Vaughn and Williams
[2010] FMCAfam 819
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VAUGHN & WILLIAMS | [2010] FMCAfam 819 |
| FAMILY LAW – Parenting – best interests of the child – presumption of equal shared parental responsibility – whether rebuttable in circumstances – consideration of expert medical psychiatric and psychological evidence – equal shared parental responsibility presumption rebuttable in circumstances of the matter – findings of family violence within wide definition of Family Law Act – findings of inability to communicate – consideration of evidence as to benefit to child of equal time or substantial and significant time – finding of that not being in child’s best interests – consideration of primary and additional matters pursuant to s.60CC(2) and (3) – finding of no benefit to child in spending time with father. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60CC(2), (3), (4), 60DAC, 60DAE(2), 61B, 61C(2), 61D(1) and (2), 61DA (1) – (4), 65DAA, 65DAE, 65DAE(2) |
| Lansa & Clovelly [2010] FAMCA of 80 U v U (2002) 211 CLR 238 AMS v AIF (1999) 199 CLR 160 Chappell and Chappell (2008) FLC 93-382 |
| Applicant: | MR VAUGHN |
| Respondent: | MS WILLIAMS |
| File Number: | CSC 629 of 2008 |
| Judgment of: | Coker FM |
| Hearing dates: | 19–22 April 2010 |
| Date of Last Submission: | 22 April 2010 |
| Delivered at: | Townsville |
| Delivered on: | 6 August 2010 |
REPRESENTATION
| Applicant: | Self-represented |
| Counsel for the Respondent: | Ms Wilson |
| Solicitor for the Respondent: | AMR Legal |
| Counsel for the Independent Children’s Lawyer: | Ms Benson |
| Solicitor for the Independent Children’s Lawyer: | Murray Lyons |
ORDERS
The mother have sole parental responsibility for decisions in relation to the long-term and day-to-day care, welfare and development of the child, [X] born [in] 2001, including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name.
That the child live with the mother.
That the father not spend time with or communicate with the child.
That the father be restrained and an injunction issue restraining the father from approaching the mother or the child or from communicating with the mother or the child or from having any other person attempt to do so on his behalf.
That mother be at liberty to relocate to Townsville or Brisbane if she is required to do so by [occupation omitted].
That the Independent Children’s Lawyer be discharged after the expiration of the appeal period.
Liberty to apply within 28 days.
IT IS NOTED that publication of this judgment under the pseudonym Vaughn & Williams is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
CSC 629 of 2008
| MR VAUGHN |
Applicant
And
| MS WILLIAMS |
Respondent
REASONS FOR JUDGMENT
These proceedings were commenced by Mr Vaughn on 8 September 2008. In his application, he sought orders with regard to the parenting of the child of his relationship with Ms Williams. That child, [X], was born [in] 2001. The parties had a somewhat tumultuous relationship both leading up to the birth of [X] and subsequently, such that the final separation occurred [in] 2002, when the child was only some 10 months of age.
To the parties’ credit they had been able to reach, at least generally, agreement in relation to arrangements with regard to the parenting of [X] until early in 2008. At that time, circumstances between the mother and the father deteriorated radically and, as a result of that, the proceedings now before the court commenced.
The original orders that were sought by the father are set out in his originating application. As best one can understand, however, the orders that he now seeks are as detailed in paragraphs 98.1 through 98.7 and are included also in paragraph 99 of the trial affidavit filed 8 March 2010. The orders are extensive and are in these terms:
98.1That I be granted 3 months of “Sole, unobstructed, rehabilitation, Custody”, with [X], whilst the mother undergoes rehabilitation by a suitable Health Professional, who can supervise her visits with [X], at venues chosen by them. [X] has to be separated from her mother’s pernicious behaviour towards me, at least for some time, in order to stop Ms Williams destabilising our relationship further.
Following this, the mother and the father will have equal shared parental responsibility for the child of the relationship, namely [X] born [in] 2001 (“the child”).
98.2The child shall spend time with the father at all times as agreed but failing agreement as follows:
98.2.1From 12 noon each Sunday until 7:45am each Monday;
98.2.2From 3pm each Wednesday until 7:45am each Thursday; and
98.2.3From 3pm each Friday until 7:45am each Saturday.
98.3Notwithstanding these Orders:
98.3.1Each of the parties are at liberty to spend one week in a block period during each school holidays with the child on the proviso that that party gives two weeks written notice to the other party and to avoid any conflict, whichever party gives notice to the other party first takes priority;
98.3.2The father shall spend time with the child on every Father’s Day from 9am until 5pm;
98.3.3The father shall spend half of the child’s birthday with the child as agreed between the parties should the same fall on a weekend provided however that in the event that the child’s birthday does not fall on a weekend, the father shall spend time with the child from 3pm until 6pm;
98.3.4The father shall spend time with the child on the father’s birthday from 4pm until 7pm should the same fall on a week day provided however that in the event that the father’s birthday is on a weekend, the father shall spend time with the child on his birthday from 9am until 5pm; and
98.3.5Unless otherwise agreed between the parties, the child will spend time with the father from 6pm Christmas Eve until 2pm Christmas Day in odd numbered years and from 2pm Christmas Day until 9am Boxing Day in even numbered years, provided however, that this order shall not apply if either parent is holidaying with the child in a location outside a 100 kilometre radius of the [North Queensland] Post Office and in this eventuality, the parent the child is not spending time with will be at liberty to have reasonable telephone contact with the child on Christmas Day.
98.4The father is at liberty to communicate with the child by telephone at all reasonable times. All telephone messages must be returned [Answered].
98.5The father agrees that his undertaking to the Court not to medicate the child shall be ongoing unless advised by a Child psychiatrist, with the consent of both parents.
98.6The mother and the father are both at liberty to attend medical and/or dental appointments with the child equally and will abide by any recommendations made by medical or dental professionals.
98.7In the event of an emergency concerning the child, the parent with whom the child is living shall advise the other parent as soon as possible.
99I ask that the Court order rehabilitation of the mother in the form of Psychotherapy and possibly medication. Her personality is being imprinted on our child. I am seriously concerned that the next episode in this, will involve myself being accused of sexual abuse towards my child. I refer to the question asked by Officers of Child Safety: “Do you like little girls?” I ask that the court allow me full interim custody, with the mother allowed visits at her home with our daughter on the same basis and frequency as my previous visits, until a Professional such as Occupational Therapist or Social worker [Not a Psychologist] is satisfied that she is exhibiting proper Parenting skills and repair of the Paternal relationship and a genuine wish to properly care [Not possess] for [X] as behoves a normal Mother. That she pays for the Professional intervention, herself, as this will ensure compliance.
The mother’s position is as detailed, generally, in her amended response, filed on 4 September 2009. There is not, to any great extent, variation in relation to the orders from what were detailed in her response filed in relation to the originating application filed by the father, but so that there is some accuracy in relation to exactly what is proposed in relation to the matter, the mother’s final proposal, as set out on 4 September 2009 and still relied upon, is in these terms.
1.That the child [X] born [in] 2001 live with the mother.
2.That the mother have sole parental responsibility for making decisions about the long term care, welfare and development.
3.That both parties be restrained from denigrating the other party, or any member of the other party’s family, either to or in the presence or hearing of the said child.
4.That the father be restrained from attending any school that the child attends except by express written invitation of the mother or a teacher working at that school.
5.That the father not prescribe any medications or perform any treatment, including psychotherapy, for or to the said child.
6.That the mother keep the father advised of any illness or injury suffered by the child, if that illness or injury requires medical attention.
7.That the father spend time with the child, supervised by the mother or another adult person nominated by the mother, for a block period of two hours each week, at times agreed by the parties or as ordered by this Honourable Court EXCEPT for:
(a) a block period of two weeks during each Christmas school holiday, when the mother will be at liberty to take the child on holiday;
(b) a block period of one week in each short school holiday, when the mother will be at liberty to take the child on holiday;
Or as agreed by the parties, at a public place agreed to by the parties, or failing agreement, at a place nominated by the mother.
8.That the mother be at liberty to relocate to Townsville or Brisbane if she is required to do so by [occupation omitted], and that if the mother does relocate for employment purposes that she ensure that the child maintain contact with the father by telephone and/or Skype on two occasions each week, until her return to the [North Queensland] area.
It should be noted, however, that the mother, in paragraph 7 of those proposed orders, conceded that perhaps some arrangements should be put in place with regard to the father spending time with the child. It would appear, clearly, to now be the position taken by the mother, in relation to the matter, that there should not be any opportunity for the father to spend time with the child but, that if the court were to determine that that were the appropriate course to follow, then, in that event, the supervised time for a block period of two hours each week would be all that would be appropriate, in all the circumstances.
Of course, if that were to be the terms of the orders then the father would have, pursuant to those orders, less than 100 hours per year opportunity to spend supervised time with the child. It is one more of the matters that must be balanced in relation to these proceedings because it would seem that if it were to be found that the only arrangement which could be safe, secure, and appropriate in relation to the child’s relationship with the father is for 100 hours or less per year of a supervised nature, then one would have to have concern as to whether that would be in the best interest of the child and could, in any respect, be described as a meaningful relationship.
It is, if you like, the nub of the difficulties in relation to this matter because the parties are so diametrically opposed in relation to what each suggests is in the best interests and would provide for the welfare and nurture of this little girl. There are really two extremes. The mother’s time with the child, according to the father, should be limited and should be of a supervised nature, and the father’s time with the child should be limited and of a supervised nature, if the mother’s position were taken.
It should be noted that at the commencement of the hearing a most experienced independent children’s lawyer was in a position where they were simply unable to clearly detail what their recommendations might be. I noted at the commencement of the hearing that I had not been made aware, particularly when reading all material including the outlines filed by each of the parties, what might be any recommendation made by the independent children’s lawyer. At the commencement of the hearing counsel for the independent children’s lawyer indicated that whilst there had been some discussion in relation to this particular aspect of the matter, and some indication had been given as to what might be the position of the independent children’s lawyer, subject to any evidence that might fall, it was proposed, and I think quite properly suggested, that it would not be necessary for those indications to be provided to me, in relation to this matter.
What was also noteworthy, was that by the end of the proceedings, some four days later, the independent children’s lawyer’s position remained, perhaps, still one of concern in relation to what orders should be made but there was a more determined stance taken in relation to the proceedings. I note, for example, that whilst the counsel for the independent children’s lawyer indicated that the position and the recommendations still posed great difficulty for the independent children’s lawyer, there was more determination in relation to what should be the final orders.
The independent children’s lawyer recognised, that there had been for some time now, arrangements in place for the father to spend time, of a supervised nature, with the child and, yet, the relationship with the child and the father had continued to deteriorate, as was reflected in the two reports which had been filed in the proceedings and which were relied upon. Both were under the hand of Ms M, the senior family consultant in North Queensland.
Finally though, the independent children’s lawyer’s position, as indicated through their counsel, was to suggest that it was a very difficult and sad matter and it was:
Not often that consideration would be given by any independent children’s lawyer to there being orders made for no time to be spent with the father, but that that appeared to be the final suggestion in relation to the matter though put forward somewhat reluctantly in light of the obvious concerns as to the absence of the father in the child’s life.
The independent children’s lawyer, through counsel, indicated that that final position in relation to the matter had come about because, whilst there were previous indicators of supervision having been used and the possibility of supervision still being applied, the independent children’s lawyer was concerned that supervision simply, in the long term, would not work and, in the short term, was purely a return to what had been in place until early in 2010.
More particularly, the independent children’s lawyer indicated that her perception was that the arrangements for supervision may not work into the future, and was a reflection of what had been one of the difficulties of the past. In particular, the father had experienced in the past, supervision, both by the mother and by Ms B, an independent supervisor.
Obviously, there is very much, in relation to this matter, which must be addressed.
The significant evidence, of course, fell from the mother and the father, and I will address issues in relation to their evidence at some length. However, before turning to them, it is important that some background be available in relation to this matter. Quite simply, there is a very great divergence in medical or expert opinion in relation to this matter. I say that, however, being mindful of the fact that the divergence seems to arise almost entirely from the father, who is a medical [professional] himself.
Numerous other witnesses, both with medical and psychological backgrounds, have given evidence in relation to this matter and all have found favourably, in relation to the mother. Notwithstanding that, however, the father continues to suggest that there are serious mental health issues arising in relation to the mother, and that there are concerns which also need to be addressed, in relation to the mental health of the child.
The father says now, that whilst he medicated the child, as well as providing cognitive behavioural therapy for the child in her early years, he would not do so at the present time. There needs to be consideration of that particular matter as a direct risk that may arise, in relation to these proceedings. But before addressing the issues of the evidence of the mother and the father, it is important that there be some background provided so as to fully understand the very different perspectives that each parent takes, in relation to the matter.
In these proceedings three psychiatrists were called to give evidence in relation to the proceedings. The first of those psychiatrists, at least chronologically insofar as the filing of their reports are concerned, is Dr N. Dr N is a psychiatrist practising in [Southern Victoria]. Dr N was asked by the independent children’s lawyer to prepare a report in relation to the mother, and to provide an assessment of the exact concerns, if any, that existed in relation to the mother, Ms Williams.
Dr N’s report is dated 10 March 2009 and is annexed to her affidavit filed 17 April 2009.
Dr N has provided a comprehensive report in relation to this matter and details not only the information provided to her by the mother during the interview process, but also outlines the significant additional information that was available to her, including those documents which were filed by the father, as detailed in paragraph 3 of her report of 10 March 2009, as well as the mother’s response documents, and significantly, independent documentation, including having had made available to her, material produced by subpoena from the [C School], the Department of Child Safety, as well as the report of Dr W. Additionally, there were various documents made available from the Queensland Police Service and the [North Queensland] Medical Service.
In the end, Dr N addressed issues in relation to the mental state examination of the mother and then made findings in relation to same. Dr N, at paragraphs 44 and 45, made specific reference to the mental state examination that was conducted in relation to the mother. She noted that the mother was able to focus on questions put to her at interview without requesting any to be repeated or reframed. She also noted that, apart from the mother acknowledging that she had based some decisions in her past on her positive regard for and trust of others, she had other than that, acted with what appeared to be unimpaired judgment.
The mental state examination detailed in paragraphs 44 and 45 of the report of Dr N is as follows:
44.Ms Williams presented as a lady who seemed her stated age. She had a tanned complexion, was of average height, slim build and wore a cream shift dress. She appeared composed during interview and her demeanour was unremarkable. She demonstrated a range of affect and was briefly tearful at an appropriate juncture. She was able to smile appropriately and to demonstrate spontaneity of speech. She also spoke in response to questions put to her. Her speech was normal in rate, flow and volume. She was able to give a coherent account of her situation. Her recall of information for both recent and remote events was satisfactory. She was able to focus on questions put to her at interview without requesting any to be repeated or reframed.
45.Her concentration was satisfactory to the interview situation and she appeared to comprehend questions well. Her thinking appeared logical as demonstrated by the flow of her speech. There was no evidence of formal thought disorder such as tangential thinking. The contact of thinking demonstrated no delusions or overvalued ideas. Similarly, there was no evidence of any grandeous ideas or suicidal concerns. There were no obsessive thoughts. She acknowledged no hallucinatory phenomena and none were detected during interview. From an intellectual perspective she appeared to be of average or above intelligence. She was fully orientated to time, place and person and appeared to have a good understanding of the situation. She acknowledged having based some decisions on her positive regard for and trust of others. Other than that however, her judgement did not appear to be impaired.
Under the heading ‘Findings and Opinions’, Dr N went on at some length to comment about the basis upon which an assessment was made. In paragraph 46 she says the following,
In considering Ms Williams’ presentation and her description of her situation I could find no evidence of her having any psychiatric condition. Specifically I could find no evidence of her being a psychopath or having a borderline personality.
She then goes on to explain, the basis upon which her assessment is made. She continues at paragraph 46 as follows:
For there to be a diagnosis of any personality condition, certain factors must apply. Indeed, there has to be an enduring pattern of inner experience and behaviour that deviates markedly from the expectation of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time and leads to distress and impairment. Hence the diagnosis of personality disorder requires an evaluation of the individual’s long term patterns of functioning and the particular personality features must be evident by adulthood. It is thus important to enquire as to the individual’s functioning in the teenage and other years. Supplementary information from other sources is also useful in the assessment.
Dr N then goes on in the balance of her report to, as best she can from the information available to her, address very many of the issues that need to be considered in relation to various factors to be looked at, in relation to a total assessment of the mental health or wellbeing of an individual. She addresses those matters in paragraphs 48 through 54 of her report. I do not intend to outline in detail those particular aspects of the inquiry made by Dr N, other than to comment that they appear, as well as can be expected in relation to any report, to indicate the significant inquiry and proper inquiry that was made by Dr N in relation to the mental health assessment of the mother.
In paragraph 55, addressing the last factor to which she referred, but going on to indicate generally her findings, she says the following:
Again Ms Williams did not appear to demonstrate the above required factors. Therefore, accepting her statement that she does not have these factors and does not display them, I would have to say that I could find no evidence of a psychiatric illness or personality disorder. I can therefore find no reason why she should not continue to care for her child. Similarly I would not suggest that she requires any psychiatric treatment. She does not appear to pose a risk to the safety or wellbeing of her child.
Dr N was also asked to comment about whether the father should or should not have been diagnosing and treating his wife, as well as diagnosing and treating his child, but quite appropriately, and I think properly, Dr N indicates that it is:
Not for me to comment on, but I presume the situation would be investigated by the appropriate medical board.
I must say that I was particularly assisted by Dr N’s evidence in relation to this matter, and to the report that she gave in relation to the matter.
I note also that Dr N was required for cross-examination. At the time that she appeared, she was asked to comment upon the fact that the report prepared by her, which was commissioned by the independent children’s lawyer then involved in the proceedings, did not address issues in relation to Mr Vaughn, the father. In answering the inquiry as to why that was the case, Dr N simply indicated that she had been asked by the independent children’s lawyer to prepare an assessment in relation to Mr Vaughn, but that Mr Vaughn did not attend his appointment. She acknowledged, of course, that he had called and indicated that he had been held up [at work], and that unfortunately it was a situation where there were time constraints and she was simply unable to rearrange a further appointment, and therefore unable to provide any further assessment in relation to Mr Vaughn.
Mr Vaughn took the opportunity, understandably, to cross-examine
Dr N, as he took the opportunity to cross-examine each of the witnesses called, in relation to this matter. Mr Vaughn, when cross-examining Dr N, appeared to challenge particularly the mental state examination that had been performed by Dr N. In fact, it should be noted that this was a recurring theme in the position taken by the father, in that he was very much of the view that the mental state examination required a number of procedural steps, including cross-referencing and checking specifically family histories and particulars, and that if that were not done, then it was a basis upon which any report could be seen to be flawed and not reliable.
In that regard he questioned Dr N about the importance of taking a thorough and complete history so as to provide a comprehensive mental state examination. Dr N indicated that it was important that that occur, and that a whole inquiry would include inquiry of family history and, if you like, provision of corroborative information. When that acknowledgment was given by Dr N, the father seemed to pounce on what he considered to be an acknowledgment by Dr N that her report was flawed because there had not been some cross-referencing, as I have previously described.
He specifically questioned Dr N as to why she had not provided or taken a comprehensive family history in relation to the examination that she performed upon the mother. However, Dr N quite properly referred him to the family history in paragraph 37 of her report, and whilst it may not have addressed all of those issues that Mr Vaughn wished to see addressed, it was clear that Dr N had properly turned her mind to the issue and importance of obtaining a family history.
The father then, again, seized on another statement within Dr N’s report, which was to suggest that, as Dr N had said that she would seek corroborative or other information in relation to the report, and this was mentioned in paragraph 8, that she had not done so. Dr N, of course, indicated that corroborative and other information was obtained by way of reading of the material that had been filed in the proceedings, as well as the consideration of the very significant amount of material that was available pursuant to the various subpoenas that had been issued.
The real thrust, then, of Mr Vaughn’s position became clear when, as he asked each of the experts in relation to the matter:
Why did you not call me?
Dr N’s response was, I thought, telling, and most appropriate. Dr N indicated that it was not usual to attend with a spouse to obtain evidence in relation to corroboration of family history or other corroboration, because of the difficulties that generally exist in relation to such matters.
She further indicated, that it was expected that any patient being interviewed would be truthful and that any lack of direct truthfulness would be evidenced in various of the other documents and other sources of information, which were relied upon. Mr Vaughn suggested that the assessment that had been given by Dr N in relation to this matter was therefore an unbalanced one, because of the fact that he had not been consulted and asked to corroborate or clarify any issues in relation to the mother’s family history.
Dr N reported that that was not the case and that she was properly satisfied that the information and the corroborative material had been available to her and that she had properly been able to deal with the evidence that was available, and therefore to fully and properly assess the mental state and psychiatric health of the mother.
It should be noted, that the father did not attend through his own work commitments, at the interview with Dr N. It was somewhat petty on his part, then, to suggest that an obligation fell upon Dr N to follow up with him in relation to corroboration when, for no doubt legitimate reasons, it was he who failed to participate in the interviews that were taken. In any event, one could not expect that any indications given by the father in relation to this matter, would not at least have some bias or prejudice in relation to the answers that might be given to any corroboration sought, in relation to family history or otherwise.
The fact is, that Dr N utilised quite properly the sources of information available to her and that any criticism of Dr N, based upon a failure to seek corroboration from the father who, to all intents and purposes, was in an adversarial position to the mother in relation to the matter, fails to appreciate the inherent bias that would be arising from evidence taken from another party to proceedings, of the nature of those relating to family law.
I should say, that in the end, I was enormously impressed with Dr N and in particular would indicate that her assessment in relation to the mother impressed as both comprehensive and informative.
The issue of mental health and concerns in relation to mental health were so overriding in relation to this matter that further assessments were sought in relation to both of the parties. No doubt, the father’s inability through his own work commitments to participate in the preparation of a report by Dr N led in no small part to the independent children’s lawyer determining that a further report should be obtained, addressing issues in relation to the mother and the father.
Accordingly, on 20 May 2009, the independent children’s lawyer at that time, Ms Patricia Cope, indicated that she was seeking a report in relation to each of the parents and that there should be as much information as possible provided to assist in preparation of the report, in relation to both the mother and the father.
Dr K’s report is dated 3 June 2009 and is annexed to his affidavit filed 11 June 2009. Dr K, it would seem, from the reading of the report, followed very much the same process and procedures that were followed by Dr N in her report, addressing issues in relation to the mother. For example, Dr K sets out the extensive documentation that was utilised by him in relation to this matter as well as, of course, the arrangements made in respect of the interviews conducted with each of the parties. Both the father’s and the mother’s documentation was perused and, again, material produced in answer to various subpoenas were also relied upon by Dr K.
It should be noted, also, that the first family report, which was released on 6 April 2009, was also made available to Dr K and of course that report was not available to Dr N at the time that she prepared her assessment, in relation to this matter. Dr K also noted that he had the opportunity of perusing documentation from the Medical Board of Queensland and in particular had perused a copy of their document headed, ‘Policy on Medical Practitioners Treating Family, Friends, Colleagues and Staff’.
The interview with the mother is outlined on pages 3, 4 and 5 of his report. Dr K then goes on to speak of the information that was available to him, including, under the heading ‘Past Medical and Psychiatric History’, information that was provided by the mother as well as information as to her background, school and work history and relationship and lifestyle history. Interestingly, on page 7, under a heading similar to that used by Dr N, Dr K refers to the mental status of the mother at interview. He says the following:
She was a very pleasant lady who looked about her 44 years. She was very well dressed in white; well made up and presented very well.
She had blonde hair. She thought she was about 164 cms tall and thought she weight about 57-58kgs. She was very pleasant and matter-of-fact. She was certainly not distressed, depressed or anxious in this interview situation. There was certainly nothing to suggest she was hallucinated, deluded or thought disordered. She was animated and emotionally responsive. Her flow of speech was normal and its content appropriate to what we were talking about at a moment in time. She considered that
[Mr Vaughn] had been quite inappropriately treating [X]; insisted that she hadn’t known that he was giving her this medication and that she was shocked when she found out.
He then goes on to say, finally:
There was nothing in this interview to suggest any psychiatric disturbance.
Under the heading ‘Opinion’, Dr K says the following:
At this juncture I consider there was nothing to suggest that she had any psychiatric or emotional disturbance of significance. Certainly she has had a series of relationships but she said she had friends and she has a happy and good life. She acknowledged having this house on [Mr Vaughn’s] property created some problems.
He then finishes:
But my opinion at this juncture was that she was an intelligent person without any psychiatric disturbance; without any evidence of Personality Disorder or Dysfunction and without any substance abuse. I thought she was attempting to give a good account of herself in this situation.
Dr K then in his report referred to the interview with the father,
Mr Vaughn. He followed through, then, a similar series of questions or inquiry to those which were utilised by him in questioning the mother. He noted that the father’s background was South African and interestingly noted very early on that the father indicated that there was a particular interest held by him in the matter of Asperger’s syndrome. At paragraph 9, in the first paragraph under the heading ‘His Background’, Dr K says:
He comes from [omitted] South Africa and he then told me in retrospect that he realises at least half of the people in his [medical course] had Asperger’s syndrome.
It is a recurring theme in relation to this particular matter.
Again, under the heading ‘At Interview/Mental Status’, Dr K comments about the issues with regard to the father. He says:
He was a pleasant, middle-aged man; well dressed; he looked physically fit and healthy; was pleasant, animated and emotionally responsive. He was certainly not distressed, depressed or anxious in this interview situation and was really fairly matter-of-fact in his presentation.
Dr K then goes on:
He was obviously an intelligent man and I have no doubt that he was attempting to give a good account of himself and had no doubt that he was genuine in his perception of Asperger’s in many patients and genuine in his concern for the welfare of his daughter.
Dr K then makes reference to the provision to him by the father of a document headed, “Aspie Quiz”. Dr K refers to that as having been, as he understood it, devised by the father, though in cross-examination he indicates that that was what he understood to be the case but acknowledged that it may not necessarily be a document that was devised, by the father. Dr K goes on to indicate that in addition to the provision of the “Aspie Quiz” he was also given a document by the father on “Asperger People”, and it was emphasised to him that Albert Einstein, Charles Darwin and many other highly influential, brainy people, are Asperger People.
I should note that a similar address at the conclusion of the proceedings was given to me by the father in relation to explaining that Asperger’s is not, in any way, detrimental, it is simply different to the majority of persons within our society. It was interesting that Dr K saw the issue of the father’s significant involvement with issues of Asperger’s as very relevant in relation to these proceedings. At page 11 of his report Dr K says:
In the interview we had considerable discussion about his Asperger’s Practice; his belief that Asperger’s Syndrome people are coming out of the woodworks; his belief that the [North Queensland] Psychiatric Unit misdiagnoses people who have Asperger’s Syndrome with Paranoid Schizophrenia or other diagnoses. He told me that he was convinced that half of his medical class in [South America] suffer from Asperger’s Syndrome.
Dr K then goes on:
When I pointed out that there was documentation to suggest that [X] was relating well at school; doing well; a happy and contented child generally; he agreed that she no longer has any of the manifestations of Asperger’s Syndrome and puts that down to the fact she had this fairly lengthy period with SSRI medication.
Dr K also notes that the father then indicated that the mother,
Ms Williams, also has borderline personality disorder. It was noteworthy that as early as when these interviews were conducted by Dr K with the mother and the father in May of 2009, Mr Vaughn indicated that the solution for the current situation was:
that Ms Williams needs to go back on Zoloft and that would solve the whole situation and she would stop being manipulative and aggressive and everything would be back to normal.
Dr K then addressed many other issues in relation to the father, including particularly the additional sources of information which were utilised by him, in relation to his final assessment in relation to the father. Addressing those issues in relation to the assessment of the father is quite comprehensive. I do not intend to go through that opinion at length, as it is, some five pages in total of close type. However, it would be remiss of me not to specifically address some of the findings that Dr K made in relation to the father. At paragraph 16 he says:
With regard to the father, I have to say I don’t see him as having any psychiatric disturbance per se.
Dr K then goes on:
As far as I know he has always been a perfectly competent and hard-working [Medical Professional] and I note he acknowledges that he has always done a lot of psychiatric work [omitted] - as many [Medical Professionals] do - and I note that he has done a Masters Degree in [the Medical Profession] - a Training Degree designed particularly for those in [the Medical Profession].
Dr K then, however, makes the following most significant comment.
But I have to say it is quite clear he has become absolutely preoccupied with Asperger’s Syndrome.
Dr K then says:
Asperger’s Syndrome is a condition that is considered to be on the Autism Spectrum, that is on that line between normal and Autism. It is a condition that has only been described in fairly recent years. As so often happens with these newly described conditions, (which presumably existed for a long time before they were identified as such) they are seen as becoming very common in deed and one comes across Professionals in all aspects of medicine who become, as it were, unduly involved in the particular diagnostic labels. And then they see things with a perceptive set.
Dr K then makes a most perceptive comment in relation to this matter. Speaking at the time, of course, not only in relation to the father,
Mr Vaughn, but also in relation to many medical professionals as well as others within society. At page 17 he says:
But many people, psychiatrists and others, tend to fall into the trap of diagnosing people who may well be within normal limits with psychiatric conditions, personality disorders etcetera.
In my view he has clearly done that with Ms Williams. He refers to her as having Borderline Personality Disorder. In other places he refers to her as having Autism and I can’t see any basis for either of these diagnostic labels here.
He also describes her as having had an Amphetamine addiction and Amphetamine Delusional Disorder. (She told me that that is simply ridiculous and she can’t understand where that comes from. She said that she thinks that it might relate to the fact that he had been prescribing things in her name for other purposes).
But anyway it is quite clear that he saw some emotional disturbance in the child as representing Asperger’s Syndrome.
He has the view that Asperger’s Syndrome patients need to take SSRI and specifically Sertraline in this case, hence he started medicating her without telling the mother or the child or getting the diagnosis validated anywhere else.
Dr K then says:
This is highly inappropriate.
He goes on for the second half of page 17, as well as pages 18 and 19, to comment upon the inappropriate nature of the behaviours of
Mr Vaughn, not only in relation to the assessment of the mother, but also with regard to the assessment and treatment of [X], the child the subject of these proceedings.
The medication of children with psychotropic medications is a controversial issue anyway and should surely not be untaken by a [Medical Professional] without consultation with others.
When we add to that the fact that he initiated this medication, continued giving it for quite some period of time and didn’t tell the mother, I can only say this is highly inappropriate. I would argue it is highly unethical. (And that’s consistent with the views of the Medical Board of Queensland).
Now he may have been well intentioned and it may well be that it would have been difficult to get anybody else to assess the child in a relatively remote area like [North Queensland], but in view of the gravity of the practice of giving a child yourself medication under these circumstances, I have no doubt but that there was an obligation on his part to seek an opinion from a child psychiatrist.
I noted in the documentation he refers to himself as providing [medical aid] – that is referred to in a similar issue in the Document Policy on Medical Professionals Treating Family, Friends, Colleagues and Self Section 4.4.2.
In another place in the documentation he refers to himself as the child’s [medical professional] and the father. You can’t be both.
So I have to say there has been some very inappropriate behaviour on his part here. He doesn’t really seem to understand just how inappropriate this has been. I was somewhat surprised at one stage in the interview when I pointed out that the documentation from the school is fairly persuasive evidence that the child does not have any significantly pervasive disorder, when he said that was because he had been treating the child with this medication and there was no longer any need to treat the child thus.
I was also somewhat surprised when he said that the solution to this whole problem was for Ms Williams to resume taking Sertraline.
These comments in my view represent an extraordinary error of judgment and it would be quite an inappropriate assessment of the situation.
While I accept that he was well intentioned, I think his perception of these matters has been so distorted and his behaviour so errant in terms of judgement, one has to be very careful about what contact he has with the child, at least at this stage.
It is noteworthy that he sees the behavioural disturbance that the child demonstrated when all this came to light, as an autistic regressive episode. His mother, perhaps not much more appropriately, described it as withdrawal from the medication episode. I suspect it is much more related to the disturbance associated with her finding out that the child had been medicated; the disruption to the relationship between the father and the mother of the child associated therewith.
Be that as it may, it probably doesn’t make a great degree of difference to the current situation.
Now I did note that the Family Court Report Writer considers that [Mr Vaughn] has a lot of positive influence for the child; plays with the child in a stimulating and appropriate way and obviously has a clear attachment with the child.
I think for the father to have continuing contact with the child he must contract not to diagnose the child – or the child’s mother – or to refer to such matters; not to be involved in the treatment of either at all and certainly not to define himself as the child’s [medical professional]. He may have trouble doing that.
So I say his behaviour has been very inappropriate indeed but that he may well have something to offer the child, as long as he can conform to restrictions and prohibitions on his involvement in any form of treatment with the child or the mother.
He has betrayed the child, and from my reading of the documentation, it may well be that the child is acutely aware of that and the child may have difficulty trusting him, even apart from the mother’s reaction.
It is clear that Dr K has very grave concerns in relation to the behaviours of the father, and therefore the nature of the relationship between the father and the child. Dr K says, at page 19 of his report:
I see no alternative but to seriously restrict his contact with the child. The child’s wishes need to be taken into account and I say that his contact with the child should be strictly supervised, at least in the short-term until the child matures somewhat and can make her own decision to some extent to stand up to her father.
Finally, and interestingly, Dr K comes back to the concerns with regard to the father’s obsessive behaviour in relation to the issues of psychiatric disturbance and, in particular, Asperger’s syndrome. He says:
So I repeat though that I don’t see him as having any form of psychiatric disturbance, but I do see him as having become obsessed with the Asperger’s Syndrome diagnosis and behaving quite inappropriately and with very poor judgment in terms of managing his own daughter and her condition.
The report prepared by Dr K, particularly insofar as the father is concerned, was indeed a report which gave rise to very many concerns and considerations in relation to the father. Understandably, the father sought to cross-examine Dr K in relation to the findings that he’d made and, of course, also in relation to the mental state examination that had been done and the corroboration that Dr K obtained in relation to the mental state examination.
The father started from a base of suggesting that Dr K had not practised in private practice for a period of 20 years. The assumption or understanding of the father was incorrect. Dr K, in answer to the question relating to whether he had been in private practice or not for 20 years, indicated that he had continuously been involved in private practice but that there was a growing forensic issue or nature to his practice and therefore, whilst he was involved significantly in forensic assessments of persons, no doubt, of a very disturbed nature, he still continued to have involvement in private practice.
Mr Vaughn then, as I indicated, suggested that Dr K’s assessment and, in particular the mental state examination specifically relating to the mother was incomplete. Mr Vaughn was so direct as to ask whether
Dr K had collected a family history from he, Mr Vaughn. Dr K indicated that he had and, in fact, during cross-examination was given the opportunity to check his notes and indicated that he had in fact taken a statement from the father in relation to background, lifestyle and other matters, all of which were touched upon in the report.
He was then asked whether he had collected a past history in relation to the mother and similarly Dr K indicated that he had done so. He was asked whether he had raised with the mother issues of drugs, family, criminal history and the like, and Dr K, as best he was able, indicated that again such matters had been addressed by him in the mental state examination and of course, he had had the opportunity for corroboration or cross-referencing of information that had been given to him.
Dr K was then asked whether he had corroborated the history provided by the mother with Mr Vaughn. Dr K’s answer in relation to that was, I think, one of the most professional responses and the most appropriate responses I have ever heard, in relation to cross-examination of this nature. Dr K said in response to that question with regard to corroboration, words to the effect:
No. It is not appropriate to do so because in Family Law, each side gives entirely different versions. I did not therefore approach you in relation to corroboration of the mother’s family history or personal circumstances.
I could not agree more with the sentiments expressed by Dr K. As is obvious in so many cases, but I must say, unfortunately very particularly in this case, it is clear that the adversarial nature of the proceedings and of the very different positions and perspectives taken by both the mother and the father, means, that any information given by the mother would not in any way, one would expect, be corroborated or seen as a correct statement of fact by the father. Just as clearly, of course, indications given by the father in relation to issues with regard to his past would, no doubt, not necessarily be corroborated or confirmed by the mother and therefore one could see little point or benefit in seeking corroboration of family histories or other information from a direct partner, now the subject of adversarial proceedings.
Dr K was challenged by the father in relation to his position taken in relation to Asperger’s syndrome. Quite clearly, Dr K, on a number of occasions in the report prepared by him, raised the question of whether Asperger’s syndrome is as prevalent within society, as certainly would appear to be indicated by the father in the proceedings.
Dr K was asked whether he had in fact told the father that he didn’t believe in Asperger’s. Again, Dr K’s response was, I thought, both considered and appropriate. He said that that was not quite what he had said, rather he indicated that he thought that there are reservations that should be held in relation to people diagnosed with Asperger’s syndrome. Dr K indicated that he saw many people who had been diagnosed as suffering from Asperger’s, but was not sure that that was a fair assessment, as they appeared to be functioning appropriately and not outside the norm.
At the very least, Dr K indicated that when one looks at autistic spectrum disorder, that Asperger’s would be very much at the “soft end” of any assessment and was not necessarily the answer to all of the concerns that might arise, in relation to various parties.
Dr K was also cross-examined by counsel for the mother briefly, in relation to some of the evidence that had already fallen in relation to the proceedings. He was asked, for example, whether he was aware that the father had, it would appear now agreed, commenced medicating the child with either Zoloft or Prozac when the child was two years and four months of age, until a period where the child was around six years of age. In other words, a period approaching four years.
Dr K indicated that he was aware of this. He was asked to comment upon that particular aspect of the matter and again, I thought most professionally, declined to do so. He did, however, indicate that, whilst he had never assessed the child, he was able to indicate that documentation which had been made available to him, including, of course, notes from the paediatrician, Dr W, and other medical information, would indicate that there was no suggestion that [X] had now or at any time in the past, Asperger’s syndrome.
He was asked to comment also about the age of the child at the time that the father commenced to medicate her with Zoloft or Prozac. Again, he indicated that he had not assessed the child and would prefer not to comment in relation to that particular aspect of the matter, but did go on to note that the problem in relation to medicating a child that young, is that there is a controversy, or at least a controversial nature, to the provision of strong medications such as these to young children. He went on to say that it would be inappropriate, at least in his assessment to give, as he described them, “high powered drugs” to young children, unless they were absolutely safe.
Dr K also noted that at least in the United States of America, Prozac is not able to be given to adolescents, let alone children of the very tender years that it was first occurring, in relation to [X], though there are not such restrictions specifically in place in Australia.
He was asked whether there was still some concerns or questions unanswered about the effect of SSRIs upon the child’s brain and he said that certainly from his reading, the concern had been expressed and was a real one that needed to be looked at, in relation to the assessment of children, and whether it is appropriate in all the circumstances for medication of this nature to be given to children of such tender years.
I should say that I was most assisted by the evidence of Dr K. He gave the distinct impression both in his written report and also in his oral evidence that he was an enormously experienced psychiatrist, that his assessment in relation to both the mother and the father was well-considered and was based upon all appropriate indicators and that he had considered all proper avenues for information in relation to any assessment in respect of this matter.
A third psychiatrist was called in relation to these proceedings, at least insofar as assessment of the parties themselves were concerned. Dr T was called on the part of the father. Dr T was commissioned by the father’s legal representatives, then on the record, to prepare a report in relation to the father. Dr T’s report is dated 6 November 2009 and is annexed to his affidavit filed 2 December 2009. Dr T, again, took a family history and obtained information in relation to the father. His history taken in relation to this matter, again, very much mirrors the information that was taken by both Dr N and Dr K.
The interesting consideration in relation to this matter and it, of course, goes to the very heart of the concerns that are held is the fact that Dr T did not seek to corroborate the family history given by the father in relation to this matter with the mother but there was no criticism whatsoever suggested in relation to that particular aspect of the matter. It simply goes to show the double standard, that was shown by the father in his challenge to the basis upon which assessments were done in respect of the mother by both Dr N and Dr K.
In any event, Dr T also impressed as a psychiatrist of enormous experience. He held dual qualifications in relation to psychiatry indicating that he had qualifications as a psychiatrist but had also completed studies which gave him a sub-specialisation in relation to child and adolescent mental health.
Dr T was a most impressive witness. Dr T indicated in his summary and conclusions that Mr Vaughn presented with concerns for his daughter as he had observed early on in her development some aspects that he believed fulfilled the diagnostic criteria based on his observations for Asperger’s Disorder. It is clear that in the end, Dr T was satisfied that the father did not present with any symptoms consistent with the DSM IV diagnosis of psychiatric illness. It was also noteworthy that Dr T indicated that there were no observable or reported symptoms consistent with Axis II disorders arising pursuant to the DSM IV assessments, and that whilst the father was obviously distressed at the circumstances that now surrounded him and this family, he was dealing, to all intents and purposes, in a most responsible and appropriate way with issues in relation to his own circumstances and, of course, had no concerns in relation to the father’s mental health.
Interestingly, Dr T was also asked by the legal representatives then acting for the father to comment on the diagnosis of Asperger’s Disorder. At page 10 of 11 of his report, Dr T says the following:
With regard to the diagnosis of Asperger’s disorder I cannot comment as to the validity of this diagnosis between 2004 and 2007 as I have not personally assessed [X] during that period of time.
But he goes on:
One should be aware that the diagnosis of Asperger’s disorder should be made over a longitudinal period of time. Cross-sectional observation and interview, unless where the condition is clinically obvious is not always accurate.
He then indicates as follows:
It is also well known that pervasive development disorders such as Asperger’s disorder are not always static in nature in a young child. As development is not always stationary in this age group it is highly likely that improvement in symptoms can take place. It is therefore likely that if [X] had presented with symptoms consistent with Asperger’s disorder when younger she can also present with no further symptoms at present time.
Dr T finishes his report with the following comment:
During this interview Mr Vaughn presented with strong emotion when speaking about his daughter and her wellbeing. He showed genuine concern for her health and safety. He is also concerned about her emotional development due to the acrimonious separation. He reported that due to her symptomatic improvement and that she no longer requires treatment he has no intention of providing her with further medication.
Finally, he says:
Based on the information provided and assessment today, I do not believe that Mr Vaughn constitutes a significant risk to [X] and I believe it is no longer necessary for his contact with [X] to be strictly supervised.
Dr T, like Dr N and Dr K was a most experienced and professional psychiatrist providing expert evidence. It was interesting, therefore, that whilst he was called by Mr Vaughn, and it was sought by
Mr Vaughn to obtain some additional information from him, which was allowed by me, he did not necessarily and entirely agree with many of the matters that were put to him by the father. For example, Mr Vaughn sought to rely specifically upon Dr T’s comments made at page 10 of his report, to suggest that it could not be suggested that the medication provided by Mr Vaughn had not been beneficial. Of course, Dr T did not agree that that was the case, and as he very clearly set out in the next paragraph of his report, it was clear that Asperger’s Disorder was not always static in nature in a young child and that therefore, of course, changes could occur whether or not medication had been provided.
Also, Mr Vaughn sought to rely upon his own observations of the child as the basis upon which it was properly able to be assessed that she had Asperger’s Disorder. Dr T was asked whether it was common for there to be psychotic episodes in a five year old. Dr T’s evidence and response, in fact, was entirely contrary to that of the father, in that he indicated that it was extremely rare but that it can occur, but would not necessarily display the classic symptoms of Asperger’s Disorder. It was clear that Mr Vaughn was seeking much more from Dr T than Dr T was prepared to give.
It is clear that Dr T, for example, would not, except in the most extreme of circumstances, prescribe medication of the nature that was prescribed and utilised by the father in relation to [X], to children of such tender years. Dr T was adamant that before such medications would be used, particularly in young children, that it would be appropriate for there to be cognitive behavioural therapies utilised and that that could be done in various ways, and even with young children at play therapy and other forms of appropriate therapy could and should be utilised, before there was any suggestion of medication being able to be provided.
A theme in relation to Mr Vaughn’s position in relation to this matter was to seek to reinforce the importance of a doctor’s responsibility to his patients, and of course the need in emergency and urgent situations to be able to act in any way that could be seen to be proper, to protect the life of a patient. Dr T was, therefore, asked specifically by the father whether he could indicate what was a doctor’s prime consideration. Was it to the patient or to the family? Dr T indicated, again I think quite properly, that his first priority is, as it always must be, for the patient. Dr T, interestingly, went on to note that it was part of the professional code that all doctors should abide by.
Dr T, however, was far more illuminating in relation to this matter under cross-examination from counsel for the mother. He indicated that the use of Zoloft in relation to children with Asperger’s was not a common occurrence, and was certainly not something that would be used in relation to children of very tender years. Dr T was asked whether, from his own experience, he knew of any children under, for example, say six years, treated with Zoloft, and he indicated that he did not, and similarly, indicated that from his research he was not aware of treatment of children under six years with Zoloft.
Similarly, he was not aware of others prescribing, nor had he prescribed Prozac, for children of that age. Dr T was adamant that the prescription and use of Zoloft and Prozac with the children was not what he would consider, first practice. It would be far more appropriate, he considered, for there to be cognitive behavioural therapies and treatments to which he and the other medical professionals and psychiatrists referred. Specifically on the issue of the treatment of the child by the father, he was asked by counsel for the mother whether it was best practice to treat family members.
Dr T’s response was immediate and definitive. He answered “no”. It was clearly not appropriate for that to occur. In cross-examination by counsel for the independent children’s lawyer, this theme was further explored. When he was asked whether he was familiar with the Medical Board of Queensland’s practice and directions in relation to treating family. He indicated that he was. And when asked whether treatment of family, friends, colleagues was appropriate, he indicated that it was not, but did go on to say that a doctor can assist in an advisory role in relation to such treatment to be provided.
Dr T agreed, however, that it was not appropriate to prescribe medication [omitted] in relation to family, friends and colleagues. Dr T was adamant that that would be inappropriate and indicated that even in circumstances such as those suggested by Mr Vaughn, which related to the absence of experts in the area, proper inquiry should have been made of a more wide ranging nature. Mr Vaughn, in fact, took up that point in re-examination and sought to clarify what should be done.
Mr Vaughn specifically directed to Dr T a query in relation to a situation in a small country town where no other expert was available.
Dr T said that if the only option was to move to Brisbane, it would be difficult, but as he very specifically put it:
As a doctor, I would seek advice from a colleague.
He was asked what would be his position if that colleague or advice was not available, and he was really unable to answer the question as there seemed to be a distinction needed to be drawn between the availability of colleagues as opposed to the availability of a colleague in whom in this instance, for example, Mr Vaughn had confidence or, perhaps more accurately, in whom Mr Vaughn thought that he would find a common soul or direction.
Finally, in re-examination, Mr Vaughn asked Dr T whether the prescription of medication and its administering by, in this instance a father to a daughter, was really an ethical consideration, and in an emergency, whether it was appropriate, Dr T again quite properly indicated that in an emergency, of course a doctor could treat family, friends and colleagues, but as he finished his answer, he raised the real issue that arises in this matter when he said:
I question what emergency there was in this instance.
Again, Dr T’s evidence was of enormous assistance in relation to this matter. Dr T was a witness called by the father and relied upon by the father and yet, in the end, the evidence that he gave, if anything, simply gave rise to further concerns in relation to the father’s real appreciation of the inappropriate nature both of his treatment of a child of only two years and four months without even considering the fact that the child was his own child and that such treatment was, at least from the mother’s perspective, effected without any knowledge by the mother of the fact that the child was being treated.
I was again assisted by the expert evidence of Dr T in relation to this matter and his well-considered answers, particularly in relation to the behaviours of any medical professional treating a family member, friend or colleague were of particular assistance, in relation to the determination of this matter.
Whilst reports were not actually provided in relation to some other evidence, it was clear that other psychiatric assessments and evidence were provided in relation to the child, [X]. In that respect, Dr S was required to appear by subpoena. Dr S is a child and adolescent psychiatrist employed by Queensland Health and based at the [North Queensland Base Hospital]. Dr S was asked about his qualifications and experience and indicated that he held an MBBS from the University of Queensland, and was a fellow of the Royal College of Psychiatrists.
He also indicated that he held a masters degree in psychological medicine from Monash University and was also certified to practice in relation to child mental health. His experience matched his training, in that he indicated that he had practiced in the field of psychiatry for
10 years and thereafter in the area of child and adolescent mental health for a period of six years. Whilst the majority of his practice was in public practice, there had been, he indicated, about a year and a half in which he had practiced in the private sphere.
Dr S indicated that he had provided an assessment in relation to the child, [X], and confirmed that [X] appeared, to all intents and purposes, to be a well-adjusted and settled young child. He indicated, particularly having seen information from the child’s teacher, as well as from the paediatrician, Dr A, that there was not a basis upon which he would have considered, for example, that there were indicators of Asperger’s Disorder, in relation to the child. Dr S was cross-examined by the father in relation to his assessment in relation to the child and again in relation to issues with regard to whether the child exhibited the features of Asperger’s. Dr S indicated that the words that had been used by him in his report, provided to other medical professionals in relation to this matter, were very carefully chosen. He said that he would be very cautious to avoid saying whether [X] had or didn’t have Asperger’s syndrome but indicated that there were clearly, at the time that he had seen the child, no indicators that she suffered from Asperger’s Disorder.
The father appeared to be somewhat indirect in relation to his questioning of Dr S. I got the distinct impression that whilst the father recognised the professional courtesies that should be exhibited between members of the same profession, there was a degree of concern held by the father about the assessment made by Dr S in relation to this matter. In any event, Dr S was one of the many medical practitioners that the father had indicated had acted inappropriately or negligently.
I got the distinct impression that whilst the father sought to question
Dr S in a respectful and appropriate manner, there was and continued to be an undercurrent of disbelief on the part of the father and, of course, that was a recurring theme, as were many other issues in relation to the conduct of this case.
The fact is that the father seems very much to be of the view that there is only one qualified person to determine issues, particularly with regard to Asperger’s Disorder in any member of the community, and that is him. Mr Vaughn in fact indicated on a number of occasions that in his assessment, he would perhaps be one of the best if not the best qualified persons to assess such issues in Australia. Mr Vaughn had enormously high regard for his own capacity in relation to assessment, particularly with regard to the mental health of members of the community as well as, of course, particularly his former wife and his daughter, and yet had little regard for the opinion and expertise of many others.
Though, as I say, he was very careful in his approach in his relation to dealing with such issues.
It is perhaps appropriate that at this time, I should comment upon a matter that troubled me very much in relation to the cross-examination of very many of the medical practitioners, and in particular the medical practitioners with specialisation in psychiatry, in that Mr Vaughn referred to Dr T and others as suffering from what he described as “immigrant ignorance.” In other words, they were not able to fully appreciate the information that was provided, nor were they able to fully assimilate their educational backgrounds into an Australian society.
In other words, they were unable to fully appreciate the prevalence, at least from the father’s perspective, of Asperger’s Disorder within the community and therefore their assessments and opinions were of little, if any, real weight. Again, it came down to the fact that there was only one person who fully appreciated issues in relation to the psychiatric well-being of various parties.
Dr S, I thought, was a most impressive witness. He was asked on a number of occasions to answer questions in relation to various matters arising specifically in respect of this case and on each occasion, most professionally, Dr S declined to make specific comments, but was prepared to make general comments. For example, when asked whether the provision of medication to a child of two years and four months would be the first line of treatment, he indicated that, in general terms, that would not be the case, and that more appropriate approaches would be to resort to psychotherapy or play therapy.
Again, he indicated that that would be the proper course to follow. But, of course, he had not seen the child the subject of these proceedings at two years and four months to make a specific assessment. Similarly, he was asked about the ethical or appropriate nature of a medical professional who would treat their own family. He was asked whether a medical professional might lose objectivity in treating family, friends or colleagues, and again, he said that it was outside his area of expertise, but when asked as a doctor in general terms whether it was appropriate, he indicated that there were general guidelines, outlined by the Australian Medical Association and the Queensland Medical Board, and those guidelines were opposed to prescribing medications for family members, because of the possible loss of objectivity.
It was clear that Dr S was walking a fine line in relation to this matter. What was also clear however, was that Dr S was able categorically, and with great professionalism, to assess that at the time that he had seen [X] in 2008, that she was not displaying any of the indicators of experiencing Asperger’s Disorder.
Again, I was impressed by Dr S. I should note also that I directed to Dr S a query in relation to whether there was ethical or other considerations that should be looked at in relation to [medical professionals] prescribing drugs for their own use in the names of family members when, in fact, they were not for family members. It was an issue that had arisen in cross-examination of the father. Dr S, when asked whether it was standard practice to write scripts in the name of a family member for purposes other than the use of that family member, he indicated that he was not aware of other [medical professionals] who might do so, and certainly indicated that it would not be his practice.
I should note that the other medical experts, when asked in relation to such practices, each indicated that it would be inappropriate, and while some may have heard of such things being done, none of them considered it to be ethically appropriate or proper. It was troubling that after that query was raised, the father sought to clarify the answer that was given by Dr S by pointing out to him that the circumstances that I was referring to did not relate to serious drugs, but rather, drugs of a more antibiotic or general nature. When Dr S still indicated that it would not be his practice, and that he would not generally have considered it to be appropriate, the father’s real position in relation to this matter became clear. In a rather disparaging manner, Mr Vaughn suggested that Dr S’s position would be one that stems from the fact that he had been:
…out of private practice for too long.
Dr S remained quite appropriate in his demeanour and approach, and simply reiterated that which he had already said, which was to the effect that such practices were not done proper to his knowledge. As I say, I was enormously impressed Dr S and his evidence in relation to this matter.
One other medical practitioner was also called, though, again there was no specific evidence before the court by that medical practitioner. Dr W was a consultant paediatrician practicing for 20 years or more in Far North Queensland. Dr W’s case notes had been subpoenaed in relation to the proceedings and the father had required Dr W to be available for cross-examination. Dr W had consulted with [X] as a result of the referral from her general practitioner on 19 February 2008.
Dr W was asked whether he had seen [X] following the referral from Dr U, and he indicated that he had done so. Dr W indicated that he did not find that the child displayed any of the indicators of suffering from Asperger’s Disorder or anxiety disorder. Dr W, I thought, was most precise in the evidence he gave.
In cross-examination directed to him by the father, Mr Vaughn sought, I thought, to ingratiate himself with Dr W. His questions were not, initially at least, directed to issues in relation to the child, but rather, to inquire whether, for example, he, Mr Vaughn, had apologised to Dr W for being, a bit heavy with him on the telephone. Dr W replied that that was the case and that they had then had a general discussion and had spoken about issues in relation to Asperger’s, and it being on the increase, at least insofar as it being diagnosed, within the Australian community. Only after Mr Vaughn had, it would seem, sought to ingratiate himself with Dr W, did he turn to the real issues in relation to these proceedings, which related to the assessment by Dr W, that at least when first seeing the child, he was not satisfied that she displayed any of the indicators of suffering from Asperger’s Disorder, or other anxiety situation.
He was asked by Mr Vaughn about issues in relation to separation anxiety and whether anxiety could be more strongly displayed in children or persons suffering from autism spectrum disorder, or autism. Dr W indicated that it was perhaps more common than in the general community, but of course, that it was noteworthy that there had been more assessments generally in relation to Asperger’s. The father asked Dr W whether he had come across a child experiencing a psychotic episode between early years and adolescence, and Dr W indicated that in his 20-odd years of practice, that he had come across that on one occasion, in a child of four years of age. He said that that had been a tragic case, and that it was one where the child had regressed enormously. It was clear that Dr W was attempting to be most appropriate and fair in relation to the answers that he was giving, and if you like, that he, like Dr S, Dr N and Dr K, as well as Dr C, had all attempted to maintain that professional discourse and exchange with Mr Vaughn.
It is clear that whilst there was that degree of professionalism exhibited as between the father and the various medical specialists, it was also obvious at all times, as an undercurrent in relation to cross-examination by the father, that there was a lack of acceptance on the part of the father of the real qualifications or expertise in relation to any witness, particularly in relation to medical practitioners who gave evidence or formed views, contrary or different to those of the father.
In cross-examination, Dr W, a paediatrician rather than a psychiatrist, spoke of treatment of troubled children and, of course, he acknowledged that they formed a significant part of his practice. He was asked about prescribing Zoloft or other drugs of that nature for children, and he indicated that it would invariably be his second line of choice. He indicated that it would not at all be usual to prescribe medication for such young children, but rather, that cognitive behavioural practices would be far more appropriate in relation to their treatment.
Finally, in that line of questioning, counsel for the mother specifically put to Dr W that he did not have any concerns, at the time of examining the child or now that [X] had Asperger’s Disorder. He indicated that it was not finally clear in his mind, and again, I think displaying the professional courtesies to which I have already referred, indicated that the father had raised some good points in relation to behavioural matters that he had noted in relation to the child. But then, by way of final clarification, Dr W importantly said:
The thing is, in diagnosing Asperger’s Disorder in a two and a half year old, it is fraught with difficulties.
I was, again, most impressed by the evidence given by Dr W in relation to this matter and found it of most assistance in relation to determination.
As I indicated, I also had the assistance of a report prepared by the senior family consultant in North Queensland, Ms M. Before turning to the report or, rather, reports that were prepared by her in relation to this matter, it is important also to note that evidence was taken from Ms D, a psychologist, who provided her notes in relation to this matter, though she did also provide a short affidavit which addressed issues in respect of her assessment of the mother.
Simply, in relation to the mother, it was clear that Ms D was of the view that the mother did not display any characteristics which would lead her to consider that the mother suffered from any diagnosable mental health issues. In a brief report sent to the mother on 6 February 2008, Ms D indicated that psychometric assessment revealed no evidence of:
·post-traumatic stress disorder
·neuroticism, or
·psychoticism.
Ms D was, however, required more particularly to attend because the father wished to cross-examine her again about the processes used by her, both in respect of assessing the mother, and also in relation to her interviews with the child. The father asked Ms D at length questions about the mental state examination that she performed in relation to the mother, and Ms D was adamant that she could find no evidence of mental ill-health, and when asked whether she had done a mental state examination, per se, she indicated that it was not a test that she would use, but rather, she uses personality assessment inventories, and that all of the testing procedures that she utilised were internationally recognised.
The father challenged the professional approach of Ms D in relation to this matter, I think most unfairly. Ms D indicated at the very beginning that she was not a medical practitioner and did not hold herself out to be a medical practitioner. She did, however, indicate and strongly advocate her position with regard to being an experienced psychologist using internationally-recognised means, to assess issues in relation to mental state and health of her clients. It was clear that in relation to the issue of mental illness, there was a gulf between the position of the father and the observations of Ms D.
In fact, when questioned about that particular aspect of the matter,
Ms D specifically indicated that there was no evidence in the presentation of the mother or in her diagnosis by Ms D, that would indicate that there was a significant mental illness apparent, nor was there any need, using the various tools that Ms D had used, to take a comprehensive family history. She pointed out quite strongly that there were very different considerations in relation to a psychological test to a psychiatric assessment, and that the truth or untruthfulness given to answers could be looked at by the different processes utilised and the cross-referencing of the answers that were given, in relation to such matters.
In relation to [X], Ms D referred to the various comments within her notes that were in italics. Ms D was asked to confirm that where certain things were noted in her records, that they were, in fact, the words of the child. Ms D had some difficulty finding the particular notations, but when finally they were able to be located in her notes, it was clear that the concerns that were being expressed by the father in relation to this matter did, in fact, arise from statements that were made by the child, including statements to the effect that when asked about seeing her father, the child was the one who told Ms D, that her mother would not let her, and additionally, it was the child who had said to
Ms D that the father was the one giving her medicine, but that it was not good for her, and that her mother had told her that.
It was clear that there were some concerns that arose in that regard, but just as clearly, it was apparent that the child was, at least according to Ms D’s assessment in relation to this matter, not suffering from any psychiatric disorder or disturbance which could be found from the assessments, that she had done. I was assisted, at least to some small degree, by Ms D in relation to this matter, but as she quite properly indicated, she had not seen [X] for a period of two years or more up to the date of trial, and it was impossible for her to provide any current information in relation to the child.
I note also that the child’s teacher and head of college was called in relation to this matter. Again, there was no report or evidence called specifically from the college, but Ms P did provide information. Ms P confirmed that various documents which were shown to her had arisen either from school records or otherwise, and it was clear that Ms P was, at least in my assessment, a most experienced and thoughtful teacher and educational administrator. Ms P was asked about certain incidents at [C School], where she was head of college, and Ms P was able to refer to those instances.
She spoke of the disturbed nature of behaviours by [X] on at least two occasions when the father had attended at the school, and it should be noted that at least on one of those occasions, such behaviours occurred when neither the mother or other family members of the mother were present.
Ms P gave me the distinct impression that she was a most thoughtful and concerned witness in relation to the child, and whilst attempting to be meticulous and fair in relation to dealing with each of the parents, was mindful at all times that to the forefront was the best interests and the welfare of the child.
Ms P was asked whether the father was not welcome at the school and confirmed that that was certainly not the case and that the father was welcome at the school. It was clear that the mother had had greater involvement in the school and had closer interaction with the teachers and in particular Ms P.
I gained the distinct impression that Ms P was a little uncomfortable in being called in relation to this matter but that throughout she maintained her professional approach and that the school’s involvement with the child and their assessment of the child’s very proper progress and development were reflections of the guidance provided, particularly by the mother, at least in the last two years.
Ms P, for example, was asked to comment about the child’s presentation at kindergarten in the kindergarten year and subsequently at the school. She made, I thought, a number of very pertinent comments in relation to [X], being mindful of the fact that [X] has been attending at the school for some three or more years now. She described her as a socially successful child, a child who participated in all the structured activities of the school, that she participated in play time, and that she had never exhibited, to any real extent, separation anxiety.
She indicated that [X] was a bright and bubbly child most of the time, and that she was capable of performing the various tasks required in relation to craft activities and, notably, that [X] had a wide circle of friends.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
Exactly that situation arises here. The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child.
There is no such indication in relation to this matter.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, 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 for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)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.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
The position of the independent children's lawyer was here to say that it is a situation where the presumption must be rebutted. Quite clearly these parents have had years to attempt to work together and yet every expert indicator is that if anything the circumstances that have existed have deteriorated and have continued to deteriorate. The independent children's lawyer, I think the experts, and I think unfortunately I also, cannot come to any other conclusion that it is in the best interests of the child for the presumption of equal shared parental responsibility to be rebutted.
There is no communication of any positive nature between the mother and the father. As I have indicated, the mother’s interaction with the father is based primarily on a platform of fear. She has been the subject of continued harassment, intimidation and humiliation and one cannot imagine that there would ever be a change that would facilitate meaningful exchange from her perspective, with the father.
The father’s entire mindset is one based upon his unshakeable certainty in his own superior intellect, and determination that the mother is mentally ill and that until such time as she accepts his view and accepts treatment as he considers appropriate, she should have no input whatsoever into decisions to be made in respect of the child, nor in fact to have any physical interaction with the child.
Whilst that mindset remains in place and there is no indicator to suggest that either wish or are willing to change their view, there can be no possibility of equal shared parental responsibility. The circumstances that exist as between the mother and father without even considering issues of control or intimidation are such that there could be no workable arrangement in respect of the parents co-parenting [X].
In the circumstances, the only possible order that could properly be made in relation to parental responsibility for decisions to be made with respect to [X] is that the mother should have sole parental responsibility. The Independent Children’s Lawyer recommends that as an outcome and, as far as any interpretation could be made of the evidence of each of the other experts, to a man and a woman, they recommend that the mother have sole parental responsibility.
Normally, there would then be consideration of the obligations that arise with that responsibility to consider how there could at least be notification to the father of decisions to be made and at least some form of consultation, though of course the ultimate decision would vest in the mother. Here however there is no possibility of that being a workable arrangement. The mother would experience enormous difficulties in even attempting to consult with the father and one could not imagine that the father would enter into any such discussions in an appropriate manner.
The situation that currently exists between the parents is unworkable and, in fact, harmful in the extreme to [X]. This has already been observed by many of the experts and I could not imagine any change in the position of either parent. The current situation must stop and in my assessment the only appropriate order is one in which sole parental responsibility vests in the mother.
Having determined that equal shared parent responsibility is rebutted in this matter, it is not, at least legislatively, required to consider those matters set out in section 65DAA. However, simply because there is not the legislative requirement does not mean that there should not be consideration of what arrangements should be made, if any, in relation to time to be spent by [X] with both parents.
The two considerations that arise pursuant to section 65DAA relate to equal time being spent with each parent or, if not practicable, or in the child’s best interests, then substantial and significant time. The same considerations arise in relation to any determination of whether a child should spend substantial and significant time with each parent as arise in relation to considerations of equal time. The first is whether it would be in the best interests of the child which is, to some extent, a requirement for the Court to turn its mind to the paramount consideration as set out in section 60CA.
I do not intend to labour the situation that exists in relation to this matter. On what evidence has been presented, there is, in my assessment, no possible means by which it could be considered to be in the best interests of [X] for there to be equal time spent with both parents or substantial and significant time spent with the father. Whilst not necessary to specifically consider, I am mindful of those matters that might be considered pursuant to the provisions of section 65DAA(5) and in particular subsections (c) and (d). As I have noted, there is no current, nor would I anticipate any future capacity to communicate and resolve difficulties as between the parties, and more significantly, it could only be suggested that the impact of such an arrangement upon [X] would be most detrimental.
Obviously then, consideration must be given to those matters which are set out in section 60CC of the Family Law Act. That section is headed, ‘How a Court determines what is in a child’s best interests’. Sections 60CC(2), (3) and (4) are particularly relevant and are in these terms:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(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);
(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;
(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;
(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 parent son a regular basis;
(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child;
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact of any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(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;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
(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 obligations to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subjection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The primary considerations set out in subsection (2) should be considered first. They do not necessarily take priority over the additional considerations set out in subsection (3), but by the same token the legislature has clearly been mindful of a desire to ensure that they are to the forefront in any determination to be made.
Accordingly, one must consider what benefits there might be for [X] in having a meaningful relationship with both parents, but in this instance, especially with the father. Clearly, if the relationship were of a positive nature, then there would be little that could be suggested other than that it was beneficial to the child. Unfortunately, there is no possible way that it could be found that the relationship, as it currently exists, and which can be anticipated to continue into the future is beneficial to this child.
The father is unable to consider the mother in any positive manner. He acknowledges the close relationship between [X] and the mother, as well as acknowledging the degree of hurt that the child clearly experiences through his disparaging comments made about the mother and the suggestion that the child should be removed, at least in the short term, entirely from any interaction with the mother. Notwithstanding that knowledge however, he continues to act in such a manner and refuses to consider at all that there may be other issues and positions to be taken than that which he states.
In the current circumstances, [X] cannot experience any benefit in a relationship with her father. Any interaction would be uncomfortable for the child, as evidenced by the observations of the school principal, the reporter, Ms M, and the supervisor, Ms B. [X] has been the subject of continued involvement by the father in his pursuit of the mother and has also been subjected to continued suggestion by the father that she also is ill.
What would normally need to be balanced against considerations of the benefits to the child of a meaningful relationship is the need to protect the child from physical or psychological harm. In this case, however, the concerns that arise in relation to section 60CC(2)(a) are, if anything, reinforced by the need for protection of the child that arises pursuant to the provisions of sections 60CC(2)(b). It is hard to imagine a more obvious example of a child in need of protection, both physically and psychologically.
Every indicator given by the medical practitioners was that the actions of the father in medicating the child as he did, and in fact obtaining medications in other names, for use by the child or others, was professionally unacceptable, as well as a breach of the expectations that fall upon each medical practitioner and are set out in the ethical requirements for medical practitioners. The father was determined that he and only he knew what was best for this child, and there must be real concern as to the possibility at least, of physical consequences for [X] as a result of the father’s medicating her.
Whilst the father was adamant that the child’s apparent good mental health now was attributable to his early intervention, no other medical professional could accept that position and each, in varying ways, raised concerns about the risks to the child, particularly when the child was only a little over two years of age when medication commenced.
There is however even the greater concern as to the psychological harm that any involvement between father and child could cause to [X]. The father cannot be trusted to restrain himself in any way in his dealings with [X]. This was most obvious in the swimming pool on the last occasion that the father spent time with the child. Even when being aware of his time with [X] being supervised, he could not contain himself in speaking of the child and her health issues, as well as continuing to criticise the mother. There were obviously numerous other instances where the father acted in this manner and it is clear that whilst the father may have given an undertaking not to medicate the child, he was not willing or able to restrain himself in relation to other actions considered harmful to [X]. In any event, his own evidence was to the effect that he would seek out a medical professional, acceptable to him, to consider further treatment of the child.
One could not imagine that anyone acceptable to the father would not be of a similar mind to the father in relation to the need for early intervention with medication and would be susceptible to significant, if not overwhelming, influence by the father in relation to treatment of the child.
[X] is in need of protection from the real risk of physical and psychological harm in the presence of the father. It is but one further indicator of the fact that there cannot be seen to be any benefit to [X] of continued interaction with her father.
Section 60CC(2) is noted as being consistent with the objects of Part VII of the Family Law Act. Section 60B(1) sets out the objects as follows:
The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
When considering those objects, there is unfortunately no basis upon which it could be considered that [X]’s best interests would be met by her continued interaction with the father. Quite simply, there is no benefit to this child in her father having involvement in her life, there is a need to protect her from physical and psychological harm at the hands of the father. Additionally, the father is unable to adequately and properly parent [X] so as to enable her to achieve her full potential and there can be no confidence that the father will meet his responsibilities in properly attending to the care, welfare and development of the child.
The additional considerations as set out in section 60CC(3) can, in light of the findings already made, and the comments specifically made with regard to section 60CC(2) be readily dealt with. [X]’s views are clear. She is hurt by the relationship with her father and the observations that she makes of the relationship between her father and her mother. The only view that could be considered here is that the child wishes the hurt to stop and quite maturely assesses that that can only occur if her father is in no way part of hers or the mother’s life.
The relationship with the father is extremely poor, as evidenced by the clear wishes of the child and also her refusal to further participate in any relationship with the father.
I have commented at length upon concerns that I hold with regard to the father’s willingness and ability to facilitate and encourage a relationship between [X] and her mother. His express intent is to sever that relationship, at least in the short term, and then to only facilitate its re-establishment, if at all, upon his own terms and conditions. There is no possibility of the father’s position changing and it cannot be envisaged that that is beneficial to the child.
In a similar vein, the likely affect on the child of changes as proposed by the father, including the separation for some indeterminate time from the mother, cannot be imagined to be anything other than catastrophic.
If consideration is to be given to the capacity of both the mother and the father to provided for the needs of the child, including their emotional and intellectual needs, then the gulf that exists between the capacity of the mother and the father, is obvious. The father may have the intellectual capacity to obtain a medical degree and operate a successful [business], but on the evidence that is before the court, there is little that could give rise to confidence that the father would be able to encourage and direct the child’s intellectual development. It is unfortunately far more likely that if the child failed to meet the father’s expectations of what she could achieve, that she would be the subject of disparaging behaviours similar to those experienced by the mother.
The mother may or may not be the father’s intellectual equal, but it is clear that she is able to meet the child’s needs, intellectually, and does so, it being commented upon specifically by the school principal. She encourages the child in her intellectual endeavours in a non-threatening and supportive manner and therefore displays a far greater capacity to deal specifically with [X]’s needs.
Insofar as the capacity to meet the child’s emotional needs is concerned, there is little further that would need to be said over and above the comments already made through this judgment, than that the mother can properly meet those emotional needs and the father is entirely unable to do so.
The comments made in relation to the capacity to meet the emotional and intellectual needs are obviously also attributable to considerations with regard to the attitude to the child and to the responsibilities of parenthood demonstrated by each parent. The mother, in every respect, notwithstanding the difficulties that have been placed in her way by the father, has acted responsibly and appropriately toward the parenting of [X]. The father has simply failed to appreciate what was the appropriate attitude and the responsible approach to parenting and has acted, for a considerable number of years, in a manner that can only be considered dangerous and damaging to the child’s physical and psychological health.
Consideration must be given to issues of family violence involving the child or a member of the child’s family and whether there is a family violence order. Family violence is defined in section 4 of the Family Law Act as follows:
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.
As it can be seen, the definition is wide and therefore proof of any family violence of any extent or frequency is enough for it to be a factor of consequence in relation to any determination. In this instance, there is much that gives rise to concern about family violence. The father’s conduct has been oppressive, overbearing and threatening. He may justify, in his own mind, many of the actions that he has taken, such as disconnecting the mother’s household water supply, medicating the child or telling the child that the mother is mentally ill, by suggesting that his actions were protective of the child but there can be no other feasible finding than that the father’s conduct has caused the mother and [X] fear for their personal well-being or safety.
It may be that this specific consideration may not be determinative of the final orders to be made in relation to this matter, but it is simply one more clear indication of the destructive nature of the father’s behaviour and of his interaction, particularly with the child.
Section 60CC(3)(l) is not normally a matter which would have significance in relation to the making of final orders. There is more often than not simply a hope that orders, once made, would provide a structure or a framework for the parents to work together as they moved forward, but there could never be any positive finding that such arrangements would be “least likely to lead to the institution of further proceedings in relation to the child”.
Here, however, it attains considerably greater relevance than would normally be the case. One cannot imagine a more obvious recipe for continued dispute and litigation than would arise if the father were to be directly involved in the decision-making process or even to be spending time with the child. The evidence is clear that the parties have virtually no capacity to communicate and, in fact, even in the most precisely supervised time to be spent by the father with the child, circumstances arose which gave rise to concerns as to the appropriateness of continued time being spent.
Any order which contemplated continued requirements in relation to communication or discussion in relation to decisions to be made are doomed to failure. Similarly, any order which allowed continued opportunities for the father to spend time with [X] would give rise to obvious concerns as to the behaviours of the father and of actions taken by him in the presence of the child.
The only order which would be least likely to lead to the institution of further proceedings, at least from the mother’s part, would be orders which removed any compulsion for communication between the parents and interaction between the father and [X]. There is no order which could be made, which is in the child’s best interests, which would not give rise to the real possibility of further proceedings instituted by the father. In fact, his indication to the court during his evidence in this matter was that he would appeal any decision which would not provide for orders in terms of those which he sought. In that situation, it is impossible to preclude the possibility of further proceedings.
In the end, this is one of those tragic situations where, on the evidence that is before the court, it could not be found that there is any positive benefit to the child of a continued relationship of any nature with the father. Such a recommendation was made on the part of the Independent Children’s Lawyer with no doubt a considerable degree of regret. A similar position was taken by the report writer, again following very great consideration of what other possibilities might have been available for some relationship to continue. I also have come to the view that whilst [X] will no doubt over time experience some feeling of loss at not having a father in her life, the greater good and the best interests of this child can only be ensured by making orders which preclude the continued risk to the child of any interaction with the father.
Accordingly the orders of the court will be:
(1)The mother have sole parental responsibility for decisions in relation to the long-term and day-to-day care, welfare and development of the child, [X] born [in] 2001, including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name.
(2)That the child live with the mother.
(3)That the father not spend time with or communicate with the child.
(4)That the father be restrained and an injunction issue restraining the father from approaching the mother or the child or from communicating with the mother or the child or from having any other person attempt to do so on his behalf.
(5)That mother be at liberty to relocate to Townsville or Brisbane if she is required to do so [omitted].
(6)That the Independent Children’s Lawyer be discharged after the expiration of the appeal period.
(7)Liberty to apply within 28 days.
I certify that the preceding three hundred and six (306) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 6 August 2010
0
3
0