Theophane & Hunt (No 3)
[2011] FamCA 968
•20 December 2011
FAMILY COURT OF AUSTRALIA
| THEOPHANE & HUNT (NO. 3) | [2011] FamCA 968 |
| FAMILY LAW - CHILDREN - Interim Orders - with whom a child lives - with whom a child spends time - with whom a child communicates - allegations of violence - allegation that child at risk in the care of the mother - order that child be returned to the mother |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60cc, 61DA Evidence Act 1995 (Cth) s 128 |
| Reece & Reece [2011] FamCAFC 24 Hunt & Theophane [2011] FMCAfam 845 |
| APPLICANT: | Mr Theophane |
| RESPONDENT: | Ms Hunt |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs Susan Gray |
| FILE NUMBER: | CSC | 1089 | of | 2007 |
| DATE DELIVERED: | 20 December 2011 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 9, 10 and 11 November 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Reaston |
| SOLICITOR FOR THE APPLICANT: | O'Reily Stevens Bovey |
| COUNSEL FOR THE RESPONDENT: | Applicant in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Gray |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
UNTIL FURTHER ORDER
All previous parenting Orders in relation to the child X (“the child”) born ... September 2006 be and are discharged.
Both parties be and are restrained from relocating the child's place of residence from the Far North Queensland area.
As and from 11 December 2011, the shall child live with the mother.
As and from 11 December 2011, the mother shall have sole parental responsibility for the child including determining:-
a.any medical or health matter concerning the said child;
b.matters relating to the education of the said child, including but not limited to, the choice of the child's school together with the provision, at the non-residence parent's expense, to the other parent copies of all school reports, school photographs and all other communications/newsletters from the said child's school other than with respect to routine or administrative matters;
c.disciplinary matters other than those of a trivial nature;
d.matters concerning the social development and sporting activities of the said child;
e.the place of residence of the child within the Far North Queensland area.
The child will remain substantially in the father's care up until 11 December 2011, and the child will spend supervised time with the mother from the date of this order to 11 December 2011, as follows:-
a. on Thursday 8 December 2011 from 9.00am to Friday 9 December 2011at 5.00pm;
b. on Sunday 11 December 2011 from 9.00am;
c.the collection and delivery point for these times referred will be the S Day Care Centre;
d.the father is to deliver the child by at least 8.45am on each of the above dates;
e.the mother and the supervisor (or the supervisor alone) are/is to collect the child at 9.00am on the above dates;
f.the mother and the supervisor (or the supervisor alone) are/is to return the child by 5.00pm on Friday 9 December 2011 and immediately leave the area;
g.the father is to collect the child at 5.15pm on 9 December 2011;
h.the supervisor is to be one of the following persons: the maternal grandmother (Ms H); the maternal grandfather (Mr H); the mother's husband (Mr E); or Ms J.
As and from 11 December 2011 the child will spend time with the father as follows:-
A.from 9.00am on Friday 23 December 2011 until 5.00pm on Monday 26 December 2011. The mother and the supervisor (or the supervisor alone) are/is to deliver the child to the S Day Care Centre by no later than 8.45 am on Friday 23 December 2011 and immediately leave the area. The father will deliver the child to the S Day Care Centre at 4.45 pm on Monday 26 December 2011 and immediately leave the area.
B. for each of the the two weekends from 9.00am Friday 6 January 2012 to 3.00pm Sunday 8 January 2012 and 9.00am Friday 20 January 2012 to 3.00 pm on Sunday 22 January 2012 the mother and her supervisor (or the supervisor alone) shall deliver the child to the S Day Care Centre by 9.00am on each of the the Fridays and immediately leave the area. The father is to collect the child from 9.15am on each of the Fridays. The father is to deliver the child to the C Contact Centre on the Sunday afternoon on 8 January 2012 and Sunday 22 January 2012, by 2.45 pm and immediately leave the area. The mother and her supervisor (or the supervisor alone) shall collect the child at 3.00pm from the Contact Centre on the Sunday 8 January 2012 and Sunday 22 January 2012.
C. from Friday 3 February 2012 at the conclusion of school with the father to collect the child from the school until Sunday 5 February 2012 at 3.00pm when the father will deliver the child to the C Contact Centre and on each alternate weekend thereafter during the school terms and school holidays. Such alternate weekends to conclude on the weekend ending Sunday 16 December 2012.
D. from Monday 24 December 2012 at 9.00am until Saturday 29 December 2012 at 5.00pm. In this respect the mother and her supervisor (or the supervisor alone) will deliver the child to the O Day Care Centre by no later than 8.45am and immediately leave the area. The father will deliver the child to the C Shopping Centre by no later than 4.45pm. to a nanny nominated by and paid for by the mother at the entrance to the Coffee Shop located on the ... Entrance. The father is to immediately leave the area.
E. from Friday 1 February 2013 at the conclusion of school with the father to collect the child from the school until Sunday 5 February 2013 at 3.00pm when the father will deliver the child to the C Contact Centre and on each alternate weekend thereafter during the school terms and school holidays.
The father will be responsible for paying the costs associated with the changeovers for the S Day Care Centre.
That in the event that the S Day Care Centre cannot facilitate the handover during the December school holidays then the handover is to be at the O Day Care Centre. In the event that neither the S Day Care Centre nor the O Day Care Centre nor the C Contact Centre will be available to facilitate handover; the mother will engage the nanny service and the nanny service will facilitate the handover as directed by the mother and the handover and collection point will be at the entrance to the Coffee Shop located on the ... Entrance to the C Shopping Centre. The parties are to share the cost of any nanny service, O Day Care Centre or C Contact Centre or other service required to facilitate the changeover for the child.
Whilst the child is in her care, and as and from 11 December 2011 until 11 June 2012 the mother shall live with one or other of the following persons: the maternal grandmother (Ms H), the maternal grandfather (Mr H), the mother's husband (Mr E) or Ms J (the supervisors).
Such supervisor may only be supervisor if such supervisor files and serves an undertaking to the effect that one or other of the supervisors is living in the same residence as the mother at all times over that six (6) month period; and inform the Independent Children's Lawyer, the mother's treating general medical practitioner, treating Family therapist and M Mental Health Service if the mother fails to attend therapy, a mental health appointment or fails to medicate herself as directed by a healthcare professional; makes any threat of self harm, cause harm to the child or harm to the father; such notice to be both oral and in writing and to be made as soon as practicable or at least within forty eight (48) hours of notice to or by the supervisor. One or other of the supervisors will be present at any changeover.
The father and mother shall within fourteen (14) days from the date of this order do all acts to separately engage in family therapy (of three to five sessions - the number to be determined by the psychologist) with a clinical psychologist (such as Ms W, Mr N) who has specific skills in working with children and supporting parents to make positive changes to their relationship with the purpose of:-
A. for the mother, to learn and practice alternative responses to the child's injuries or potential harm in order to “slow down” alarmist responses;
B. for the mother, to practice structured reassuring goodbyes which teach the child how to regulate her own feelings/emotions;
C. for the father, to practice reassuring welcomes following the child's time with her mother which communicate positively to the child about her spending that time instead of encouraging her to shut it out;
D. for the father, to learn how to learn new ways to feel reassured about his relationship to the child rather than requiring the child's reassurance for his hurts and feelings;
The counselling notes from the Family Therapist are not available for access by the parties by request, subpoena or otherwise without leave of the Court. The Family Therapist shall provide a short outline report (as to the parties attendance and outcomes of the therapy) to the Section 65L Supervisor and the Independent Children's Lawyer on how the parents are progressing.
The mother shall engage in regular treatment with the M Mental Health Service for a period of two years from the date of this order so as to:
i. reduce her generalised anxiety;
ii.undertake psycho education about the origins and affects of recurrent dissociation;
iii.learn cognitive methods to de-escalate distress and panic, evaluate harm;
iv.learn to regulate negative emotion;
v.identify the onset and degrees of dissociation.
It is requested that the supervisors be involved in the pseudo-education sessions about the mother's dissociation and how to identify these episodes.
The mother will provide an authority and direction to such providers of the pseudo-education sessions and the counsellor of the M Mental Health Service is to inform the Independent Children's Lawyer and the 65L Supervisor if the mother does not accept treatment and/or declines medication.
Within fourteen (14) days of this order or within seven (7) days of commencement of treatment by a healthcare provider in accordance with this order, the mother provide a copy of the Family Report of Ms B, and the psychiatric assessments of Dr T, Dr G and Dr K to her treating general medical practitioner, the Family Therapist (employed in accordance with these orders) and the treating medical practitioners at the M Mental Health Service.
The counselling notes from the the treating medical practitioners at the M Mental Health Service are not available for access by the parties by request, subpoena or otherwise without leave of the court. A treating medical practitioner at the M Mental Health Service shall provide a short outline report (as to the parties attendance and outcomes of the treatment) to the Section 65L Supervisor and the Independent Children's Lawyer on how the mother is progressing;
The father will ensure that at the completion of each alternate weekend time that he spends with the child, that all of the child's school items that she has in her possession on the day that he collects her from school, are returned with the child.
Each party shall keep the other and the Independent Children's Lawyer advised of their home address, an email address and emergency contact details and advise the other of any change within twenty four (24) hours for such change.
Each party is to notify the other (by a third party and by email) and the Independent Children's Lawyer if the child is seriously ill or is admitted to hospital at such times as the child is living with that parent and to advise the name and address of the child's treating doctor.
Each of the parties be and are restrained by injunction from discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings, with the child, other than with the leave of the Court.
Each of the parties be and are restrained by injunction from discussing adult issues or the current proceedings with or in the hearing of the child, nor allow another to do so.
Each of the parties be and are restrained by injunction from discussing any matters relevant to any criminal allegations against either party with or in the hearing of the child, nor allow another to do so.
Each of the parties are restrained by injunction from denigrating the other party, the other party's partner or family members, in the presence or hearing of the child, nor allow another to do so.
Each of the parties are restrained by injunction from questioning the child about the personal life of the other parent, or allowing another to do so.
Pursuant to the powers set out in Division 12A of the Family Law Act 1975 (Cth) (“the Family Law Act”) the each of the parties are restrained by injunction parties from commencing any parenting and/or enforcement proceedings without the leave of the court. If a party wishes to commence a proceedings under the Family Law Act, such party shall, on the filing any such application, file a copy of this interim order. The application for leave to proceed is to be heard ex parte. This injunction shall not apply in respect of any notice of appeal arising from these orders or any stay application pursuant to such appeal.
Pursuant to s 65L of the Family Law Act, a Family Consultant (not a Family Consultant who has prepared a report or assessment) is appointed to supervise and/or assist with compliance with these Orders, including:-
A. assisting and supervising the parties in compliance with the parenting orders, as far as practicable;
B. providing the parties and supervisors such assistance as is reasonably requested by such party and/or supervisor in relation to compliance with, and the carrying out of, the parenting orders.
C. This order to apply for two (2) years from the date of this order or such other time as is ordered by the Court.
The Family Consultant, Ms B, shall at the request of the Section 65L Family Consultant, review the arrangements for the child by way of an updated Family Report if the Section 65L Consultant considers they are not in the child’s best interests.
The mother shall, within two (2) business days of notice, advise the Section 65L Family Consultant and the Independent Children's Lawyer in writing when and if she is given a date for the commencement of trial and whether any changes are made to the charge of attempted murder.
The father shall, within two (2) business days of notice, advise the Section 65L Family Consultant and the Independent Children's Lawyer in writing when and if he is charged with any criminal offences relating to the complaint of the mother to the Queensland Police.
Both the mother and the father are within fourteen (14) days to undertake the Intake Process at the C Contact Centre and complete any necessary forms so as to ensure that the handover for the child can occur at the C Contact Centre every alternate Sunday. It is noted that the mother has made enquiries with the C Contact Centre and she has been provided a reference number …76.
The father will not spend any time with the child from Sunday 11 December 2011 to Friday 23 December 2011.
It is noted that there are no orders with respect to telephone or other electronic communication or the provision of a communication book.
All communication about the needs or wellbeing of the child as would otherwise be communicated orally or by communication book will be communicated by the parties to each other by email. Each of the parties shall provide the other and the Independent Children's Lawyer, in writing, with an email address within seven (7) days of this Order and keep the other party and the Independent Children's Lawyer informed in writing of the details of any change to such email address.
Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Annexure “A” hereto and these particulars are included in these orders.
The Independent Children's Lawyer shall provide a copy of these Orders to the S Day Care Centre, C Contact Centre, the child's school or any other service used to assist with the changeover of the child between the parents.
The Independent Children’s Lawyer shall provide a copy of these orders and copies of expert psychiatric reports, psychological reports and recent family report to the family therapist and/or the mother’s health care providers.
The Independent Children’s Lawyer shall provide a copy of these orders to any relevant child care facility.
Liberty is given to the Independent Children’s Lawyer to re-list these proceeding before the docket Judge (at present Benjamin in J) upon providing twenty four (24) hours to the parties and the Court.
The substantive application is otherwise listed for mention before Benjamin J at 10.00am on Monday 21 May 2012.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Theophane & Hunt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: CSC 1089 of 2007
| Mr Theophane |
Applicant
And
| Ms Hunt |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
X (“the child”) was born in September 2006. She is currently five years of age.
Her parents (who are parties to these proceedings) separated in September 2007, at which time the child was about twelve months of age.
The parties have been engaged in almost constant litigation since that time.
In August/September 2011 the conflict between the parties reached a new and terrifying level. Early in September 2011 the mother attended the father’s home and an altercation took place, the consequence of which are that the mother was arrested and charged with the attempted murder of the father.
Those proceedings are making their way through the Queensland Criminal Justice system.
Shortly thereafter, proceedings were commenced in the Family Court and an order was made placing the child in the care of the father (the mother being incarcerated).
The matter came back before the Family Court a short time later and an order was made that the child spend time with the mother but that such time be supervised.
The father asserts that the mother came to his house and endeavoured to execute him. The father says that he remains in fear of his own life and the life of the child. He wishes to relocate from Cairns to Melbourne and to continue being the primary carer of the child. The father is of the view that any contact between the child and the mother would need to be properly and effectively supervised.
The mother claims that during the course of her relationship with the father, she was the subject of physical, psychological and emotional violence and was, on a number of occasions, raped by the father.
The mother says that those claims by her have been largely ignored by those whom she told between separation in September 2007 and the events in September 2011.
Following separation the mother claims that she was subjected to constant intimidation, threats and stalking by the father which culminated in an event in late August 2011 where the father threatened to harm the mother’s second child, Z, (a child of her present husband). That child being aged eighteen months at the time of the alleged incident.
The mother has now provided a detailed statement of the alleged violence and sexual assaults on her by the father to the Queensland Police and has requested that they take action against the father in the criminal law system. It is not clear whether any such action will be taken by the police at this time. The child’s maternal grandfather, Mr H, deposed that he had been informed by a member of Queensland Police that a number of serious charges were to be made against the father. As at the date of the interim hearing there was no admissible evidence of such criminal proceeding against the father.
The mother says that shared parental responsibility is impossible in the circumstances of these parties, and having regard to the facts and findings referred to later in these reasons I can only agree with this submission. Parental responsibility will need to be vested in one party or the other.
An Independent Children’s Lawyer was appointed and the interim proceedings were listed for a three day hearing in November 2011.
The Court adopted a different approach in terms of the interim hearing as it may well be that the criminal proceedings against one and/or other of the parties could take one year, two years or even three years to work their way through that process. As such any interim order is likely to be in place for a considerable period of time.
As a result, whilst the proceedings were of an interim nature, the Court permitted cross-examination of witnesses, ordered an up to date family report and arranged for psychiatric evidence to be provided by way of single expert report.
The mother is facing criminal proceedings and there is a possibility of criminal proceedings against the father. A general certificate was given under s 128 of the Evidence Act1995 (Cth) to enable each of the parties to provide such detailed evidence as they considered appropriate so that the Court could be better informed as to the best interests of the child in the circumstances of this case.
THE ISSUES
There are a number of issues which include:-
(a)whether the actions of the mother in attending the home of the father on … September 2011 and causing injuries to him with a knife are such that, in the future, the mother presents a threat to the child by spending time with her or engaging with her. That possible threat must be examined in physical, practical, emotional and psychological terms;
(b)whether the mother’s psychiatric and psychological condition is such that she can be a primary carer of the child and if so in what circumstances;
(c)considering whether the mother was the subject of domestic violence at the hands of the father and whether that violence continued through use of threats intimidation and court proceedings before and after separation;
(d)considering separately each of the primary considerations under the Family Law Act 1975 (Cth) (“the Family Law Act”) and the other considerations.
In these proceedings any statement of fact is to be regarded as a finding of fact unless its contrary intention appears.
BACKGROUND
At the date of this hearing the father is aged 45. The mother is aged 33.
The parties commenced a relationship in December 2005 and commenced living together soon thereafter. The child was born in September 2006.
The parties separated in August/September 2007.
For reasons I articulate later in these reasons, I am satisfied that separation occurred on 26 September 2007.
In May 2008 the mother commenced a relationship with Mr E, her present husband. The mother and Mr E have a son Z, who was born in February 2010 and is now aged about twenty two months. The mother and Mr E were married in July 2011.
It is of value to set out the history of the various proceedings between the parties to provide some context to the ongoing conflict that has impacted this family.
Domestic violence proceedings
An application was made for a temporary protection order by the mother against the father in November 2007. The father made a cross-application in respect of those proceedings.
The mother was granted a temporary domestic violence order in November 2007. The domestic violence application proceeded on 12 and 28 February 2008. On 28 February 2008 a determination was made that the mother had been the victim of domestic violence during the relationship and continuing harassment.
The State Magistrate commented:-[1]
Having had the opportunity to observe both parties during the hearing and, in particular hearing the evidence given, the view has clearly been formed that the evidence of [the mother] is preferred to that of [the father]. [The mother] was honest, forthright and at times, very emotionally upset while giving evidence. It is quite apparent her relationship with [the father] has taken a toll on her. However, despite this, [the mother] gave cogent, consistent evidence and there was no attempt to exaggerate her evidence. On the other hand [the father] often sought not to answer questions or was incapable of answering questions, had little concept of the effect of his behaviour and – has maintained, since separation, conduct which can aptly be described as continual harassment.
[1] Exhibit M1 at page 27.
A protection order was made for a period of two years.
After the events in September 2011 (referred to later in these reasons) a temporary protection order was made to protect the father in relation to the mother. The protection order was subsequently made on 20 September 2011.
Supreme Court property proceedings
The parties were engaged in litigation in the Supreme Court of Queensland and an order was made in July 2009 that the father pay the mother’s costs of those proceedings of $75,000. That sum has not been paid.
The mother asserted that she has spent over $140,000 in legal fees.
Child support
The father is indebted to the mother for child support in the sum of $39,657.20.
The father asserted during the course of the hearing that he had recently made an application to change his child support assessment. No doubt he is making an application for the mother to pay child support to him as the child is now in his care. However, that does not explain the father’s failure to provide financial support the child from September 2007.
On 12 May 2008 an order was made requiring the father to pay child support. The father appealed to the Social Security Appeals Tribunal and his appeal was dismissed in December 2008.
The members of the Tribunal made adverse comments as to the credibility of the father including a determination that he has not made ‘anything approaching full and frank disclosure of his income or financial resources’.[2] The Tribunal observed that the mother was ‘open and responsive in answers to the Tribunal’s questions’.[3]
[2] Ibid at page 47.
[3] Ibid at page 48.
In January 2009 the father filed an application appealing the determination in respect of his child support obligations. That application was dismissed on 8 October 2009.
Proceedings under the Family Law Act
In December 2007 the mother filed an application in the Federal Magistrates Court seeking parenting orders in respect of the child. Those proceedings were opposed by the father. Interim orders were made in June 2008 and a family report was obtained.
An Independent Children’s Lawyer was appointed and the matter was listed for hearing before me on 15 October 2008.
At that time both the mother and father were represented by counsel and the Independent Children’s Lawyer was represented by counsel.
An order was made which provided that the child live with the mother and spend time with the father.
The mother was to have sole parental responsibility.
In July 2011 the father filed a contravention application and that application was subsequently dismissed. The substantive proceedings were set down for final hearing in late 2009. A second family report was obtained.
At the final hearing an order was made that the mother have sole parental responsibility and that the child live with her.
After the final determination the father filed a contravention application and a further application for child support in March 2010. That application was subsequently dismissed.
In December 2010 the mother filed an application seeking orders that handovers occur at the child’s kindergarten. The father filed an application in a case seeking a recovery order and he also filed two applications for contraventions on different days.
The matter was transferred to Watts J and at about that time a further contravention application was filed by the father.
In July 2007 the father’s application in respect of child support was dismissed by Federal Magistrate Coker. In July 2011 the Family Court proceedings were dismissed and Watts J encouraged the father to think about whether he wanted to proceed with his contravention proceedings.
On 5 August 2011 the father filed an application for contravention which was heard on 11 August 2011. On 19 August 2011 the Federal Magistrate delivered his reasons, finding there had been six contraventions but noted that the mother was at ‘the end of her tether’.
Following an incident early in September 2011 the father filed an application in a case which was listed before me. Orders were made suspending all previous parenting orders and provided that the child live with the father.
Subsequent to that an interim order was made that the child spend supervised time with the mother pending a three day interim hearing which commenced on 9 November 2011.
The litigation between the parties has been constant and ongoing since shortly after separation.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In Reece v Reece [2011] FamCAFC 24, Strickland J set out the relevant legal principles to be applied in interim parenting proceedings; he said:-
56.Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
57.Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.
58.Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the court is to take into account in determining what is in the best interests of the child.
59.Section 61DA of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In relation to interim parenting orders s 61DA(3) provides:
When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
60.If the presumption in s 61DA is to apply, this “triggers” the operation of s 65DAA which requires the court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
61.In Goode and Goode (2006) FLC 93-286 the Full Court (Bryant CJ, Finn and Boland JJ) discussed the application of the presumption in s 61DA to interim proceedings at 80,897:
56. In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).
62.The Full Court also outlined (at 80,903) how interim proceedings should be conducted in light of the amendments made to Part VII in 2006:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
I have endeavoured to apply those principles.
THE WITNESSES
The mother
The mother relied on her affidavits filed 21 September 2011, 12 October 2011, 3 November 2011, her affidavit of 21 January 2008. That material was read into evidence.
The mother provided detailed and compelling evidence of physical, emotional and sexual abuse throughout the relationship and stalking, intimidation and harassment subsequent to separation.
There is some indication of exaggeration. The mother is clearly distraught by the events that overcame her in recent times and some of her evidence was self serving.
The mother commenced her evidence by apologising to the father, her family and her children.
Subject to the earlier comments, I accept that the mother’s evidence was generally reliable but seen through her subjective prism. It is clear that there is some dramatic content to her evidence.
Mr E
Mr E relied upon his affidavits filed 28 September 2011, 14 October 2011, 4 November 2011 and 8 November 2011. He also relied upon his undertaking filed 5 October 2011 and his supervisor’s reports contained in Exhibit M1.
Mr E was a frank witness. He exhibited some anger when being cross-examined by the father. However, he endeavoured to answer questions in a straight forward and clear way. When asked if the father should spend any time with the child he answered, frankly, that he did not think it was in the child’s best interests.
Mr E blames himself, in part, for not being supportive enough to the mother particularly through August and early September 2011.
I accept his evidence as being generally reliable.
The family consultant
Ms B, (“the family consultant”), prepared a report[4] which was provided to the parties on the morning of the hearing. Time was provided for the parties to read the report.
[4] Dated the 8 November 2011.
Her qualifications were not challenged and her report was read into evidence. The family consultant’s evidence was thoughtful, considered and balanced.
The family consultant’s evaluation included much of the material over the years of litigation and she made a number of observations. These included:-
-that the child’s strongest and warmest bond is with the mother. She did not suggest that the relationship of the child with the father was not affectionate or important. The child was uncertain as to why she was not living with the mother.[5]
-The current arrangements are burdensome for the child in that she suppressed positive stories or feelings about one parent with the other.[6]
-The family consultant was concerned that the witnessing of the current conflict and tension has negative effects on this child. As a consequence her attachment relationships are under strain.[7]
[5] Ibid at paragraph 117.
[6] Ibid at paragraph 121.
[7] Ibid at paragraph 124.
In relation to the father, the family consultant noted, and having regard to the factors and material before the Court, that the father has a history of being controlling, verbally and emotionally abusive in his adult relationships. She was critical of the father at a number of levels.
Having regard to the evidence of the family consultant and the other evidence, I am satisfied that her opinion of the father as being controlling, verbally abusive and emotionally controlling are supported objectively. The father creates conflict. An example of this was when there was a mix up about the orders on 28 October 2011 which was to all intents and purposes innocuous. The father turned this into a threat to remove the child in breach of the orders.
The father asserted that the mother breached her bail conditions when the parties actually came across each other in Cairns. The father sought an immediate suspension of time and I am satisfied that it was no more than an accidental meeting in circumstances where the mother absented herself as soon as it became apparent.
The family consultant was concerned about the mother’s mental health in early September 2011. The family consultant said, and I accept, that the mother had suffered a decline in her mental health and this view is supported by the psychiatric evidence.
The family consultant observed, and having regard to the psychiatric evidence, that the mother’s behaviour on … September 2011 was consistent with an episode of depersonalisation, which is:-[8]
A sever dissociative state for an adult who has been experiencing severe anxiety becomes separated from conscious reality and temporary alleviation of those emotions.
[8] Ibid at paragraph 147.
The family consultant expressed a view that provided the mother’s health was monitored that there was little risk of harm to herself or the child. However, she said the mother’s mental health needs to be adequately managed in respect of both internal and external triggers.
The family consultant said that provided the mother can absent herself from the high anxiety, enduring fear and the current dissociation, she does not present a risk of violence. In those circumstances the family consultant’s view was that the child should be returned to the primary care of the mother but said this needed to be done carefully. In the period between the closure of evidence and the making of orders the time between the child and the mother was restored. I made ‘interim interim’ orders to that end.
The family consultant proposed that this occur over a longish period of time although she said this was ‘not set in stone’ having regard to the child’s commencement of school in early 2012. At the conclusion of her evidence the family consultant expressed a view that this time could be accelerated.
The family consultant recommended that the child not be permitted to relocate with the father and that the child’s time with the mother be increased.[9] The family consultant said that there ought to be supervision but not supervision in the normal sense, that is to prevent danger, but rather the mother needed supervision to provide support for herself by having family members around to deal with any problems which might arise.
[9] The time the mother spent with the child was accelerated by way of the orders put in place at the conclusion of evidence and the making of interim orders on 5 December 2011.
The family consultant was happy to explain the orders to the child. The family consultant formed the view that there ought not to be any telephone contact between the child and the non-caring parent as this simply adds to the conflict.
The family consultant said there ought to be a s 65L Supervisor and that it ought not to be her if she was going to do the follow up reports.
The family consultant recommended that an updated family report be obtained in about six month’s time.
The family consultant recommended that there be short term family therapy for each of the parents (separately) and in addition to that the mother engage in regular treatment at the M Mental Health Service for at least one to two years. The family consultant recommended that the mother’s present husband, Ms J and the maternal grandparents should all be encouraged to be involved in those education sessions. The family consultant thought that the treatment of the mother should be supervised by a psychiatrist.
To enable that treatment to be effective, there ought to be an order restricting access to that material on subpoena or otherwise.
The family consultant recommended that there also ought to be an order enabling the s 65L Supervisor to come back before the Court if problems arose, but said that there should also be an order preventing the parties from taking proceedings under the Family Law Act except in the most urgent of circumstances.
Her evidence was that the increase in the time between the child and the mother should commence almost immediately.
The family consultant recommended that there should be none or very limited interaction between the mother and father at changeover.
At the conclusion of the father’s evidence, the family consultant was asked to make comments about his evidence. The family consultant had seen some orders proposed by the mother.[10] She generally agreed with those orders (with the accelerated time period towards the child returning to the primary care of the mother). The family consultant went on to say that any time with the father over the school holidays should not be for weeks at a time but rather should be two, three or four days at a time with the child then returning to the mother.
[10] Exhibit M4.
This need not be over weekends but could be in the middle of the week.
The evidence of the family consultant was that the mother would take up to two years for her health to recover in light of the events leading up to and including … September 2011. She recommended that the appointment of the s 65L Supervisor be put in place for a period of two years in accordance with her report.
I generally accept the evidence of the family consultant and her recommendations are consistent with the evidence of the other health care professionals.
Dr T
Dr T provided evidence in accordance with his affidavit filed 26 September 2011. He is a consultant psychiatrist and his qualifications were not seriously challenged. There was a concern about whether he was a professor or not, I am satisfied that that reference was not by the doctor but by legal practitioners in the rush in the preparation of his material.
Dr T had two interviews with the mother and his affidavit relates to the first of those where he spent about five hours with her. Dr T observed the mother had no criminal history although there was a driving matter (which I had dealt with in my earlier reasons and to which I have had regard).
Dr T observed that the mother presents as ‘essentially with a normal mental state albeit with some distress symptoms’.[11] He went on to say that she had ‘no destructive urges directed at herself or her children, he initially avoided discussion with her about the criminal proceedings but did so in his later interview. His preliminary conclusions are that part of the issues which affected the mother on … September 2011 involved the stopping and starting of her medication. He concluded, after careful thought, that the mother was not a risk to the child and that there were no indications that her personality type was such that she would harm her child.
[11] At paragraph 7.3 of Dr T’s affidavit filed 26 September 2011.
Dr Curtis concluded that the episode on … September 2011 was a ‘dissociation episode which was precipitated by the conduct of the father and aggravated by the medical circumstances in relation to the change of medication’. Dr T saw no need for any supervision. He disagreed with Dr G in relation to her diagnosis of post traumatic stress disorder although Dr G had said the mother had some symptoms of that disorder. Dr T saw merit in the psychological counselling and said that whilst supervision was not necessary it would be good for the mother.
Dr G
Dr G is a consultant psychiatrist who was appointed a single expert to prepare a psychiatric report[12] in terms of the mental health of each of the parties.
[12] Affidavit of Dr G filed 3 November 2011.
There was no issue as to her qualifications. Dr G had an interview with each of the parties in late October 2011.
As to the mother, Dr G described her as co-operative and observed no disorder of thought or perception. Dr G diagnosed a possible posttraumatic stress disorder, borderline personality disorder and some histrionic personality traits.
Dr G opined that the mother displayed reasonable insight.
As to the father, she described him as being ‘fairly familiar and controlling’.[13] Dr G gave evidence as to the father’s controlling nature in her report and in her oral evidence. Dr G conceded that part of her conclusions may have been misconstrued however she said it was part of an overall assessment of him.
[13] Ibid at paragraph 64 of Annexure A.
Dr G noted that the father had a tendency not to answer questions directly. She found no disorder of thought, mood or perception.
As to the mother, she concluded that there were implications for her care of the child. These arose out of two occasions where the mother behaved impulsively and dangerously. The second of those occasions was … September 2011 and I am satisfied that the mother did not directly (emphasis added) put the child at risk in that episode.
As to the first episode, that was one which I dealt with in my reasons of November 2009. At that time the mother was acting protectively for the child and albeit in a dangerous way. However, it was certainly not as dangerous as the father asserted.
Dr G further reported that the mother should be under the care of a psychologist or psychiatrist. Having regard to her evidence I intend to make an order doing so pending the finalisation of these proceedings.
In terms of the father, Dr G observes:-[14]
69.I cannot comment upon the father’s parenting capacity but if the mother’s allegation against him of physical violence and sexual abuse of her if accepted by the Court there are implications which would reflect upon his parenting.
[14] Ibid at paragraph 69.
Dr G said that she had read the Family Report and thought that it was thorough and accepted the Report including the recommendations (in the long run) that the child return to the primary care of the mother.
Dr G said that her assessment was that the mother would never do anything directly to harm the children or the child and that she displayed emotional warmth to and for her children.
In her report Dr G described the mother as having:-[15]
Embarked upon adulthood with little capacity for intimate adult relationships.
[15] Ibid at paragraph 65.
Dr G said that reflected the mother’s entry into adulthood and it was implicit that it did not reflect on the mother’s current state.
Dr G was cross-examined as to the impact of the statement which the mother asserted was made by the father on 28 August 2011 in relation to the child Z, particularly in relation to the circumstances of the mother’s history with her brother’s abduction. Dr G said that if that statement was made by the father with the knowledge of the history, it must be seen as a highly provocative remark likely to trigger high anxiety in the mother.
Dr G was asked about the father’s application. She was informed by counsel for the mother that there had been 21 court applications in one form or another by the father and six by the mother.
Dr G was concerned that this may be evidence that the father was using legal processes to control his relationship with the mother.
Dr G said that whilst the father may have a dominating controlling personality she diagnosed him as having no psychiatric illness.
Dr G was cross-examined as to whether the mother was delusional. Dr G said this was not the case; it may be that the mother was oversensitive.
Further, Dr G went on to say that the mother appeared to be an emotionally mobile person who displays high anxiety and as such may misinterpret clues. She, from time to time, has exploded emotionally. Those two occasions where she exhibited poor judgment must have indirect implications on her capacity to care for a child.
The paternal grandmother
The father’s mother (the child’s paternal grandmother) gave evidence in accordance with her two affidavits filed 31 October 2011 and 17 January 2011. Her evidence was given by telephone from Melbourne. She was assisted in giving evidence by an interpreter.
In her first affidavit, the paternal grandmother sets out the details of when the child travelled with the father to Melbourne in December 2010 and remained there for about three days. The paternal grandmother says that it was a family visit and that the father looked after the child. She said the father took the child to see the Melbourne sights including the Melbourne Zoo and said that the father is devoted to the child. The paternal grandmother said she is willing to assist the father in both a financial and personal sense.
In her second affidavit filed 31 October 2011, the paternal grandmother said that she endeavoured to contact the child’s maternal family after she discovered that the father was in hospital. She went to Cairns and remained there from 6 September until later in September 2011. The paternal grandmother then observed the physical state of the father’s unit and his parenting.
In the final paragraph of her affidavit the paternal grandmother said that she went to see the child four or five years ago and stayed for six weeks but ‘his fiancée [the mother] asked her to leave’.
The paternal grandmother went on to say that if the father was permitted to relocate to Melbourne there were schools nearby and there would be accommodation in her home.
The paternal grandmother was cross-examined about a visit with her son and the mother in September 2007 at the Gold Coast. The paternal grandmother remembered there was a visit around the child’s first birthday but denied the mother had claimed to be sexually assaulted by the father. Her answer was ‘nothing like that happened, just that the little girl was sick and vomited’. The paternal grandmother said she had a good relationship with the father’s first wife and had met Ms L and she felt they were friends. She did not expect Ms L to take domestic violence proceedings against the father.
The paternal grandmother was asked whether she had told the child that her mother may be going to gaol and said that she did not and would not say such a thing.
Ms J
Ms J swore three affidavits being those filed 21 September 2011, 14 October 2011 and 8 November 2011. In addition Ms J gave an undertaking to the Court filed 5 October 2011and on the material provided to me, it appears that she has complied with that undertaking.
Ms J is a friend of the mother and has lived at their property for about a year. Ms J provided evidence about her observations of the mother in terms of her parenting, which observations are positive.
There was some issue about a visit on 28 October 2011 which she set out in her affidavit filed 8 November 2011.
Ms J observed that the child was distressed when she was being returned, by herself and Mr E, to the S Day Centre after supervised time with her mother on 21 October 2011. Ms J says the child was “crying and asking why she couldn’t stay with mummy”.[16] Ms J says that Mr E and she explained to the child that she had to spend time with her father and that the child kept on asking them “why?” over and over again.
[16] At paragraph 2 of the affidavit of Ms J filed 8 November 2011.
Ms J says the child continued to cry and asked them “whether she couldn’t stay with mummy because she was going to jail”.[17] Ms J says herself and Mr E were quite shocked and asked the child who had told her this. Ms J said the child replied saying “Ya Ya’s mummy told me”.[18]
[17] Ibid at paragraph 5.
[18] Ibid.
In relation to 28 October 2011 both Ms J and Mr E were under the mistaken belief that it was the day to collect the child. In accordance with the arrangements that had been put in place they attended at the S Day Care Centre with the maternal grandfather. They waited some time and then Ms J went to look for a member of staff. When she went downstairs (the place where she often returned the child) the child ran to her. At that time the staff arrived. Ms J was informed that the visit was not that day. They left without incident. It was a simple misunderstanding but in the context of this dispute it developed a life of its own.
In mid December 2010 Ms J says she went to the mother’s house for a shower and found the mother in a state of distress. Ms J’s evidence was that the mother told her that the father had said he would not be returning the child on the agreed changeover day. Ms J observed that the mother was beside herself with worry. Ms J says that the child was not returned on the agreed date on that occasion.
Ms J observed the mother’s distress and anxiety about telephone calls and at changeovers with the father. The mother informed Ms J of her distress at changeovers particularly the incident in August 2010 when the mother alleges that there was a threat to the well-being of her youngest child Z.
Ms J’s evidence was that the mother became withdrawn. She said the mother still functioned but was unusually different.
Ms J observed that the mother from time to time over-reacted but only slightly so.
Ms J is prepared to continue as a supervisor and her time can be managed with her employer and with her living on the property it can work effectively.
In addition, Ms J was asked to and in fact read the report of the family consultant and is prepared to be involved in the pseudo education lessons as recommenced by the family consultant. She was an impressive witness.
Ms R
Ms R is a psychologist. Ms R gave evidence in accordance with her affidavit filed 7 November 2011. Her qualifications were not challenged. The mother was referred to Ms R by the mother’s general practitioner. Ms R observed that the mother presented as fearful, anxious and depressed. The mother was worried about the influence of the father on herself and the child.
The mother did not return for further enquiry or investigation.
Ms R saw no signs of paranoia or any evidence of delusion. The mother expressed to Ms R that she felt she was being stalked and did not feel safe.
Dr K
Dr K is a consultant psychiatrist who had been employed by the Court as a single expert in the earlier hearing.
The mother’s solicitor was anxious to obtain psychiatric evidence after the events of … September 2011 and instructed Dr K to prepare a report in relation to the mother. Dr K’s report dated 27 September 2011 was read into evidence. There was no challenge to his qualifications.
Dr K made a number of observations about the mother which included:-[19]
·She feels that she has been let down by the system in that nobody appears to take notice of her and the way the father behaves towards her.
·The mother felt progressively more and more desperate about the situation and he felt she had developed an ‘Adjustment Disorder with anxiety, depressed moods and some behavioural changes’.
·Dr K said he could understand her desire to resolve the problem in the inappropriate way that she did.
·He observed that there was no suicidal intent and the mother’s behaviour appeared to be designed to stop the child from having anything to do with the father whom she regards as dangerous.
·He formed the view that there was nothing in her presentation and in the documentation which suggests that she would be a risk to the child. He stressed a view that she does not warrant full time supervision when she is looking after the child.
·He thought her presentation was co-operative. He said that he also formed the impression that she was attempting to be as honest and accurate as possible. He did not think she was hallucinated, deluded or thought disordered.
·He did not see her as dissociated but said that type of diagnosis was somewhat controversial. He observed that the action of the mother was protective of the child (however inappropriately) and was seen as no threat to the child.
[19] At pages 8 and 9 of Dr K’s report filed 10 October 2011.
Dr K was cross-examined about a letter which the father had obtained from the mother’s possessions and which, apparently, was scribed shortly after the child’s birth. Dr K said the letter did reveal some suicidal ideation but was more indicative of the mother’s depression at that time.
Dr K’s evidence seems to be of a co-operative mother who was not a risk to the child and who needs some psychiatric and some psychological assistance.
Dr A
Dr A is a general practitioner who saw the mother on 19 April 2011, 15 May 2011, 14 June 2011 and 4 August 2011. Dr A prepared a report which was annexed to his affidavit filed 16 September 2011. Dr A diagnosed the mother as having a social anxiety disorder and provided medication for her. He observed her to be a calm and caring mother. Dr A formed the view that it was unlikely that her behaviour would be directed towards the children. His evidence was not challenged.
Ms F
Ms F is a friend of the mother’s who provided evidence in accordance with an affidavit filed 21 September 2011. Ms F deposes that the mother complained to her about sexual and physical assaults and the mother’s general unhappiness with the relationship.
Ms F deposed that on 22 September 2007 she was married and the mother was her maid of honour. She deposed that the father appeared to be annoyed with the mother during the wedding and that the mother and the father left early.
The father says that the mother left the wedding early because she did not wish to remain. The mother says she left the wedding early because the father was complaining that she was not paying enough attention to him.
There was no cross-examination of this witness although the details of her observations are, if established, concerning.
Ms I
The affidavit of Ms I was read into evidence.[20] She was not cross-examined. Ms I’s evidence is of the mother being a caring and loving mother and of her concerns about the interaction between the mother, the child and the father.
[20] Filed 21 September 2011.
Documents
A report was tendered in evidence from the M Kindergarten dated 12 October 2011. The child had been attending this kindergarten from January 2011 to September 2011 and had a number of days away, for which the child was either sick or due to visit with her father.
The child has now been removed from this kindergarten by the father. Having regard to the change of residence made when the mother was incarcerated, this is not surprising.
Tendered in evidence was a report from a dancing school saying that the child had been attending dance classes for about twelve months. There is evidence that the child is performing well in this activity.
The maternal grandfather
The child’s maternal grandfather, Mr H, (the mother’s father) provided evidence in accordance with his affidavits filed 7 November 2011, 21 September 2011 and his undertaking of 5 October 2011. He was a down to earth witness and was impressive.
In her case outline dated 9 November 2011 counsel for the mother set out a series of views expressed by the child. I have had some regard to those views, particularly in light of the comments made by the family consultant.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
As I have said earlier, the mother is the primary carer and one who has the primary connection with the child. This is clear from the family reports of Ms P and the later family reports of the family consultant, Ms B.
The child has a good relationship with her brother Z. The child is very much a part of the maternal family and they have been significantly involved in her care since separation.
The support of the mother’s family and particularly Ms J, subsequent to … September 2011 is demonstrative of the interaction of that family with this child.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
There is some evidence that the mother has endeavoured to maintain a relationship between the child and the father, at least up until the beginning of September 2011.
The mother, in her proposed orders, submits that the father should continue to have a face to face relationship with the child.
The father, on the other hand, wants to remove the child to Melbourne and take away almost all face to face time between the child and her mother, the child’s sibling and the broader maternal family.
The family consultant observed in her report:-[60]
… It is very likely that [the father] will attempt to undermine [the child’s] increasing time with her mother given that during the course of the Family Report preparation he has already proposed on three occasions to cease [the child’s] supervised contact.
[60] At paragraph 182 of the Family Report dated 8 November 2011.
It was family consultant’s view “that [the father] has a determined wish to prevent the close relationship [the child] has with her mother.[61]
[61] Ibid at paragraph 176.
I am not satisfied that the father will facilitate and encourage a close relationship between the child, the mother and her broader family.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The evidence of the family consultant is that the child is missing her mother and her broader family.
The father does not seem to have any insight into this concern of the child. He persists with his application to move the child to Melbourne with limited contact to the mother and the maternal family.
The mother expressed concern about the change in the child’s behaviour since going into the father’s care. That of course could arise out of numerous matters, not the least of which arises from the mother’s behaviour on … September 2011.
However, the family consultant’s concern was to the extent that she recommended that the child return to the mother’s care, initially at a slower rate and later after hearing evidence at the rate suggested by the mother.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
If the father were permitted to relocate to Melbourne with the child it is unlikely that he would financially support the contact between the mother and the child. The father is in arrears of child support almost the extent of $40,000. I am not satisfied that the father would facilitate such support, even if he had the money to do so. The distance and cost would serve to make any meaningful contact difficult if not impossible.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The mother, at most levels, has a good ability to care for the child. Her recent mental illness, dissociation, anxiety and depression have impacted on her ability to care for the child. As I have indicated earlier, that can be managed in the interim.
The father has difficulties managing the child as referred to by the family consultant in her report. The family consultant referred to a course of family therapy for the father, to address some of these issues. I am satisfied the father would undertake that therapy.
However, on balance, I am satisfied that the mother has a better capacity to provide for the emotional intellectual and physical needs of the child.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The father is Greek Orthodox and the mother is Buddhist. Each of the parents is bringing the child up having regard to their various religious beliefs.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother had a positive attitude to the responsibility of parenthood. There have been occasions where the mother was over-sensitive and had some histrionic personality traits. The impact of the stress upon the mother is possibly post traumatic stress disorder and depression and anxiety.
The father’s approach to the parenting of this child has been, even on his evidence, somewhat self-focused. On the mother’s evidence, which is to some extent supported by the Family Consultant, is that the father is wholly self-focused and narcissistic.
(j)any family violence involving the child or a member of the child’s family;
The mother has been charged with attempted murder and that significant episode of violence will no doubt be determined by the criminal justice system in due course. It may be that the mother is convicted of that offence and may serve some time in prison.
In terms of the father, there was a finding that he assaulted the mother in the presence of the child.[62]
[62] State Magistrate 28 February 2008.
The mother details allegations of rape, sexual abuse and domestic violence over her relationship. She claims intimidation, harassment and economic abuse since separation. It may be that some of these are to be the subject of criminal proceedings against the father.
The mother asserts during their relationship she suffered emotional, physical and psychological abuse by the father and that this has continued since separation.
The father has been the respondent in domestic violence proceedings involving four women (as referred to earlier). This included the mother. There is evidence that the father has engaged in a constant and persistent stream of litigation against the mother.
There have been findings of family violence in earlier proceedings and a suggestion that the father had assaulted a friend in earlier proceedings.
The father has been charged with breaching a domestic violence order with regard to Ms L.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
The mother obtained a family violence order against the father for a period of two years in 2008, which I have discussed earlier.
In September 2011 the father obtained a family violence order against the mother arising from the alleged attempted murder of the father by the mother. I have discussed this elsewhere in the reasons.
As discussed earlier, the father has been charged with breaching a domestic violence order with regard to Ms L.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is clear that there cannot be telephone communication between the child and the non-resident parent. The telephone communication has not been in this child’s best interests and the family consultant has made this recommendation to the Court. I will accept and adopt that approach for the time being.
Any changeover must occur in such a way that there is no meeting of the mother and father. I intend to put in place those arrangements.
These proceedings will have to remain on foot pending the determination of the criminal proceedings and also to consider how the mother’s mental health improves or otherwise.
(m) any other fact or circumstance that the court thinks is relevant
In the mother’s home the child had a routine and was part of a family. Whilst the events of … September 2011 are a concern, there seems to be strong reasons, having regard to the evidence before me that the child ought to be returned to the mother’s care as soon as is practicable.
The steps that I have outlined above will, hopefully, provide security to the child.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
As submitted on behalf of the mother the father has engaged in constant litigation against the mother. He has been persistent and demanding of her and has little regard to her concerns, as shown in the findings in the reasons of 2009. It may be, although it is not yet established, that the father has undertaken a long term approach of stalking, abuse, emotional and physical assaults on the mother. He has been difficult in terms of communication.
The father has failed to fulfil his obligation to maintain the child and has not paid child support.
There is some evidence that the father may be indoctrinating the child against the mother.
As to the mother were four instances raised by the family consultant in her report when she attended the mother’s property. These are of some concern and will be addressed in terms of the therapy and other orders in relation to the mother.
Generally
I have identified the competing proposals of the parties and the issues in dispute in this interim hearing.
In doing so I have identified the agreed or uncontested relevant facts. As the interim hearing has been conducted over a number of days with cross examination I have made some, but not all, findings of fact. I have applied the uncontested facts and facts determined in considering the relevant matters in s 60CC of the Act to enable a reasoned consideration of those matters.
As I have said elsewhere in these reasons, this is not a matter where, in the particular circumstances, the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child can apply. There has been family violence. As such the presumption does not apply.
Neither equal time nor substantial and significant time is considered to be in the best interests of the child.
The orders I have put in place are in the best interests of the child, as a result of consideration of the relevant matters in s 60CC of the Act.
I am satisfied on the evidence that whether the actions of the mother in attending the home of the father on … September 2011 and causing injuries to him with a knife are such that, in the future, the mother does not present a threat to the child by living with her, provided she has the assistance of supervisors for the next six months and undertakes the mental health and social help provided in the orders.
I am satisfied that in the circumstances of the regime I have put in place that the mother’s psychiatric and psychological condition is such that she can be a primary carer of the child.
In the light of the evidence it seems that the mother is likely to have been subjected to violence at the hands of the father, including his use of harassment, threats, intimidation and court proceedings before and after separation.
I have considered separately and collectively each of the relevant considerations under the Family Law Act.
Relocation to Victoria
The father seeks orders that he be permitted to relocate with the child to Victoria. His evidence was that he had not lived in Victoria for about twenty years. The father’s contact in Victoria is his mother (who gave evidence in these proceedings through an interpreter). The father provided no evidence of work availability in Victoria and proposed that the mother visit the child once per year and have communication with the child once a month via Skype and once a month via telephone. He later suggested that it may be more often than this. The father also gave evidence that the child’s maternal family, including her material grandparents and brother ought to visit the child once a year.
In addition, if the mother is imprisoned as a consequence of the events on … September 2010 the father said he and the child ought to be allowed to relocate to Melbourne on the same basis.
The father’s application for relocation was not well thought out and lacked insight. It also lacked a child focused approach. The father’s proposal to relocate would isolate the child from her primary attachment, the mother, and from her sibling and the maternal family. It is concerning that the father sees little or no value in an ongoing relationship between the child and her mother and the child and her brother and her maternal family.
Having regard to the comments made elsewhere I am satisfied that this is not a case where the Court should permit an interim relocation, despite the serious issues arising out of the events on … September 2011 and the father’s concerns from that incident.
The father was questioned about what he proposed to do if the relocation was not permitted. He expressed that the approach suggested by the family consultant ought to be put in place (that approach would be the return of the child to the care of the mother). He was asked about that and expressed that that was his view.
However, later in his evidence it became clear that he did not understand that view. His case seems to be that the child ought to spend more time with the mother but remain primarily in his care and that he should have parental responsibility. I have regarded that as the father’s proposal if the child remains in the Cairns area.
Parental responsibility
Having regard to all of the facts, findings and circumstances of this matter, I am not satisfied that there ought to be a change of parental responsibility from that which was determined in November 2009, that is that the mother have sole parental responsibility. The parties cannot effectively communicate they have been and remain in great conflict. The mother lives in trepidation of the father and the father claims he lives in fear of the mother.
These parties are unable to exercise joint parental responsibility and it would be contrary to the child’s best interests to impose that obligation on them.
Having regard to the material above I am not satisfied, in all of the circumstances outlined in these reasons, that the mother will appropriately exercise parental responsibility.
However, I will impose an obligation upon the mother to keep the father and Independent Children’s Lawyer informed of any major exercise of that parental responsibility.
Residence
Having considered all of the material above, and notwithstanding the concerns raised by the father and the difficulty of the mother’s mental health, I am satisfied that the child should recommence to live primarily with the mother. For the first six months the mother will need to be supervised (in the context of supervision set out earlier in these reasons) by having in or about her household one of the supervisors namely her parents, Ms J or her husband. I will also require the mother to undertake the supervision and therapy and other interventions suggested by the family consultant.
This child should return to the primary care of the mother pending further order. The evidence of the family consultant has been influential and I have had regard to all of the relevant factors under 60CC of the Act.
The father’s character and history is such that having the child live primarily with him would not be in the child’s best interest.
Time and communication with father
The telephone communication will need to cease and changeovers will need to be limited and managed by others to avoid further conflict.
During the hearing the mother’s husband, Mr E, gave evidence that, in his view, the father should spend no time with the child. I raised this with the family consultant at the end of her evidence.
The family consultant said she had considered such an approach and had thought of that as an option, as did I. However, I have determined at this stage that it is not in the child’s best interests, in particular having regard to the recommendations in the family report. It that may be a matter for a final hearing.
I had considered whether there ought to be supervised time between the father and the child.
As at present time this approach this was not raised by counsel for the mother or the Independent Children’s Lawyer. However, the counsel for the mother did submit that the family consultant should provide a future report to the Court whether either party’s time with the child is either supervised or suspended and if so in what form. Her Counsel went on to say that whilst the mother does not wish to come back to this Court, she sees merit in having the matter reviewed in two year’s time, with the sole purpose of having the family consultant observe the child in both households and for the family consultant to inform the Court whether she is still troubled by the time that the child spends with her father and whether it is her recommendation that the child’s time with her father should be supervised or suspended.
I had considered putting in place a longer period of the child not seeing the father to enable her to settle with the mother, in the light of the tumultuous events in the child’s life over the past few months. After considering the various submissions, and the evidence I have not done so. I have limited the time the child spends with the father over the Christmas New year period to enable the child to settle back into the mother’s home.
I certify that the preceding four hundred and seven (407) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 20 December 2011.
Associate:
Date: 20 December 2011
2