Van Basten and Humboldt

[2017] FamCA 464

FAMILY COURT OF AUSTRALIA

VAN BASTEN & HUMBOLDT [2017] FamCA 464

FAMILY LAW – CHILDREN – Best Interests – where the father seeks orders that the child spend time with him- where mother opposes any order for time – where the child has not seen the father in three years – where the child refuses to see the father

Family Law Act 1975 (Cth)

Mulvany & Lane (2009) FLC 93-404

APPLICANT: Mr Van Basten

RESPONDENT: Ms Humboldt

INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

FILE NUMBER: MLC 10657 of 2015

DATE DELIVERED: 26 April 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 13 February 2017

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Combes

SOLICITOR FOR THE RESPONDENT: Sarah Lia

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bonney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

Orders

IT IS ORDERED THAT

1. All previous parenting orders be discharged.

IT IS ORDERED BY CONSENT THAT

1. The mother have sole parental responsibility for the child of the relationship B born … 2009 (“the child”).

2. The child live with the mother.

3. The mother permit the child to telephone the father upon the child requesting to do so.

4. The mother authorise any school that the child may attend to provide copies of the child’s school reports to the father upon the father’s request for same and at his expense.

IT IS FURTHER ORDERED THAT

1. The order appointing the Independent Children’s Lawyer be discharged.

2. All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Van Basten & Humboldt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10657  of 2015

Mr Van Basten

Applicant

And

Ms Humboldt

Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced by the father in this case Mr Van Basten by an Initiating Application filed in the Federal Circuit Court of Australia in November 2015. At that time the father sought final orders inter alia that he and the mother Ms Humboldt have equal shared parental responsibility for the child B born in 2009, that the child live primarily with him and spend time with the mother each alternate weekend, during holidays and on special occasions.

2. The matter was transferred to this Court in April 2016.  During the course of the proceedings, the father amended his Initiating Application on a number of occasions, from an application that the child live with him to an application that she spend equal time with each parent. Ultimately when the hearing commenced before me in February 2017, although the father was still seeking an order for equal shared parental responsibility, his application was for the child to spend time with him. By the conclusion of the hearing before me, the father had adopted the Independent Children’s Lawyer’s proposal including that the mother have sole parental responsibility for the child and that the child live with her. The only issue the Court was required to determine was what, if any, time the child should spend with the father.

3. The father’s final position was that the child should spend time with him every Thursday from after school until the commencement of school on Friday and on a fortnightly basis from 10.00 am Sunday until the commencement of school on Monday each alternate week and from after school Monday until the commencement of school Tuesday in the other week. 

4. The mother’s case was that no orders should be made for the child to spend any time with the father.

5. Significantly in this case the child has not seen or communicated with the father since 16 May 2014, now almost three years ago. The child is now eight years of age and that three year period represents a significant proportion of her young life.

Background

1. The father was born in 1963 and is 53 years of age. The father has been diagnosed as having some medical conditions, although it is his case that these conditions have stabilised and as a result, he plans to “further his employment and the rehabilitation of his career.” He is presently in receipt of a disability support pension and works part time near his home.

2. The mother was born in 1967 and is 49 years of age. The mother is engaged in home duties and is similarly in receipt of a disability support pension.

3. The mother has two children from a previous relationship, Ms C who is now 19 years of age and D who is 14 years of age. These children spend time with the mother and her former partner.

4. The father also has a child from a previous relationship. The father’s former partner returned to Germany after the breakdown of their relationship. She was three months pregnant at the time and although his former partner returned to Australia with their child when the father and mother in this case met in 2007, the father did not know their whereabouts and had never met his daughter. The father told Associate Professor E that although there had been some written correspondence between him and his daughter, she had not wanted to meet him.

5. The father, the mother, the child the subject of these proceedings and the mother’s children from her previous relationship live in close proximity to each other in rural Victoria.  

6. The father and the mother had what can at best be described as a brief relationship and although the father did on occasions stay overnight with the mother, they did not live together. It is common ground that the father ended that relationship on 13 February 2009, which the mother says and the father did not dispute, was the same date upon which his former partner had ended their relationship. The mother was approximately four months pregnant at the time.

7. The mother telephoned the father immediately following the child’s birth. It is common ground that the father did not visit the child until some two days after her birth, that he only visited her in hospital on two occasions and that thereafter the father deposes he did not see the child until September 2010, some 15 months later. This was a significant period and particularly so given the age of the child at the time. 

8. In August 2009 the mother applied for an Intervention Order. In that application the mother stated that she was uncertain of the child’s paternity. The mother deposes to having been in a relationship prior to meeting the father and although that relationship had ended she said that she had on one occasion had sex with this other man shortly after meeting the father. The mother says it was on that basis that she had some uncertainty about the child’s paternity.  

9. In November 2009 the father obtained an order for parentage testing notwithstanding that he concedes that the mother’s solicitor at the time advised him that he was the father and that there was no necessity for paternity testing. That testing was completed in May 2010 confirming the father’s paternity of the child.

10. The father consented without admission to the Intervention Order sought by the mother. That order is no longer in force. Although the mother alleged significant and ongoing harassment by the father, notwithstanding those complaints the child spent time with the father. There has now been no contact between them for a significant period. These allegations, save and except to the extent that the mother complains about the father’s behaviour being odd and suggests that the child’s refusal to spend time with the father may be attributable to his behaviour, is not relevant for the purposes of the determination I must make.

11. The father also applied for an Intervention Order against the mother on 8 December 2016.

12. The application for an Intervention Order made by the father is similarly not relevant for the purposes of the determination I must make save and except to the extent that it demonstrates the father’s focus on issues relating to the mother, rather than his relationship with the child or her welfare.

13. In or about September 2010 and notwithstanding that paternity had been confirmed in May 2010, the parties then engaged in family dispute resolution, as result of which they agreed upon a parenting plan which provided for the father to spend an initial period of supervised time with the child commencing in September 2010. The parties thereafter scheduled further sessions agreeing upon a number of further parenting plans, signing the final one on 30 May 2013 which provided for the child to spend from 10.15 am Saturday to 10.15 am on Sunday each alternate weekend, from 10.15 am to 7.30 pm on the intervening Saturday, from 11.30 am to 4.00 pm each Tuesday, from 11:30 am each Thursday until Friday morning drop off at crèche and at times during school holidays by agreement.

14. There is no dispute that the child last spent time with the father on 16 May 2014. I am satisfied that one of the reasons for the breakdown in the arrangements for the child to spend time with the father was that the parties disagreed over the arrangements for changeover, the father wanting changeover to take place outside the police station and the mother proposing that it be at a local café.

15. The parties attended a further family dispute resolution session on 27 March 2015 but were unable to resolve the matter and as previously referred to, the father commenced these proceedings on 16 November 2015.

16. On 9 December 2015 orders were made which provided for the child to spend supervised time with the father at the F Town Contact Centre at times to be nominated by the contact centre, with the mother to deliver the child to the centre for the purposes of these orders.

17. What is also not in dispute is that the child’s time with the father at the contact centre did not take place. The mother gave evidence that she took the child to the F Town Contact Centre on three occasions and on the fourth occasion she could not get the child to accompany her. The contact centre declined to make any further attempts to facilitate the child spending time with the father on the basis of the distress that it would likely cause the child.

18. The matter has otherwise been awaiting a hearing.   

Material Relied Upon

1. The father relied upon the following documents:

   ·his Amended Initiating Application filed 15 August 2016;

   ·his Amended Initiating Application filed 31 August 2016

   ·his Affidavit filed 14 October 2016 (“Trial Affidavit”); and

   ·his Affidavit in reply filed 16 November 2016 (“Reply Affidavit”).

2. The mother relied upon the following documents:

   ·Amended Response to Initiating Application filed 16 September 2016;

   ·her Affidavit filed 4 November 2016 (“Trial Affidavit”);

   ·Affidavit of Mr G filed 4 November 2016;

   ·Affidavit of Ms H filed 4 November 2016; and

   ·Notice of Risk filed 2 December 2015.

3. Both the father and the mother filed Case Outlines.

4. The Independent Children’s Lawyer relied upon the two reports prepared by the family consultant, Dr N, and the psychiatric assessment of the father prepared by Associate Professor E dated 9 February 2017. The Independent Children’s Lawyer also filed a Case Outline.

The Evidence

1. The standard of proof in this case is the balance of probabilities. In applying that standard the Court must take into account the nature of the cause of action, the subject matter of the proceeding and the gravity of the matters alleged.

2. When the father filed his Amended Initiating Application he was seeking equal shared parental responsibility and equal time with the child. However, it is difficult to reconcile his application for a shared parenting arrangement with his Trial Affidavit upon which he now relies, which is highly critical of the mother. Dr N described that Affidavit as

   a voluminous but seemingly disjointed and rambling dossier, as well as in his repeated central theme of the mother’s alcoholism throughout the dossier at a time now 6 or 7 years post the mother’s open admittance of such behaviour, the writer gleaned a sense of the father still embittered and holding on to the past and in such it appears that he has an attitude approximating a person hard done by if not bordering upon a persecution complex; he has a sense of entitlement that has been unfairly denied him and he gave the impression in his writing of having some obsessive if not fixated personality traits.

   Dr N concluded based upon both the material relied upon by the father and his interviews with the father that “the father appears to be stuck in the past and still trying to blame the mother or find severe fault with her as a person and mother.” This is consistent with my observations of the father’s affidavit evidence, his oral evidence and the way in which he conducted his case.

3. At the commencement of his final address the father appeared to be submitting that he was adopting the Independent Children’s Lawyer’s Minute of Proposed Orders, which did not make provision for the child to spend any time with him. When I attempted to ascertain exactly what it was the father was submitting, he seemed to be saying that if the Court did not find the child to be at risk based upon either the mother’s alcoholism or at risk of sexual abuse by her half- brother, then he would not pursue his application for the child to spend time with him.  Having by that time heard all of the evidence I was able to indicate to the father that I would not be making any finding as to the child being at risk in the mother’s care because of either her issues with alcohol or because the child had been allegedly sexually abused by her half-brother. Having been given that indication the father reconsidered his position and although he was prepared to consent to the orders proposed by the Independent Children’s Lawyer he sought orders for the child to spend time with him.

4. Although the mother acknowledges having a problem with alcohol consumption the father did not point to any evidence to suggest that this is a current issue or that it presents any risk to the child. The mother deposes that following the stress of a health scare in 2007 and her parents’ declining health, she suffered from depression and would self-medicate with alcohol. She also acknowledged that after being told that her father only had a few days to live she drank to excess and drove under the influence of alcohol as a result of which she was convicted, fined and lost her licence for 19 months. Thereafter the mother said she sought professional help undergoing a five day detoxification program run by a local hospital and joined Alcoholics Anonymous. Although the mother says she did not consume alcohol for a number of years, she also admits that her struggle with alcohol was ongoing, that she had last been admitted for detoxification in June 2015 and that she had since abstained from the consumption of alcohol. This was consistent with the evidence of her former partner Mr G and what her adult daughter told Dr N. It is also consistent with the information Dr N reported having received from other professionals involved with the mother and the school principal.

5. Not only did the father not point to any evidence in support of his assertion that the mother has an ongoing problem with alcohol or more generally is a neglectful and poor parent, the evidence I do have suggests that the opposite is the case. Dr N in his first family report said that the principal of the child’s school had advised him that

   …usually the mother but occasionally her older daughter [Ms C] would bring or pick up the child from school. He said the child was always on time, she was always immaculately groomed, she was very happy and polite, academically was doing well and she had many friends…. He also said the mother also played a regular role in helping the school with activities and was widely well regarded in the [J Town] community.

6. Dr N also said that the mother had been described by her psychologist in her report dated 23 November 2015 as “…a competent and dedicated mother who has freely admitted to her flaws (at times excess alcohol use) and who appears to have shown good insight to deal with many extremely stressful recent events in her life (including the tragic loss of both her parents).”  The father also acknowledged having attended a meeting with the principal of the school early this year during which the principal summarised the child’s school reports for the 2016 year indicating to him that she was doing well at school.  

7. The father’s allegations with respect to the alleged sexual abuse were not only  not supportive of a finding to that effect, but highlighted the concerns raised by Dr N with respect to his grasp on reality and my concerns about his ability to focus on the welfare of the child and the issues in the case.

8. The allegations themselves and the father’s focus on those allegations were at times quite strange and he seemed disconnected from reality. The father relied upon what he described as the child’s explicit sexual behaviour in support of his allegation that she had been sexually abused by her half-brother. However the father also deposed that in July 2013 when the child was four years of age he booked an appointment with the child’s general practitioner for himself, the mother and the child during which he said that the general practitioner explained to them that the child’s behaviour was quite natural for her age.

9. Notwithstanding the advice he received from the child’s doctor the father deposed that “later witnessings” including the child dancing inappropriately and what he described as her explicit masturbation on the living room floor, left him “unconvinced and disturbed”. His belief that she had been abused by her half–brother was primarily based upon what he said had occurred on one of the last occasions the child spent time with him when he said the child’s half-brother

   walked straight past us, not even greeting or acknowledging us, as he was leaving the park. He shot a long hard look directly at [the child]. A cold and menacing stare he held on [the child] for quite a number of seconds. Threatening and like a warning, it terrified me extremely as it gave me the gravest of concerns.

10. The father also deposed as follows

    Earlier in January 2014 [the child] had made a drawing off by heart that astounded me somewhat. She drew a face that was different from all that she had done before. Less than 1 ½ month before she had only just managed to begin drawing ‘stick figures’. Its change was remarkable. Not until about the end of 2014, I happen to peruse an account that deeply gave fear as to the drawing and the likeness to adult images I saw

11. The father annexed some drawings to his Trial Affidavit. Notwithstanding having heard the father’s evidence, I still have no understanding of the point the father was making or what connection this evidence has to his allegations of sexual abuse.

12. Despite what the father said were his “grave concerns” he also said that all he did, as a result of those concerns, was suggest that the parties attend further mediation. Significantly, even after the child stopped spending time with the father, it took him some 18 months to issue proceedings.

1. The mother describes the child as flourishing on all levels in the last 18 months. The mother deposes in her Trial Affidavit that the child “is happy and well adjusted. She loves school, her friends, loves reading, writing, art and many other creative activities.” The mother’s evidence is consistent with the father’s evidence about what he was told by the school principal during his meeting with him early this year. The evidence in relation to the child is also not consistent with the father’s allegations either about the mother’s inadequate parenting or suggestive of a child who has been sexually abused, or as the father asserts, is at risk of ongoing sexual abuse.   

2. I am not satisfied on the balance of probabilities on the evidence before me that there is any risk to the child in the mother’s care either because of the mother’s alleged alcohol abuse or because of the risk of sexual abuse. To the contrary the evidence leads me to conclude that the mother is a capable and insightful parent.

3. On the other hand the father’s ongoing insistence that she is a neglectful and incompetent parent raises significant concerns about the motivation for his application and what Dr N described as his lack of insight into the impact of the proceedings upon the mother as the child’s primary carer, the child and the child’s welfare generally.

4. Associate Professor E made a number of observations of the father.  They included the following matters:

   a)the father’s thoughts were linear, well connected, without any peculiarities of content, stream or possession;

   b)there were no features of melancholia, psychosis or traumatisation;

   c)there were no features of psychosis;

   d)there were no ideas of reference, passivity phenomena, delusional beliefs or persecutory anxiety;

   e)the father’s perceptions were normal without distortion;

   f)there were no abnormalities of perception; and

   g)the father was alert, aware, orientated and in clear consciousness.

5. Associate Professor E concluded that “there was no impairment in the father’s insight or judgement due to any psychiatric cause.”

6. Unlike Associate Professor E, I did not find the father’s thoughts to be well connected and I am satisfied based upon his evidence that his perception in so far as it relates to the evidence and the issues in this case was far from normal. Associate Professor E qualified his report on the basis that he had not been provided with a copy of the father’s affidavits and I query whether, if he had read the father’s Trial Affidavit, he would have formed the same views.  In particular, I query whether he would have concluded that the father’s beliefs were not delusional or that the father was not of the view that he was being persecuted or at the very least, that he was hard done by. That is certainly the impression I was left with after reading the father’s Trial Affidavit which Dr N described aptly in my view at paragraph 12 of his second family report as follows

   In his extensive 202 page Affidavit dossier of 14^th October 2016 he provided a plethora of documentation about the mother’s parenting deficiencies that he had kept virtually since the parties’ separation. These included the same allegations as at his original interview; denials about his housing condition, denials about his odd personality, social capacity and mental health status, strong condemnation of the mother as her lack of everyday general care of the child and the child’s severe lack of medical and dental care, the child’s abnormal sexualisation at such a young age, and especially the impact upon the child of the mother’s alcohol and drugs abuse and very immoral lifestyle and regular exposure of the child to totally inappropriate everyday practices and people.  He also referred to the mother alienating the child from him. Nevertheless he provided no evidence to support such a broad range of allegations.

7. As referred to earlier in these reasons Dr N described the father’s Trial Affidavit as a “voluminous but seemingly often quite disjointed and rambling dossier” and that he gained the impression that the father was “still embittered and holding on to the past”.

8. Dr N’s description of the father in his second report was consistent with the description in his first report. However, he had also had regard to the fact that despite the father having made numerous calls to his office to set up an appointment with him after the release of Associate Professor E’s report, when he attended for that appointment he chose not to participate, in any real sense, in the interview, refusing to talk to Dr N and indicating that he would take the matter up in Court the following week. I, like Dr N, found this approach quite odd.

9. Dr N expressed his concerns about the father’s behaviour in his second family report and opined that

   …

   Overall, the writer has formed the opinion that despite the strongly conflicting and relatively untestable information and/or limited evidence the father is not a bad person indeed he appears to be a polite and relatively benign man. However he appears to be two different persons; the public one who is at pains to be charming and sophisticated and the other private one who appears quite self absorbed and with some distorted perspectives and who seemingly must always be right…

10. This is consistent with the father’s cross examination of Dr N which was focused on what he clearly perceived were criticisms of him contained in the second family report in relation to the father’s failure to attend the scheduled appointment with Dr N, rather than the issues in the case.

11. All of these matters give rise to concerns about the reliability of the father’s evidence. In this case it is not a question of credit, rather a question of the father’s perception. I have no doubt that the father perceives himself as a truthful witness and was doing his best to tell the truth. However, that truth is based upon what, in my view, is at best an unusual perception of reality.

12. The mother on the other hand was a responsive and cogent witness, not only making concessions when it was appropriate to do so, but also making concessions for which she might have expected to be criticised. For example when the mother was asked whether she had done anything to re-establish the arrangements for the child’s time with the father after sending a letter to him in or about July 2014 she said that it had been a relief when she did not hear back from the father.    

13. In all of the circumstances where there is a dispute between the evidence of the father and the mother, I prefer the mother’s evidence.

Legal Principles

1. In this case, as in any parenting case, the paramount consideration is the child’s best interests. The Court determines those best interests by reference to the primary and additional considerations in s 60CC of the Family Law Act 1975 (“the Act”). When having regard to the primary considerations in s 60CC(2) of the Act, the Court must give greater weight to the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. The Act does not otherwise prescribe the order in which the Court must consider the primary and additional considerations or what weight each should be afforded.

2. In Mulvany & Lane (2009) FLC 93-404 May and Thackray JJ said the following at [76]-[77]

   It is important to recognise that the miscellany of “considerations” contained in s60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests. (Emphasis in original)

   It needs also to be remembered that the importance of each s60CC factor will vary from case to case. …

3. The parties in this case now agree that the mother should have sole parental responsibility for the child. On that basis, it is not necessary for the Court to consider whether it would be in the child’s best interests and reasonably practical for the child to spend equal and if not equal, substantial time with each of her parents.

Discussion

The Father’s Relationship with the Child

1. What stands out in this case is the question of whether the child is likely to benefit from having any relationship with the father irrespective of whether that relationship could be described as meaningful. The child presently has no relationship with the father and the question the Court must determine is whether it would be in her best interests to re-establish a relationship with the father.  

2. It is the mother’s case that the child’s relationship with the father has always been somewhat fraught but that despite the father’s initial lack of involvement in the child’s life she has done what she could, despite her own reservations about the father, to facilitate the child’s relationship with him. I note in this regard that arrangements were made by agreement for the child to spend time with the father when the father first requested time and that when the parties and the children attended their interviews with Dr N for the preparation of his first report, the mother had already consented to orders providing for the re-introduction of the child’s time with the father at the F Town Contact Centre, notwithstanding that the child had not spent any time with the father since May 2014. She told Dr N at that time that she did not

   ...want to prevent the child having a regular relationship with the father and subject to the child’s willingness and readiness to be with the father she would support a gradual incremental increase in the child’s spend time with the father provided the father had appropriate accommodation.

3. Although the mother now opposes orders that the child spend any time with the father, I am satisfied that the mother has, notwithstanding her misgivings, facilitated the child’s relationship with the father. I do not accept as asserted by the father that the mother has tried to alienate the child from him.  

4. A significant part of the mother’s case were her concerns about the father’s odd lifestyle and behaviour, his lack of social awareness and how that impacted upon the child and her relationship with the father. The mother was also critical of the father’s capacity to provide for the child’s physical care.  The mother’s evidence was that when the child was spending time with the father and particularly overnight time she would

   return to us extremely weary, hair not brushed, teeth not brushed, not bathed, in poor quality and not practical clothes, usually really hungry and stating she hadn’t eaten much or very little and then would display really bad behaviour that would take about 2 days to re-settle back into her normal self.

5. Although the father did depose to the child looking “reluctant and scared and worried” to go back to the mother and told Dr N that he had a strong bond with the child, he did not in any real sense, notwithstanding his lengthy Trial Affidavit, address the issue raised by the mother or Dr N as to his parenting capacity. Nor did he cross-examine the mother with respect to that issue. Also, when given the opportunity by Dr N to address the current issues during his recent interview, the father “was polite but again declined to talk and concluded that the matter would be taken up in Court next week.” From my observations both his evidence and the way in which he conducted his case were instead focused on proving that the mother was an inadequate and neglectful parent.

Father’s State of Housing

1. The mother was also critical of what she described as the father’s itinerant lifestyle and questioned the suitability of his current accommodation for the child. During her first interview with Dr N she told him that based upon photographs she had received it appeared that the father’s current home was in a forest and that it may not have running water or a toilet. Dr N reported that when he asked the father about the housing issues, he quite stridently denied that there was an issue with his housing and said that the mother’s complaints were malicious and without foundation.

2. The mother annexed to her Trial Affidavit and tendered in evidence a number of photographs she said she had taken of the property where the father now lives in early 2016. The mother provided at least some of these photographs to Dr N following her interview with him for the purposes of the preparation of his first report, albeit at that time she told him they had been sent to her anonymously. Dr N said in his first report at paragraphs 75 and 76 in relation to those photographs as follows

   …These photos...clearly suggest that if they are of the father’s current home, the father has lied about his living situation …and appears to be substandard and unsuitable accommodation for the child.

   Reviewing the photos the writer was quite appalled at the living conditions. If the photos are of the father’s home it suggests duplicity or extremely poor judgement on the father’s part by him in submitting that such seemingly quite squalid living conditions are appropriate living conditions for such a young child, let alone any child.

3. Notwithstanding that the father would clearly have been aware that the suitability of his accommodation was an issue in the case during his interviews for the first report or at the very least when that report was released and notwithstanding that it was his case that the inside of the property was not like the outside, he did not produce any photographs of the inside of the property or any other evidence which might lead the Court to conclude that it was suitable for the child.

4. This evidence, the father’s response to the evidence and Dr N’s observations are relevant not only because of what they demonstrate about the father’s understanding of the needs of the child and his capacity to provide for those needs but also because of what they say about the focus of his case and his insight generally. It is significant in my view that the father’s focus was not on the suitability or otherwise of the property for a young child but on the fact that the mother or someone on her behalf had been on his property taking the photographs. Whether or not the father has a legitimate complaint about how the photographs were obtained, he has ignored the fact that these proceedings are about the child’s welfare. The father himself conceded that the outside of the property was a pigsty. I agree and in circumstances where the father has not produced any photographic or other evidence as to the condition of the inside of the property and given my lack of confidence in his evidence generally, I am not satisfied on the balance of probabilities that the property would be suitable or safe for the child.  

Parenting Capacity and Insight into the Needs of the Child

1. Not only did the father not address the allegations with respect to his parenting capacity, he paid little heed and appeared to have little insight into the needs of the child. The father was cross-examined about his failure to immediately notify the mother after the child broke her arm playing on playground equipment at the local school. The mother was not critical of the father because the child had broken her arm but because he had not immediately notified her of the injury. The mother said it was her understanding that the child had injured herself on Saturday morning. Although the father did not say exactly when the accident occurred it was a clear from the evidence that he took the child to the local hospital at about 8.00 pm, that he was advised to take her to another hospital for an X-Ray, that she was discharged from that hospital at 1.25 am and that he had advised the mother in the early hours of the following morning. The father did not offer any explanation as to why he had not immediately advised the mother that the child had been injured and seemed not to appreciate that his failure to do so might be an issue. In my view this demonstrates a profound lack of understanding of both his obligations as a parent and the child’s best interests. Not only am I satisfied that the mother would have wanted to have been advised immediately that the child had been injured, it is in my view  reasonable to assume that the child might have wanted the comfort of her primary carer.   

2. However, in my view the most significant example of the father’s lack of insight into the needs of the child are the two substantial periods during which, and without adequate explanation, he had no contact with the child. The first of those periods was following the child’s birth, which as Dr N said, would have been crucial for the purposes of the child developing an attachment to the father. Dr N in his report also referred to the lack of any cogent explanation given by the father for not having attempted to engage with the child during this period.

3. Notwithstanding that in July 2014 the mother wrote to the father proposing that the child spend time with him to which the mother says and I accept she did not receive a response, the child has now had no contact with the father since June 2014 and it is significant in my view that the father did not institute proceedings, similarly without any cogent explanation for not doing so, until November 2015 some 18 months after the child stopped seeing him. 

4. Having heard the father’s evidence I am also satisfied that he had given little or no consideration as to what impact the orders he sought might have upon the child, let alone how they might be implemented in circumstances where the child had refused to see him when an attempt was made to re-introduce time at the F Town Contact Centre.  When he was asked about what he thought might be needed to make it work, the only thing he could suggest was counselling. The father struggled to articulate what he himself might do to reassure the child to spend time with him.

Child’s attitude towards the father

1. When Dr N interviewed the child for the purposes of his first report he described her as “a very nervous and hesitant child” and said that she would not go into his room without her half-sister being there.  He said that she was on the verge of tears throughout the interview and said in response to questions she was asked about the father that “I don’t like him” or “I don’t feel safe with him”, “he scares me”, “I don’t want to see him at all” and finally that “I was sick this morning cos I thought I had to see Dad”.

2. When Dr N asked her whether she thought that in the future she might change her mind, he says she said “No…I don’t want to stay with him, I just want to stay with Mum” whereupon she burst into tears. Dr N said that “perceiving her rapidly heightening distress” he terminated the interview. He also remarked that the relief on her face when she left the room was quite “palpable”.

3. Dr N reported that he did not interview the child for the purposes of his second report because of the look of what he described as “sheer dread” on her face when she thought it was her turn to be interviewed and that when he told her he would not be interviewing her, her face immediately relaxed and she thanked him.

4. In cross-examination Dr N described the child as exhibiting symptoms consistent with a fairly deep rooted state of distress, if not psychological or emotional trauma. It was his evidence that when children experience trauma at a young age it can become deeply entrenched and that the reason he did not interview the child for the purposes of his second report was because of his concern that to do so might only add to that trauma. 

5. Dr N was also asked about what he thought might have caused the reaction in the child that he observed. Although he referred to the father’s “odd” personality as a possible explanation, he also said that children who have a strong attachment to a parent can be quite resilient in coming to terms with a parent’s unusual behaviour. However, he also said that because the child in this case did not have a strong attachment to the father, she may not have had the necessary resilience to cope with a relationship with him. Dr N attributed this lack of attachment to the father to the fact that there had been lengthy periods when the child had not been spending any time with the father, in particular, the period following her birth when children start developing those attachments.  Dr N emphasised that the first 18 to 24 months were “vitally critical” for forming an attachment to a parent.

1. In his first report Dr N recommended that if the child agreed to spend time with the father, bearing in mind that by the time he wrote his report the child had already refused to spend supervised time with the father at the F Town Contact Centre on two occasions, that such time should be for no more than two hours with gradual incremental increases over several, if not many months. There were also a number of conditions which Dr N said should be met by the father, including that he provide medical evidence that his conditions did not pose any risk to the welfare of the child, that he complete psychometric testing and that he provide independent evidence to the satisfaction of the mother that his current living arrangements are appropriate for the child.  

2. As previously referred to, by the time Dr N saw the parties for the purposes of his second report the F Town Contact Centre had advised that there had been four unsuccessful attempts for the child to see the father at the contact centre and that the centre had closed the process on the basis that to continue it would cause the child distress. The mother gave evidence about preparing the child for the supervised visits at the F Town Contact Centre and the child’s reaction on the three occasions they attended the centre for that purpose. The mother also gave evidence about the fourth attempted supervised visit when she said the child was crying and upset, refused to have a shower or leave her bedroom and that when she telephoned the contact centre they could hear the child crying in the background, as a result of which the proposed visit was cancelled. I accept the mother’s evidence which is consistent with what Dr N was told by Mr K at the F Town Contact Centre and I am satisfied that the mother genuinely attempted to facilitate the child spending supervised time with the father.

Conclusion

1. The principles underlying the objects of Part VII of the Act include ensuring that a child has the benefit of both of their parents having a meaningful involvement in their life and having the right to know and be cared for by both of their parents. It is these objects and principles which underpin and which are reflected in the matters the Court must consider in its overarching determination of what will be in a child’s best interests.

2. Dr N’s evidence was that although it might be possible when the child is older to attempt to re-establish her relationship with the father, at this age her emotions are stronger than her cognitive function and she remains vulnerable to the trauma she has already experienced, whatever its cause may be. He also said and I agree that what happened at the F Town Contact Centre is a good indicator of whether it is possible to move forward.

3. In his second report Dr N concluded as follows

   To summarise the writer perceives no prospect of the child and the father having any relationship in the immediate future, whether such may change as the child matures appears an unknown variable but currently the child’s best interests appear to be for her to have no contact with the father and the mother to have sole responsibility for the child.

4. Dr N also gave evidence that even the father sending the child letters, cards or gifts could trigger her trauma.

5. In all of the circumstances I am not satisfied that the child would benefit from a relationship with the father and that any attempt to re-introduce the father into her life could place her at significant risk of further emotional trauma. The parties have agreed that the mother should have sole parental responsibility for the child and that the child should live with her. Although I am satisfied that it is in the child’s best interests to make the orders the parties have agreed upon, I am not satisfied that it would be in the child’s best interests at this time to accede to the father’s application that she spend time with him either face to face or otherwise, even if that time were to be supervised.

6. To make the orders the father seeks, or even to make orders for supervised time, would be to repeat what has already been unsuccessfully tried absent any evidence as to how that might be achieved and flies in the face of the evidence in relation to the likely damaging impact pursuing that course would have upon the child. In my view such an outcome would be likely to lead to further proceedings whether by way of enforcement or generally, which I am satisfied would not be in the child’s best interests. Although, if I dismiss his application the father may seek to institute further proceedings, in order to do so he would need to establish that there has been a change of circumstances.

7. I am also satisfied given the level of the child’s distress described by Dr N when she was faced with the prospect of even discussing the father with him that it would be in her best interests to make final orders. 

8. In all of the circumstances I propose to make the orders the parties agree should be made by consent and otherwise dismiss all extant applications.  

I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 26 April 2017.

Associate:

Date:  26 April 2017