Weston and Haines
[2011] FMCAfam 660
•29 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WESTON & HAINES | [2011] FMCAfam 660 |
| FAMILY LAW – Parenting – amount of time child should spend with father – issues of parental capacity and attitudes. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | MS WESTON |
| Respondent: | MR HAINES |
| File Number: | SYC 252 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 13 & 14 April 2011 |
| Date of Last Submission: | 14 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Winfield |
| Solicitors for the Applicant: | Katie Smith Solicitor |
| Respondent: | Self represented |
| Counsel for the Independent Children’s Lawyer: | Ms Stollier |
| Independent Children’s Lawyer: | Rowley & Associates |
ORDERS
The Mother have sole parental responsibility for the Children [X] born [in] 2007 and [Y] born [in] 2009.
The Children live with the Mother.
The Children spend time and communicate with the Father on:
(a)Commencing from the first Saturday after the making of these orders and each alternate Saturday thereafter, from 9:30am to 3:15pm;
(b)Commencing from the second Sunday after the making of these orders and each alternate Sunday thereafter, from 9:30am to 3:15pm;
(c)Once [Y] commences kindergarten:
(i)Each alternate Saturday from 9:00am to 6:00pm during the months of Spring and Summer;
(ii)Each alternate Sunday from 9:00am to 6:00pm during the months of Spring and Summer;
(iii)Each alternate Saturday from 9:00am to 5:00pm during the months of Autumn and Winter;
(iv)Each alternate Sunday from 9:00am to 5:00pm during the months of Autumn and Winter.
(d)
Telephone contact with the Father each Tuesday and Thursday between the hours of 6:00pm and 7:00pm but not exceeding
15 minutes, with the Father to contact the Mother’s landline telephone number and the Mother to make the Children available during this time to take the telephone call. The Father is to ensure that the conversations are brief and appropriate to the ages and stages of development of the Children.
(e)If Father’s Day does not coincide with the day on which the Children would spend time with the Father pursuant to these orders, then on that weekend only the Children will spend time with the Father on the Sunday.
(f)These orders are suspended on Mother’s Day provided the Father spends time with the Children on the Saturday.
For the purpose of giving effect to Order 3 above, the Mother shall deliver the Children to Relationships Australia Contact Centre at the beginning of each period and the Father shall return the Children to the said Centre at the conclusion of each period.
The Mother be permitted to change the Child [X]’s name to [X] WESTON-HAINES] and to change the Child [Y]’s name to [Y WESTON-HAINES].
The Mother be at liberty to register the change of name of the said Children pursuant to these orders with the Registrar of the NSW Births, Deaths & Marriages and any requirement for the consent of the Father to the said change be dispensed with.
The Mother is to keep the Father informed in relation to significant events in the Children’s lives including, without limiting the generality of this obligation, information in relation to their health and education.
Both parties be restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Children.
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Children or permitting any other person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Weston & Haines is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 252 of 2009
| MS WESTON |
Applicant
And
| MR HAINES |
Respondent
REASONS FOR JUDGMENT
Introduction
On Christmas Day 2008 the father kidnapped his son [X] from the mother’s home. This single event casts a long shadow over these proceedings and raises important issues about the father’s capacity to adopt and maintain a child focus. [X] was one year old when his father took him without the mother’s knowledge or consent. He is now three years old. [Y] is [X]’s sister and she is two years old. She was born six months after the separation of her parents.
These proceedings relate to [X] and [Y]. The applicant is the children’s mother. She is forty years old. The respondent is the children’s father. He is 44 years old. They both reside on the New South Wales Central Coast. The parents commenced cohabitation in June 2006 and separated in October 2008. The events on Christmas Day 2008 precipitated legal proceeding, initially in a Local Court, and subsequently before me. The children are represented by an Independent Children’s Lawyer. In these reasons I explain why the orders that I have made are in the best interests of [X] and [Y].
Background
[X] and [Y] are the mother’s only children. They currently live with the mother and have regular daytime contact with the father. The father was previously married in 1992, and this marriage ended in 1996. The father has two children to that marriage who are now aged 18 and 16 but he has not seen them since 1996.
After the kidnapping on Christmas Day 2008, the mother commenced proceedings in the Local Court at [omitted] for the return of [X].
On 9 January 2009, orders were made by consent for [X] to be returned to the mother, and for the father to spend time with [X] for two hours each alternate weekend on a supervised basis. During the course of the kidnapping the father assaulted the maternal grandmother. He was charged with assault and subsequently convicted following a contested hearing. An Apprehended Violence Order was made in favour of the maternal grandmother, the mother and children for a period of
12 months from 30 April 2009.
After these proceedings were transferred to the Federal Magistrates Court in Sydney an interim order was made on 25 June 2009, enabling the father to spend time with the children on a supervised basis two hours each week. Orders were made for the mother to have sole parental responsibility, for the children to live with her, and for the father to have supervised time with the children.
During the course of the proceedings before me, a Family Report was prepared by Regulation 7 Family Consultant Dr G, and subsequently by Dr L.
By the time of the hearing, the mother proposed that there be final orders for sole parental responsibility in her favour, for the children to live with her, and for the children to spend time with the father each alternating Saturday and Sunday between 9:30am and 3:15pm, with changeover to occur at a contact centre. She also proposed that the children be known as [X Weston-Haines] and [Y Weston-Haines].
For all practical purposes, the Independent Children’s Lawyer’s proposal was consistent with that of the mother. Any differences in the form of the order were inconsequential.
The father represented himself during these proceeding. His proposal evolved from being an application for equal shared time to a proposal that was that articulated by him at the final hearing in the following terms. He proposed that there be overnight contact on three weekends each month from Friday afternoon to Sunday afternoon with changeover to take place at a supervised contact centre. He proposed time during the day on special occasions, and that when the children both attended school half the school holidays were to be spent with him. He proposed two weeks each year for the purposes of interstate travel, provided those weeks were not consecutive ones. He was prepared to accept the mother’s proposal for sole parental responsibility provided that he was made aware of decisions particularly in relation to medical procedures, where the children lived in a geographical sense, and schooling. He proposed telephone communication on Tuesdays and Thursdays each week but not exceeding 15 minutes between 8:30 and 9:00 am. He proposed that [X] have a hyphenated surname commencing with Haines rather than Weston, and he proposed an alternate spelling and middle name for [Y]. He sought an order that the mother not move outside of
50 kilometres from where he currently resides.
The mother’s application was supported by her affidavits as well as the affidavit of Ms W (the maternal grandmother) and Ms L (the father’s former wife). The father did not require either Ms L or Ms W for cross-examination. Accordingly, I accept their evidence. The father relied on his affidavit of 12 March 2010, as well as the affidavit of
Ms M (the paternal grandmother) and Ms P (a friend of the fathers). Neither were required for cross-examination. I accept their evidence.
During the course of these proceedings, the father filed two Contravention Applications. The first was filed on 17 August 2010 and then summarily dismissed on 1 September 2010. The second was filed on 28 January 2011 and this one was dismissed on 14 April 2011 as the father had adduced no evidence in support of the contravention application.
The evidence led by the Independent Children’s Lawyer consisted of the reports of Dr L and Dr G. Both were cross-examined. A report of Mr B was also relied on in part, and I will discuss this further below.
The mother was represented by her Counsel, Ms Winfield, the Independent Children’s Lawyer by Ms Stollier of Counsel, and the father represented himself. The father presented at all times as an intelligent, articulate and self-confident man. His written communication skills were excellent. His oral communication skills were very good. He demonstrated a very good understanding of the Family Law Act1975. His questioning of Dr L and Dr G was appropriate.
Issues
This case raises a number of issues, each of which will need to be discussed, though some will be with more detail than others. Each of these issues can be identified by reference to section 60CC of the Family Law Act1975. Having regard to each of the proposals, I will need to consider whether they will promote a meaningful relationship between the children and their father, as well as explore the nature of the children’s relationships with each parent. There are matters raised in the evidence of both parents that go to the question of protecting the children from harm. The evidence raises issues about each parent’s willingness and ability to facilitate and encourage an ongoing relationship between the children and the other parent. I will need to consider the impact of change on the children, particularly on the father’s proposals. There needs to be a brief consideration of whether there are any issues of practical difficulty and expense associated with the contact that is proposed. I will need to consider quite closely the question of each parent’s capacity and their attitudes towards the children and to the responsibilities of parenthood. I will need to consider the potential impact of past family violence. Even though the father can see that there should be an order for sole parental responsibility, in view of the conditions that he raises about that, I believe it is in the best interests of the children that I consider the issue of parental responsibility as if there were no such concessions. In view of this, I will need to consider the impact of the presumption of equal shared parental responsibility, and equal time and substantial and significant time.
Applicable law
The orders sought are governed by Part VII of the Act. The objects and principles underlying Part VII are set out in ss.60B(1) and (2):
(1) The objects of this Part are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
e)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
f)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
g)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
h)parents should agree about the future parenting of their children; and
i)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The child’s best interests are paramount: s.60CA. How a child’s best interests are determined is set out in s.60CC. I must consider these matters. There are primary considerations set out in s.60CC(2):
(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.
There are additional considerations set out in s.60CC(3):
(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 parents on 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 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.
As I am required to make a parenting order, a presumption of equal shared parental responsibility applies, subject to the terms of s.61DA:
(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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(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 interests of the child for the child's parents to have equal shared parental responsibility for the child.
Christmas Day 2008
The most detailed, and as it turns out, reliable evidence about the events on this day is contained in the affidavit of the maternal grandmother sworn 7 January 2009. Annexed to that affidavit is the maternal grandmother’s statement to the New South Wales police dated 25 December 2008. What is notable about both the affidavit and the statement is that the evidence is sworn so close to the date on which these events occurred. It is curious, indeed bizarre, that the father himself gives no detailed evidence at all about the events on Christmas Day.
In short, the maternal grandmother’s evidence is that at about 10:30am on 25 December 2008, she was at the mother’s home at [omitted], together with her sister and [X]. The grandmother asserts, and this is clearly verified from other evidence, that the mother and father had made arrangements for the father to spend time with [X] on Christmas at the mother’s home, and supervised by their maternal grandmother. The maternal grandmother’s evidence is that, in short, the father walked in, grabbed [X], and then ran off with him. The grandmother’s evidence is that when the father was at the door his demeanour was pleasant, but as soon as he was let in he became angry and aggressive, and that his teeth were clenched. There was a tussle between the father and the grandmother which resulted in the father being charged and convicted with her assault. It is common ground that [X] was then taken by the father with him to Melbourne, and not returned until the order was made by consent on 9 January 2009. In view of the fact that the father did not require the maternal grandmother to be cross-examined on her evidence, I accept the same.
The father’s evidence about the events in question are contained at paragraphs 74 and 75 of his affidavit sworn 12 March 2010. I replicate this evidence in full:-
74. I accepted the morning time offered for me to see [X] on Christmas Day via email but I am very upset with what was offered. Both the times offered during [X]’s normal sleep time and I am especially upset of the condition “Please be advised that should the Maternal Grandmother deem that [X] is distressed or upset it will be at her discretion to end the supervised time and you will be requested to leave.”, because [X] will indeed be upset because he will be tired. This will then give the maternal grandmother a reason to end the contact even before the 90 minutes s up in a direct attempt to provoke a reaction from myself that can be used in court against me to prevent [X] and I from spending any quality time together for an even greater amount of time”. [sic]
75. On or about 25 December 2008, after leaving [address omitted], I started driving to Melbourne. Within 5 minutes of being in the car [X] was sound asleep in his car seat. This was something [X] only did when he was very tired and I immediately new [sic] that Ms L had kept [X] up all morning to make sure [X]’s time with me would be as unsettled as possible and Ms L’s mother would then ask me to leave before the end of [the] 90 minutes I had been allocated because [X] was upset I am truly sorry that I left to Melbourne which [sic] [X] without giving Ms L any prior notice. I felt that I had no other course of action at the time and deeply regret this.
The rest of the father’s affidavit clearly indicates that he was frustrated and unhappy with the level of contact that he was having with [X] since the date of separation.
It is hard not to comment on paragraphs 74 and 75 of the father’s affidavit. Doing the best I can to understand paragraph 74 it seems the father believes that the whole event was a “set up” designed to provoke a reaction from himself that could be used against him in court. If this is an ex post facto hypothesis, it is a somewhat bizarre rationalization of the event in question. However, if the father is actually saying that he thought in advance that he could be set up, the fact that he nonetheless assaulted the grandmother and then kidnapped [X] demonstrates a remarkable lack of insight on his behalf. Turning to paragraph 75, the father’s suspicions about the mother’s actions are bizarre, if not even paranoid. In any event, the father’s case is that “I am truly sorry that I left to Melbourne with [X] without giving Ms L any prior notice. I felt that I had no other course of action at the time and deeply regret this.” In cross-examination, the father insisted that his kidnapping of [X] was not premeditated, but was rather a spontaneous act on his part. On the evidence before me, I simply cannot accept his contention. The only evidence about the incident is that of the maternal grandmother which, because it was not tested by the father, I accept. This means that the father in effect walked in the door and took [X]. There was no incident, action, or words that could have somehow precipitated in the father’s own mind or justified the unilateral action that he took. The evidence is that he had a pleasant demeanour when outside the door, but this rapidly changed to aggression as soon as he was let in. In the circumstances of this case I simply do not accept that this was a spontaneous act on the part of the father. But even if it were spontaneous, as the father asserts, he then drove with [X] to Melbourne, an act that took up most of Christmas Day and Boxing Day. He would have had more than ample opportunity to reflect on what he described as an impulsive and spontaneous act, and to see that by any objective measure it was better for him to return [X] to his mother. The fact that he did not reconsider his impulsive acts even when there was ample opportunity to do so strongly suggests to the court that a proper characterisation of the father’s action was that he in fact intended to take [X] to Melbourne with him.
There are at least two significant issues arising out of the Christmas Day event. The first issue is the insight that it gives into the father’s character. The mother’s case is that it demonstrates his propensity to violence (the assault on the maternal grandmother) as well as his impulsive, and in any event irresponsible actions (whether or not the kidnapping was impulsive or premeditated). The second issue is the impact of this event on [X]. The mother’s evidence is contained at paragraph 63 and 64 of her affidavit. I set out her evidence in this regard:-
63. Once [X] was returned to me, I noticed he was much thinner and extremely dehydrated. It took much persuasion to get him to drink any water. The [omitted] Clinic has recorded [X]’s loss of weight at this time.
64. I observed that in comparison to when [X] had lived with me prior to being taken by the father, [X] appeared bewildered when returned to me and in the car on the way home. It was only when he saw the house and recognised everything that he even made a sound. It was a few days before he began making the sounds he had been making prior to being taken. I was not able to leave the room without him crying and crawling after me. Whenever he was put down for a sleep he started screaming in a high pitched manner if I moved towards the door. I had to sit with him until he went to sleep which sometimes took up to an hour. [X] also woke screaming numerous times during the night. It took approximately six weeks until he got back to his normal routine of being left awake in his cot and going to sleep by himself. He refused his dummy which he had for bedtime, and instead frantically chewed and sucked his toy tiger. I was no longer able to transfer [X] from the car to his cot if he fell asleep. If I laid him on his back in his cot he would go rigid and immediately start crying hysterically. Normally, he would have just rolled over onto his tummy. [X] also reverted to playing by himself instead of playing with his friends when he was with them. [X] started interacting with his little friends prior to the Respondent taking him at Christmas 2008. [X] only started laughing and giggling again after about 8 weeks.
There is more evidence about the impact of this event on [X] at paragraph 19 of Dr G’s report:
19. Ms Weston said that when she first met her husband she thought he was ‘lovely with children and would be outstanding as a father’. However she found that he put his own needs before those of the children and denigrated her as a mother. She is very concerned not only that the father abducted [X] when he was thirteen months old, but also that he apparently sees that, in that action he did nothing wrong. From the mother’s perspective [X] was extremely traumatised by the experience. The mother wept when she explained that [X] did not laugh or giggle for two months after that experience, and would not let her out of his sight. She is also concerned that the father thinks he did nothing wrong in assaulting her mother. She is concerned that he apparently will not take responsibility for his actions.
Given that the father did not challenge the mother’s evidence in this regard, or what Dr G records, I conclude that [X] experienced his kidnapping by his father as an intensely traumatic event. Indeed, it could hardly be anything else. [X] had never been away from his mother overnight, let alone for as long as period as 25 December to
9 January. The issue here is not the standard of care that was provided by the father to [X] during this period. I accept that it was adequate, particularly in terms of his physical needs. The concern that is seriously raised by the father’s actions is about his ability to meet [X]’s emotional needs, particularly in terms of absence from his mother.
The Christmas Day incident was of course a matter in respect of which the father was cross-examined. As I indicated above, the father considered his actions as “spur of the moment”. He described it as “an impromptu thing”. When asked why he did not consider returning [X] to his mother the father stated:
[X] was in an extremely poor state of health in comparison to what he is now, and I wasn’t coming – I was coming back to Sydney, but I had no intention of returning him to his mother, and I had already applied to Medicare and stuff for me to receive all his family benefits.
With respect to the father, this evidence is hardly consistent with his assertion about “a spur of the moment” decision.
When challenged in cross-examination about the fact that [X] may well have missed his mother, he explained that he was addressing this by getting [X] to call his mother on a regular basis. It was put to him that [X] was only 13 months old, and thus not capable of maintaining a relationship by way of telephone conversations. The father responded as follows:-
What sort of communication did he have with me? He had a better relationship with me than – he always had a better relationship with me than he had with his mother, and so he wasn’t displaying any signs that he was missing his mother.
The father was asked to reflect on his action, both by Ms Winfield Counsel for the mother, and by myself. Initially, his response was that looking back on it he had done the right thing. I pressed him to reconsider. The father told me:
I think that maybe it wasn’t the ideal way to go about it, but I totally think that [X] and [Y] would be way better in my care than in hers, totally.
As he had not really answered my question I pressed him again, particularly whether looking back on it, he might have done something differently. Eventually, after much irrelevant rambling, he conceded that what he would have done differently is not to agree to the contact situation with which he was presented in the first place. He was otherwise incapable of coherently answering the question put to him.
I must say I found the father’s evidence in this regard quite remarkable. He was given several opportunities to demonstrate contrition and some insight into the impact of his actions [X]. He was simply not doing so.
He was again presented with the opportunity to demonstrate some insight when Ms Stollier, Counsel for the Independent Children’s Lawyer cross-examined him about these same issues. Interestingly the father himself referred to the incident as an example of him “being impulsive”. However, he thought that it was “an extreme situation and I don’t think it’s representative of everyday life for me”. However, when asked to admit that it was the wrong thing to do he said
well, was it the wrong thing to do? I guess in one way it was. I guess it depends on how you look at the context. If I look at in the context as was it the wrong thing to do to try and provide a better life for [X] in the long run, no, I don’t think it was the wrong thing to do. But if I look at it as being was it the wrong thing to do in, you know, [X]’s day to day care for that two week period, well, maybe it wasn’t the best thing for him.
The significance of the Christmas Day event from the mother’s perspective is that it has created a deep seated fear in her that the father will again act violently, impulsively, and insensitively insofar as the children are concerned. As it turns out, having regard to all of the evidence which is discussed below, I find that the mother’s fears are well grounded.
Dr G
Dr G is a Regulation 7 Family Consultant whose report dated 2 April 2010 was released to the parties on 7 April 2010. Her report follows a common format. She interviewed the mother and the father and observed their interaction with the children. She had access to the court file including the documents filed by the parties, subpoena material, as well as the affidavits of the witnesses. She was able to observe both [X] and [Y] interacting with both parents. In relation to [X] she states at paragraph 44 of her report:-
44. His mother said that [X] loves his father and indeed this was evident in the observation. [X] was delighted when he saw his father. He greeted his father with a heartfelt hug, then asked for his mother by saying, ‘Mummy. Mummy.’ His father reassured him that Mummy was in the next room. His father was a very attentive play partner. It transpired that I had to bring the mother into the room to console [Y], so the mother was sitting in the corner of the room for most of the play session. The father showed good skills in playing with [X], watching him attentively, interpreting his behaviour and then talking about what [X] was doing. He praised him lavishly (‘Good catch’. ‘That’s good balancing’. ‘Good job’.) He was led by [X] in play. At one point he sang. He kissed [X]’s arm better when he bumped it.
In relation to [Y], Dr G states at paragraph 46:-
46. When observed with her mother [Y] used the mother as a secure base to explore the room. She was perfectly happy as long as her mother was in the room. When her mother left the room for the father’s observation, [Y] coped for a short time, but then became distressed. Her father did his best to console her but she was inconsolable. I invited the mother into the room and she readily complied under the circumstances. She sat in a corner of the room behind the stroller. [Y] was able to access her when she needed to, so was then able to engage with her father. She smiled at him when he played ‘Peek a Boo’ with her. He positively reinforced her play with him with saying ‘Yea’ and clapping.
Before proceeding to set out and discuss Dr G’s evaluation, some context needs to be further explained. The affidavit of the father’s former wife, Ms L refers to the circumstances of the breakdown their relationship, which included allegations of the father’s inappropriate sexual behaviour towards children. Annexed to Ms L’s affidavit was a copy of a report prepared by Mr B, a consultant psychologist in 1996, based on the father’s self-reports. One of the issues in this case, raised by Ms L’s affidavit, is whether the children are at risk of harm in their father’s care, arising out of the matters that occurred in the context of his first marriage.
Dr G's evaluation commences at paragraph 48 and is quite extensive. She explains that this is a case that hangs on safety issues and that a risk assessment is outside the scope of the report, and depends on findings of fact. She clearly found the report of Mr B useful, whilst acknowledging its limitations. At paragraphs 49-52 Dr G states:-
49. However some assistance in this regard can be found in the psychological assessment and report on Mr Haines prepared by Mr B, consultant psychologist, in 1996, based on Mr Haines’ self-reports over two interviews. This document was attached to the affidavit of Mr Haines’ former wife, Ms L. I would like to point out that this report was written fourteen years ago when
Mr Haines was aged twenty-nine. This is not in itself a criticism of the report, and can in fact be helpful given that it presents some longitudinal history and a snap-shot in time after the breakdown of his first marriage. However the report does have limitations in that it did not include interviews with collaterals, although it did take into account court documents from both
Mr Haines and his wife at the time, who was contesting
Mr Haines’ parenting application. Mr B’s report impressed as professional, well-reasoned and balanced. He very responsibly articulated his caution at reaching unequivocal conclusions about sexual behaviour based on self-report.
50. Some of his findings were that Mr Haines does not suffer from any formal sexual pathology, or any other disorder. The assessment unequivocally stated that ‘There are no pathological indicators in relation to likelihood of violent behaviour or sexually aberrant views or tendencies.’
51. He did however identify certain personality traits or personality ‘style’ which could prove problematic for him: immaturity and impulsivity, difficulty in controlling his anger at times, mild narcissism, and a tendency to externalise problems in his life and see others as responsible. Some other traits mentioned were that Mr Haines, at that time, impressed as ‘mildly rebellious’ and ‘can be seen as pleasure seeking and more concerned with his own gratification than the wellbeing of those around him’. He was also assessed as having a tendency to be ‘isolated from those around him’ and ‘at times can feel estranged and isolated.’
52. These findings are somewhat reassuring in that they are entirely consistent with Mr Haines’ actions in the events that unfolded after the breakdown of his second marriage – his impulsivity in abducting [X] (although the grandmother perceives that it was premeditated), his apparent panic and externalising the blame for what occurred. Indications are that Mr Haines’ personality traits have remained stable over time. Having said this, a more contemporaneous assessment would be helpful and hopefully validate the previous assessment. (I would suggest that the earlier assessment not be made available to a future assessor).
As will be seen, Dr L was appointed to specifically consider the issue of whether the father suffers from a form of sexual pathology or other disorder. As it turns out, there are no such issues in this case. Paragraph 51, however, is particularly insightful. As it turns out, based on all the evidence before me, I find that the father continues to demonstrate immaturity (e.g. in relation to the communication books), impulsivity (e.g. [X]’s abduction, difficulty in controlling his anger at times, two assaults, a conviction, and acknowledgement of many more allegations), mild narcissism (an unshakeable conviction that he is always right), and the tendency to externalise problems in his life and to see others as responsible (e.g. the mother is the cause for him not spending time with his children, Ms L is the reason why he has no contact with his first children, the child support agency is responsible for the massive amount of arrears). The evidence that I have heard is entirely consistent with Dr G’s observation at paragraph 52 that the father’s personality traits have remained stable over time.
In relation to the father’s psychological health, Dr G states at paragraphs 53 and 54:-
53. What is of concern is Mr Haines’ apparent lack of insight into the impact on [X] of the abduction and separation from his primary caregiver for an extended period at such a young age. It is also of concern that the father has stated that in hindsight he wishes that he did not return [X] to his mother. This is not a child-focussed view but rather (in the constructs of Mr B) a somewhat narcissistic one motivated more by self-gratification than a concern for the child’s needs.
54. It is also of concern that Mr Haines, who the previous assessor finds of above average intelligence, seems to have so little insight into, and indeed confusion about, the causes of his relationship breakdowns, and the tendency of his explanations to externalise the blame (consistent with the psychological assessment)
Again, the evidence that I heard is entirely consistent with Dr G’s observations.
Dr G then considers the question of the children’s relationships with their parents, in the light of the proposals advanced by each parent. She states at paragraphs 56-59:-
56. At their young ages and stages of development the children need to spend frequent time with their father in order to develop a secure attachment and a close relationship with him. This applies to both children. As the family is on a waiting list for weekly contact at another centre, such a contact regime should be possible in the near future. Infancy is a time of very rapid development and [X] and [Y] are at different stages of development in infancy. They also have very different personalities and strengths. Thus I must address them separately.
57. [Y], although only eleven months old, presents as an outgoing, resilient child. She appears to have a sense of humour and an air of mischievousness about her. She vocalises a great deal, indicating that she loves to communicate and will probably be a very sociable little girl. Her secure attachment to her mother was obvious, and during the assessment she used her mother as a secure base to explore the world. She has not yet developed that kind of relationship with her father, although she is open to him and curious about him. Given the opportunity she will develop a positive attachment wither father.
58. [X] is an extremely sensitive, gentle little boy. He evokes a sense of protectiveness in the observer. He loves his Dad and has great fun playing with him. His father has the skills to observe the child, reflect back to the child what he is doing and then join with him, and extend him in play. The father’s TAFE studies in child development may have been of assistance here. [X] appears to have a secure attachment with his father. The subpoenaed material from the contact centre indicates that [X] was tentative at first but with skilful handling by this father responded joyfully to being reunited with his father and playing with him. These records support the conclusion that [X] has a positive and loving bond with his father.
59. The children are still of very tender years. Neither has been separated from their mother for child care. Neither has spent an overnight away from their mother, except for the two weeks during which [X] was forcibly removed from his mother’s care by the father, which was from all accounts a period of great anxiety for the mother. [X] will start some day-care when he turns three.
Dr G noted the mother to be highly anxious. Indeed, this is consistent with my own observations of her during the hearing. However, as it turns out, there is a good basis for the mother’s anxiety, and her concerns about the father are well founded. One of the issues that Dr G considers is the extent to which the father can reassure the mother that, firstly, he can regulate his emotions when under stress, and secondly that the children are not in danger of sexual molestation at sometime in the future. In relation to the first issue Dr G states at paragraph 62:-
62. Firstly, the fathers’ history of assault. From the verbal reports of the parents and the subpoenaed material, both of the assaults were associated with post-separation conflict about the father’s children, the first being about children from his first relationship and the second about his (then) only child from his second relationship. Both assaults were perpetrated against women. Both events appeared to occur when the father was under extreme stress. Both were in the context of the father’s apparent sense of powerlessness in relation to having rights to the children. There is still the potential for these circumstances to arise. [X] and [Y] are still very young, and it will be a number of years before they can speak for themselves and present as free agents in stating preferences etc.
She recommends that the father attends counselling or therapy to deal with his impulse control under stress.
In relation to the second issue, she says at paragraph 64:–
64. Until there is more clarity about the father’s potential for sexual abuse of minors, the safety issue will remain unresolved. (In hindsight it may have been helpful to have perused the Family Court file pertaining to the parenting dispute about Mr Haines’ elder children. This is something that has only occurred to me during the writing of this report.)
In view of all of the matters, she then makes the following recommendations:-
· That the children remain in the primary care of their mother.
· That they continue to spend time with their father, but that such contact be optimally on at least a weekly basis.
· That Mr Haines engages in therapy (preferably CBT) to assist him with impulse control in stressful situations.
· That telephone contact be twice weekly at set times, with the undertaking that the conversations be kept brief, as appropriate with the children’s ages and stages of development.
· That each of the parents be provided with the other’s current address and telephone number and that these contact details be updated should either parent move.
· That each of the parents be provided with the other’s current car registration details.
· That the father submits to an assessment, which includes a risk assessment of possible sexual abuse, by a suitably qualified expert before final orders are made.
· That whether the time the father spends with the children is supervised or not be dependent on the outcome of the expert psychological assessment and risk assessment.
Dr G was cross-examined. There was nothing in the cross-examination that would detract in any way from the helpful evidence that she gave in her report. I accept Dr G’s evidence.
Dr L
Dr L’ report is dated 2 June 2010 and was released on 4 June 2010. His report arises out of Dr G’s recommendation of an assessment in relation to the risk of harm by the father towards his children. Whilst Dr L’s report is very useful, it also has some limitations. He did not see the mother or the children. His report is based entirely on Mr Haines’ self-reports, the family report of Dr G, the affidavits of both parents, the affidavit of Ms L plus the attached report of Mr B.
Dr L concludes that the assessment of risk identifies few risks of likely future harm of a sexual nature, but it does raise concerns about the father’s ability to manage his anger and the potential for exposing his children to aggressive displays. In short, Dr L’s report excludes the possibility of unacceptable risk of abuse of a sexual kind by the father. However, in the course of his risk assessment, Dr L raises concerns about other aspects of the father’s personality which are clearly relevant to the proceedings. I will deal with this, in due course, but firstly let me consider the limitations of this evidence given that the mother was not involved in the interviews, and the sources of information available to Dr L were limited. As it turns out, these limitations do not detract from the weight that I place on Dr L’s conclusions. Dr L’s report raises some serious concerns about the father’s personality. It is hard to imagine, indeed it is inconceivable, that his conclusions could have been ameliorated by any other evidence that was available to the court, but which was not available to Dr L. Indeed, and in short, if the father stands condemned by Dr L’s report it is primarily because of his own reports to Dr L and Dr L’s observation of him.
There is much useful information about the father in Dr L’s report. Dealing with the father’s psychological adjustment at paragraphs 25 and 26 Dr L states:-
25. He reports no use of mental health professionals before other than for court related assessments. He tells me he does not get anxiety and says he does not think he has a mental health problem. Mr. Haines says that his temper is level, and he says he does not get involved in fights. The only charges against him relate to specific conflicts associated with his access to children. In the past he has been viewed as having problems with anger (e.g. report of Mr. B) and I suspect he probably minimised his anger issues to me. On the other hand, it may also be that over time he has learnt to control his anger more and impulsive gestures such as punching walls and the like he admitted to in 1990’s no longer manifest themselves. However, I note that both his wives have made similar allegations to both verbal violence and physical intimidation and insensitive physically demanding behaviour and whilst Mr. Haines dismisses these allegations as false and even conspiratorial, some credence to them seems appropriate given the anger issues that were seemingly more openly acknowledged in Mr. B’s report. It appears to be
Ms. Waton’s contention that Mr. Haines is a man with a high sense of his sexual entitlement, and hence was insensitive to way he made demands on her, demands that she perceived as abusive.26. There was an unusual feature of Mr. Haines’ presentation in interview that is reflected in his affidavit (12.3.2010) in which he presents as quite patronizing towards his wife and, to my mind, somewhat inflated in his view of his parenting skills. It is
Mr. Haines’ perception that his wife was depressed and incompetent as a mother, at least in the early period of [X]’s life although on the mother’s affidavit this is not true. Whilst on the whole he does not present with symptoms of narcissism the patronizing manner and inflated sense of parenting skills raises concerns about insight, especially given his otherwise quite unempathic manner and lack of insight into how his behaviour in the past may have affected his children. An example of the problem encountered is that in Mr. Haines’ affidavit of the 12.3.2010 he describes [X] asbeing in the bottom 25% for weight, but in Ms. G’s report a month later she describes [X] as being at the 70th percentile. Whilst I do not know the source for either comment, such discrepancies raise concerns regarding the comments by
Mr. Haines assuming that Ms. G has no need to have biased view of the situation.Under the heading “Attitude to the Allegations” Dr L observes at paragraph 30:-
30. He thinks people do not understand him and hence think he should have only supervised contact with his children. He fells [sic] this (that people do not understand him) in a general sense without being able to explain it. However, as with Ms. G’s report he expressed no concern regarding the abduction of his [X] and his affidavit presents a view of [X] as thriving after the abduction despite the rather odd situation that at [X]’s age one might have expected that he would normally have pined for his mother given she had been the primary carer for him to that point. He appears to have no means to develop insight into the effects on [X] of his behaviour. He says when he takes a look at a situation he typically looks at it from a “high perspective”. By this he means the “big picture” but his reference to this (in the context of him explaining how other people see him) appears unclear. It was hard to pin him down to a clear exposition of his beliefs about what is going on, referring to the issue of “multiple systems not meshing together” (thus causing him to be viewed as a risk to his children), but without having a capacity to place his views in some kind concrete examples. There are a number of ways his verbal behaviour can be interpreted. One is to assume that he lacks insight and thus talks in generalities as means of covering up his befuddlement of how he has come to be in the situation he is in. Another is that he genuinely has a view of the system as being against him, but has this from a sense of entitlement and ideological resentment and thus is espousing principles in the absence of a clear set of examples. A further possible explanation is that Mr. Haines does have a clear idea of what it is he believes but was talking in generalities so as not to expose his views to me. What ever the reason, it is of concern that he is unable to be clear about what it is that he sees as the reason why people do not understand him and he cannot communicate why it is their concerns about him are wrong.
Dr L administered a personality assessment inventory, a form of psychometric assessment. In relation to the father’s responses he comments as follows at paragraph 32:-
32. Mr. Haines’ response to the PAI was unusual in that it showed both some defensiveness as well as some unusual responses not usually encountered in profiles. Thus there was some endorsement of complaints that are statistically quite rare in the community. Although interpretable, some caution needs to be exercised in interpreting the profile. Essentially, Mr. Haines does not report any psychopathological condition. He presents as a pessimistic man who is rather harsh and self-critical, but is otherwise outwardly friendly. He did not present with problems in manager [sic] frustration, anger or impulsivity. Nonetheless, I think that he probably does remain an impulsive man. In the Family consultant report prepared by Ms. G she refers to the earlier report of Mr. B’s (undertaken in 1996) indicating some immaturity and impulsivity in Mr. Haines’ make-up and Ms. G makes the suggestion given later events such impulsivity appears to be a stable trait. His defensiveness is such that the profile is not particularly useful. On his self report and in early material he remains a person with some high sensation seeking needs and is likely somewhat of a risk taker.
Dr L concludes as follows at paragraphs 39-41.
39. Conclusion. The current assessment was ordered in elation [sic] to concerns raised by Ms. G in regards to risk of either sexual harm or aggression. Mr. Haines presented in the interview as cooperative but controlling of the information. The documentation available suggests that some aspects of
Mr. Haines’ self report were minimised, however, on the whole the risk assessment does not conclude there is an evident risk of sexual harm to his children.40. There remains a risk associated with personality features of entitlement, risk taking, impulsivity and ongoing anger control problems that Mr. Haines does not acknowledge. The assessment was unable to fully explore these personality issues due to some minimisation of them in conversation with Mr. Haines. However, the behaviours listed above are traits. The definition of a trait is a predisposition to act in a certain way, but for most people there is a broad range of traits and thus situations are not always responded to in the same way. A trait becomes a concern only when it so dominates a person’s presentation that relative inflexibility of response occurs – that is the person tends to respond in a characteristic way across environments. When the inflexibility is so significant that it completely dominates the behavioural repertoire of the person it is referred to as a personality disorder. To my mind it does not appear that
Mr. Haines’ behavior is personality disordered. His problematic behaviours seem most likely to occur in the context of relationships, but the difficulty is of course that the current assessment is precisely about his likely behaviour within the context of relationships – his ability to communicate with those who have some responsibility for his children, and to his children. At the moment the children are too young to oppose or voice independence, but the risk for Mr. Haines’ children is that as they age and become more independent he will seek to dominate them as he has his partners, and the potential for friction will occur as a result. To that end I think it will be unwise to extend parental responsibility to Mr. Haines. I think there is a risk of aggressive behaviour towards his children if they do not do as he wishes and this will not be a benign parenting experience for them.41. In regards to his request for unsupervised contact, I think (on the basis largely of Ms. G’s report as I have no independent observation) that given the good response of [X] to his father, and the absence of an ongoing concern regarding sexualised behaviour, unsupervised day-time contact could be provided. I am unsure about overnight contact at this stage. I suspect
Mr. Haines is so convinced of his position, and so consciously and unconsciously demeaning of the mother that it will be impossible for him not to say things that will undermine his children’s perception of the mother. Thus overnight contact provides a context in which the children will likely face significant challenge in being able to balance their relationship with both parents. It also increases the risk for aggressive behaviour towards children over evening routines and increases the dependence of children upon the father (hence the greater reliance on the father to curb his impulsivity, risk taking and anger). The children will be exposed to an unacceptable degree of parental conflict. I would not support overnight contact between the father and his children until such time as the children were significantly older and able to voice their own opinion and come to some judgments of their own, typically occurring in adolescence.Dr L was cross-examined. There was nothing in the cross-examination that would otherwise detract from his evidence. I accept that Dr L’s evidence. I am also satisfied that his recommendations are broadly consistent with Dr G’s recommendation in relation to parenting orders.
Mr B
For the sake of completeness, I will briefly refer to the report of Clinical Consultant Psychologist Mr B dated 18 July 1996, and filed in the context of the father’s proceedings with his former wife. My focus is not the allegations of sexually inappropriate behaviour, as I am satisfied that that is not an issue in this case. The psychological assessment is contained in the last two pages of the report, under the heading “Psychological Assessment”. I extract the six paragraphs in this section:-
1. Mr Haines does not suffer from any formal psychological disorder. He does not show any sign of serious mental illness and there are no indication that he has a fundamentally flawed personality of any formal psychosexual disorder.
2. Mr Haines clearly has some personality traits which would indicate he can be immature, self centred, somewhat impulsive and even at times narcissistic. I would stress that these are personality tendencies and Mr Haines appears to have some insight into these aspects of his character.
3. Mr Haines has not previously been prone to stress related problems or anxiety based difficulties. Since the breakdown in his marriage, however he is [sic] clearly had great difficulty coping and in fact has consulted a psychologist Ms C on a regular basis, in order to manage these issues.
4. Mr Haines does, however have some difficulties with anger management and controlling his temper. He has generally acknowledged that most of the allegations made by his wife in this report are factual and that he does indeed “punch walls” and he became extremely angry with his wife, although he has never physically assaulted her. He acknowledged that on one occasion he made a comment that he would “cut her throat”, however he described this as arising from a “loss of temper” with no substance to the threat. Mr Haines corrected his wife’s affidavit dated 30 May 996 in paragraph five and indicated that in fact this threat was in response to his wife’s indication that she may prevent access, rather than apply for supervised access.
Mr Haines acknowledges, however that in general his behaviour can be a little irrational and “over the top” and he has been seeking counselling in order to work on these issues. I believe that Mr Haines is genuine in wanting to change these aspects of his personality.
5. Mr Haines has clearly acted inappropriately in relation to his sexual behaviour on a number of occasions. These matters appear to be driven more by inappropriate curiosity and naivety combined with a lack of maturity at the time of the incidents. Whilst one can never offer an unequivocal opinion in this respect Mr Haines does not show any signs of formal psychological disorder in relation to his sexuality and there do not appear to be any of the usual or expected warning signs in relation to the possibility of pedophile [sic] behaviour or a preference for sexual involvement with young children. Mr Haines also accepts that his behaviour in relation to these matters was inappropriate ill advised and demonstrated extremely poor judgement.
6. It is important to note that I have not interviewed or assessed [Mrs Haines] or the children. I would suggest however that there is an absence of any formal evidence regarding the possibilities of Mr Haines presenting a risk to his children. Further, it would be inappropriate to make any formal link between his prior sexual behaviour as detailed in this report, and the risk of Mr Haines sexually assaulting his children. Thirdly, there are no obvious indications that Mr Haines has any sexual interest in pre-pubescent children; rather he appears to have a strong preference for adult women. Mr Haines does not appear to be involved in any other sexual activity at the current time, and appears motivated to reconcile the differences in his marriage. There is little else I can offer by way of psychological opinion in relation to Mr Haines.
The Mother’s Evidence
The mother gave evidence and was cross-examined by both Counsel for the Independent Children’s Lawyer and the father. She is clearly an anxious woman who is very protective of her children based on what she perceives to be the impact on them, particularly [X], of the father’s actions in the past. I think that, at times, the mother’s anxiety about the father has led her to be over-protective and that with the benefit of hindsight, and also with the benefit of all the expert knowledge now available, she probably could have allowed more contact with the father than she did. It was clearly apparent from her evidence that she is unable to communicate constructively with the father, but this is clearly a mutual and reciprocal problem. She made sensible and appropriate concessions. Thus, for example, she was quite willing to accept conditions on an order for sole parental responsibility in her favour that would have obliged her to keep the father informed about the children’s health and activities. She readily agreed to contact between 9:30am and 3:15pm, which was more than what her own orders proposed. She was a cooperative witness whose evidence I accept.
The Evidence of the Father
The father was an unconvincing witness. He was frequently unresponsive to the questions asked in cross-examination and downright evasive at times. He sought to control and dominate the cross-examination by creatively interpreting the questions so that he could say what he wanted. It was clearly apparent to me that he could not communicate with the mother except on his terms. I formed the strong impression, however, that anything was possible provided it was on the father’s terms. He demonstrated inflexibility about his attitudes towards the mother and parenting, a patronizing attitude towards the mother and an ability to control, indeed manipulate, information. He was resistant, indeed, impatient about contrary views. I found him to be amazingly flippant about some of his evidence. It was put to him, for example, that the mother asserts that seven communication books were sent by her with the children, but not returned. He readily conceded that the communication book is not his preferred way of communicating, that he hasn’t read the communication books anyway, that he has not sent the books back, and that indeed the number of communication books that he has been through “could be four, could be twelve.” The father explained to me that whilst he likes the idea of the communication but “I think the way it’s being provided in the book, I don’t think it works too well….I would like to see it come through in an electronic form, rather than in the current book form.” The difficulty with this is that the evidence about the father’s electronic communication with the mother is that it can be nothing short of toxic, patronizing and denigrating of the mother.
After hearing the father’s evidence I have real concerns about whether parts of his evidence can be accepted at all. For example, in cross-examination he was frequently taken to the inconsistency between his own evidence and the records of the supervised contact centre. Where that evidence conflicts, he insists that their record is wrong and he is right. I do not accept that. The records of the supervised contact centre are an objective business record. When challenged about his inability to abide by the rules of the contact centre he was initially unresponsive and then plainly evasive.
Of concern was the father’s evidence about how he spends his time at the moment. He is not working. He was previously working but he gave that up “to work on getting my children back – to spend the time doing the paperwork to see the children.” He is doing a childcare course as a fulltime student even though it is by correspondence. He was challenged about the amount of child support that he was paying for [X] and [Y]. He currently pays them $5.40 a month. He has $130,000 worth of child support arrears arising out of his previous marriage. He was insistent, however, that he could still financially provide for the children because “if I had them, I wouldn’t be spending all my time in court with court paperwork trying to spend that time seeing them, so I would be able to make other arrangements.” When it was specifically put to him that he would be able to go back to work and earn some money even now, the father responded: “yes, but I’m more interested in spending time with the children.” The father is in receipt of an Austudy allowance but I do not accept his evidence that he is studying fulltime. His own evidence indicates that this litigation has been the focus of his life rather than his studies, and his reluctance to work may well be attributable to a very substantial child support debt for his previously children.
In view of all of the matters I have set out above, I have real issues about unequivocally accepting the father’s evidence.
Meaningful Relationship
Clearly the father has a good relationship with the children, as does the mother. Neither the mother’s proposal nor the father’s proposal would result in a relationship that is any less meaningful. From the father’s perspective one can readily understand that he would like the opportunity to build an even stronger relationship with [X] and [Y]. This would be greatly facilitated by additional time. Whether that additional time is granted depends on many other considerations that I will discuss below. Suffice it to say that on the evidence before me, even if more time were not ordered, I am satisfied that the meaningful relationship that exists between the children and their father would be sustained on either proposal, even the mother’s proposal.
Protecting the Children from Harm or Risk of Harm
I am satisfied from the expert evidence that there is no risk of harm to the children arising out of the father’s past inappropriate sexual behaviour. I note that neither the Independent Children’s Lawyer nor the mother have proposed supervised contact.
Part of the father’s evidence focuses on what he considered to be the mother’s post-natal depression and ongoing depression, such that it had an impact on her ability to care for the children. There is no evidence before the court to support the father’s concerns. Indeed, the expert evidence of Dr G raises no issues whatsoever about the mother’s psychological or psychiatric health or her capacity to care for the children. If the mother has depression on an ongoing basis, which I doubt on the evidence before me, there is no risk of harm to the children.
The real risk to the children in this case arises out of what Mr B, Dr G, and Dr L refer, in different ways, to the father’s impulsivity and anger management issues. The abduction of [X] clearly demonstrates, at the very least, and even if I accept that it was not premeditated, a very high level of impulsive behaviour with little or no appropriate concern for the impact on the mother or on [X] and with no capacity to reflect and understand the consequences of his actions. The father has clearly been violent in the past even on his own admission. There are two relevant assault charges in respect of which he was convicted. Even he admitted in cross-examination that there were several more allegations made against him which he denies of course. His own admissions refer to hole punching and other aggressive behaviour in past relationships. Dr L believes, and I accept after hearing all the evidence, that the father has probably minimised the extent of his anger management issues. It is far more likely than not that the allegations that the mother makes against the father about his aggression are true. All of this, in the context of the father’s proposal, raises real issues. The father’s character and behaviour does raise the possibility for aggressive behaviour towards the children over discipline, evening routine etc. The other risk to the children is of continued exposure to the parental conflict. I agree with both Dr L and Dr G that as the children progress to adolescence there is an increase of that risk to them because they will begin to assert their own preferences and express their own views (as is developmentally appropriate for children their age), and this will be yet another flashpoint for them to be exposed to their father’s anger and impulsivity. In these circumstances, it is the father’s proposal that presents a much greater risk of harm to the children both physically and emotionally.
Willingness and Ability to Facilitate and Encourage Relationships
Both the mother’s and Independent Children’s Lawyer’s Counsel submitted that on the facts of this case the mother would have been quite entitled to seek final orders for supervised contact given the previous issues about the father’s sexually inappropriate behaviour and his ongoing anger management and impulsivity issues, let alone all the other issues raised in this case. They submit, and I agree on the basis of all the evidence before me, that in these circumstances, the mother’s proposal for unsupervised contact during the day does clearly manifest a willingness and ability to facilitate and encourage the children’s relationship with their father. At no point did the mother doubt the father’s love for the children, their love for him, or his capacity to provide for their physical needs. I must say this was in strong contrast to the father’s attitude about the mother. He has consistently demonstrated a high level of criticism about the mother’s capacity to care for the children. Indeed, I found his perceived superiority as a parent to be quite astounding. The father clearly believes that [X] is suffering from developmental delay as a result of the mother’s behaviour. In cross-examination, he confirmed that he believed that in the past and continues to believe it today. That is because he believes the mother doesn’t look after [X] properly and is unable to provide [X] with the additional assistance that he needs, and which he could provide. The fact that [X]’s doctor, and even Dr G did not notice any developmental delay with [X] is neither here nor there for the father, who clearly believes he knows best. On 1 August 2010, during the course of these proceedings, the father wrote to the mother an email in which he accused her of subjecting [X] to “more emotional torture”. This is an incident about [X] being sent in pants that belonged to [Y]. This incident, of course, needs to be understood in the broader context of the difficulties that both parents were having with communicating about the children, and the passage of clothes between parents. The term “emotional torture” provides a vivid insight into the father’s perception about the mother’s parenting capacity, i.e. her inferiority compared to his superiority. In the email in question, he goes on to suggest that the mother “attend a parenting course to learn the appropriate skills for [X] and [Y]’s sake, so they can be as happy and confident children while in your care as they are in mine”. Whilst the father could clearly see the need for the mother to undertake a parenting course, he was equally clearly convinced of the fact that he did not need one because, he was, after all, qualified as a Certificate IV in Children’s Services. He also asserts in an email that the mother needs “to treat [X] with more respect; respect which he should expect to get from his own mother.” The father explained in cross-examination that he didn’t see anything in [X] and [Y]’s development that says that the mother was “up to scratch with the norm for children their age”.
In these circumstances I am left with the deepest concerns about the father’s capacity to facilitate and encourage a close and continuing relationship between the children and their mother. Quite frankly, I don’t think the father can help himself in this regard. He is so convinced about his superiority as a parent, compared to her inferiority as a parent, that this attitude could not possibly be withheld from the children during any extended stays with him. In these circumstances, the father’s time with the children does need to be limited so that the opportunity for the transmission of his toxic attitude towards the mother can be limited.
Effect of Change on the Children
The father’s proposal, whilst clearly moderated from his original proposal for equal time, still presents the scenario involving the greatest change for the children’s circumstances and the longest separation from their mother. Whilst on one level the father’s proposal for weekends might be considered a moderate one, if there were no contra-indicating factors as there are in this case, it still presents enormous change for these children. Whilst [X] has spent overnight time with his father during the abduction, [Y] has never done so. The father’s proposal for school holiday contact including interstate travel is far too much at this stage in the children’s development. Both children are primarily attached to the mother, and apart from the circumstances of the abduction, have never spent overnight time away from her and with their father. In the circumstances of this case, the father’s proposal is not in the children’s interests having regard to the degree of change that they would experience.
Issues of Practical Difficulty and Expense
The only issue that arises is in regard to the agreed position that changeover should be at a supervised contact centre. Any order must be framed therefore, to take into account the availability of the said centre. I can only assume, in the absence of specific evidence in this regard, that all parties have satisfied themselves that the supervised contact centre is in fact available to coincide with the times they propose. What is abundantly clear is that in the circumstances of this case changeover must be facilitated through a contact centre. I believe that the mother’s proposal will present far less a practical obstacles to its implementation. Making an order for contact on special occasions, as proposed by the father, is problematic if those special occasions do not coincide with the availability of a neutral person to facilitate changeover. In the father’s broad description of his proposal at the commencement of the hearing, he referred in a non-specific way to have “changeover alternatives if a supervise contact centre is not available”. Regrettably, this does not assist the court in determining what, precisely, those arrangements should be. Thus, the vagueness of the father’s proposals results in concerns about practical issues in relation to implementation.
Parental Capacity
Despite all the father’s concerns about the mother’s lack of parental capacity there is no objective evidence that supports his concerns. Dr G was the independent expert best at place to assist any deficiencies in her parenting capacity. She raises no such concerns. By contrast, Mr B, Dr G and Dr L all raise issues about the father’s personality that reflect on his capacity to parent. The issue here is not about his capacity to provide the children’s physical needs, or perhaps even their intellectual needs. The focus of the concern is on his capacity to provide for the children’s emotional needs. In circumstances where the father has clearly such a negative view of the mother, has engaged in family violence and in impulsive behaviour, which is in itself a poor role model for the children, and so clearly lacks insight about the impact of his actions on other people including the children. The father’s evidence about the communication books is one example from the evidence about his inability to meet the children’s emotional needs. Clearly, parents need to be able to communicate between each other about the children. The conventional wisdom is that a communication book facilitates this. The father’s evidence that there may have been as many as twelve communication books that, if he reads, does not read during contact, but which he found clearly are unhelpful. His complaint is that the book shows that nothing other than what he can see when the children are collected, or the mother’s complaints about certain things, e.g. about non-return of clothing. As previously indicated, he would prefer a form of electronic communication even though the evidence of some of his communication with the mother leads the court to conclude it is nothing short of toxic. The father finds it inflammatory when the mother communicates via communication book that the children were sunburnt whilst in his care. Apparently, however, it is not inflammatory when he communicates to the mother via email that she subjects [X] to “more emotional torture”. I am satisfied that the mother’s communication via the communication book is appropriate. I am satisfied that she has done the best she can in the context of this dysfunctional relationship, to communicate with the father appropriately about the children. The father’s disdain for the use of communication books, indeed his manifestly flippant attitude about them, reveals a real flaw in his capacity to provide for the children’s emotional needs.
Given the concerns that the court has about the father’s ability to provide for the emotional needs of the children, the proposal that he advances to the court is problematic. In these circumstances the children’s time with the father must, of necessity, be limited.
Attitudes to Children and to the Responsibilities of Parenthood
There is nothing in the mother’s evidence, or the father’s evidence about the mother, or the experts’ evidence, which raises any issues about her attitude to the children and to the responsibilities of parenthood. Regrettably, by contrast, there are issues galore with respect to the father. Firstly, I find that the father could be working and thus making a greater financial contribution to the needs of his children but chooses not to. He clearly has worked in the past. There is no evidence to indicate that he lacks an earning capacity at the moment. He chooses to study but his own evidence confirms to me that the fact that he has not worked is because of his focus on this litigation. Despite his inability to pay more than nominal child support, his evidence is that he drives a BMW318I sedan. His own evidence is that he owes to the child support agency $130,000 by way of arrears of child support. His evidence about this was again dismissive and flippant. It is clearly not a priority for him. Indeed, payment of child support to [X] and [Y] is clearly not a priority for him. This is hardly evidence of a healthy attitude to the children or an example of responsible parenthood.
Secondly, the father’s singular inability to demonstrate any insight, let alone remorse for his actions in kidnapping [X] is appalling. It gives neither the mother, nor the court, any confidence that he is able to control what he himself described as impulsive behaviour. He was clearly insensitive to the adverse impact on [X] of separation from his mother. This is irresponsible parenting and an insensitive attitude to [X]. The father’s superior attitude about his parenting is one of the saddest aspects of this case. He clearly believes that a TAFE qualification in childhood studies, reading lots of self-improvement books, and being actively involved in family law post-separation support groups somehow qualifies him to be a much parent than the mother. He was plainly unable to appreciate that he has had, and continues to have, the sorts of psychological issues so graphically described by Mr B, Dr G, and Dr L. The evidence indicates that even though Dr G recommended cognitive behaviour therapy, he ceased this because he didn’t believe he needed it. He has minimised his abusive and violent behaviour towards the mother, the maternal grandmother and others in his past. His repeated resistance to instructions at the supervised contact centre is again demonstrative of an attitude of superiority, as well as a lack of willingness to accept advice and correction. All of the above speaks very poor of the father’s attitude towards the children and to his responsibilities as a parent. Again, this contra-indicates the father’s proposal because of the risk that it poses to the children of spending time with the father who demonstrates this attributes.
Family Violence
As I have indicated above, the father has minimised the extent of his abusive and violent behaviour towards the mother during their relationship. He minimised the nature of his violence towards the maternal grandmother and even though he was charged and convicted, he still believes today that he was not guilty of the same. He readily accepted in cross-examination that there had been far more allegations of abuse made against him than had resulted in charges and convictions. There is ample evidence to conclude that there has been family violence in the past including against the mother and the maternal grandmother, being members of the children’s family. There is also an ongoing current family violence order that relates to the father’s previous wife and children.
The Order Least Likely to Lead to Further Proceedings
This consideration is problematic on the facts of this case. On balance, and having regard to all the evidence, the considerations point to the daytime only contact proposed by the mother and the Independent Children’s Lawyer. Indeed, the expert evidence raises issues about overnight time until the children are much older. Making the orders sought by the mother and the Independent Children’s Lawyer is problematic because, with the passage of time, it is quite likely that the father will seek to increase his time with the children. Indeed, this might even be in the children’s best interests, provided the father has addressed the issues referred to in the expert’s reports and highlighted in these reasons. The prognosis for change must be a poor one, having regard to the time that elapsed between Mr B report and those of Dr G and Dr L. Nonetheless, it is a possibility. However, making the order proposed by the father would be equally problematic. On the evidence before me I think there will be a real risk of contravention and or variation proceedings. The fact is that this is a case involving a problematic behaviour by the father, very poor communication, very low levels of trust, and moderately high levels of conflict. In these circumstances, no order is one least likely to lead to the institution of further proceedings.
Parental Responsibility
Of course there is a presumption of equal shared parental responsibility which does not apply in certain circumstances and which may be rebutted if it is not in the best interests of the children. On the facts of this case, however, there seems to be a moderate level of agreement as to sole parental responsibility to the mother, at least in principle. It is only when one looks a little bit closer at the conditions that the father seeks to impose, that concerns arise about the issue of parental responsibility. The mother seeks sole parental responsibility. The Independent Children's Lawyer concurs. On the facts of this case I agree that that is the most appropriate order to make. I am satisfied that the presumption has been rebutted because equal shared parental responsibility would not be in the best interests of the children. As I indicated in the previous paragraph this is a case where there is poor communication, little trust, high conflict, as well as concerns about the father’s parenting as articulated in these reasons. In those circumstances it cannot be in the best interests of the children for the parents to be subjected to the level of consultation that is implicit in an order for equal shared parental responsibility. The mother has, in any event, clearly indicated a willingness to notify the father about matters relating to the children’s welfare. I believe that is entirely appropriate. I will incorporate this into the orders I make. I appreciate, however, that on making the order for sole parental responsibility, I am giving to the mother a quite far-reaching power in relation to the children. And yet, I am not concerned about her seeking to actively exclude the father from the children’s lives. She has acted appropriately in the past and I am confident that she will act appropriately in future. An order for sole parental responsibility is also quite inconsistent with the order that the father seeks that the mother not move beyond 50 kilometres from the father’s home. I am not prepared to make this order. The mother could easily live more than this distance from the father’s home and still comply with the order for contact that she proposes, and which I will make. In any event, there is no evidence that will justify the imposition of this restriction just as there is no evidence to justify the making of a watch list order as proposed by the father.
Equal Time or Substantial and Significant Time
Even though I am not required to consider the matters raised in section 65DAA because I have made an order for sole parental responsibility, I nonetheless intend to briefly deal with this. Even if an order for equal shared parental responsibility had been made, I would have considered that equal time, and substantial and significant time, was neither in the children’s best interests, nor was reasonably practicable. It is not in the children’s best interests because of the matters that I have identified earlier in these reasons, in considering the section 60CC considerations. It is, in any event, not reasonably practicable because the parents lack now and into the future any capacity to implement an arrangement for equal time or substantial and significant time, as well as lacking now and into the future any capacity to communicate with each other and resolve the difficulties that might arise in implementing as such an arrangement.
Name Change Issues
Both the mother and Independent Children’s Lawyer seek orders to clarify the names by which the children would be known. Their proposal, simply stated, is that [X] and [Y] should both be known by the surname [Weston-Haines], and that [Y] should be known as [Y] [middle name omitted]. The father’s submissions and evidence about the name issue was largely unhelpful and mostly unsupported by the evidence. This is a case where the mother will have sole parental responsibility, albeit with an obligation to notify the father about decisions. This is as case where, on the mother’s proposal, supported by the Independent Children's Lawyer, there will be a more than adequate link with the father’s surname such as to guarantee that issues of identity with the father will be preserved. What I could understand about the father’s submissions in relation to names seems to indicate an absence of child focus on his part. In the circumstances of this case, where there will be sole parental responsibility, and limited, albeit frequent contact with the father, I think the most important issue is maintaining the children’s identity with the father. I am satisfied that the mother’s proposal achieves this, and is otherwise in the children’s best interests.
Orders in the Children’s Best Interests
I note that there is a slight difference in the proposals of the Independent Children's Lawyer and the mother as to whether there should be contact each Saturday, or each alternating Saturday and Sunday. I prefer the mother’s proposal and in closing submission I detected that the Independent Children's Lawyer did not regard this as a major issue in any event.
Whilst the mother’s proposal was framed in terms of spending time for a specific number of hours on Saturdays and Sundays, she agreed in her oral evidence that the order should simply between 9:30am and 3:15pm. I agree this is appropriate in the circumstances.
The aspect of the case that most troubles me, however, is whether or not I should provide for daytime contact to be increased in the future? The father in his closing submissions, urged me to make a provision for increased contact over time, including the opportunity for overnight contact. For the reasons that I have articulated, overnight contact is out of the question for the time being. On balance, however, I am prepared to increase the daytime contact once [Y] commences kindergarten. I propose to make the order from 9:00am to 5:00pm during Autumn and Winter, and 9:00am to 6:00m during Spring and Summer. This will be a moderate increase in the children’s contact with their father, but nonetheless provide them with more opportunities for meaningful involvement and a diverse range of activities. I am satisfied that on balance, increasing this time in the manner proposed will not significantly increase the children’s exposure to the concerns that I articulated in these reasons, but will otherwise be in their best interests.
Neither the mother, nor the Independent Children's Lawyer’s proposal provides for telephone communication even though Dr G recommends that contact be twice weekly at set times, with the undertaking that the conversations be kept brief, as appropriate with the children’s ages and stage of development. I think that it is appropriate under the circumstances.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 29 July 2011
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