Tartar and Millsey
[2009] FamCA 777
•25 August 2009
FAMILY COURT OF AUSTRALIA
| TARTAR & MILLSEY | [2009] FamCA 777 |
| FAMILY LAW – CHILDREN - With whom a child lives – Family violence – Where mother alleges that the father physically, sexually and emotionally abused her throughout their relationship – Allegation of child sexual abuse – Where child has chromosomal disorder and severe development delay – parenting capacity - Where father seeks orders for equal shared parental responsibility and a progressive regime arriving in a few years time at equal shared care – Risk assessment - Ordered that the mother have sole parental responsibility, the child live with her and the father not have time or communicate with the child |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61B, 61C, 61DA, 61DB, 64A, 65AA, 65DAA |
| A v A (1998) FLC 92-800 B v B (1993) FLC 92-357 Blanch v Blanch and Crawford (1999) FLC 92-837 Briginshaw v Briginshaw (1938) 60 CLR 336 Goode and Goode (2006) FLC 93-286 H v W (1995) FLC 92-598 JG and BG (1994) FLC 92-515 Johnson and Page (2007) FLC 93-344 Jones v Dunkel (1959) 101 CLR 298 M v M (1988) 166 CLR 69 Mazorski v Albright (2007) 37 FLR 518 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Patsalou and Patsalou (1995) FLC 92-580 R v R (Children’s wishes) (2000) FLC 93-000 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| APPLICANT: | Mr Tartar |
| RESPONDENT: | Ms Millsey |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Denise Clark |
| FILE NUMBER: | NCC | 3322 | of | 2007 |
| DATE DELIVERED: | 25 August 2009 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATE: | 16, 17, 18 &19 September 2008 and written submissions |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wong |
| SOLICITOR FOR THE APPLICANT: | Whitelaw McDonald |
| COUNSEL FOR THE RESPONDENT: | Mr Davies |
| SOLICITOR FOR THE RESPONDENT: | Dunn Ross Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Sundstrom |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Denise Clark |
Orders
Until 4 September 2009 the father shall continue to spend time with the child in accordance with the operative interim orders.
Subject to the above order all prior orders made in these proceedings are discharged.
That the mother shall have sole parental responsibility for the child … born … May 2006.
That the child shall live with the mother.
Commencing 4 September 2009 that the father spend no time with the child and he is restrained from approaching or communicating with the child.
The mother shall annually send to the father, at an address nominated by him and communicated to the mother’s solicitor or her nominee, a selection of photographs and written update concerning the child’s development.
Within 14 days the father shall give written notice to the mother’s solicitor of the address to which the mother shall send the material referred to in Order 5.
In the event the address to which the father wants the mother to send the material referred to above changes, he shall notify the mother’s solicitor or such other person as the mother in writing has communicated to him, of the new address.
The parties may give a copy of Professor N’s report 23 June 2008 and judgment dated 24 August 2009 to any therapist or health professional they or the child attend.
Subject to any application for costs, all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tartar & Millsey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC3322 of 2007
| MR TARTAR |
Applicant
And
| MS MILLSEY |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
These proceedings primarily concern the amount of time the parties’ three year old daughter shall spend with her father. The child was about six months old when for the last time the parties separated. Since then she has lived with the mother. After a consensual few months of unsupervised overnight periods with the father interim orders were made by reason of which the child has supervised periods with the father weekly at either an early intervention or contact centre.
The father seeks orders for equal shared parental responsibility and a progressive regime of unsupervised time arriving in a few years at equal shared care. The mother sought sole parental responsibility and that the child lives with her. Concerning the child’s time with the father when the hearing commenced she proposed that he have limited supervised periods. Following the Independent Children’s Lawyer’s submission that the child should not spend time with the father the mother adopted the same stance.
The parties make a raft of grave allegations about each other and the other’s parenting capacity. While they agree on little they agree theirs is a highly dysfunctional relationship. This is beyond dispute. The parties are highly distrustful of each other and have no capacity to communicate in relation to the child or at all.
The child has a chromosomal disorder as a consequence of which she has special needs including severe global developmental delay. She has cerebral atrophy with associated severe physical limitations and feeding difficulties. She requires ongoing physiotherapy, occupational therapy and regular medical review. She needs constant care and full time supervision. The child must complete home based therapies and will accept food and drink from few people. The child will not reliably take fluids from anyone other than the mother. Sadly her prognosis for improvement is at best speculative.
Because of the complex issues an Independent Children’s Lawyer was appointed to represent the child’s interests. On the application of the Independent Children’s Lawyer Professor N was appointed as the Court’s Expert to investigate and report upon the child and parties. Professor N is a Professor of Infant Psychiatry at a New South Wales University. She is eminently qualified for the task. Professor N was particularly concerned about the child’s neurodevelopmental issues and the impact of the parties’ dysfunctional relationship on their parenting capacity and the child. Professor N emphasised that the child is especially vulnerable to stress and trauma (including conflict) and very sensitive to change. As to the ultimate issue she opined that the child should live with her primary attachment figure, who she identified is the mother. It was her opinion that the child should not have unsupervised time with the father. In her opinion any periods the child has away from the mother should not exceed more than a few hours.
Counsel for the Independent Children’s Lawyer submitted that the mother should have sole parental responsibility and the child should live with her. It was submitted that the child should not have any contact with the father.
Background Facts
Throughout these reasons statements of fact are findings of fact.
The father was born in 1957.
The mother was born in 1971. She has two children from a previous relationship, J born in January 1989 and D born in March 1992. J and D live with the mother and did so for most of the time that she was in a relationship with the father.
In 1996 the parties met and commenced an intimate relationship. The father was 41 years old and the mother was 24 years old. From the outset theirs was an unequal relationship with the father the dominant and a domineering partner.
Sometime in 1997 the mother started to live in premises owned by the father at T. The father regularly stayed overnight with her, usually for one or two nights at a time supplemented by interstate and occasional overseas travel. The father assisted the mother with money, accommodation, provision of a motor vehicle, travel and entertainment opportunities. These arrangements continued until September 2005 when the parties commenced living together full time.
When the parties met neither of them was married. During the nine years of their relationship preceding cohabitation the father explained his inability to cohabit more extensively as a consequence of his being required to travel extensively for business. While this is partly true the primary reason was that, unknown to the mother, he lived with his long term partner Ms Tartar.
The father and Ms Tartar married in 1998. In September 2005 Ms Tartar learned about his relationship with the mother. That the father must have told his wife a myriad of lies to hide the true reasons for his absences to be with the mother is self evident. The father claimed the mother knew he lived with Ms Tartar. As will become apparent the father was a poor witness whose evidence revealed an unfortunate willingness to tell others and the Court untruths when it suited him. Although the mother’s evidence revealed a propensity to behave similarly, on this issue I am satisfied the father lied when he claimed the mother for years had been aware he lived with his wife. That for nearly a decade the father was able to live this double life is evidence of his disregard for honesty in key personal relationships and capacity for deceit.
The mother’s evidence was that the father had been violent towards her since early in their relationship and that for years she had been too scared to go to the Police. The father denied the mother’s allegations of violence.
In 1997 the parties travelled to the USA and while overseas the mother said the father assaulted her. Her evidence is corroborated by medical notes produced on subpoena by T Medical Centre[1]. These records show the doctor who attended the mother on 14 April 1997 observed two old bruises located on each hip. Concerning the history taken from the mother the notes are that in summary she told the doctor:
…present relationship – partner physically abusive. But too scared to go to police as ‘he is a powerful businessman’. Very jealous partner 2/52 hit & kicked by partner in USA + had a bodysuit ripped – abrasion over anus – now settled.
[1] Exhibit ‘M’
I am satisfied the father kicked and attacked the mother while they were overseas in 1997 which caused the injuries observed by the doctor and described by the mother. However, it does not necessarily follow that the father assaulted the mother, as she recently told Police, approximately fortnightly thereafter or that he was persistently violent. There are incidents about which dates can be determined and others where the circumstances are reasonably clear, but the date was not as certain. There are also assertions which were not established or shown to be untrue.
In August 2004 the father stopped full time work. Equipped with a s 128 Evidence Act 1995 (Cth) certificate the father gave evidence concerning this issue. Based on his version of events he was diagnosed as suffering major depression which founded his claim against his income protection insurance. This was probably a scam, if not from the beginning certainly before he started receiving Centrelink benefits.
The father began receiving Centrelink benefits in November 2004.
On 10 March 2005 the father pushed and punched the mother and grabbed her around the neck. D tried to assist his mother but the father pushed him over. The mother suffered bruising on her arms and neck, swelling to her face and a cut hand. J telephoned the mother’s mother, Mrs Millsey, who telephoned the Police[2]. The father fled and the Police took the mother to L Hospital. When shown photographs of the mother’s serious facial injuries[3] the father said she hit herself with a bottle and that they were self inflicted. Even armed with a bottle it is unlikely the mother could have caused the marks on her face and neck. While a bottle may explain the other facial injuries the father’s explanation for her injuries is implausible.
[2] Exhibit ‘K’
[3] Annexure ‘W’ mother’s affidavit sworn 15 February 2008
There was some inconsistency between the mother’s and J’s account of the assault. The mother denied the father held her above the floor by the neck whereas J was certain he had. Nonetheless predominately their evidence correlates. That they do not give a verbatim account of the incident bolsters my conclusion that overall each was truthful with the discrepancy being a symptom perhaps of the passage of time and the awful nature of the incident.
Following this incident, on 11 March 2005 an Apprehended Violence Telephone Interim Order was obtained by L Police for the mother’s protection. When Police attended the father’s home he gave his name as “Brian Webster” and told them the person they were looking for lived next door. Police established the father’s identity and he was charged with assaulting the mother and D. The father’s dishonesty with Police undermines his denials and reinforces my satisfaction that he seriously assaulted the mother and caused her injuries referred to.
After the assault the mother left the father and moved to northern New South Wales where she stayed with a friend, Mr P. They quickly became intimate. D moved with her while J returned to live with the maternal grandmother. The father found out where the mother was and began harassing her by telephone and through text messages. With the intention of persuading the father that their relationship was over, on 5 May 2005 the mother arranged to meet him in the Newcastle area. Her resolve failed and that same day she resumed their relationship. The mother and her children moved back to the Newcastle area. In resuming their relationship the parties breached the interim AVO made against the father for the mother’s protection. It is likely that the father was also in breach of his bail conditions. By this time the mother knew she was pregnant to Mr P. She aborted the pregnancy.
After the parties reconciled the father made arrangements for the mother’s belongings to be collected from Mr P. Removalists were organised and on 17 May 2005 the mother, her friend Ms R and an associate of the father’s Mr K, who is commonly known by a nickname, drove to northern New South Wales to oversee collection of the mother’s belongings. When they arrived Mr K, in an unprovoked attack, assaulted Mr P. The mother and Ms R made no attempt to even telephone Police for help. Mr P eventually broke free and escaped in his car. From his car he telephoned Police and an ambulance. Mr P suffered cuts and bruising, a broken jaw and lost a number of teeth. The police records[4] of the event show that: “On the 18th May 2005, he received surgery to his jaw and had a plate inserted and his jaw wired. The victim’s jaw will be wired for another six to eight weeks. He will also have on going problems with his teeth and jaw.” Mr K was charged with Assault Occasioning Grievous Bodily Harm.
[4] Exhibit ‘J’
Mr K had not previously met Mr P. In the absence of provocation by Mr P the mother believes the father arranged the assault to send her a message about the fate which awaited any person with whom she formed a relationship. The father denied instigating the assault. Mr K told Police that on the drive out to northern New South Wales the mother told him that Mr P was dangerous and probably armed which he said partly explained his otherwise inexplicable actions. He did not implicate the father. Although the mother denied doing so this is consistent with her subsequent fallacious complaints to police about Mr P. I agree with counsel for the father’s submission that the mother’s failure to call Ms R attracts the rule in Jones v Dunkel (1959) 101 CLR 298. This rule provides that an unexplained failure by a party to call a witness may lead to an inference that the uncalled evidence would not have assisted that party’ case.
Even without this evidentiary impediment there is insufficient evidence from those involved in the incident to enable me to conclude the father orchestrated it. Nonetheless I have no difficulty accepting that from the mother’s perspective this incident materially contributes to her fear of the father.
After Mr K was charged the parties agreed that the mother would complain to Police about Mr P. Although this was probably the father’s idea, without being coerced, the mother on 18 May 2005 made a false statement to Police in which she alleged Mr P had threatened and intimidated her. She wrongly claimed she feared for her children, herself and her mother. At the mother’s behest a two years AVO issued on 7 June 2005 for her and J’s protection from Mr P. The mother was present at court when the AVO issued. It is beyond dispute this was an abuse of the Court’s process.
On 15 June 2005 the mother attended the local Police Station where she asked them to take action against Mr P for breaching the AVO[5]. The mother told police that the preceding Saturday Mr P telephoned a mutual friend whom he asked to pass on to the mother his love for her. No threat was made. The father was unaware of Mr P’s telephone call and had no part in the mother’s decision to complain to police. This is another instance of the mother wasting police time and attempting to abuse Court processes. Appropriately police declined to act against Mr P.
[5] Exhibit ‘O’
By the time the proceedings which arose from the father’s assault of the mother on 10 March 2005 came on for hearing the parties were living together. To me the mother complained that the police failed to keep her appraised of the hearing date as a consequence of which she did not attend court. I do not share her criticism. It was the mother’s obligation to keep police informed of her contact details and, given the nature of the proceedings, that she was living with the father. Without informing the mother where he was going, the father left the house and attended court. The point being he knew these matters were listed that day for hearing which information he withheld from the mother. His behaviour in this instance was manipulative. In the event the charges against him and the AVO application were dismissed.
In June 2005 the parties decided to move to the northern coastal area of New South Wales. Although the mother was unaware of it the father’s marriage was in serious trouble and it seems he was making plans for the future. As a first step it was agreed that the mother and D would move which they did later that month. J remained behind with the maternal grandmother. In the northern coast area the mother lived in a rented apartment. The father told the mother he would shortly purchase a house in the area and proposed that they marry as soon as the purchase was finalised.
In late August 2005 the mother learned she was pregnant with the subject child. The pregnancy was planned and the parties were happy with this news.
In about August 2005 the father and Mrs Tartar separated. Following separation Mrs Tartar told police the father had assaulted her.
The mother believed that the parties were to marry in September 2005. Although the father had booked a marriage celebrant he had no intention, and indeed was legally unable, of proceeding with the wedding. In behaving this way towards the mother the father was extraordinarily insensitive and manipulative. Shortly before the scheduled date Mrs Tartar contacted the maternal grandmother. Mrs Tartar informed the maternal grandmother that she was the father’s wife; they had cohabited for years and been married since November 1998. After she was informed of the conversation the mother confronted the father about it. He eventually conceded his wife had spoken the truth. The wedding did not take place. In her detailed police statements the mother wrongly told police she learned about the father’s relationship with Ms Tartar in August 2006.
Towards the end of 2005 the parties moved to the father’s farm in O, north of Newcastle, where they stayed until March 2006. The father’s farm was a large property in a remote location surrounded by State forests.
A few days prior 5 December 2005, the mother told the father she wanted to end their relationship. The already tense situation in the home deteriorated and on 5 December 2005 the father assaulted the mother. He grabbed her by the head which he squeezed before he hit her. He also sent the mother a threatening and abusive text message. From this time the mother began diarising incidents on her mobile telephone and saving some of the father’s text messages. The father denied sending all the messages attributed to him and said the mother and J both had access to his mobile telephone which they could have used to send messages to the mother so as to implicate him. While possible this is unlikely and the most likely scenario is that the father sent the messages saved on the mother’s telephone. So that it is clear I am not satisfied that merely because the source telephone number was not acknowledged by the father as his, he was not the sender. This is clear from the tone and nature of the messages. It is noteworthy that even those messages which the father acknowledged as being his reflect poorly upon him. Although recorded[6] the mother did not send the father her message: “U could of killed me 2day quite easily and our own child.” The recording is corroborative of the mother’s evidence the father assaulted her that day.
[6] Exhibit ‘I’
On or about 13 January 2006 the father told the mother she had to leave. She was expecting to depart the following day but was uncertain how she would manage to leave. Although the events leading up to their argument are unclear I am satisfied that while the mother was resting the father bent her wrists and arms back. As it transpired the mother did not leave.
On 22 January 2006 the parties had an argument during which the mother attempted to leave. When she got to the car the father grabbed her by the hair and pulled her away. He threw her onto the ground. He banged her head into the dirt and covered her mouth to stop her from calling out. In so doing the mother could not breathe. The mother tried to dial 000 on her mobile telephone but the father took her telephone off her. Somehow the mother managed to escape and hid in the forest. Police were contacted by neighbours, who were some distance away, about the incident. The father informed the mother by mobile telephone that police had been contacted. The mother did not make contact with the police.
The parties separated in March 2006. Although separated by agreement the mother, J and D moved back into the father’s T house. The parties reconciled not long thereafter.
When the child was born in May 2006 the parties were living together.
A week after the child’s birth, as is standard practice, a Community Health worker visited the mother and baby at home. Throughout the meeting the mother was anxious and distressed. The worker referred the mother to a social worker at E Organisation, for inter alia, domestic violence assistance. She apparently agreed to continue seeing the mother until the handover to E Organisation had been effected. In her subsequent meetings the mother described the father as being predominately, in effect, psychologically abusive. She described a number of instances of him being physically abusive. Her history of the frequency and nature of his physical abuse bears little relationship to the evidence she gave in these proceedings or the various accounts she has subsequently given to police.
On 24 May 2006, in an argument over money the father hit the mother in the jaw.
By June 2006 the mother was planning to leave the father.
In a police statement the mother gave on 15 February 2007[7] she alleged the father raped her on 3 September 2006. In her oral testimony she said this occurred at about 11.00 am. Notwithstanding the numerous affidavits and appearances in these proceedings it was only the day prior to this hearing that the mother alleged rape. She said she withheld this information from the Court at the request of police so as to not jeopardise their investigation. Although police involved in the investigation attended during the hearing no attempt was made to call corroborative evidence. The mother’s failure to call the police officer attracts the rule in Jones v Dunkel (supra). I am satisfied that the police evidence would not have assisted the mother’s claim that she failed to disclose her rape allegations at their request.
[7] Annexure ‘B’ mother’s affidavit sworn 15 September 2008
However more telling is that the mother made no recording that she had been raped on her mobile telephone and failed to mention it on 3 and 4 September 2006[8] when she spoke with counsellors at E Organisation. E Organisation workers are trained domestic violence workers. In the first discussion by telephone, she correctly told the counsellor the father had locked her out and refused to give her the baby. Various strategies were discussed about how the mother could retrieve the child. The mother made no mention of being raped. The following day, in a face to face meeting, the mother told the worker she had the baby and that morning had taken her to have vaccinations. The mother made no allegation of rape and specifically informed the worker that she had not been hit. Her point being she had retrieved the child without there being violence. The mother’s failure to mention being raped seriously detracts from her allegation she was.
[8] Exhibit ‘L’
On 15 September 2006 J moved out of the T property to live with her father. The father and J had a poor relationship with J often a target of his verbal abuse and threats.
On 22 September 2006 the father abused the mother for leaving the gate open. He had dogs who could have escaped. The father grabbed the mother by the throat and walked her backwards into the house from the garage then pushed her over. He kicked her in her left buttock, lower back and her left arm.
In October 2006 the mother asked staff at E Organisation to help her obtain accommodation.
On 23 November 2006 the mother learned she had been allocated rental accommodation which would be available to her from 27 November 2006. The mother vacated the home and stayed briefly with her mother. She returned home briefly and the parties separated for the last time on 26 November 2006.
The father commenced these proceedings in the Federal Magistrate’s Court at Newcastle on 27 November 2006 seeking orders that the child live with him and spend time with the mother as agreed between the parties, and that the parents have equal shared parental responsibility. Without proper foundation in his affidavit filed the same day, the father said he feared the mother may move with the child to Victoria.
On 28 November 2006 on an interim basis, the mother was restrained from relocating the child’s residence away from her proposed residence in M.
On 4 December 2006 the mother lodged an ADVO Complaint and Summons against the father. Her application was returnable at Maitland Local Court on 14 December 2006. She made no mention of having been raped in September 2006.
On 7 December 2006 interim orders were made by a Federal Magistrate which provided that the child live with the mother and spend time with the father for four hours on three occasions each week, failing agreement between 10.00 am and 2.00 pm each Monday, Wednesday and Sunday. At this hearing both parties were legally represented. The father spent time with the child in accordance with these orders.
On 12 December 2006 the mother wrote to Maitland Local Court withdrawing her ADVO. When E Organisation learned of this they appropriately notified the Department of Community Services that the mother’s three children were at risk.
On 14 December 2006 interim orders were made by consent by a Federal Magistrate, which provided for the subject child to live with the mother and spend time with the father as agreed and failing agreement as follows:
·From 1.30 pm Wednesday to 3.00 pm the next day (Thursday), the first of such to occur on Wednesday 20 December 2006, and
·From 9.00 am to 4.00 pm each Monday and Sunday, the first of such to commence Sunday 17 December 2006.
The mother denied being legally represented when she entered into these orders. Having regards to her evidence concerning the father’s behaviour before then and her case at this hearing, it was significant that she had agreed he would have unsupervised and overnight contact. The record demonstrates that she was legally represented. The manner in which the mother dealt with this issue was unimpressive. When faced with irrefutable evidence she had been legally represented throughout these proceedings the mother said that the effect of her legal advice was that on an adjudicated basis she may face a worse outcome. I do not believe her and observe this would have been inconsistent with the outcome delivered on an adjudicated basis the week before. The likely reason for the mother’s consent is that she was concerned that until she gave the father an amount of time with the child which was acceptable to him she was afraid he would continue his application and she may lose. The mother is genuinely afraid of the father and his power over her. Just as she has been unable to deal with his lies and manipulative behaviour she feared those involved in these proceedings would be too. My point being that notwithstanding apparently competent legal advice and support from counsellors the mother consented because she believed it was the best outcome for the child she could anticipate. The orders also provided for the parties to have joint and equal shared parental responsibility and to consult each other concerning any long term issues. Changeover was to occur at a named coffee shop at a shopping centre. The Court noted, on a without admission basis, the mother was not to leave the child in J’s sole care.
The father began spending time with the child as provided for by the above orders. Immediately there were difficulties at changeover. To these difficulties both parties contributed. As best I can understand it there were difficulties at virtually every changeover. While none of the changeover incidents were at the upper end of seriousness they resulted in ever increasing tension between the parties and provided an unpleasant and stressful environment for the child. Some of the changeover incidents are detailed below.
On 17 December 2006 at changeover the father put his foot in between the front and rear pram wheels preventing the mother from leaving. He said: “This is not over. You will pay”. The mother told the father not to threaten her and he left. The mother contacted police who took her statement. She told them she did not want them to take ADVO action but wanted her complaint recorded.
In her oral testimony the mother alleged the father raped her during January 2007. She said this occurred when she visited him at T. It defies credulity that if she had been raped in September 2006 the mother privately visited the father in his home. The mother made no allegation of this rape in her affidavits or in her February 2007 Police Statements. There is no reference to it on her mobile telephone. Police interviewed the mother on 30 January 2007[9] in relation to a complaint she made that day for the purpose of obtaining an ADVO. The mother did not allege the father had raped her earlier in the month, or ever. Unfortunately it is necessary to observe that as the mother gave evidence on this topic it appeared that it was being made up on the run. The father denies raping the mother in January 2007. I accept his denials.
[9] Annexure ‘G’ mother’s affidavit 15 February 2008
The child was unwell during the period 23 to 27 January 2007 inclusive. On doctor’s advice[10] the mother did not make her available to the father. She informed the father of this. The father contacted the surgery where he spoke with another doctor. The father told this doctor he had just flown in from Adelaide to see the child (a deliberate lie) and that based on a medical certificate issued from the surgery the mother had denied him contact. Without seeing the child this doctor surprisingly provided the father with a medical certificate which in effect indicated that he could adequately care for the child. When the father informed the mother she spoke with the doctor who had seen the child. The doctor the father had consulted realised he had been lied to and withdrew his certificate. This is another example of the father’s manipulative and controlling behaviour. It is also a tidy example of the father’s lack of appreciation of the child’s vulnerable health and/or in his determination to prevail over the mother, and his willingness to disregard the child’s health.
[10] Annexure ‘E’ mother’s affidavit 15 February 2008
During the few days while the child was unwell the father bombarded the mother with demanding and unpleasant text messages. For example, he required two hourly temperature updates and said that unless she gave him the required information he would report her to the Court. This conduct could hardly have been more disruptive and only made the mother’s child care responsibility more onerous.
Reliant upon the mother’s 30 January 2007 statement police applied for an ADVO on her behalf. An interim order was made with which the father was served not long afterwards.
The mother reported another changeover incident to police that occurred on 12 February 2007 when the father allegedly spoke to her in a sexually inappropriate manner and grabbed her on the bottom. The mother demanded that police charge the father with Indecent Sexual Assault. When police explained to the mother their obligation to investigate her allegations she yelled at them and left. Nonetheless police interviewed the father who alleged the mother invited him to have sex with her and spoke to him in an unpleasant manner. I consider the father’s version unlikely. Police sought CCTV footage from the shopping centre where the changeover took place but found the area was not covered. They spoke to staff at nearby shops who could not recall any incident between the parties that day. Police correctly determined they lacked sufficient evidence to charge the father.
It is not entirely clear but it appears that based on the father’s allegations concerning the mother’s conduct at changeover on 12 February 2007 the father requested that police take ADVO action to protect him from her. My uncertainty relates not to the father pursuing ADVO intervention but which of the insignificant changeover events the father relied upon for his ADVO complaint. It is with a degree of dismay that I record police took the action the father requested. I am strongly satisfied the father was not in fear of the mother or that there was an objective basis for considering he was. The father’s complaint was a tit for tat response from which he hoped to achieve forensic advantage in at least these proceedings. In relation to the father’s actions they were a waste of police time and an abuse of the Court’s process.
During February 2007 the mother applied for victim’s compensation as a consequence of the father’s violence. The mother blamed inconsistencies between her victim’s compensation statement, evidence in these proceedings and police statements on her solicitor acting in the victim’s compensation matter. I do not accept the mother’s explanation.
After delivering the child to the father on 15 February 2007 the mother attended L Police Station where she gave a detailed statement. It was the mother’s desire that the father would be charged with a raft of offences the facts of which are there identified. In preparation for the interview the mother had worked up a detailed history. Police took the mother’s statement over three days, seeing her again on 16 and 19 February 2007. As I commented earlier nowhere in these statements or the further statement she gave on 4 October 2007 does the mother allege the father raped her in January 2007. Having had regard to the detailed nature of the statements and their timing I am satisfied that had the father raped the mother in January 2007 she would have told police. Her failure to do so detracts from her credit in a reasonably significant way.
On 15 February 2007 the father and his mother followed the mother through the shopping centre after changeover took place. The mother called out for help after which a friend escorted her to her car.
An interim AVO was taken out to protect the mother from the father on 26 February 2007.
A final AVO was made on 4 May 2007 for a period of two years to protect the mother, her children and the child from the father. As is commonly the situation the AVO did not restrain the father from spending time with the child if pursuant to orders.
When the father failed to return the parties communications book the mother complained to police.
In early May 2007 the father began receiving a portion of a Family Tax Benefit payable to the child’s parents. There was a commensurate reduction in the amount Centrelink paid the mother. Putting to one side his financial eligibility, based on the amount of time the child spent with him it is beyond doubt the father was entitled to receive a portion of the benefit. By his actions the mother was outraged. The father says that motivated by financial gain the mother decided to take whatever steps necessary to establish her sole entitlement to the benefit.
The mother alleged that during May 2007 she noticed that when the child returned from the father occasionally her nappy was full of powder. She said at first she thought the father had tried to cover up that he had not bathed the child. On another occasion the mother saw a rash on the child’s stomach which she said she thought the father had tried to hide.
On 10 May 2007 the mother collected the child from the father. When she arrived home she changed the child and said that her “vagina area looked different. It was opened and looked red”. She called a sexual assault line and was advised to take the child to a doctor. She immediately made an appointment with the child’s general practitioner, Dr Y. The earliest appointment was Friday 18 May 2007. On that day Dr Y examined the child. He advised the mother that the child’s genital area was normal. Apparently content with this response the mother continued to send the child to the father.
On Sunday 20 May 2007 the child spent the day with the father. After handing the child over in the morning the mother attended police for the purpose of having him charged. She told police that the father arrived three minutes early so she refused to give him the child. She said the father took the pram and twice pushed it into her legs. Police organised for the father to attend L Police Station. He denied the mother’s version of events and told police the mother threatened him. The COPS entry states that CCTV in the shopping centre did not show the victim or the incident and “the area where the victim states the incident happened should have been caught on camera and there is no sight of the victim”. Their point being that if the incident occurred in the place and manner which the mother alleged it would have been recorded. Because it was not they apparently concluded the mother’s complaint to be unreliable. I agree with their assessment. For the same reasons I conclude the father also lied to police when he complained that at the same place the mother threatened him.
The mother said that upon returning home on Sunday 20 May 2007, while changing the child’s nappy she noticed “fresh skin, like a fresh wound”. It was the mother’s evidence that she bathed the child before she went to the father at which time there was nothing wrong with her skin. Immediately the mother called her doctor’s surgery who advised her to take the child to a hospital. She took the child to L Hospital. Coincidentally Dr Y was on duty and he examined the child. He observed a small tear to the posterior fourchette which had not been present when he examined the child two days earlier. Dr Y arranged for the child to be examined by Dr G.
Dr G, who is a paediatrician on call at L Hospital, also examined the child that evening. He observed a fissure tear on the child’s anus. The mother correctly told Dr G that the child suffered chronic constipation problems in relation to which for six months she had been taking Lactutose. This was a recurrent matter of comment in the parties communication book.[11] Dr G advised the mother to increase the dosage and opined that the anal fissure was probably caused by chronic constipation.[12] Because of the mother’s anxiety he contacted the Sexual Assault Service who advised they were happy to speak with the mother about her concerns. Having conferred with Dr H from the Child Sexual Assault Unit he decided there was no proper basis for him to notify the Department of Community Services. Apparently for abundant caution Dr G asked Dr H to review the child.
[11] Exhibit ‘A’
[12] Exhibit ‘E’
The child was seen by Doctors H and A on either 21 May 2007 or 24 May 2007. Concerning their examination, in a joint report dated 29 May 2007[13], the doctors said:
On initial inspection: her vaginal opening diameters were normal. She had normal circumferential hymen with smooth outline. There was no erythema or bleeding evident. There was a small tear at 6 o’clock position which could have been caused by separation of the labia. Examination of her perianal area showed a deep anal fissure at the 2 o’clock position.
The clinical examination findings suggest that she had separation of her labia sometime between Friday 18th and Sunday 20th May. This is not diagnostic of sexual abuse. Please note that this girl is not mobile due to her developmental delay and therefore this injury is unlikely to be self-inflicted by means of an accidental injury or her touching herself. The anal fissure is chronic and is most likely secondary to constipation.
[13] Annexure ‘K’ mother’s affidavit 15 February 2008
For some time the mother had been photographing the naked child before and after each visit with the father. She had not observed any injury to the child’s genitalia until 20 May 2007. The description of the vaginal injury by the doctors suggests she would not have. My concern however is that the mother’s belief her inspections and photographing of the child would have shown such an injury suggests she may inadvertently, when inspecting the child, have caused the injury. I also accept that the parties or anyone else who changed the child’s nappy after the 18 May 2007 appointment could have done so. As the doctors make clear the injury is not diagnostic of sexual abuse. The father’s inability to explain how the injury was caused is thus of no moment. Nor is the mother’s.
The mother said that she believed the references in the communication book to the child’s finger nails requiring cutting were added by the father so as to provide an explanation for the injury which diverted suspicion from him. Her point being he would only have done this if he had something to hide. The father denied changing the communication book in the manner the mother alleged. It is beyond dispute that he had altered the book by whitening out entries. However whether he made the changes the mother alleged I have been unable to determine. Even if he had I would not be persuaded he did so to mask his culpability.
In coming to this view I have not overlooked Professor N’s conclusion that it is not possible to either exclude or verify any sexual abuse. However on the basis of the facts as I have found them to be I am not persuaded there is an unacceptable risk to the child of sexual abuse from either party.
After the father returned the child on 20 May 2007 the mother stopped making her available. The father continued to attend the changeover point. For no good reason, rather than deal with the matter through the parties’ lawyers, until the interim orders were suspended, he routinely reported the child’s non attendance to police. He fabricated child safety complaints and demanded that police sight the child and satisfy themselves and him she was safe. This was a waste of police resources.
On 5 June 2007 the matter came before Brown FM who suspended the father’s time with the child, ordered an Independent Children’s Lawyer and requested the Department of Community Services intervenes in the proceedings. Subsequently the Department of Community Services declined this request.
On 6 July 2007 the mother filed a Notice of Child Abuse or Family Violence. In summary she asserted that the father had sexually abused the child. She also alleged he had physically, emotionally and verbally assaulted her and D and had restricted D to his bedroom for extended periods. There was no mention of her rape allegations.
On 23 October 2007 the interim orders were further varied to provide that the father would have supervised time with the child for up to four hours each fortnight at a contact centre. The matter was then transferred to this Court.
On 12 November 2007 the matter came before me. Because there would be a possibly lengthy period before a place became available at the contact centre I made orders dealing with the situation in the interregnum. By those interim orders the father was able to spend time with the child for two hours each alternate Tuesday during school term at the Early Intervention Centre and each Sunday from 10.00 am to 12 noon. The orders provided that Ms F supervise the Sunday periods at her home.
Accordingly after a gap of approximately six months the father and child resumed spending time together. Following this until Ms F became unavailable the father spent time with the child as provided in the orders.
On 1 February 2008 a magistrate dismissed the ADVO application sought on the father’s behalf.
In February 2008 Ms F left Australia following which the parties were unable to agree on an alternate supervisor.
On 20 February 2008 I appointed Professor N as the Court’s expert witness. Order 2 made on 12 November 2007 was suspended and until order 3 made 23 October 2007 was implemented, I ordered that the father spend time with the child as follows:
10.1 During school term each alternate Tuesday at […] Early Intervention Centre for 2 hours commencing 9.30 am (or such other period as the coordinator of the program agrees to provide) commencing forthwith.
10.2 At Relationships Australia at […] in accordance with order 3 made 23 October 2007 subject to the contact service nominating the days and duration of each of the supervised visits.
The father commenced supervised visits at the contact centre on 8 March 2008 since when he has generally spent time with the child in accordance with these orders.
In her Application in a Case filed 3 June 2008, the mother applied to suspend orders 9, 10 and 16 made by the Federal Magistrate’s Court on 14 December 2006. Insofar as they are relevant the 14 December 2006 orders provided:
(9)That neither parent will cause [the child] to live with them outside the Newcastle and Maitland City Council areas without the written consent of the other parent.
(10)That each parent is to notify the other of any change in residence at least seven days prior to change of residence such notice to include the address of the new residence and when available the landline phone number connected to that residence.
(16)That should [the child] become distressed or seriously unsettled in the care of a parent then that parent is to notify the other parent of such distress or unsettled behaviour and to facilitate the other parent coming to that parent’s residence to assist [the child].
The mother filed this application because it was disclosed she had for months been in deliberate breach of orders 9 and 10.
On 3 June 2008 this matter was listed for final hearing to which the mother’s Application in a Case mentioned above was adjourned. By consent order 16 made on 14 December 2006 was suspended.
Professor N’s report[14] was released on 26 June 2008.
[14] Exhibit ‘P’
General Law in parenting cases
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
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).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and(2)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
General principles to be applied where there are risk of harm allegations
The legal principles to be applied in a case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. The oft quoted passages are found at pp 76-78 where the High Court held:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362. There Dixon J. said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
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. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). 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.
By way of further elaboration of the civil standard of proof, the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane and Gaudron JJ said at pp 170-171
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
The Briginshaw test is now enshrined in s140 of the Evidence Act 1995 (Cth). As the Full Court in Johnson and Page (2007) FLC 93-344 makes clear these principles apply to cases decided after its introduction.
Thus a Court will only make a positive finding that sexual or other abuse has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235.
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether, by reference to s 140 of the Evidence Act, in all the circumstances there is an unacceptable risk of it. This involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components which go to make up that conclusion need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard: Johnson and Page (supra).
These principles are applicable to all allegations of risk of harm, including family violence: A v A (1998) FLC 92-800.
The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M (at p 76) the High Court said:
The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events. In A v A (supra) the process is described thus:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.
The manner in which the Court must examine family violence in proceedings for a parenting order is identified in JG and BG (1994) FLC 92-515 and also Patsalou and Patsalou (1995) FLC 92-580. The Court will have regard to the fact that family violence may be relevant even where it is not directed at or witnessed by the child. So far as the evidence allows, the Court will attempt to understand the nature of any violence that has occurred and its potential effects on a child. Exposure by a child to violent family relationships can be harmful to a child’s emotional development. Even if the issue is not addressed in submissions, the Court has a responsibility to consider the effect on a child of a violent parental role model. Blanch v Blanch and Crawford (1999) FLC 92-837.
The nature of supervision and the responsibility of supervisors when a court has found that there is an unacceptable risk of future harm are dealt with by the Full Court of the Family Court in B v B (1993) FLC 92-357 at 79, 780 and 79, 781.
Family and friends are not neutral, but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense, they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children’s behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.”…..“For the above reasons, it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.
The mother’s circumstances
The mother lives with her three children at an address disclosed to the Court but not to the father. She has a modern four bedroom home which provides the mother and child with a comfortable standard of accommodation. The mother pays $220 per week rent. This is where for the foreseeable future, she and the child will reside. The location of the mother’s home is such that distance between the parties’ homes is not an impediment to the child spending substantial time with the father.
The mother is primarily reliant upon Centerlink payments for her income. She receives the statutory minimum by way of child support from the father. The evidence did not reveal whether D’s father contributes to his cost of living. The mother has no professional qualifications or significant workforce experience. The mother’s history and circumstances suggests that future paid employment of any moment is unlikely.
Since the child’s birth the mother’s time has primarily been taken up with her care. By the time the child was six months old it was becoming apparent she was significantly developmentally delayed. From about this time the child began numerous medical investigations. Eventually in April 2008, a Clinical Geneticist, Dr RN, confirmed that the child has a micro deletion of chromosome 3q12.2-q13.31 and a hole in her heart. Presently, in addition to regular attendances upon numerous medical specialists, the child receives treatment from a physiotherapist, a speech therapist and two occupational therapists – one for equipment and one for gross motor and sensory skills. She attends physiotherapy fortnightly and speech and occupational therapy weekly. The child attends an early intervention program at the Early Intervention Centre, playgroup on Wednesdays and swimming lessons on Thursdays. She will shortly begin attending upon a psychologist in relation to behavioural issues. Other than those occasions when the father is spending time with the child at the Early Intervention Centre, the mother takes her to her appointments. When necessary, the maternal grandmother or J assist her.
Because of her disabilities, the child is very dependant upon routine. She is fussy with her eating and drinking, and needs to be coaxed to drink and eat appropriately. The mother has established a routine which works for the child and her.
The mother is well connected to local community agencies, such as E Organisation and attends a counsellor, Dr NE. Dr NE sees the mother regularly and provides her with sound clinical support.
The maternal grandmother and J provide the mother with considerable personal and practical support. The mother sees her mother regularly throughout the week. J is in her second year of a Bachelor degree at the University of Newcastle. She is doing well at university and supports herself through casual employment. The father made numerous allegations about J, none of which withstood scrutiny. J impressed me as a balanced and hard working young person who has done her best to assist her family.
Although the nature of the father’s allegations about the mother and J ultimately revealed more about him than her I will deal with them at this stage. This is because many of his allegations were made at the outset and to a considerable extent established the flavour of the case the mother knew was being made against her. Excluding those allegations which are discussed elsewhere it is only necessary that I deal with the main remaining allegations.
On 27 November 2006 the father filed an affidavit in which he said that he was the child’s main caregiver and cared for her about 75 percent of the time. He later claimed the mother would often leave, sometimes for several days during which he was solely responsible for the child’s care. Not even the father’s close friend, Mr LY, corroborated this evidence with the evidence establishing that the father cared for the child alone some Saturday mornings, overnight twice when he locked the mother out and briefly on other occasions.
The father claimed that when he first met the mother she worked as a stripper and a prostitute. He said that the mother worked with one of her sisters and that they were both strippers. The mother denied these allegations and said she and her sister worked as waitresses at the club where the parties met. Mr LY was reasonably confident he was present when the parties met. He was confident, but far from certain, that on the first and a few following evenings the mother participated in a “wet T-shirt” competition during which she removed her top. I am not satisfied the mother had worked as either a stripper or prostitute. The father’s evidence on this topic is another example of his manipulative behaviour in the sense of attempting to overbear the mother under the weight of fabricated and he assumed, disqualifying allegations. Also to deflect attention from his own behaviour. As must be clear, even if in 1996 the mother had worked as a stripper and prostitute, this was irrelevant to her parenting capacity a decade later.
The father alleged that the mother is “a heavy and constant drinker” and a gambler. He claimed she had recommenced using drugs and was living with a drug user and dealer. He said that the mother’s appearance had changed remarkably since they separated. Her face had become drawn from what appeared to be rapid weight loss and she looked as she did when he knew her to be using heroin and ecstasy. He alleged that in January 2007 the mother asked him to take cigarettes from her handbag and in doing so, he saw a zip lock bag with a substance resembling coarse salt which he suspected was ice or crystal methamphetamine. When he asked the mother about it, she apparently said: “It’s nothing. I just use it every now and then”. In his affidavit filed 1 May 2007 the father said that it was common for the mother to drink two stubbies of beer, a bottle of wine and up to half a bottle of bourbon during one evening.
The mother denied the father’s allegations summarised in the above paragraph. She admitted to a single drink driving offence and said the parties occasionally visited casinos where they would gamble. The reality of the situation is that the mother rarely drinks alcohol and does not use illegal drugs. I am satisfied she had not ever used the various illegal drugs the father referred to. The father had no proper basis for his evidence the mother was residing with a drug dealer. The reality of the situation is that for a prolonged period the mother has had contact every week with a large range of medical and associated health professionals all of whom are involved in the child’s care. Nothing in the vast array of exhibits even hinted that any of these agencies held any concerns about the mother abusing drugs or alcohol. Nor that prior to the child’s birth were these issues of concern. I am satisfied they were and are not.
The father said that the mother and other adults in her home expose the child to a smoke filled environment. The mother agreed she smokes cigarettes but denied doing so inside her house or near the child. Nothing in the exhibits hinted at concerns about the child’s welfare as a consequence of the mother’s smoking. The child’s clothes do not smell of smoke. Although it would undoubtedly be wiser for the mother to stop smoking altogether the evidence does not establish that she exposes the child to passive smoking.
The father said the mother and J are mentally unstable. The father claimed to have seen J slash her wrists in February 2006 for which he said she received treatment at a medical centre. He said he had seen J pull her hair out and, with bedcovers over her head, rock back and forth while crying uncontrollably. He claimed J said she hated the child and that she wanted to “kill it”. J said that she has never been treated for a mental illness and has never self harmed. She said she loves the child and enjoys spending time with her. The father produced no medical evidence which corroborated his evidence concerning J’s self harming behaviour. This should have been easily discovered. Those witnesses who have seen J with the child spoke with one voice to the effect that she is caring, kind and committed to the child’s well being. I saw nothing concerning in J’s demeanour which leant any support to the father’s claims about her mental health. While J may have been visibly distressed while living with the parties it is my strong view this would have been understandable. Provided she is protected from the parties’ awful relationship and the father’s verbal abuse there is no reason for concern about J’s mental health.
Apart from the damage to the father’s various allegations under consideration here caused by his general lack of credit I am bolstered in my comfortable satisfaction that they lack substance by the fact that he nonetheless maintained that the mother has a significant role in the child’s day to day care.
The mother’s proposals
In her Amended Response filed 22 August 2008, summarised the mother applied for the following final orders:
1. That the child lives with her.
2.That the father spend time with the child for up to four hours each fortnight, supervised by Relationships Australia at either Broadmeadow or Gosford (“the Contact Service”). The Contact Service is to nominate when the periods are to occur.
3. For changeover that:
·the mother deliver the child to the contact service 15 minutes before the start of the father’s time, immediately leaving the building and the vicinity and remain away until 15 minutes after the end of the father’s time;
·the father not attend the building or its vicinity until his time is to start and leave the building and the vicinity at the time his time is to end; and
·the mother collects the child from the same place 15minutes after the end of the father’s time.
4. The mother to have sole parental responsibility for [the child].
As I have earlier commented the mother withdrew her proposal that the father spend supervised time with the child and adopted the approach taken by the Independent Children’s Lawyer that the father spend no time with the child.
The father’s circumstances
The father lives alone at T. He has a mixed cultural heritage, being partly Aboriginal via his mother and partly European via his father. In his daily life he does not evidence particular connection to any aspect of his cultural heritage. By occupation he is an engineer. Long before he met the mother, the father joined his father’s company. After a falling out with his father, he and Mrs Tartar established an apparently successful enterprise as a consequence of which he acquired, either directly or through trust and associated corporate entities, significant assets.
In August 2004, the father claimed to be depressed and, armed with a diagnosis that he suffered major depression, he claimed against his income protection insurance. As far as his doctor and the Department of Social Security are aware, the father remains depressed and has not had paid employment since. In fact, the father continued to work; buying and selling properties, cattle and electronic goods. Income he received from these activities he directed was paid to Mrs Tartar. However, with the father no longer running his business, its future prospects were in jeopardy. As I understand it before the various companies went into liquidation, the father transferred assets, via a family trust, to Mrs Tartar. Presently there is litigation in which the liquidator is seeking to reclaim a component, if not all, of these assets.
In any event, so as to maintain his entitlement to insurance and subsequently a disability pension, the father regularly attended his medical practitioners to whom he gave a history of poor sleep, panic attacks, poor communication and depressed mood. As far as his medical practitioners are aware, the father has been taking anti-depressant medication prescribed for him. The father was not taking medication and produced 20 pages of unfilled prescriptions from Dr S. He was taken aback when cross examination on this topic unfolded. In response to direct questioning from Professor N he had failed to reveal his dealings with medical practitioners or claimed depression. He withheld this information for a number of reasons. Firstly, he is not and probably never was suffering from major depression. Secondly, he correctly deduced that Professor N and the Court would be interested to understand the ramifications vis a vis his parenting capacity if he had a diagnosed mental illness which rendered him unable to work. Thirdly, he did not want the Court to scrutinise his apparently fraudulent claims upon his insurer and Centrelink. The father says there is no reason associated with his physical or mental health, which would restrict his capacity to care for the child or paid employment. Happily for him an earlier back injury improved. I accept his evidence. He also said that before the proceedings were over he would inform Centerlink he could accept paid employment. If he did he produced no evidence of it.
The father became unlicensed in 1998. He has driven ever since, including with the child as a passenger. The father said that prior to the end of the hearing he would attend the Road & Transport Authority and rectify the situation, qua his license. If he did this he did not produce evidence of it.
The subject child is the father’s only child. Although the father has acquired practical child care experience through his involvement with J and D, this was relatively limited and from their perspective, unsatisfactory. In a similar vein, he has limited practical experience with the child’s care. For reasons best known to him, since separation he has rarely attended upon the child’s medical specialists and therapists. While I understand that he would have reluctant to attend appointments with the mother he provided no explanation which would enable me to conclude his failure to make alternate appointments was in any way connected with promoting the child’s best interests.
Subsection (d) concerns the effect of any changes in the child’s circumstances. This is an important consideration. Counsel for the father asked Professor N to consider, if the Court came to the conclusion that it was appropriate for the father to spend unsupervised time with the child, the amount which would be developmentally appropriate. Professor N commented that the child has significant developmental difficulties and, on clinical examination, she showed clear signs of having difficulty shifting between people, with change and with novelty of environment. Hence she requires a consistent pattern of care. In Professor N’s opinion at her age and with her particular difficulties the child is unlikely to tolerate more than a few hours, in the care of someone other than her primary attachment figure; that is the mother. If the Court decided in favour of the father spending time with the child, she said that the child’s response to her changed arrangements should be monitored. In particular to assess the child for signs which indicated she was not tolerating the new arrangements. Professor N reminded the Court that a difficulty here is that:
This is a child with specific vulnerabilities who has minimal language who is vulnerable to stress and trauma and tolerates change rather poorly who, because of her developmental difficulties, would not be in a position to maybe articulate or communicate in a clear way if she was experiencing any distress or trauma.
Professor N, when cross examined by the Independent Children’s Lawyer said that the child should not be away from the mother for more than a few hours until it was clear that developmentally she was able to tolerate it. Professor N was of the opinion that presently the child could not tolerate unsupervised nor overnight time with the father; or for that matter anybody else. She was unable to say when either of those situations might be appropriate and by implication at least opined that for the foreseeable future it was inappropriate. Putting to one side the risk and relationship issues to which reference has already been made and purely from a developmental perspective Professor N said before either step was considered a developmental paediatrician would need to conclude that the child could tolerate it.
I am strongly satisfied that any change to the child’s circumstances that would or may separate her from the mother is against the weight of evidence. Considered from both a short and long term perspective emotionally, developmentally and physically, the child’s wellbeing requires the mother’s almost constant presence. It is possible that as the child grows older the intensity of her reliance upon the mother may lessen. However, the evidence falls materially short of enabling me to conclude that even in the long term the child would be able to cope with separations from the mother of the duration and frequency for which the father contends. This is not an issue about his parenting capacity. It derives from the child’s particular needs including her particular relationship with the mother. These are findings to which I attach considerable weight.
If the mother and Independent Children’s Lawyer’s submissions are adopted, the child would stop spending time with the father and paternal grandmother. The child smiles at her father and recognises his is a reasonably regular presence in her life. The father is unhappy about the quality of his interaction with the child during the supervised visits and appeared to suggest that neither he nor the child found the experience particularly rewarding. It follows from my findings concerning the nature of the child’s relationship with the father that, when coupled with his observation of their interaction during supervised visits, an order which stopped contact between them is unlikely to cause the child distress. Plainly, such a step would deprive the child of the opportunity for an improved relationship with the father and is a step rarely taken. However, as must by this stage be apparent, the evidence strongly indicates the child is incapable of forming a health and happy relationship which meets her needs with the father.
It is occasionally the case that a court is persuaded to make continuing orders for supervised time between a child and parent so that risk issues are addressed in conjunction with the child’s identity needs. At this stage, the evidence does not suggest the child is likely to be curious about her parentage so as to inform her sense of self and identity.
Having regard to my findings concerning the nature of the parties’ relationship, I am strongly satisfied that orders which enabled the child to spend time with the father unsupervised are highly likely to be traumatic for the mother and undermine her emotional stability. If the mother’s emotional stability is undermined, her ability to meet this child’s emotional, psychological and other special needs is seriously compromised. Plainly the mother’s emotional stability and parenting capacity of J and D was compromised throughout the parties’ relationship. J’s descriptions of her fear of the father, seeing and hearing him abuse the mother and graphic descriptions of hiding, for example in the forest, are consistent with these findings. As is D’s fear of him. This child is so dependent upon the mother any steps which compromise the mother’s emotional stability are contraindicated. These are findings to which I attach significant weight.
Subsection (e) concerns the practical difficulty and expense of the child spending time with and communicating with the parent. The Court, but not the father and Independent Children’s Lawyer, has the mother’s address. Having regard to the parties respective locations, the father’s application could be facilitated. This is not a weighty consideration.
Subsection (f) focuses upon the parties’ parenting capacity. To a considerable extent this issue has already been addressed. In this context, I must also consider role model issues. The father’s personal values exposed by his behaviour towards the mother, J and D show him to be a bully without insight or regard for the effect of his behaviour upon others. Clearly he is capable of severe relationship violence. The father is manipulative and, when angry, frightening. He appears to be untroubled by his dishonest and anti social behaviour which, if the child were to emulate, would bring her into conflict with community norms. Such relationship and personal values as the father is likely to demonstrate to the child are unlikely to assist her.
On the issue of parenting capacity, Professor N said:
Both [the father] and [the mother] are aware that [the child] has complex needs related to her developmental disability. There is no clear evidence presented to me, or gained through my examination, that either parent lacks capacity to attend to [the child’s] physical needs and medical requirements. It is in the capacity to recognise [the child’s] emotional needs and need for attachment security that the entrenched conflict between the parents has potential negative impact on the child.
[The father] … minimised the impact of the conflict and anger in the relationship with [the mother] and did not identify this as a significant issue for [the child].
He did not display any particular insight into the potential impact of ongoing conflict on [the child]. [The father] tended to minimise the inherent stress of managing a child with significant developmental problems and denied that he had any difficulties caring for the child. He stated that he did not see her as having any behavioural difficulties. He said this even though [the child] had become agitated and distressed on being transferred to her father for the purposes of observational assessment.
Professor N’s observations accord with my own. However, it is important to note that her assessment of the father’s ability to attend to the child’s physical needs relates to her assessment of his capacity and not the child’s ability to have someone other than the mother substantially do so. As discussed earlier there are numerous reasons why his acknowledged capacity is compromised by his attitudes, conduct and failure to appropriately engage with the child’s medical practitioners. The father’s manipulation of medical practitioners discussed in these reasons, including his dishonesty with Professor N concerning his own mental health history, raises serious concerns for me that he may be willing to similarly manipulate and mislead the child’s doctors. It is so fundamentally important to this child’s wellbeing that her medical and allied health practitioners receive totally reliable information that this factor weighs against the father being responsible for the child’s physical care even for short periods, or him having parental responsibility for the child.
To Professor N the mother “presented as anxious and preoccupied with the ongoing conflict with [the father] and what she sees as her need to protect her child from risk of harm. She gave an account of her alleged abuse by [the father] and repeated details of her concerns about sexual abuse of [the child].” Professor N said the mother tended to minimise the impact of her own preoccupation with her situation on the child and the impact of stress on her own functioning. She expressed the same opinion regarding the mother’s lack of insight into the impact of the situation on the child’s emotional development. With these observations I agree. These are matters which the mother needs to work through therapeutically. While resolution of these matters is unlikely to be quick there is reason for cautious optimism that freed from the stressors of contact in any form with the father there will be a positive outcome.
Subject to my findings in the paragraph above and for the reasons previously given provided the mother feels safe from the father she is able to meet the child’s needs. This is a significant matter which weighs in favour of the approach adopted by the Independent Children’s Lawyer and the mother.
There are no further s 60CC(3)(g) factors which require further consideration.
Subsection (h) requires that the Court considers an Aboriginal or Torres Strait Islander child’s right to enjoy his or her indigenous culture and the likely impact any proposed parenting order would have on that right. If the paternal grandmother, who did not give evidence, believed she could or would contribute to the child’s indigenous identity, she did not say so. Nothing in the father’s evidence suggested that by spending time with him, the child’s awareness of Aboriginal culture would be enhanced. Perhaps it is the case that the father connects more strongly with his European heritage or regards the components of his ancestry being of little interest to him. Consequently, whether the child spends time with the father or is denied contact with him, this will not impact on her rights to enjoy her Aboriginal culture.
Subsection (i) concerns the parent’s attitudes to the responsibilities of parenthood and to the child. In failing to keep the child safe from exposure to family violence and agreeing to interim orders by reason of which at eight months of age the child regularly spent time overnight with the father, the mother failed to fulfil her obligation to keep the child safe and ensure her developmental needs were adequately met. Although the mother explained her actions as directly connected to her being a victim of severe domestic violence it is important to observe, that irrespective of causation the mother’s judgment as a parent in this regard was lacking. There is little doubt in my mind that the support the mother received from E Organisation and continues to receive from Dr NE has been particularly influential in enabling her to appreciate that in failing to leave a violent relationship she seriously failed to meet her parental responsibilities to the child, J and D. I have earlier commented on the large amount of evidence which shows the mother is focused upon and is competently meeting the child’s needs. Provided the mother is not drawn back into a relationship with the father she will fulfil her parental responsibilities for the child.
I do not doubt the father’s love for the child. Amongst other things, this is evident from him regularly attending supervised visits for so long. He has, however, by his serious abuse of the mother demonstrated a serious lack of regard for the responsibilities of parenthood and propensity for conduct which is tantamount to child abuse. The father demonstrated no insight into the impact on the child of his conduct towards her primary carer. His attitudes reflect poorly upon him and demonstrate a persistent pattern where by the father prioritises his needs ahead of his parental responsibilities and the child’s needs. This pattern is ingrained and unlikely to change. These are findings to which I attach considerable weight.
I have already made findings concerning family violence and do not repeat them. Where the evidence enabled me to determine specific occurrences I have done so. However I also accept the father was more abusive towards the mother than merely where I have been able to make findings regarding specific incidents and those which J and the maternal grandmother observed.
I am satisfied that ordering the father and child to spend time together unsupervised would expose the mother and child to an unacceptable risk of family violence. If ever the child was in a position to communicate information such as the mother’s address, I am all but certain that the father would seize upon the opportunity to question her in order to locate the mother. The father is so manipulative that even if the stage was reached where the child was mature enough to avoid his direct questioning, I would be gravely concerned that she could not withstand subtly manipulative questions. Even the possibility this may occur is unacceptable in terms of the risk of physical harm to the mother, to her emotional wellbeing and consequential effect upon her parenting capacity.
Supervision of the father’s time with the child would moderate to an acceptable level the risk of physical harm to the mother and child. Such an arrangement would have to be long term and in the circumstances of this case would only be appropriate if the child presently benefited from contact with the father and there was a reasonable possibility that at least in the medium term he might have addressed the serious issues which I have identified as impacting so adversely on his parenting capacity. The father, as I have found, is so lacking in insight, that improvement in his overall parenting capacity is at best speculative and in reality highly unlikely.
As far as possible, the Court should make orders which are least likely to lead to further litigation. As this case demonstrates, litigation is stressful and can adversely impact upon family lives, particularly in the sense of standing in the way of parents and children being able to move on with life. If orders are made for the child to spend time with the father unsupervised, irrespective of the amount of time, future proceedings are all but certain. Changeovers would be fraught with difficulty and, even if a supervised centre was utilised for changeover it is highly likely the parties would behave as they did, in the sense of making relentless allegation and the mother at least, doing everything that she could to keep the child safe from the father. There is a prospect of further litigation effectively, no matter what approach the Court takes. However, if the father is denied contact with the child or is only able to spend time with her on a supervised basis, further litigation is unlikely for the short to medium term. Professor N emphasised the importance for this child to, as far as possible, be protected from further conflict. Although it is not a significant issue orders which enable the mother to care for the child other than in the shadow of litigation are likely to positively impact upon her parenting capacity. These findings weigh in favour of the approach adopted by the Independent Children’s Lawyer and the mother.
There is considerable overlap between ss 60CC(3), (4) and 4(A). The only other matter to which it is necessary to refer concerns the extent to which the father has fulfilled his obligation to financially maintain the child post separation. I have little confidence the father gave full disclosure of his financial circumstances. Presently he pays the statutory minimum child support which amount, it is self evident, is a manifestly inadequate contribution. Although this reflects adversely upon him it is a finding which warrants little weight.
Conclusion
In the final submissions, the Independent Children’s Lawyer submitted that the child ought to have no contact with the father. The child’s special needs, her special sensitivity to conflict, her needs for a calm environment and protection from emotional stress, allied with the remaining suspicion concerning the sexual assault allegation, and the father’s general presentation of being controlling and violent, produced the view of the Independent Children’s Lawyer that time with the father is unlikely to be of any benefit to the child at all.
The Independent Children’s Lawyer submitted in the alternative, if the Court is satisfied that the benefits to the child of having a relationship with the father outweighs concerns regarding interaction between the parents, then the father should spend no more time with the child than is presently occurring, and the time spent should be in the same circumstances.
The Court is required to ensure that children have the benefit of meaningful relationships with both parents, to the maximum extent consistent with the child’s best interests. In Mazorski v Albright (2007) 37 FLR 518, Brown J concluded that a meaningful relationship: “Is one which is important, significant and valuable to the child.” This formulation has received widespread support. Because of the parties’ highly dysfunctional relationship and the risk of exposure to family violence if the child spends time with the father, the adverse effect on the mother’s parenting capacity if the child spends time with the father and the child’s complex needs related to her developmental disability, such benefits as exist for the child from a relationship with her father come at too high a cost to her overall wellbeing. Other than in a supervised setting, the father is an inappropriate role model for the child. Establishing a regime of unsupervised time with the child and father will compromise the mother’s psychological and emotional wellbeing, the effects of which would be catastrophic for the child. The child is entirely reliant upon the mother for her physical, emotional and intellectual needs. Jeopardising the mother’s emotional and psychological wellbeing, including putting her in harm’s way, jeopardises the child’s physical, emotional and psychological wellbeing. Thus, notwithstanding the objects and primary considerations which support the child’s rights to a meaningful relationship with her father, her interests require that she is protected from him and orders are made consistent with the approach adopted by the Independent Children’s Lawyer and the mother.
I am conscious that such an outcome differs from Professor N’s recommendation in favour of the child spending limited supervised time with the father. However, I was afforded a greater opportunity to consider all the evidence surrounding the parties and child and, particularly, the family violence allegations. Professor N was appropriately circumspect about the latter issue and constrained in a way the Court is not. Thus, while I accept the efficacy of her investigations and opinion ultimately, the weight of evidence available to me requires a different outcome.
Having regard to my findings concerning family violence, the presumption of shared responsibility does not apply.
The child will continue to live with the mother and will not spend time or communicate with the father. The child’s complex medical needs require that those charged with her care are able to make prompt and appropriate decisions about her needs. The parties have demonstrated in a most extreme fashion a complete inability to communicate. From the child’s perspective it would be untenable for the parties to equally share parental responsibility. It is almost certain important decisions would be delayed and the child’s wellbeing held hostage to the parties’ dysfunctional relationship. Consequently, as the child will live with the mother, she will have sole responsibility.
As it apparent, it is my intention to discharge orders enabling the father to spend time with the child and order that he not spend time or communicate with her. The nature of the child’s relationship suggests she might notice that he is no longer part of her life, but the evidence does not suggest this will cause her distress. The father will be distressed by the outcome of these proceedings. I am certain, at a minimum, he would wish to remain informed about the child’s development and from time to time receive a photograph or video of her. The mother will be ordered to provide the father annually with a selection of photographs and information concerning the child’s development. The orders will be structured so that the mother will be able to provide this information without compromising her whereabouts or being put to unreasonable expense. It will be the father’s responsibility to ensure that the mother, via her solicitors or such other person as the mother nominates in writing has an address to which this information is delivered.
It is appropriate that the father is able to farewell the child. Thus the orders which discharge those orders which entitle him to spend time with the child shall take effect in 10 days.
It is my hope that the father will reflect upon the Court’s findings and engage in long term therapy with a therapist experienced in working with perpetrators of family violence. Professor N’s report is likely to be of assistance to therapists working with this family and an order will be made which will enable the parties to provide Professor N’s report and my reasons to any therapist or health professional they or the child attends.
For these reasons I am satisfied the orders identified at the beginning of this judgment are in the child’s best interests.
I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 25 August 2009
Key Legal Topics
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Family Law
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Jurisdiction
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