the mother and/or
Mr W to [X] either directly or indirectly. [X]’s statements to her mother are contextually and contemporaneously adjacent to her visits with the father. I accept that she has at times made reference to the father when exhibiting this behaviour. [X]’s statements and actions are inconsistent with and out of context with what I find to be her otherwise comfortable and attached relationship with the mother and Mr W and again as observed by Dr N. Further, the father’s overly critical and at times demeaning attitude to the mother in his affidavits and in his evidence in court corroborates his imbuing of [X] with his own opinions and criticisms. Still further, the father’s attitude to compliance with court orders which entitle the mother is also consistent with him undermining the mother and her relationship with [X] and notably in him taking the child to visit schools of his preference after the mother had properly notified him of her choice of school which was, of course, her right pursuant to extant orders and his action in giving the mother “open notice” of his intention to travel to Adelaide with [X], which, in my view, completely defies the spirit and intent of her Honour’s orders and serves to corroborate
Mr Stativa’s willingness to undermine the mother and her authority.
d)
I am not satisfied, despite the father’s inappropriate behaviour that [X] is yet alienated from the mother. On the evidence of
Dr N, this is a distinct potential possibility. Dr N refers to the likelihood of “confused reality” for [X] if the father’s behaviour continues. Certainly there are isolated incidents of [X] acting inappropriately to the mother. However I accept the mother’s proposition that such behaviour is situational such as upon her re-partnering with Mr W and later when announcing her pregnancy.
e)I am satisfied that the mother is of strong character and has excellent parenting skills as well as demonstrating a deep insight into the needs of her daughter and yet again evidenced by Dr N’s view that this mother would be able to assist [X] through any sense of loss and distress if her relationship with the father was to be terminated as sought by the mother and the Independent Children’s Lawyer. My own observations of both the mother and Mr W in court were of calm, skilled and child focussed adults.
f)The evidence satisfies me that [X] wants a continuing relationship with her father. She enjoys his company and he is proficient in providing for her physical needs save for his failure to properly meet his financial obligations which I attribute to his entrenched sense of entitlement and bitterness towards the mother. I am satisfied therefore that [X] would suffer some real distress and sense of loss should that relationship be terminated.
g)[X] is too young to be able to rationalise her parenting and living arrangements. She would not be able to rationalise and understand the nature of what I find to be the father’s denigration of her mother and it subtlety such as when the father collected [X] and told her that they would need to rectify the haircut that her mother had provided. In this sense, I am satisfied that the father’s undermining of the mother is both direct and subliminal but would equally serve to confuse such a young child.
h)I find the father to be motivated by vengeance against the mother and Mr W. His demeanour in court was entirely negative and demeaning of them and without reasonable factual base. He was overly critical of them personally and of their relationships with [X]. He impressed as an intelligent but calculating individual who at times was prepared to be blatantly dishonest when circumstances suited. He presented as entitled and empowered by the proceedings and what he clearly saw is his “parenting as of right” of [X]. I am unable on the evidence to say whether he suffers any diagnosable mental health or personality disorder. However, examples of his entitlement were many such as his refusal to take part in the Family Report process and his neglect to take up Dr L’s clear advice for psychotherapy. Put simply, his demeanour and attitude is corroborative of the mother’s experience of [X]’s behaviour being prompted by the father.
The response of the court must take into account and balance the above findings when determining orders moving forward that are in [X]’s best interests. A number of options are available to me including those put by the parents and the Independent Children’s Lawyer in their opening and closing submissions.
First, I could simply continue the existing orders which see [X] having frequent time with her father on a weekly basis. On my findings this would expose [X] to continuing undermining and denigration of her mother. She is in her first year of school. The mother might be of strong and altruistic character but Dr N suspects that continuing undermining by the father would exhaust even her capabilities. I cannot be confident that the father would voluntarily acknowledge his errant behaviour and personality and desist. Consequently, such an option would not be in [X]’s best interests.
I could accede to the father’s application and place [X] primarily in his care. Such would attend to his sense of entitlement but would be contrary to the otherwise settled and beneficial relationship what [X] enjoys with her mother and Mr W, Again, I could not be confident that this option would cause the father to acknowledge and desist from his undermining of the mother.
An option raised by the mother and the Independent Children’s Lawyer at the start of the trial was for an interim order accompanied by supervision of [X]’s time with the father. I am not, however, satisfied that this would achieve any long term result. Supervision itself is for practical reasons only a short term option. [X] and her father have historically conversed in [language omitted] and this might still leave open the possibility of ongoing denigration of the mother. Supervision for a period could not give me confidence that the father’s behaviour would be acknowledged and addressed.
The mother and the Independent Children’s Lawyer now encourage complete termination of time between [X] and the father. I accept the rationale of the authorities that this should be a course of last resort. Undoubtedly on the evidence [X] would suffer a sense of loss and distress from an immediate cessation of a relationship that she expects and enjoys. This detriment to [X] must be balanced against the benefit which would accrue her in removing her exposure to the father’s behaviour. I am satisfied that the father’s actions are deliberate and lack insight into its effect on such a young child. In this sense it is completely selfish behaviour on the part of Mr Stativa. It is, however, situational in its manifestation - at least to this time. The mother’s capabilities and insight together with her strong relationship with [X] allow her to deal with the events that have occurred thus far in an appropriate and child focused basis. This is not to diminish in any way the potential long term harm for [X] should Mr Stativa’s failings not be addressed. It is tempting having seen the demeanour of the father in the witness box to adopt the superlatives and conclusions of counsel for the Independent Children’s Lawyer in her final address but I am left with the fact that [X] is not yet alienated from her mother, that the instances of denigrating and undermining, to this stage, have been situational and inconsistent, and that [X] wants a relationship with her father.
On reflection and on balance I favour an option that would allow the continuation of [X]’s relationship with her father but give incentive and opportunity for the findings that I have made to be addressed before the potentials anticipated by Dr N come to fruition.
I propose to take the unusual step of making interim orders in respect of [X]’s time with her father. I am mindful of the effect on the mother who undoubtedly prefers closure but repeat my impressions of her as a strong and able individual and parent with what I find to be a genuine understanding for [X]’s need to have a relationship with her father and with a propensity to assist and encourage that relationship. I am mindful that [X] is now at full time school and that both she and the mother should be allowed to have settled lives and a stable relationship. I propose to order in the interim that [X]’s time with the father be reduced to each second weekend from Friday at the end of school or at 5pm if not a school day until Sunday at 5pm on a fortnightly basis. This reduction removes some opportunity for the father’s manipulation of [X] and will assist her in the interim in settling with the mother and settling at school. It will, however, provide a frequency which will allow [X] to continue her relationship with her father. For these reasons I do not propose to order in the interim any block periods of time in school holidays.
Accompanying the interim time-with order I will direct the parties to attend for reportable family therapy involving both parents and [X] such to be arranged and monitored by the Independent Children’s Lawyer. The onus is thus on Mr Stativa to acknowledge and address what I find to be his failings as a parent. Such orders taken together with my findings as to the mother’s insight and abilities together with the find that [X] is not alienated from the mother satisfy me that there is no unacceptable risk of emotional abuse of [X] such that I should immediately terminate the relationship between child and father.
I am mindful of Mr Stativa’s previous reluctance to participate in therapeutic assistance suggested by Dr L. These are to be interim orders and the options set out above remain open to me should
Mr Stativa not choose to take up what is intended to be assistance for him and his relationship with [X].
I intend to order a further Family Report and return the matter to me in approximately 9 months time I think Dr N should prepare that report. There will be liberty to the parties and the Independent Children’s Lawyer to apply in the meantime.
For all of the reasons above I am satisfied that [X]’s best interests are served by continuing to live with her mother. Also for these reasons I am not satisfied that there have been changes of circumstances since her Honour’s orders such that the mother’s sole parental responsibility for [X] should be disturbed. These orders will be final whereas the time-with order will be interim.
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 11 July 2014
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