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Neave & Kane [2012] FMCAfam 687

Categories: Children, Shared Parenting
Tags:

Judge Name: Lucev FM
Hearing Date:
Decision Date:16/07/2012
Applicant: Ms Neave
Respondent: Mr Kane
Solicitor for the Applicant: Bayani Harvey Lawyers
Counsel for the Applicant: Ms Gordon
Solicitor for the Respondent: Belleli King & Associates
Solicitor for the Independent Children s Lawyer: Bowlen Dunstan & Associates Pty
Counsel for the Independent Children s Lawyer: Mrs Mandelert
File Number: DGC 290 of 2007
Legislation Cited:  Family Law Act 1975, ss.11, 60CC(2)(a) and (b), (3)(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k) and (l), (4), (4A) [62B, 65DA(2)]
Cases Cited: Cardaklija v Cardaklija [2007] FMCAfam 16
Godfrey & Sanders [2007] FamCA 102
M & K [2007] FMCAfam 214
M & S [2006] FamCA 1408
P & P [2006] FMCAfam 518
Jurisdiction: Family Law Division of the Federal Magistrates Court of Australia
Parental Responsibility Outcome: Equal Shared Parental Responsibility
Residential Outcome: Equal Residence - 45% to 55% residence with either Parent


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ORDERS THAT UNTIL FURTHER ORDER:

The mother and father have equal shared parental responsibility for the child X born (omitted) 2004 (the “child”) on the condition that any matters relating to the long term care, welfare and development of the child are to be negotiated between the mother and father in mediation at the Family Relationship Centre at (omitted) in the first instance.

The child will live with the mother as follows:

From 3.30pm or the conclusion of school commencing on Tuesday 17 July 2012 and each alternate Tuesday thereafter for 6 consecutive nights, until 9.00am or the commencement of school on the following Monday, until 8 October 2012;

From 3.30pm or the conclusion of school on Monday 8 October 2012 and each alternate Monday thereafter for 7 consecutive nights, until 9.00am or the commencement of school on the following Monday;

By telephone each Tuesday, Thursday and Sunday between 5pm and 5.30pm when the child is not in the mother’s care, with the mother to initiate the call and the father to facilitate the call; and

At such further and other times as may be agreed between the parties.

The child will live with the father as follows:

From 3.30pm or the conclusion of school commencing Monday 23 July 2012 and each alternate Monday thereafter for 8 consecutive nights, until 9.00am or the commencement of school on the following Tuesday, until 8 October 2012;

From 3.30pm or the conclusion of school on Monday 15 October 2012 and each alternate Monday thereafter for 7 consecutive nights, until 9.00am or the commencement of school on the following Monday;

From 5pm on Father’s Day Eve until 5pm on Father’s Day in the event this does not otherwise fall during the father’s time with the child;

By telephone each Tuesday, Thursday and Sunday between 5pm and 5.30pm when the child is not in the father’s care, with the father to initiate the call the mother to facilitate the call; and

At such further and other times as may be agreed between the parties.

Where changeover between the parties’ time with the child occurs on a non-school day the changeover is to be at the entrance to the (omitted) Library, (omitted).,

Each party be and is hereby restrained from removing the child from (omitted) Primary School (“the school”) without agreement in writing between the mother, the father and the Independent Children’s Lawyer.

In the event the child does not attend school the parent who has the child in their care at the relevant time must provide to all parties as soon as practicable a medical certificate explaining the absence.

In the event either party withholds or intends to withhold the child from time with the other parent they must immediately advise all other parties and apply to the Court as a matter of urgency.

The mother continue to attend upon and follow the recommendations of Dr L or his nominee.

The father continue to attend upon and follow the recommendations of Mr R or his nominee.

The mother and father follow all recommendations and directions of the child’s treating general practitioners about the amount and types of food the child should be eating and the amount of exercising the child should be undertaking.

The mother and father be and are hereby restrained from weighing the child or having the child weighed.

The mother and father do all acts and things necessary to facilitate the child’s further or continued attendance upon a counsellor (the “child’s counsellor”) recommended by the Independent Children’s Lawyer, if such further or continued attendance be considered necessary by the Independent Children’s Lawyer, with any associated costs to be shared equally between the mother and the father.

A further updated Family Report to be provided to the Court by 28 February 2013.

The parties do all acts and things necessary to authorise the child’s counsellor to speak with the mother and fathers’ respective counsellors and the Family Report Writer.

The mother and father follow all reasonable directions and recommendations of the child’s counsellor to facilitate the improvement of the child’s relationships with her family members and to implement these orders.

The mother and father inform the other of any serious illness, hospitalisation or injury sustained by the child whilst in his or her care as soon as practicable and provide particulars of any treatment required or received by the child together with the contact details for the treating doctor/s.

Each of the mother and father be and is hereby restrained from denigrating the other parent or any member of that parent’s family in the presence or hearing of the child or allowing any other person to do so.

The father will authorise and facilitate the mother in obtaining copies of school reports and any other written information available to a parent from the school and both the mother and father be permitted and authorised to attend any school or extracurricular events that parents ordinarily attend.

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these order create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out hereto and these particulars are included in these orders.

The matter be listed for final hearing on 22 and 23 April 2013.

There be liberty to apply on 3 days notice.

IT IS NOTED that publication of this judgment under the pseudonym Neave & Kane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Introduction

The applicant, Ms Neave, has filed an application which seeks that the child, X, of her relationship with the respondent, Mr Kane, live with her and spend time with the Father.

In interim consent orders made at the conclusion of the hearing on 18 April 2012 the Court ordered that:

the Mother and Father have equal shared parental responsibility for the Child, conditional upon matters relating to the long term care, welfare and development of the Child being negotiated between the Mother and Father in mediation at a family relationship centre in the first instance;

for a period of three months from the date of the order the Child live with the Mother from 3.30pm or the conclusion of school on each Tuesday, and each alternate Tuesday thereafter, until 9.00am or the commencement of school on the following Monday, with provision made for Mother’s Day and twice weekly telephone contact when the Child was not living with the Mother;

the Child live with the Father from 3.30pm or the conclusion of school on Mondays for eight consecutive nights until 9.00am or the commencement of school on the following Tuesday, with provision made for Father’s Day and for twice weekly telephone contact when the Child was not living with the Father; and

other substantive and consequential orders in relation to a variety of matters.

The current dispute is about the amount of time the Child should live with each parent in a fortnight. A further issue which has arisen is whether the Court should make further interim or final orders.

Basic facts

The Father was born on (omitted) 1955.

The Mother was born on (omitted) 1961.

The Mother has three adult female children by a prior relationship, the first, born (omitted) 1985; the second, born (omitted) 1986; and the third, who features significantly in these proceedings, born (omitted) 1993.

The Father has three children by a previous relationship, a girl, born (omitted) 1997, and a boy and girl who are twins, born (omitted) 1998.

The Father and Mother met and commenced a relationship in July 2002, and commenced a de facto relationship in August 2002.

The Child was born on (omitted) 2004.

Evidentiary material relied upon

The Mother relied upon each of affidavits sworn by her in the proceedings:

The Mother also relied upon affidavits of:

the Adult Daughter;

Dr L; and

her neighbour, Ms C.

The Father relied upon each of his affidavits sworn in the proceedings:

The Father also relied on the affidavit on Mr R.

Each of the parties referred to two affidavits sworn by the Family Report writer, Dr W dated 18 January 2012 and April 2012 annexing Family Reports dated 12 July 2011 and an updated Family Report of 10 April 2012.

The evidence

Relevant aspects of the evidence of the principal witnesses are set out below.

The Mother’s evidence

The Mother’s March 2011 Affidavit asserts that:

she has endured verbal and physical abuse from the Father during her relationship with him, and that she is timid person;

in 2003 the Father was drinking heavily;

she has been the Child’s primary caregiver for the majority of the Child’s life;

in around May 2004 the Father asked to go to New Zealand with the Child and the Mother, but the Mother said she did not want to go, and the Father threw her out of their home telling her that she must go with him;

when she eventually contacted the Federal Police they confirmed that the Father had taken the Child to New Zealand, to which she says she did not consent, and that the Father had taken the three children from his previous relationship, without the consent of their mother. The Child was approximately three months old at the time;

the Mother was told by the Federal Police that a Hague Convention application would take up to four months to resolve. As a consequence she sold her jewellery and made an application for a passport but was unable to afford an air ticket to New Zealand.;

she spoke to the Father about the Child once or twice a week begging him to come back to Australia with the Child, but was eventually persuaded by the Father to go to New Zealand, and was told by the Father that she was not to cause any trouble or to contact the police or attempt to take the Child back to Australia;

when the Mother was able to afford a ticket she bought one straight away and went to New Zealand;

the Father was physically violent towards her in New Zealand and would not allow her to be alone with the Child;

at some point in time the police collected the Father’s three children from his previous relationship and returned them to Australia;

the Mother endeavoured to persuade the Father to return to Australia as she was missing her other three children, and was being medicated for depression;

the Father eventually decided to return to Australia and upon arrival in Melbourne the family was met by the Federal Police;

the Mother and the Child thereafter stayed with the Mother’s sister, and in transitional housing in (omitted);

the Mother eventually allowed the Father to come and stay at (omitted), but his behaviour became controlling and aggressive, and consequently the Mother and the Child went to live in women’s refuges, but eventually the Father returned to live with them, and this appears to have been a pattern that was repeated over a period of four to five years;

the Mother eventually obtained permanent housing in (omitted) and moved there with the Child. The Father stayed regularly at (omitted) but primarily lived elsewhere. The Father became abusive and the Mother says she asked him to leave but he didn’t and that she was scared to do anything, as the Father threatened her with violence and verbally abused her;

in December 2009 the Mother bought tickets for herself, the Adult Daughter and the Child to go on holiday in Queensland in January 2010 to see the Mother’s sister, but when she told the Father the Father said she was not allowed to take the Child, and consequently she left the Child alone with the Father for the first time;

when she returned to Melbourne in January 2010 the Mother obtained an interim intervention order requiring the Father to move out of the house;

in February 2010 the Adult Daughter, who was then 17 years old, told the Mother that when she was 11 years old she can recall the Father, who had been drinking, attempting to touch her inappropriately, and as a consequence of what she was told the Mother suffered a mental breakdown;

the Mother was in hospital for approximately four weeks during which time the Adult Daughter’s elder sisters looked after the Child who came to the hospital regularly to see the Mother. During that time the Father did not see the Child;

in April 2010 the Mother obtained a final intervention order against the Father in favour of herself and the Child for a period of 12 months, to which the Father consented with a denial of the allegations, but which allowed the Father limited contact on a Saturday and by telephone on two days per week;

in May 2010 the Mother attended the Magistrates Court with the Father, and a friend of the Father’s, who was a (occupation omitted), and the final intervention order was revoked. The Mother believes that she was manipulated by the Father who took advantage of her condition to have the final order revoked;

subsequently the Mother attended the Victorian Civil and Administrative Tribunal with the Father, ostensibly, so she says she was told, so that he could obtain an order to be her carer and guardian. Orders were granted by VCAT, and the Father took over all of her affairs and was very controlling of her, and did not allow her to do anything, including seeing her psychologist or doctor, without him being present;

after a discussion with the Father in November 2010 in which the Mother said she did not want to be in a relationship with him, but that they could be friends, and to make plans as to when he could see the Child, the Father told her that he was her guardian and would never allow her to be alone with the Child. The Father subsequently said it would be hard for her to leave as he was her guardian, and he took her car keys off her so that she could not go anywhere. The Father did not allow her to go anywhere alone with the Child, and the Mother says that she was intimidated by him and scared of what he might do;

in January 2011 the Father commenced packing and said that he was taking the Child to stay in emergency accommodation, whereupon the Mother contacted the police, but when the police arrived the Father told them that he had spoken to the Department of Human Services and that they had told him to leave;

the Father removed the Child from her 2010 school and enrolled her in another school in 2011 without informing her Mother of his intention, or where the Child was to go to school;

after the Father took the Child to stay in emergency accommodation the Mother spoke to the Child for a short period of time every night at 8.00pm, with the Father’s permission, and that on each occasion the Father took the phone from the Child and told the Mother to allow him to have “full custody and not to take him to court as [Mother] would not be able to handle it.”;

the Father had refused numerous requests for the Mother to see the Child; and

the Father told the Mother that he would fight her “to the death” and that she would “never have” the Child if she made an application to court.

In the Mother’s April 2011 Affidavit she says that:

on 26 March 2011 she had her first face-to-face contact with the Child since January 2011, and that during the course of that contact the Child said “I want to live with daddy because daddy is the boss”;

there was further contact on 29 March 2011, at which time there was an argument between the Father and the Mother in front of the Child about the length of time to be spent with the Child, and in the course of which the Father is alleged to have said in front of the Child that he could not stand the Mother, accused the Mother of trying to buy the Child’s love, and again said that he could not stand the Mother;

the Mother was unable to see the Child on 2 April 2011 because the Father said that she was too ill with a cold, but when the Mother phoned the next day the Child said that she had a runny nose but had been to church that morning with the Father, but two days later the Father told the Mother that she could not see the Child because the Child was too sick to go out into a cold wind and had not been to school that day; and

on two occasions when the Mother spoke to the Child on the phone the Child had said words to the effect of “I had better go now” and the Mother felt that the Child was not able to speak freely.

The Mother’s July 2011 Affidavit indicates that:

the Mother saw the Child on three occasions in April 2011 without incident, save that on one occasion, at the Father’s request, she stayed overnight at the Father’s house after having spent time with the Child, at the Father’s insistence, at his house;

in the first week of May 2011 there was a substantial dispute between the Mother and the Father about whether or not the Child would be allowed to attend a Mother’s Day luncheon at a local park with the Mother, the Adult Daughter and her other daughters, and that the Father indicated that the only way that the Mother could see the Child on Mother’s Day was to go to his house, which the Mother eventually did, and spent time with the Child with the Father watching. The Child gave the Mother a gift that she had purchased at the Mother’s Day stall at school, but the Mother felt that the Child was scared to be affectionate towards her because of the constant presence of the Father;

on 22 May 2011 it was the Mother’s 50th birthday, and the Father refused to allow the Child to go to the park with the Mother or go to the Mother’s home, but said that contact could take place at the Father’s house, where again the Mother and Child were watched the whole time by the Father; and

in June 2011 there was an ongoing dispute as to where the Child was to spend time with the Mother, with the Father insisting that it be at his house.

The Mother responded in her July 2011 Affidavit to the Father’s May 2011 Affidavit, including the following:

that the Adult Daughter commenced living with her father in 2005 because she could no longer handle the Father’s behaviour, including refusing to allow her to go on school camp when the Mother had said that she could, and hitting her so hard on the bottom and legs that she wet her pants; and when the Mother returned to live with the Father after a period with the Adult Daughter in a women’s refuge (at this time the Adult Daughter would have been about 11 or 12 years old) the Adult Daughter went to live with her biological father because of her fear of the Father;

disputes the Father’s account of the involvement of the Department of Human Services in the events of January 2011, and says that it was the police who suggested that the Father take the Child and go, as the Child was crying to go with the Father, and that she denied that she had ever indicated that she would hit the Child;

reiterated that she had had to leave the Father, and therefore the Child, because of the Father’s violent and manipulative behaviour against her;

disputes the Father’s account of events after the Child was born and says that the Father’s assistance in caring was no more than could be expected in circumstances where there were also three children from the Father’s previous relationship living with them;

that prior to the Father taking the Child to New Zealand he removed her from the home and would not allow her to see the Child, and that she constantly called the Father to see how the Child was but he kept telling her to “go away”;

that arrangements were made to meet at a shopping centre so that the Mother could see the Child, but that the Father did not turn up, and that she reported the Child missing to the police who later advised her that the Father, his three children from a previous marriage and the Child, had gone to New Zealand;

that she only lived with the Father as a family in New Zealand because that was the only way that the Father would allow her to see the Child;

that she is unable to explain the reason why she subsequently reconnected with the Father, but that it may be because he was very like her own father, and that a psychologist has explained to her that she may be trying to fix her relationship in her adult life that she could not fix as a child;

denies making threats to hit the Child;

denies that she admitted that false allegations had been made about the Father’s sexual abuse of the Adult Daughter and the Child. She says that she explained at the time that after the allegation of sexual abuse was revealed to her by her Adult Daughter she had the Child medically checked and there was no sign of abuse, and so she informed the Father that she believed that he may not have sexually abused the Child, but did not dismiss the Adult Daughter’s allegations at all;

deals with her mental health and how this is affected by the controlling behaviour of the Father, and includes as an example the fact that in the power of attorney that he obtained that he had power not to allow anyone to visit her unless he consented to it; and

that when she spends time with the Child she believes the Child enjoys seeing her and that they interact and have fun together, and that she believes that the Father denigrates her directly to the Child and tells her that she is not safe with the Mother.

In the Mother’s October 2011 Affidavit she gives evidence about:

during July and August of 2011 collecting the Child from school and spending time with her, and her sense that the relationship between the two of them was improving as a consequence of time spent together undertaking various activities, as well as more regular telephone contact when not spending time together;

that the Child spent the first week of the school holidays, except for the last day of that week, with the Mother, and that she went home a day early because she missed her Father, a matter which she discussed with the Father including the fact that it was understandable given that this was the longest period she had spent away from the Father in some time;

the Mother’s transition from seeing Dr B, whose clinic had burnt down, to seeing Dr L, including an appointment involving the Child in late September 2011;

that following a decrease in her medication by Dr L her mental health had deteriorated, and that she had told the Father that she did not believe that she could care for the Child adequately, and had in fact stayed with the Father, and further that she would have to move in with the Father as she could not cope;

following adjustment to her medication her mental health improved, but the Mother still stayed with the Father and spent time with the Child at the Father’s house to enable her to spend time with the Child whilst her mental health improved; and

that she believed her relationship with the Child had grown and that the Child now accepted her role as her Mother, and that they talked about friends at school and the boys that she likes and how well she is doing as school. The Mother feels that their bond is growing every time that they spend time together.

The Mother’s January 2012 Affidavit set outs:

detail of the period during which the Mother’s mental health deteriorated as a consequence of the decrease in her medication;

that she stayed over at the Father’s house after the Father had made the offer for her to stay in the presence of the Child, as a consequence of which she agreed, staying one night on 6 November 2011;

that on 24 November 2011 she saw Dr L and told him that she had stayed at the Father’s house again and that he was not happy with her and told her that she must not do that as the Father was taking advantage of her poor mental health;

that she and Child spent time together in late November 2011 which was a “great time”;

on or around 12 December 2011 she went to see the Child during the Father’s time at his house, and whilst having dinner together the Father asked her in the presence of the Child when they were getting married. The Father said that he was being serious and he felt that God was speaking to him through the Child and that this was best for the Child and all she wants is her mother and father to be together. The Mother told the Father that he should not be discussing this in front of the Child, and the Father said that if she did not marry him she would not be saved and God would punish her and her illness would just get worse as a form of punishment;

subsequently the Child commented upon the fact that the Father loved the Mother and that she had effectively rejected him, to which the Mother explained that the relationship was not working well and that she and the Father were better off apart. The Mother says that the Child told her that she and her other three children from a previous relationship were not saved because they did not believe in God, and that the Father had said that they did not believe in God and that they did not go the (omitted) Church;

the Child spent Christmas eve, including Christmas eve dinner, with her three half siblings from her Mother’s previous relationship, and Christmas morning with the Mother, and that when she returned the Child to the Father the Father invited her to stay for Christmas dinner, and as the Child wanted her to stay she did, and stayed on at the Father’s house until 27 December 2011;

the Father asked if he could spend New Years eve with the Child and the Mother agreed given that she had spent time with the Child on Christmas Day;

when the Father arrived at the Mother’s house on 31 December 2011 he looked over the house and complained that the Mother just could not live like this, and made adverse comments about the backyard being overgrown and the presence of dog faeces, and otherwise denigrated the Mother in the presence of the Child;

that there was an altercation about the attitude of the Mother’s neighbours to the Father over dinner on 31 December 2011 in front of the Child;

the Father spent New Years Eve at the Mothers and left in the morning;

on 11 January 2012 the Child was rude to a neighbour who knocked on the door, but later asked if she could apologise, and asked her Mother not to tell the Father that she liked the neighbour;

criticised the Father for the size of the meals that he serves to the Child and giving her packets of potato chips as a snack for school, whilst observing that she has to be firm and say no to the Child in relation to eating junk food;

that in mid-January 2012 the Child said that she did not have any friends at school because they said she was fat or chubby; and

that the Child had good friends at her former school but that her Father would not allow her to return to her old school which the Child said she liked better than her new school;

In reply to the Father’s January 2012 Affidavit the Mother said that:

she would enrol the Child in a local swimming club if the Child was to live primarily with her; and

she has been ensuring that the Child eats a healthy diet when spending time with her and that she gets regular exercise.

The Mother’s April 2012 Affidavit gives evidence in relation to:

ongoing contact and time spent between the Mother and Child in February 2012, and the Father’s holding over the Child for a period of three weeks prior to that;

the Child asking on 9 February 2012 why the Adult Daughter and a neighbour were with the Mother at court, and the Mother telling her that they had come to support her, to which the Child had yelled that it was none of their business;

detail of weekend and other activities such as going to the beach, walking the dog and going swimming;

details of phone contact with the Child in mid-February 2012 including an occasion when the Child was rude to the Mother about what the Father was serving for dinner, and concerns expressed to Dr L about the Child’s telling the Mother, in a negative manner, that the Mother did not believe in God;

the detail of an alleged bullying incident at school where the Child was called “fatso” after she fell off some monkey bars onto another child’s foot, and the Child advising that she was bullied a lot at school as a consequence of which her Father had been to see the principal;

complaints by the Child to the Father when on the phone from the Mother’s house that the Mother only gave her small amounts of food for dinner;

details of a doctor’s attendance consequent upon the Child having a sore tummy and as a result of which the doctor gave the Mother advice as to types of foods that the Child should be eating, including to give her smaller portions at meal times and to keep up the exercise that the Child was having;

details of an incident where the Child told the Adult Daughter to go away when the Adult Daughter rang the Mother’s home, and when the Child was questioned by the Mother she indicated that the Adult Daughter was mean, hates her Father and had told lies about her Father;

that in late February 2012 the Child repeated earlier statements about the Mother not believing in God, the Mother and three daughters not believing in God and not being saved, and that the Father had said that the Mother and her three daughters did not believe in God and that “he knows because he reads the Bible and you don’t”;

that in early March 2012 as a consequence of the Mother having the flu, she requested the Father to come over and pick up the Child, who had also had the flu, as the Mother was not feeling fit enough to look after the Child;

that on the Child’s birthday in March 2012 the Mother organised a celebration with her sisters and her nephews, and that towards the end of that celebration the Adult Daughter told the Mother that the Child had spat in her face, and that the Child had explained that this was because “she’s being telling lies about my daddy”;

the Mother is enrolled in a post-separation parenting course in July 2012 which is the next available course;

much of the extensive detail of the time spent between the Mother and Child in March 2012 deals with fairly normal incidents in a parent/child relationship of going for walks, eating Subway, going to dancing classes, going or not going to swimming classes, and various childhood illnesses including the flu and stomach complaints;

in late March 2012 there was a further altercation with neighbours who were told by the Child that they should not be in the house and that the Father was the only person who should be in the house; and

on 31 March 2012 the Father was not prepared to wait at the changeover point and told the Mother that she could collect the Child two days later instead, and although he allowed the Mother to collect the Child a day later he refused make up time.

The Mother gave oral evidence-in-chief that she understood that it was appropriate that there be a gradual increase in her time spent with the Child because it was necessary to ensure that she was able to do so without having any mental health relapse.

Under cross-examination the Mother indicated that:

there had been as many as seven separations between her and the Father, and that prior to the most recent separation there were periods of between three days and three months during which the Father did not see the Child;

there were two occasions when she had taken the Child back to the Father early, and at least one of those was as a consequence of difficulties caused with her mental health by a decrease in her medication;

the child is not bored when she is with the Mother, and the Mother is always up early to take her to school, and that when they sleep in on the weekends that they both sleep in;

prior to taking the Child to New Zealand the Father forced her to leave the house and physically restrained her from taking the Child with her, at a time when the Child was three or four months old and still breast-feeding;

when she sought shelter in women’s refuges in the period following her return from New Zealand and up until 2011 she went into women’s refuges because the Father was drinking heavily and smoking marijuana and being verbally and physically abusive towards her;

when she was in women’s refuges for periods of between three days and three months the Father did not see the Child;

the Mother denied physically abusing or neglecting the Child;

the Father had not worked since his return from New Zealand and had told the Mother that he would not work because he would then have to pay child support for his other three children;

the Mother agreed that the Child had a very close relationship with the Father; and

on the one occasion that she saw Dr R with the Father she was unaware that the Father was taking her to see a psychologist, as the Father had merely said that he had an appointment and that she was going with him, and that this occurred at a time when she was unwell by reason of Dr L reducing her medication and that as a consequence she did not feel well enough to look after the Child on her own.

The Mother presented as a quiet woman, who was aware of her past mental health illnesses, and of the possibility that there might be a future relapse in her mental health. She did not however believe that to be more than a possibility by reason of the fact that she believed her medication had been stabilised, and that as a consequence her health was such that she was able to take primary care of the Child. The Mother, quite sensibly, conceded that there was a significant bond between the Father and the Child. The Mother’s description of the activities undertaken by her with the Child when the Child spent time with her was of activities which were absolutely normal for a parent in any circumstances. The Mother also showed an appreciation of the fact that when she was unable to care for the Child on recent occasions by reason of her mental health illness, and on other occasions by reason of normal illness (for example on an occasion which she had a bad done of the flu), that it was appropriate for the Father to take care of the Child. Far from being criticised for that, the Court considers it to be a sensible and appropriate recognition of parental roles and responsibilities in circumstances where the parents are separated. Notwithstanding that the Mother can call upon a support network which includes her adult daughters and at least one of her neighbours, she quite sensibly when unwell allows the Father to be responsible for the Child.

Were it not for the history of mental illness, the Mother would have been considered by the Court as a parent capable of having the primary care of the Child on at least an equal time basis.

The Adult Daughter’s evidence

The Adult Daughter, who is now 18 years of age, and who is one of three children of a previous relationship between the Mother and another man, gave evidence that when she was 11 years old the Father came into her room when she was in her pyjamas and:

tried to put his hands in her underwear;

put his head towards her underwear; and

kissed her on the lips.

The Adult Daughter resisted and tried to push the Father away, but he did not stop because he was drunk. At the time, the Adult Daughter did not yell or say anything to him as she was to scared or nervous and simply tried to push him away. The Adult Daughter did not reveal the incident until she was 16 years of age. The Adult Daughter was scared and nervous that the Father would act in the same way again, although he never did. Not long after the incident the Adult Daughter went to live with her father, and has continued to do so.

As a consequence of revealing the matter to her mother, the Adult Daughter went to a counsellor for the first time. She indicated to the counsellor that the Father used to hit her regularly and would yell at her, and that she can recall having bruises from when she was hit by the Father. As a consequence of the revelation of the information the Mother had a break-down and was admitted to a psychiatric hospital.

At hearing the Adult Daughter also gave evidence about her relationship with the Child. She asserted that it had been a “strong relationship”, until it went bad and the Child “got nasty” with her. The Adult Daughter gave examples of the things that they did together as “pretty close sisters” until “everything kind of turned bad”. The Adult Daughter described the relationship as “on and off”, but that the Child had called her a “loser”, said that she hated her and that she never wanted to see her again.

The Adult Daughter denied an assertion in the Father’s materials that at or about the time that the Adult Daughter had told her mother of the alleged sexual abuse by the Father that the Child had found the Adult Daughter and a male cousin of hers in bed together at the Mother’s home.

Under cross-examination the Adult Daughter admitted disliking the Father. She said that she did not go to the police at the time of the incident because she was scared and afraid, and that even now she found it hard to talk about. The Adult Daughter said that she was hit “quite regularly” by the Father and that he would hit her across the legs with his hand.

The Adult Daughter said that after the Mother went into a psychiatric hospital as a result of her revealing the allegation about the Father the Child lived with the other two adult sisters of the Adult Daughter.

The Adult Daughter has been seeing a counsellor ever since revealing the allegations to the Mother.

Dr L’s evidence

Dr L’s Affidavit annexes three reports, namely, reports written in October 2011, January 2012 and March 2012.

Dr L is a consultant psychiatrist with post graduation qualifications enabling him to practise as a specialist in psychiatry. He has more than 30 years practice in his speciality working with individuals and families and is a past member of the Victorian Association of Family Therapy.

Dr L’s October 2011 Report is a short one page handwritten report which highlights the affect of the parental relationships on the Child. It describes the Child as bright and apparently happy, articulate, enjoying school and her studies, but also as one whom Dr L is concerned carries a “burden … inappropriate for her age”.

In Dr L’s January 2012 Report he observed that he had seen the Mother on 17 occasions, four of those with the Child, and that he had met with the Father in the presence of the Mother and Child on one occasion. Significantly, Dr L observed that:

It seems that the relationship between [Child’s] parents remains the same with constant abuse from the Father of a religious nature, resulting in psychological and emotional trauma for the Mother. [Mother] reports that the abuse occurs in the presence of [Child] and this was obvious to me in the conjoint family session.

Dr L observed that the Child and Mother, in the absence of the Father, “were comfortable with each other, strongly bonded and manifestly relaxed and content.”

Dr L further observed that the Mother had realised that the Father’s company was not good for her and that she had “made decisions not to go there”.

In Dr L’s opinion the Mother had “suffered abuse from her estranged partner over several years.” She had recognised this as damaging to herself and to the Child and had managed to “establish more adequate boundaries between the two systems involved in [Child’s] parenting”, as well as recognising her own strengths and gaining confidence in her ability to be a good parent to the Child.

In Dr L’s March 2012 Report he observed that the changes in the Mother had been maintained and that she was now more assertive, confident and self-esteeming, with the result that she was less anxious, more hopeful and positive about the future. Dr L observed that the Mother’s primary concern was in relation to the Child’s behaviour which she felt was associated with the influence of the Father. Other than serving as a positive affirmation of the Mother’s progress and a reiteration of the Mother’s view about the Father’s impact on the Child, Dr L’s March 2012 Report does not add anything substantive to his earlier reports.

In his oral evidence Dr L said that:

he agreed that there ought to be a gradual process of reintroducing the Child to the more extended care of the Mother, but took the view that it ought not be longer than six months;

the Mother’s relapse in October 2011 was caused by a change in medication for which he took responsibility;

in the conjoint family session the Father dominated the conversation, and said that his parenting was to be favoured to that of the Mother;

the Mother had made significant progress in the previous six months, was increasingly confident and knew that she should not return to the Father because it was not good for her, and that she was unlikely to have any relapse;

he agreed with Dr W that the Child was enmeshed with the Father, and that that was damaging for her development;

it would be unusual for the Child to be at risk because of any prior sexual abuse by the Father of the Adult Daughter, but there was a greater risk of harm of sexual abuse where a child and father were enmeshed; and

the greater risk was from the effects of the Father’s behaviour per se, and it would be unusual for the Child to be at risk of sexual abuse.

Dr L’s evidence is useful insofar as it confirms Dr W’s views about enmeshment and the likelihood of the Mother not relapsing, although it is evident that Dr L does not share the concerns of Dr W and Mr R. with respect to the possibility of a relapse and the effects thereof. The Court got the impression that Dr L’s evidence was weighted in favour of the Mother, and indeed at one or two points. Dr L, despite being an expert witness, deferred to the Mother with respect to issues associated with the Mother’s care of the Child.

The Father’s evidence

The Father’s May 2011 Affidavit:

sets out the then current status of the Mother’s mental health as understood by the Father, including reference to the fact that the Child was removed by the Department of Human Services from the Mother in January 2011 and that the Father had obtained an intervention order in February 2010 against the Mother to prevent the Mother from removing the Child from her school or from the Father’s care;

says that following the arrival of the Mother home from hospital with the Child after the Child’s birth, and a serious car accident involving the Mother and the Child which required further hospitalisation for a period of two weeks, the Mother’s relationship with the Father, which had previously been good, changed;

says that the Mother became aggressive, suffered personality changes, and would be found in dark rooms alone. The Father became fearful for the Child’s safety, and observed that his three older children were frightened of the Mother;

says that in late June 2004 the Mother left the home, and left the Child, and the three older children, with the Father. Despite attempts to contact the Mother in late June and early July 2004 the Father was not able to do so;

on 10 July 2004 the Father left with the Child and his three other children for New Zealand to stay with his family (his mother and four sisters), and says that he attempted to telephone the Mother prior to leaving Australia but without success;

two days after arriving in New Zealand the Mother telephoned him and inquired about the Child’s welfare, and following ongoing conversations, the Father purchased an airline ticket for the Mother to come to New Zealand and live with him, the Child and the other children;

in October or November 2004 the three other children of the Father returned to Australia to live with their mother pursuant to a court order obtained by the mother of those children;

the Father and Mother and Child returned to Australia on 6 December 2004 so that the Father could see his other three children. The Father subsequently did not see the Mother or Child for a period of about five months;

between 2005 and 2008 the Father, and Mother and Child, sometimes lived together and sometimes lived apart, until about 2008 when the Mother went to live in (omitted) with the Child. The Mother left the (omitted) home on two occasions for short periods without the Child;

the Mother took the Adult Daughter on holiday to Queensland in about December 2009 for a period of two weeks during which the Child remained in the Father’s care;

the Mother obtained intervention orders (interim and final) against the Father in January and April 2010 with the Father denying the allegations made by the Mother, and as a consequence of which the Father’s contact with the Child was limited;

in February 2010 the Mother had a breakdown and was hospitalised for about four weeks during which period the Child was cared for by the Mother’s two eldest adult daughters from her previous relationship;

the Mother was the subject of a community treatment order in March 2010;

in May 2010 the Mother admitted to the Father and to her psychiatrist that the allegations of sexual abuse against the Adult Daughter (and against the Child) were false, and the Department of Human Services investigated these matters and took no further action;

in May 2010 the Mother and the Child recommenced living with the Father at the Mother’s instigation so that the Father could care for the Child, and from this time onwards the Father became the Child’s fulltime primary carer;

in early May 2010 the intervention order made final in April 2010 was revoked;

in July 2010 the Mother indicated on at least two occasions that she did not want to live anymore;

in August 2010 the Mother’s then treating psychiatrist reported that the Mother was susceptible to major relapses provoked by any anxiety situation which would require months to recover from;

in September 2010 the Mother gave an enduring power of attorney for medical and financial matters to the Father;

in January 2011 the Department of Human Services removed the Father and the Child from the home where the Mother was living due to concerns about the Child’s psychological and physical risk of harm whilst she remained living with the Mother, and the Father and the Child commenced living in temporary accommodation; and

the Child commenced to see Mr R. in March 2010.

In relation to certain allegations made by the Mother in her February 2011 Affidavit and the Father says that:

he has been married three times but non-current intervention orders were only obtained against him by his second and third wives, to which he consented without any admission as to the allegations made against him;

denies verbally or psychologically abusing the Mother during their relationship and says that when the Mother does not take her prescribed medication she is extremely volatile;

admits drinking too much alcohol in 2003 due to the stress of the Mother’s behaviour and says that since 2004 he has only been a social drinker; and

denies that the Mother has been the Child’s primary caregiver for the majority of her life and says that since early 2009 he has been the Child’s primary caregiver, and further says that prior to 2009 the Mother failed to adequately care for the Child’s physical or emotional needs.

In relation to the Mother’s April 2011 Affidavit the Father says that:

the Child is reluctant to speak to the Mother and says that she is frightened of her; and

denies arguing with the Mother in front of the Child in relation to a visit by the Mother to the Child in late March 2011, but admits saying, and now regrets saying, words to the effect “stop trying to buy [Child’s] love”. The Father denies saying that he could not stand the Mother in front of the Child, but admits saying that he said words to the effect of “I can’t stand what you are doing to [Child]”, by which he meant the way the Mother was trying to argue with him in front of the Child;

The Father’s January 2012 Affidavit provides further evidence as follows:

the Child currently attends (omitted) Primary School, and that she is presently progressing well at school, and that the Father assists as a classroom reader on Tuesdays each week;

the Father and Child live in a three bedroom house which is permanent government housing in which the Child has her own bedroom and bed, and the house has all the usual amenities;

the Child attends swimming lessons each week, and the Father endeavours to take the Child for regular exercise walks to ensure that she has as much exercise as possible, as there is an issue as to whether she is overweight;

comments extensively upon the Mother’s current mental health status by reference to reports from various of her treating practitioners, but about which it is unnecessary for the Court to comment given other evidence in these proceedings;

comments on the July 2011 Family Report prepared by Dr W, about which it is unnecessary to comment given the updated Family Report;

on various dates in 2011, namely, 24 August, 25 August, 21 September, 23 September, 9 October, 13 October, 19 October, 2-4 November, 11 November, 12-14 November, 16-21 November, 3 December, 18 December, 20-22 December, 24 December, 25-28 December, says the Mother was either too unwell to care for the Child at her home, or was unwell and requested that she be able to stay at the home of the Father at times during which she was supposed to care for the Child at her home;

in late December 2011 and early January 2012 there were a number of incidents where the Child rang the Father to advise that the Mother was in bed or sick, and unable on at least two occasions to get the Child breakfast, and on 15 January 2012 the Mother returned the Child to the Father’s care indicating that the Child had been crying and saying that she wanted to go home to the Father; and

he was enrolled in a post-separation parenting course in February-March 2012.

The Father’s April 2012 Affidavit gives evidence that:

the Father strongly denies the allegations of sexual abuse made by the Adult Daughter;

asserts that the Mother found the Adult Daughter and a male cousin in bed together one morning at the Mother’s home, and as a consequence removed the male cousin from the home; and

in April 2010 the Adult Daughter and a male friend of the Mother told the Child that the Father was an evil person, and the male friend refused to allow the Father to speak to the Child on the phone;

The Father also responds in the Father’s April 2012 Affidavit to matters raised in the Mother’s April 2012 Affidavit, and says that:

in early 2012 he did not allow the Mother to spend time with the Child for a period of three weeks due to his serious concerns about the Mother’s ability to adequately care for the Child, and that he made a notification to the Department of Human Services concerning the matter;

he is pleased that the Mother has decided to make more of an effort to spend time with the Child;

he is aware that the Mother has been involved with the Child’s school on one occasion in March 2012;

denies that he has spoken to the Child about the substance of the proceedings in this Court;

challenges Dr L’s suggestion that the Child’s response to Dr L was likely to be negativity coming from the Father;

on 12 February 2012 the Child telephoned him and told him that the Mother had yelled at her and grabbed her, and when the Child was asked for an explanation said it was in relation to answering the phone and hanging up on the Adult Daughter;

he tries not to be in the same room as the Child when she is speaking to the Mother on the telephone so that the Child can speak freely with the Mother;

on 19 February 2012 was told by the Child that the Mother had been calling the Child “fat”, and as a consequence the Child did not want to tell her Mother what she had had to eat;

agrees that he spoke to the principal of the Child’s school about the Child being bullied and that the bullying subsequently ceased;

the child has a number of friends at school and at her most recent birthday party eight of those friends attended;

denies attempting to destroy the relationship between the Child and the Adult Daughter; and

denies refusing to wait for half an hour for the Mother to arrive at the changeover venue on 31 March 2012.

The Father’s cross-examination elicited the following matters of relevance:

the Father denied having ever been a heavy drinker, saying that he drank a bottle of spirits a week during 2003-2004, and now perhaps had two glasses of red cask wine with his meal but did not drink spirits at all;

admitted (but only after immediately beforehand being told to answer the questions that were asked) that he told the Mother to leave the family home prior to his going to New Zealand and did not allow her to take the Child, then three months old, with her at that time;

that on 7 July 2004 when the Mother tried to enter the house to see the Child she was not able to do so, and the police were called;

that on or about 12 July 2004 the Father’s second wife (and the mother of his three other children) took out an interim intervention order on her behalf and on behalf of the three children in relation to the Father;

that he had no memory as to why that intervention order was taken out, notwithstanding that it was just prior to his taking the three children by his second wife and the Child to New Zealand;

that on 18 or 19 July 2004 the Father’s second wife was hospitalised with cervical cancer and that she asked him to look after the children;

within a day or two he relocated, unilaterally, with the three children from his former marriage and the Child to New Zealand;

the other three children were aged five, and twins aged four, at the time of the relocation to New Zealand, and all four children were taken without the consent of their mothers;

cross-examined about the feelings of the four and five year old children the following exchange occurred:

Okay. What about how the children felt about being away from their mother for so long? — My children were pleased to be with me, and they were pleased to be away from her.

Okay. So these children, who were five and four at the time and had been in the primary care of their mother their whole lives, were happy to be away from her. Is that what you are telling the court? — Yes.

denied generally that he had been controlling in relation to the Mother, or that he had ever been abusive to her;

in relation to the child not going to Queensland for a holiday with her Mother in December 2009 the Father said that the Child asked the Mother whether the Father could come on the holiday. When the Mother said no, the Child had “thought about it for a few days”, then said “Mummy, if daddy can’t come, I don’t want to go either”. Asked whether the Child, then aged five and a half, was influenced by him in relation to the making of that decision, and whether he said anything to her about it, he said “Nothing whatsoever, except the little girl knew I wasn’t allowed to go”;

the father was then cross-examined as to why he wouldn’t encourage the Child to go on the holiday, which was a holiday to see the Mother’s sister, and the following exchange occurred:

Okay. So why wouldn’t you encourage her to go on that holiday. It’s a two-week holiday to Queensland to see family?Well, because she obviously thought, “Well, I just don’t want to go.”

But why wouldn’t you encourage her? What would be the benefit to X in having that holiday?I didn’t see any benefit at all in it.

Right?But I didn’t withhold her deliberately, no.

HIS HONOUR: You didn’t see any benefit in her going to see other members of her family?Well, given the fact I didn’t know any of her family

No. You didn’t see any benefit in her meeting other members of her family, whether you knew them or not?I didn’t think that way. I just thought, “Well, whatever the little girl wants, if that’s what she wants, she can stay with me, if she wishes.” Not forcing her to go. I’m not forcing her to stay with me.

Yes, Ms Conlan.

gave evidence that as a consequence of his being made the guardian of the Mother’s affairs by VCAT he had certain responsibilities concerning the Mother which was why he went to her appointments and needed to know what her medications were, and this was put in the context of cross-examination as to his apparent domination of an interview with the Mother’s former psychiatrist;

denied that he any feelings whatsoever for the Mother, notwithstanding the views of Mr R. and Dr W to the contrary;

denied that his conduct in refusing to allow the Mother to spend time with the Child was influenced by the Mother’s mental health, such that he would not allow the Mother to spend time with the Child when she was getting better, so that he could exercise control over the Mother;

that he would not allow the Mother to see the Child without him being present to ensure that she would not take the Child;

refused to accept that the Child, then aged six, would have missed her Mother when she did not see her from January to April 2011;

again denied that at periods when the Mother was apparently recovering from her mental illness, and becoming better, that he withdrew the Child from being able to spend time with the Mother;

in relation to his two daughters from his second marriage, who would now be aged 15 and 13, agreed that he does not see them because he disapproves of piercings that they have in their noses and on their faces, and will not see them until they remove them, and as justification for that added that “I don’t want them teaching my children that it is alright to do what they wish.”;

disagreed that the Mother did most of the parenting up until early 2011, or that there was significant periods of time during which she did the parenting;

cross-examined about the Child’s weight he indicated that at 8.30am on each day that the Mother would pick the Child up he was having her weighed at the doctors, and that when picked the Child up after her time spent with the Mother he would take her straight from school to the doctors to be weighed so that there was a consistent record of her weight each time she returned from her Mothers;

the following exchange then occurred:

Do you think doing that to X might make her a bit more self conscious about her weight?—Not at all. It’s within her interests to do so, because she always feels pleased that she loses weight. She is happy with that – her self esteem, she is happy.

Okay?—Yes.

HIS HONOUR: You don’t think she might not think about it if she doesn’t get weighed every week, Mr Kane?—I was reluctant to do that, but given those allegations that were raised against me and I had already been approaching her doctor about her weight previous to that, felt it was within everybody’s best interest to do so.

How much overweight is she?—She – she is about 43 kilos. She is not excessively overweight. They were going to send her to a paediatrician, but then, you know, she said, “Well, I don’t think it’s that bad, you know, she just – keep exercising her, keep giving her, you know, good food and she will grow out of it. It’s not excessive.” Her doctor can be contact on these things.

Well, if she is going to grow out of it why do you have her weighed every week?—Well, it was only for the purpose of the allegations that he mother raised against me. She was implying that when she was with me that I was not looking—

You couldn’t just let it go and not worry about it?—Pardon?

You couldn’t just let it go and not worry about it?—Of course not.

Dismiss it for what it was?—It’s a terrible thing, I agree, but I felt that it was necessary to show that every time she come back from her mother, she was a lot more than what she was when she left me. How sad.

in relation to his influence upon the Child’s attitude toward the Adult Daughter he indicated that he had said nothing to her about the allegations made by the Adult Daughter, but that the Child was remembering events which occurred in 2010 where the Mother, the Adult Daughter and a male friend of the Mothers had told the Child that the Father was “evil”;

cross-examined further by the Mother’s Counsel on this issue the Father became visibly very angry, such that Counsel was not able to complete questions, but nevertheless rejected a suggestion that he had conveyed his anger about the Adult Daughter’s allegations to the Child;

refused to indicate a preparedness to pay the Mother some petrol money for her travelling costs in relation to the Child’s attendance at school, which school is close to the Father but approximately 50 minutes to an hour’s drive from the Mother;

agreed that when everything was “right” with the Mother she was a “great mum”;

when asked about the positives about his parenting he responded as follows:

I feed her, bath her, clothe her, take her to school, take her to Kindergarten, pick her up, bring her home, do her homework, cook meals for her, and take her swimming, bike rides, do things down the park, dogs for walks, get her involved, try to learn music – she loves music; any of those things that she loves, I always want to help her.

rejected the suggestion that he was enmeshed with the Child and unable to prioritise her best interests, and believed that expert views to the contrary were wrong; and

when asked questions about fostering a relationship between the Child and Mother again became visibly angry, and finally responded in the following manner:

So you’re not going to do anything to ensure the relationship flourishes between she and her mother?—I will do everything I can do to do that, to make sure that happens, but between her and I, between the mother and I, it’s a no go zone. I just, you know, don’t trust her and I can’t allow her to abuse my trust ever again.

Mr R.’s evidence

Mr R’s Affidavit annexes four reports, dated June 2011, 27 October 2011, 17 January 2012 and 10 April 2012 respectively. None of the reports is longer than a page and a half, and the first is three paragraphs and less than one page. Mr R. gave evidence by telephone.

Mr R. is the principal psychologist at (omitted) Psychology Group in (omitted) and works with children, families, couples and adults. He is a registered psychologist with a Graduate Diploma in Psychology and a Masters in Counselling Psychology.

Mr R’s June 2011 Report comprises three substantive paragraphs the first and last of which simply recount events about which he has been told, and the middle paragraph of five lines says that he explained to the Mother that what the Father wanted what was in the best interests of the Child, and the Father was very much in support of working towards improving the relationship between the Mother and the Child, but that Mr R.’s advice to the Mother was that this would need to be undertaken very gradually so as not to overwhelm or confuse the Child. There is also a comment about what the Mother said about coming to a resolution with the Father without having to settle the matter in court. At the time Mr R’s June 2011 Report was written he had been seeing the Child as a client since February 2011.

By the time of Mr Rubin’s October 2011 Report he was the current psychologist for the Father. It would appear that the Father approached him to seek assistance on the basis that he felt comfortable with Mr R. as a consequence of his involvement with the Child (which had been facilitated through the Father). The Father asked Mr R to assist him with ensuring his strong devotion and protection of the Child did not impact on her in any way, including causing “her to have an unhealthy attachment to him and to ensure he was not influencing his daughter in a negative way regarding her relationship with her mother”.

Mr R also saw the Mother briefly at which time she explained that she was struggling because of a change in her medication and that she was seeking a shared care arrangement with respect to the child with the ability to call on the Father to look after the Child in situations where she was too unwell to do so. The Mother “explained that sometimes it was just too difficult to get out of bed and give [Child] breakfast or lunch and that sometimes she just slept.”

Mr R reports that the Father was “delighted” that the Child was “feeling more positive about her mother, albeit fearful and upset when her mother’s well-being deteriorates.”

In Mr R’s January 2012 Report he indicated that the Father was “more sensitive and self-aware in his communication around [Child].” Mr R also indicated that he thought the Child’s “attachment to her father has been formed because she seeks that unconditional protection and stability from him which I believe she does not seek from her mother.” At this stage he had not been seeing the Child for many months, and had seen the Mother once, when the Mother was brought to an October 2011 session by the Father, for 15 minutes. The comment concerning the Child’s attachment to her father was then made after seeing, incidentally, the Child for about 10 minutes when she was present following one of the Father’s sessions with Mr R.. Mr R. expressed the view that it was necessary that the Child have ongoing therapy, but that it was also “imperative” that the Child and Mother have an ongoing relationship but that it needed to be managed “with sensitivity on the basis of [Mother’s] wellbeing and her capacity to adhere to greater responsibilities.”

Mr R was positive about the Father’s view of his relationship with the Child, and his desire to have the Child have a good relationship with the Mother, although Mr R continued to be concerned for the Child’s wellbeing when under the Mother’s care.

In Mr R’s April 2012 Report he commented favourably upon the Father’s complete commitment to a counselling process which at that stage had involved 18 sessions of counselling, and his commitment to ensure that he did not affect the Child’s wellbeing. Although Mr R had only seen the Mother once in the circumstance described above he expressed an opinion, strongly, that the Child’s attachment to the Father was “primarily as a result of the difference in consistency in parenting between both parents”. Mr R reiterated the concerns that the Father held about the Mother’s wellbeing and her capacity to have a good relationship with the Child as a consequence. Mr R expressed the view that the Father was “a fantastic father” who has “a very positive impact” on the Child’s confidence and wellbeing, but also his belief that it would be of benefit for the Child to have a good relationship with both parents. Mr R expressed the view that any changes in parental care needed to be “extremely gradual and cautiously assessed” so as not cause further difficulties in the Child’s relationship with the Mother and to ensure adequate and consistent care for the Child.

In cross-examination, Mr R:

accepted that Dr W was an experienced family report writer who was completely independent; and

said that he may not have been given complete information as a consequence of his seeing the Father as a client.

The Court accepts that Mr R’s views may reflect more favourably on the Father than they would have had he received more complete information. Critically, however, he, like Dr W, stresses the necessity for any change in the existing arrangements to be gradual so as not to cause harm to the Child. Mr R also recognises the fact that the Mother’s mental health needs to be factored in to any assessment of the situation. Implicitly, at least, his conclusion with respect to ensuring that any change is gradual so as not to harm the Child, is consistent with Dr W’s views that the Child is enmeshed with the Father, but perhaps not consistent with Dr W’s views that the Father is also enmeshed with the Child.

Dr W’s evidence – the Family Reports

Dr W has bachelor’s degrees in Arts (Psychology) and Business (Accounting), a Graduate Diploma in Educational Psychology, and a Doctorate in forensic psychology. She has over 15 years experience in counselling and psychology generally, but in the last five years in particular has been involved in assessment and report writing for the Family Courts. Dr W’s evidence, although given by telephone, was impressive, and demonstrated an understanding of the environment and interaction between the Mother, Father and Child. Dr W was not averse to giving credit or criticising the Mother, Father and Child based on what she had observed and been told by each of them, but it was clear that at all times her focus was on an objective assessment of the interests of the Child.

In the July 2011 Family Report Dr W:

raised significant concerns about both parents;

observed that the Mother had a long history of mental health issues;

observed that the Mother had a vulnerable personality whereby stresses had the potential to interfere with her functioning;

observed that the Mother seemed vulnerable to being controlled and manipulated by the Father;

observed that both the Mother’s doctor and psychologist thought that her symptoms were being well managed at that time;

observed that the Child was totally and profoundly enmeshed and aligned with the Father;

observed that the Father was actively encouraging the Child’s enmeshment and alignment and a co-dependent relationship with the Child;

said that despite the Father’s dramatic statements about the Mother and her mental health issues, it appeared that he had a history of depression and possible suicidal ideation;

said there was a history of a destructive and dysfunctional relationship between the parents, involving power, control, dependence and strong infatuating feelings;

said each parent had previously dealt with their ongoing conflict by removing the Child from each other at various times and preventing the Child from having contact with the other parent for months at a time, creating significant attachment, dependence and vulnerability issues in the Child; and

said neither parent appeared to have any real understanding of how their past actions had impacted on the Child, her attachments and her emotional and developmental wellbeing.

In the July 2011 Family Report Dr W indicated a concern about the Mother and the potential that she would emotionally neglect the Child if the Child was in her care and the Mother had a mental health relapse, but that this was a possibility and not a certainty. Moreover, Dr W observed that:

… This possibility pales in comparison to the father’s pathological and insidious and disturbing behaviour, because in some ways this kind of profound enmeshment is worse than alienation, because the child’s views are so totally entwined with the parents that in this case, [Child] will have no sense of there being another view or another side of the story; and this is profoundly damaging to her development, her emotional stability and wellbeing, and her sense of self-identity.

To this end, my clinical view is that the father needs to be prevented from interfering with [Child’s] relationship with her mother as much as possible; and the power needs to be taken away from both the father and child to make decisions about this.

Having made those observations, Dr W went on to note that it was however suggested in the research that it is not generally in a child’s best interests to suddenly remove them from an existing environment in cases of extreme enmeshment as the child is likely to experience extreme loss. Dr W therefore suggested that there was both an expectation and requirement that the Child spend significant unsupervised time with the Mother, in a block of time, and to ensure that the Father followed those orders. Dr W therefore recommended that the Child continue to reside with the Father, but that every second week she spend five nights in a row over a weekend with her Mother.

The April 2012 Family Report was prepared for the hearing of this matter in April 2012.

Dr W noted that the Mother had had trouble coping with the care of the Child since July 2011, together with panic attacks and feelings of being overwhelmed, which had caused her to go to the Father’s house for her contact with the Child instead of bringing the Child to her own home. However, Dr W was reassured by extremely positive feedback from Dr L, and from the Mother’s support worker, which indicated that a change in medication, together with a subsequent adjustment to one of those medications, and significant attendance on Dr L for counselling had resulted in significant positive improvements in her alertness, thinking, functioning and confidence and overall attitude about her parenting and relationship with the Father.

Dr W noted that the Father had changed his view as to time spent with the Mother, but Dr W was concerned that his motivation may have been underpinned by an understanding that his previous attitude (which, in short, opposed any unsupervised time spent between the Mother and Child, and no overnight stays) was unacceptable. Dr W noted that he had been seeing his psychologist, Mr R., and that it was believed that he was making progress, but it was also noted that he had “a massive fear of losing” the Child. Dr W then dealt with the relationship between the Father and the Child and said as follows:

Of further concern to the writer is that [Child] still seems very much aligned and enmeshed with her Father, and he still appears to be fostering this, and he still appears to be sharing inappropriate adult information with [Child], and he still seems to be attempting to use power, control, and dependence to manipulate the Mother into doing what he wants, and he still seems to be using [Child] for his own emotional gratification, and he still seems to be embroiling [Child] in the conflict by encouraging her to share his views about things; and ultimately [Child] and the Father still have this very dysfunctional co-dependent relationship as a result; and as already mentioned in the last report, I cannot stress enough how destructive this will be for [Child’s] long term emotional, developmental, social and general wellbeing.

Dr W indicated that the destructive behaviours of the Father were still taking place, even if to a lesser degree, and she remained concerned about the influence that would be extended by the Father in relation to a relationship with the Mother if there was not shared care for the Child, even though that was not ideal for a child of this age where the parents resided some distance apart.

Dr W indicated a reluctance to believe everything that the Child said because the Child “has made it clear that she agrees with and repeats everything her father believes and tells her, and that her father still shares his views about what he thinks goes on at the mother’s home, when clearly he is not there.” Because of the influence of the Father, Dr W indicated that whether or not the Mother was truly meeting some of the Child’s needs, and or providing appropriate stimulation, was “totally unclear”.

In summary Dr W expressed the view that this was “a difficult case”, because “neither parent is really good enough” and it was therefore necessary to “look at the least bad option” for the Child “as opposed to what might be in her best interests.”

In summarising the situation Dr W said as follows:

… whilst ideally I would like to recommend that [Child] resides primarily with her Mother, because even though there are also significant issues with her too, I believe that they are less destructive overall than the issues and concerns above about the father; the reality is that I simply do not believe the mother is ready for primary care, and whilst I am reassured by her more recent progress, the fact is that she did have setbacks, and until she can go for at least 6-12 months without any setbacks, I would be reluctant to recommend that [Child] resides with her primarily.

Whilst the mother’s regression might look bad, the father’s behaviour is even more problematic in my opinion, as enmeshment can often be more dangerous and disturbing than alienation, as the behaviour is pathological, insidious, and all-entwining; and so whilst I am not recommending removal from the father for the reasons above, I cannot stress enough how damaging this behaviour is for the child; as it is likely that she will grow up having no sense of there being another view or another side of the story; and this would be profoundly damaging to her development, her emotional stability and wellbeing, and her sense of self and identity.

Dr W therefore recommended that the current living and contact arrangements remain in place, and that the Child spends half of all her school holidays with the Mother. Dr W indicated that whilst the Court would no doubt like to finalise the matter it would be better if the position could be reviewed again, and a further updated report be considered in nine months time (that is, about January 2013).

Dr W observed that:

the efficacy of Mr R’s Reports was affected by the fact that he was only getting the Father’s side of the story;

the failure of the Adult Daughter to report the alleged sexual abuse to the police when it occurred, when the Adult Daughter was aged eleven, was “very, very common” and that it was “very, very difficult to report sexual abuse … within the immediate family”, in this case the step-father;

she had quite specific concerns about the issues of co-dependence and alignment/enmeshment between the Father and the Child;

that the relationship was one of infatuation by the Child with the Father and vice versa and that it was not a normal daughter/father relationship and was unhealthy;

apart from the alignment enmeshment and infatuation issues the Father was “in other ways”, “actually a very good father”;

the Child’s needs have not always been met by the Mother, but it has been more a case of the Child being bored and not stimulated than any form of direct harm;

it was a positive aspect of the relationship between the Mother and Father that the Mother was prepared to utilise the Father as the first port of call when she was unable to effectively parent the Child, notwithstanding that she had a wider support network;

she had concerns with respect to the Mother immediately taking primary care, and although the evidence vacillated it appears clear that a period of at least six months from the time of the hearing (April 2012) with the Mother having significant time spent with the Child would be necessary in order to assess whether the Mother would be capable of providing primary care and whether the Child would be better off the Mother’s primary care;

whilst the Father had made some progress in terms of realisation of his level of enmeshment with the Child, she remained concerned that the ongoing level of enmeshment was damaging to the child’s mental health;

the Father had, by releasing information to the Child concerning his attitude towards the Adult Daughter subsequent to her complaint of sexual abuse, interfered in the sibling relationship between the Child and the Adult Daughter in a way which was most unhelpful; and

the Mother had made significant progress with her mental health issues, and did not appear to be as vulnerable as she was previously, particularly to the manipulation of the Father.

ICL’s submissions

The ICL made a general written submission that:

orders ought to be made consistent with the recommendations of Dr W in the updated family report;

the matter ought to be revisited in the future as suggested by Dr W, if the Court decides that this is appropriate in the circumstances;

there be orders that the Child spend appropriate time with the Mother and Father on relevant special occasions;

the Mother and Father continue to attend upon their respective treaters and follow all reasonable directions;

the Child attend upon an independent counsellor; and

the Child continue to attend upon her general practitioner in relation to her physical health and weight.

Primary Considerations – section 60CC(2)

Benefit to the Child of having a meaningful relationship with both parents – section 60CC(2)(a)

There can be no doubt that the Child ought to have the benefit of a meaningful relationship with both parents. The question here is how that is to be achieved.

The Mother submits that it is in the best interests of the Child to have a meaningful relationship with the Mother and the Father, provided the Father can be child-focused.

The Father submits that the Child ought to live with him and spend time with the Mother, provided appropriate safeguards concerning the Mother’s mental health illness and the potential risk of emotional neglect of the Child are in place. The Father says that this care arrangement will ensure that both parents are placed in a position where they can have a beneficial and significant relationship with the Child.

Both parents want a meaningful relationship with the Child, and there is no dispute that the Child will benefit from having a meaningful relationship with both parents.

A meaningful relationship does not mean an optimal relationship. There are however a number of factors which might facilitate, or provide the opportunity for, an ongoing meaningful relationship with both parents. For present purposes some of these are helpfully outlined in P & P, and include the following:

time spent with a child;

the extent of time spent with the child, but more importantly the:

quality; and

utilisation,

of the time spent;

the distribution of time spent (which may impact on quality and utilisation), and whether time spent includes:

weekends;

holidays; and

weekdays,

and particularly, time allowing parental involvement in:

daily routine; and

occasions of significance.

To these factors might be added:

the ability of a parent to spend time with a child overnight;

allowing a child to spend sufficient time with a parent to facilitate visits, and the development of relationships, with relatives (including, where appropriate, interstate or overseas relatives);

the capacity to communicate by proper means (including, for example, post, telephone, email and webcam) with a child when not spending time with a parent; and

allowing a parent to properly exercise a level of parental responsibility in relation to a child so as to facilitate the development of emotional bonds and a parenting style of benefit to a child.

The Court considers that the benefit to the Child of a meaningful relationship with both parents would be best enhanced by:

the Child spending at least substantial and significant time with each parent, and optimally equal time; subject to various considerations discussed further below; and

an equal sharing of parental responsibility,

subject to the various further factors and considerations below.

Risk of harm to the Child – section 60CC(2)(b)

The Mother submits with respect to the risk of harm that:

there is a risk to the Child’s psychological health due to the Father’s constant denigration of the Mother and her role as the Child’s Mother;

the Father speaks to the Child at an inappropriate age level in relation to God;

the Father uses emotional blackmail on the Child;

the Father uses the Child as a pawn to get to the Mother. The Mother believes the Father continues to have feelings for her;

the July 2011 Family Report notes that the Father’s apparent indecision in relation to recommencing the Mother’s and Child’s relationship, and the Child’s apparent fear of the Mother “simply suggest to [Dr W] that [the Father] may be trying to manipulate events to suit his purpose”. Further, Dr W observes that “[it is] my opinion that [Father] is trying to control [Mother] through [Child], and that he is in some way attempting to use [Child] and her love for him to fill the void that exists from his separation from [Mother], whilst encouraging [Child] to align herself with him and to alienate herself from the mother, thereby using her to in effect get revenge for perceived hurts.”; and

the Father refers to himself and the Child as one entity, as noted in the July 2011 Family Report:

The mother tricked us … we thought she was going to make amends … [Child] is not wearing it … she stand offish … she’s not fooled … it was foolish to let her fool us … I know it wasn’t genuine because she wanted to go back to the way the court ordered”.

The Father submits thatthe Child has, in the past, been exposed to psychological harm and emotional neglect by the Mother as a result of the Child being exposed to the Mother’s relapses of mental health illness. The Father also states that the Child has recently been exposed to emotional and physical neglect by the Mother, due to the Mother’s recent relapse. The Father says that the Mother has a long history of mental illness and refers to the July 2011 Family Report where Dr W says that she is “concerned about the Mother and the potential for [Child] to be emotionally neglected if [Mother] relapses whilst [Child] is in her care.”

The Court accepts that both of these parents love the Child, and that neither would seek to deliberately put the Child in harm’s way.

The evidence indicates that the Mother is being appropriately medicated in relation to her mental illness, and so long as that remains the case, there ought to be no relapse in relation to her mental health. That said, the expert evidence acknowledges that it is a possibility that there will be a relapse at some stage, and that it would be better for both Mother and Child if any transition towards equal time between Mother and Father were to be a gradual process. The evidence indicates that if the Mother does have a relapse in relation to her mental health that that is likely to be a significant setback in terms of the ongoing development of her relationship with the Child. The development of a normal relationship, between the Mother and Child is seen to be of benefit to the Child. Thus, looking at the risk of harm to the Child through the prism of the Mother’s mental health, a gradual transition to more time spent with the Mother, and the possibility of the Child living primarily with the Mother, must be a gradual process, subject to further assessment.

The Child’s time spent with the Mother, and the Father, currently seems to be spent engaged in remarkably similar activities: going to school, going for walks, going to the park, having music, dancing and swimming lessons, assisting with homework and so on. In those respects the activities of the Child with both the Mother and Father appear remarkably similar. The Mother’s and Father’s activities do diverge by reason of the Father’s emphasis on the role of religion in the Child’s life. It is evident that religion, including belief in God, Bible reading and going to church, are activities of the upmost importance in the Father’s view, and in the time he spends with the Child. The Mother, by contrast, is more likely to have the Child engage in some recreational or leisure activity during her time with the Child. Subject to comments below about the Father’s enmeshment and dominance, neither the Father nor the Mother’s approach to these issues can be said to be wrong, but rather to reflect different priorities and views. Ultimately, the question is one of balance and proportion, and as the Child grows and develops she will no doubt be able to form and express her own considered views as to the extent to which she engages, if at all, in such activities. For the present, however, she is a child of eight years old who ought be exposed to a variety of appropriate activities, in balance, and not subject to the disproportionate influence of any particular activity or of either parent.

The Court accepts the evidence of Dr W that the greatest risk of harm, particularly psychological and developmental harm, to the Child arises from the enmeshment of the Father and Child. That enmeshment can be seen from the Father’s comments which treat he and the Child as one entity, and which are referred to in the July 2011 Family Report and the April 2012 Family Report. They can also be seen in the Father’s refusal to encourage the Child to go on holiday with the Mother to Queensland to see the Child’s aunt in 2010. Even if the Child was somewhat adamant that she did not wish to go because her Father was not going, the Father’s refusal to even encourage the Child to go, and his adoption in his evidence of the views expressed by the Child, show the degree of enmeshment between the Father and Child. That enmeshment is further shown by statements attributed to the Child by the Mother, which the Court accepts, in relation to the Father’s views about religion, and who ought to be at the Mother’s house.

The Court considers that the risk of enmeshment is heightened by the Father’s propensity to act in a dominant manner in a variety of situations. Even in Court, he attempted to dominate Counsel. From the manner that he displayed in Court, together with the experts’ evidence, particularly that of Dr W, the Court can readily accept that the Mother’s evidence of his manipulation and dominance of the relationship between them and with the Child is correct. It is reinforced by other evidence including:

his withdrawal of time spent with the Child at times that the Mother was beginning to recover from her mental health illnesses, which the Court accepts was an attempt to retard the progress of the Mother’s recuperation, and thereby to maintain control over the Child; and

his refusal to see his teenage daughters by his previous relationship until they comply with his requirements not to have nasal and facial piercings. The Court can infer from that that the Father is prone to only deal with people on his terms.

The Court considers that the psychological and developmental needs of the Child would be best met by her spending equal or significant time with the Mother, so long as the Mother’s mental health so permits. There is no reason to consider that the Mother’s mental health would not so permit so long as she maintains her medication, and so long as she is not put under undue pressure. The time spent with the Mother by the Child needs however to be increased gradually, and not suddenly, as a sudden increase may result in harm to the Child because of the enmeshment between the Father and Child.

The Court therefore considers that it is in the best interests of reducing the risk of harm to the Child for the time spent with the Mother to be increased to equal time, but that that be done gradually.

The Court notes that that view is in accordance with the evidence, particularly of Dr W, but also Dr R, a view which was accepted by the Mother, that any transition to increased time spent with the Mother ought to be gradual.

Other considerations – section 60CC(3)

Views expressed by the Child – section 60CC(3)(a)

The Mother submits that:

the Child enjoys spending time with the Mother;

the Child has told the Mother occasionally, when spending time with the Mother, that she wants to go home to the Father; however, the Mother does not believe that is her true desire, and believes that the Father has told the Child to say that;

the Child is heavily aligned with the Father, and as Dr W notes in the July 2011 Family Report the Child has a strong desire to please the Father, and there is “the likelihood that she will simply agree with him about things just to please him”. Further, that “rather than disliking or fearing her mother, it seems that her reluctance to spend time with her mother, as reported by the father, is more about [Child’s] sensitivity to, and understanding of her father’s negative views and opinions of the mother, and in the inappropriate information he has shared with her, and [Child’s] understanding of the dramatic pull on her, and the messages of restraint she receives from the father, and her understanding that the only way she can have a relationship with her father is to reject the mother like he does.”;

Dr W also notes in the July 2011 Family Report in relation to her interview with the Child that “it was very clear that [Child] was both aligned and enmeshed with her father, and most of what she said was similar or exactly the same as what her father had said, and she was very protective of him and seemed to feel sorry for him, she seemed to feel a need to look after him and especially when he was sad or upset … she also reported that her father had told her most of what she said.”; and

Dr W also observed that:

I believe that it is the very nature of [Father’s] inability to see how much of an influence he is obviously having on [Child], and how unlikely it is that she would have the cognitive and intellectual capacity to have these kinds of thoughts on her own, that in fact shows just how boundaryless [Father] is, and just how aligned and enmeshed [Child] is with [Father]; given that she tended to repeat a lot of what he said, nearly word for word at times during interview, but certainly was not able to explain in her words, and nor was she able to provide any details or context”.

The Father submits that:

the child is the only child of the relationship and has a level of maturity that should be taken into account; and

Dr W reported in the July 2011 Family Report that “[Child] made it very clear that she wants to remain living with her father, and that she was reluctant to see her mother without her father there; but in the end she did say that she would be okay about seeing her mother, but only for about three hours …”.

The views attributed to the Child must be considered in the context of the enmeshment of the Father and Child, and the dominance of the Father, particularly where those views were expressed at a time when the Child was spending more time with the Father, or the Mother was not well. To the extent that the Child might have been bored or not engaged or stimulated those times appear to have been times during which the Mother was not well. In any event, dealing with quiet time and boredom, particularly when people are not well, are matters which everyone ultimately has to deal with, and rather than be critical of the Mother it might have been better if the Father had encouraged the Child to be empathetic or engaged her in developing alternative strategies to deal with the issue. That said, it does appear on the evidence, that the Child’s relationship with the Mother is, in the views latterly expressed by the Child, one which is relatively normal and unexceptional.

The Court ultimately does not consider that the views expressed by the Child, affected as they are by her Father’s influence and her age, are so significant that they ought to affect, one way or the other, the views reached by the Court upon a consideration of the other relevant factors.

Relationship of the Child to parents and other significant persons – section 60CC(3)(b)

The Mother submits that she and the Child have a great relationship together, which has grown since they have been spending more regular time together. The Mother believes the Child talks to her more about her issues and feels comfortable sharing her feelings with her. However, she has noticed that the Child seems, at time, to be stand-offish and believes that is due to the negative comments of the Father made to the Child about the Mother.

The Father submits that the Child has a close and loving relationship with the Father, but continues to report a less than positive experience when she spends time with the Mother because the Mother is often lying down and not interacting or communicating with the Child. The Father also says that the Mother is also not often providing the Child with breakfast because she chooses to remain in bed and not communicating with the Child, and thereby not providing for the Child’s emotional or physical needs.

The evidence indicates that the Child has a close relationship with each of the parents, and for reasons expressed above, to the extent that the Child has made statements about time spent with the Mother which would indicate otherwise, those comments are largely a reflection of the Father’s views about the Mother and a failure by the Father to properly encourage an appropriate relationship between the Child and the Mother. Both parents clearly love the Child, and the evidence indicates that that love is reciprocated, albeit that the Child’s relationship with the Father might presently be closer than that with the Mother because more time has been spent with the Father in the last two years, and because of the enmeshment and dominance issues discussed above.

There is nothing in the relationship of the Child to the parents which would indicate that anything other than equal time, or at the least significant time, ought to be spent with each parent.

As to the Child’s relationship with other significant persons there is evidence of her relationship with the Adult Daughter, and to a lesser extent with the Child’s aunt in relation to the Queensland holiday, and her paternal half-siblings.

The Court accepts that on the evidence the relationship between the Adult Daughter and the Child is presently not a good one. It does not appear that the Father has done anything to properly encourage the Child to engage with the Adult Daughter in a more appropriate manner, whereas the Mother has done so, both with the Adult Daughter and the Child. The Court is confident that the Mother has the capability to properly manage the relationship between the Adult Daughter and the Child when they are both in her presence, and that with time, and a greater degree of familiarity and interaction between the Adult Daughter and the Child that a sustainable relationship, as previously appeared to exist between them, will emerge.

The Father’s attitude to the Queensland holiday during which the Child would have seen her maternal aunt is of concern. The Father clearly did nothing to encourage the Child to go on that short holiday, and meet a person, a maternal aunt, who ordinarily might be a person with whom the Child might have a significant relationship. Once again, this is a situation which might be remedied by equal or significant time being spent with the Mother and there being an appropriate level of interaction with a maternal aunt, albeit one resident in Queensland, over a period of time.

The relationship between the Mother’s two other adult daughters and the Child was not the subject of significant evidence, but the Court notes that those two adult daughters did look after the Child when the Mother went into a psychiatric hospital in early 2010, and that there did not appear to be issues of concern in relation to the relationship between those two other adult daughters and the Child.

There is no significant evidence in relation to the Child’s relationship with her paternal male twin half-sibling, but the Court notes that he has spent time with the Father, and has therefore presumably spent some time with the Child.

The Court is concerned by the fact that the Father does not see, because of the nasal and facial piercings, the paternal female half-siblings aged 15 and 13. It is obvious that for so long as the Father does not see those half-siblings, the Child will be denied the opportunity to grow, know and engage with her two half sisters. In the circumstances, and without having any knowledge of the existing arrangements, if any, as to the Father’s entitlement to spend time with the two half sisters, it is difficult for the Court to tailor any orders to facilitate the Child having contact with those two half sisters. The circumstances surrounding the Father’s deciding not to have contact with two of his children aged 15 and 13, and doing so because he does not want them to influence the Child, indicates a failure by the Father to realise the importance of the maintenance of sibling relationships.

Parental facilitation and encouragement of a close and continuing relationship between Child and other parent – section 60CC(3)(c)

The Mother submits that:

the Father is not supportive of the relationship between the Child and Mother;

the Father has continually attempted to interrupt the time the Mother spends with the Child. For example, the Father insisted that the Mother’s time be spent at his house and that he be present, when there were specific orders that he not be. Further, that the Child was so distressed by the upcoming Family Report writer interview that she could not spend time with the Mother; and the Father’s cancellation of the Mother’s time with the Child on occasions;

the Father has told the Mother that if she pursues these proceedings he would win no matter what he had to do, and the Father has continued to threaten the Mother throughout these proceedings;

the July 2011 Family Report says that:

[Father] is totally against a shared care arrangement, and he is totally against [Child] spending every second weekend with [Mother], and instead he is wanting the current contact arrangement to remain the same, if there is any contact at all.

the July 2011 Family Report further notes that:

[Mother] appeared more focused on talking about [Child] and her relationship with her, and explaining her mental health issues, as opposed to being critical of [Father], which is in complete contrast to [Father] who seemed very focused on painting [Mother] in a very negative light.

the July 2011 Family Report also notes that:

[Father] was so adamant that [Child] was scared of [Mother], but [Child] reported to the writer that her [Father] probably became more anxious at the thought of seeing her [Mother] than she did; and [Father] was also adamant that [Child] was scared of going to her [Mother’s] house because of the abuse she had suffered, when it was clear from interviews that [Child] does not actually remember any such abuse, although she admitted that her [Father] had told her it happened, and that her reluctance to go to her [Mother’s] house had more to do with her [Father] telling her that the house was dirty, and her [Mother] had allowed the dog in her room, and that the grass was too high for her to play in.

the Father has made negative comments about the Mother’s and Child’s relationship to Dr W, however the purported fear that the Father describes the Child as having appears to be contradicted by his allowing the Mother to stay at his house. Dr W notes that the Father is:

Going to great lengths to suggest that [Child] is scared of her [Mother] and doesn’t want to see her; but then on the other hand obviously contemplating re-establishing his relationship with [Mother], therefore in effect ignoring [Child’s] fear if it were real, since he admitted to the writer that [Mother] stayed over at his house a few Tuesday nights recently.

the Father has withheld the Child from the Mother for her time as recently as that due to commence 23 January 2012, indicating that there was a risk to the Child. There has been no explanation from the Father detailing the risk to the Child at that time; and

the Father uses the Mother’s mental health as a reason why the Child cannot see her, which is a decision that the Father has no qualifications whatsoever to make. The Mother has been engaged with many professionals for a long time, and the Father is aware of that. Whilst the Mother denies that she is too sick to see the Child as detailed by the Father, the Father is acknowledging that the Mother will not see the Child if the Mother believes she is not able to do so.

The Father submits that:

he has suspended the Mother’s time with the Child in the past and recently with reasonable excuse;

he has serious concerns about the Mother’s behaviour associated with her recent relapse and the emotional neglect of the Child whilst she is in the Mother’s care;

by recently suspending the Mother’s time with the Child he has only sought to ensure the Child’s safety and emotional wellbeing;

there is a current and real possibility that the Mother will again relapse whilst the Child is in her care;

he has facilitated a continuing relationship between the Child and her Mother including, during the recent relapse by the Mother, by repeatedly facilitating the Mother’s requests to spend time with the Child at his home when the Mother states that she is unable to care for the Child on her own; and

he is willing to facilitate and encourage a close and continuing relationship between the Child and the Mother provided appropriate safeguards are in place to ensure that the Child is not emotionally or physically neglected by the Mother and that the Child is returned to the Father in the event that the Mother is unable to adequately care for the Child on her own.

There is nothing to indicate that the Mother has done anything other than facilitate and encourage a close and continuing relationship between the Child and the Father. There was some suggestion in the Father’s evidence that the Mother might have portrayed him as “evil”, but that suggestion was not put in the relatively limited cross-examination of her by the Father’s Counsel. On the evidence, the Court is satisfied, in any event, that the Mother will facilitate and encourage a close and continuing relationship between the Child and the Father.

The evidence with respect to the Father indicates markedly different approaches depending upon the circumstances. If the Mother is ill, and too unwell to look after the child, then the Father says that he facilitates and encourages a close and continuing relationship between the Child and the Mother by having the Mother at his home so that she can have contact with the Child. Of itself, there is nothing to be criticised in that approach. The Father, however, has, when the Mother has been experiencing improvements in her, or better, mental health, withheld the Child from spending time with the Mother. The Court might imply from that that the Father does not wish to put the Child into a close and continuing relationship with the Mother when she has the capacity to influence the conduct of that relationship, as opposed to when she is unwell, when she might exercise no influence as to the conduct of her relationship with the Child, or be more willing to accede to the Father’s wishes with respect to the nature of the relationship.

The Father’s continued reliance upon, and stress in relation to, the Mother’s mental illness, does not signify that he is willing to facilitate and encourage a close and continuing relationship between the Child and the Mother, or at least is not willing to do so at times when the Mother’s mental health issues have abated.

The fact that both parents have been prepared to attend a post-separation parenting programme does however indicate that there may be the prospect of improvement in relation to this particular issue.

Likely effect of changes in Child’s circumstances – section 60CC(3)(d)

The Mother submits that if the Child remains in the primary care of the Father, the Father will continue to alienate the Child against the Mother, and the effect on the Child is likely to be very detrimental.

The Father submits that the Child has a close, strong and loving relationship with the Father. In relation to the Child being removed from the Father’s care, the Father asserts that Dr W’s 2011 Family Report states that Dr W fears that the removal of the Child from the Father “…. is only likely to cause [Child] significant anxiety and emotional distress …”.

Dr W and Mr R agree that any change in the Child’s circumstances ought be gradual. Dr L, however, is of the view that a change sooner rather than later would be better. In this regard, however, Dr L appears to be approaching the matter from the point of view of the Mother, rather than the Child, and, ultimately, the Court must consider the best interests of the Child. In that regard, the Court accepts the evidence of Dr W, and to a lesser extent Mr R., that any change in the Child’s circumstances ought be gradual so as to avoid any adverse consequences arising from a sudden disentanglement of the enmeshment between the Father and Child. It is clear on the evidence that if there is to be a move to the Child spending equal time, or more significant time, with the Mother, then that must be a gradual process. Given that, by consent, the Child has been spending six nights a fortnight with the Mother since the April 2012 orders were made, and given the evidence that a move over approximately nine months would be preferable, it seems to the Court that if any change to the current interim arrangements are to be made they might best be made in about three months time, and perhaps at the end of the term three school holidays in Victoria. Those changes could then be further consideration in a further family report towards the end of 2012 or early 2013.

Practical difficulty and expense of Child spending time and communicating with parents – section 60CC(3)(e)

The Mother submits that the Father lives in (omitted) and the Mother lives in (omitted). The changeover point has been the school, however when that does not occur, the changeover should be at the (omitted) McDonalds. The Mother asserts that that has not however been occurring and that the Mother has been doing all changeovers generally by attending the Father’s house at his request.

The Mother also submitted that because the Child goes to school much closer to the Father than the Mother and she therefore has to drive for 50 minutes to an hour to get the Child to school that the Father ought to make a contribution of $50 per week for those weeks when the Child is spending time with the Mother towards the Mother’s petrol costs.

The Father submits that:

neither the Father nor the Mother is currently working;

the distance between the homes of the Mother and Father is approximately 50 minutes;

Dr W does not think that the distance between the homes of the Mother and Father should be a detracting factor as children often travel this length of time for school;

the distance between the Mother’s and Father’s homes is unlikely to affect the Child’s right to maintain her relationship with the Mother; and

he ought not to have to pay the Mother petrol money for travel to and from the Child’s school.

Because the parents do not live in close proximity to one another issues arise with respect to the cost of petrol for the Mother in taking the Child to school, and the place of changeover during non-school times.

The Court does not consider that it is appropriate that the Mother be paid petrol money by the Father. It is not abnormal for children to have to travel for up to an hour to get to school, and, in any event, the place at which the Child goes to primary school is a matter which may change in the future and will change when the Child comes to attend a secondary school. The Court ought not to have to be intervening on each occasion a child changes the place at which they go to school so as to adjust amounts of petrol money between a mother and father. To order the payment of petrol money is simply to invite the Court to have an ongoing involvement in a potential area of dispute between the parents, and the Court does not consider it appropriate to make such an order.

With respect to the place of changeover there is no reason why the place of changeover on non-school days ought not be at a place reasonably equidistant between the parties. For school days, it clearly makes reasonable sense that the Child be dropped off and picked up from the school on the day of the changeover in accordance with the current arrangements. The Court is not enamoured of the place of changeover being at a McDonalds’ restaurant, particularly where there appears to be some area of disagreement between the parties about the cause of the Child’s weight gain, and the nature of her diet. The (omitted) Library is approximately equidistant (on a non-freeway route) between the residence of the Mother and the Father, and the Court will order that changeover on a non-school day take place at the entrance to that library.

Capacity to provide for the needs of the Child – section 60CC(3)(f)

The Mother submits that:

the Father cannot put his own needs above the needs of the Child. Dr W notes in the July 2011 Family Report that:

[Father] seemed unable to separate his beliefs, attitudes and needs from [Child’s] tending to make ‘we’ comments all the time, as if they are or were one entity, and/or tending to talk on behalf of [Child], and inadvertently making comments about what [Child] thinks, believes, or days [does] that are way beyond the cognitive capability/capacity of a girl her age, without seeming to realise this; and without seeming to realise how much of an impact his own very strong views are likely to have on [Child].

Dr W further commented in the July 2011 Family Report as follows:

I hold grave concerns about [Father’s] ability to understand [Child’s] needs in isolation to his own, and to empathise with and understand her psychological world and experiences; I hold grave concerns about his ability to put aside his own views, opinion, beliefs and needs, and to understand [Child’s] need to have a substantial relationship with her [Mother].

The Father submits that:

given the Mother’s long history of mental health illness, she has repeatedly struggled to provide for the physical and emotional needs of the Child;

the Mother has in the past demonstrated her lack of ability to adequately protect the Child from exposure to her relapses of her mental health and the associated emotional neglect; and

it is highly likely that the Mother will have extreme difficulty adequately caring for the Child’s physical and psychological needs on her own if the Child lived with the Mother.

Economically, both parties are in similar positions, being either unemployed or with limited remunerative employment, and in government provided accommodation which is generally suitable for the purposes of a single parent and child.

There was some suggestion that the Father was critical of the condition of the accommodation and gardens or yards surrounding the accommodation provided by the Mother. Substantively, however, there was no proper evidentiary content provided in relation to these matters. In the absence of real evidence of a danger to the Child the fact that lawns and gardens are a bit overgrown, or that the neighbour’s dog has defecated on the lawn when being looked after by the Mother, is neither here nor there, and is simply part of the tapestry of life for some people.

There is no evidence that whilst in good health the Mother is not providing for the needs of the Child, and the evidence indicates that unless she has a relapse, which is a possibility, then the Child will be properly provided for. Likewise, there is no real evidence that the Father is not meeting the needs of the Child, at least in a physical and economic sense. Psychologically, the Father and Child are enmeshed, and there are significant concerns expressed by Dr W, with which the Court agrees, that the Child’s developmental needs in this respect might be adversely affected. That said, the Father is, it would appear, in most other respects, a loving, devoted and caring father, and the Child does not appear to have been, apart from the enmeshment issue and dominant influence of the Father, significantly adversely affected. Likewise, the Mother’s mental health illness does not appear to have significantly adversely affected the Child’s needs being generally met. The Child is after all described as bright, articulate and happy, and she would not be so were her present needs not being met. That said, there is a concern for her future developmental needs by reason of the enmeshment issue, and that must be addressed by the Court. The practical means of doing so is by alteration to the live with and time spent arrangements, either both or one of them, but within the confines of gradual change recommended by Dr W and Mr R..

Maturity, sex, lifestyle and background of Child and Parents – section 60CC(3)(g)

Each of these factors is otherwise considered to the extent necessary in relation to other factors in these Reasons for Judgment.

Aboriginal and Torres Strait Islander Children – section 60CC(3)(h)

Not applicable in this case.

Attitude to the Child and parental responsibilities – section 60CC(3)(i), (4) and (4A)

The Mother submits that:

since the Child has been in the primary care of the Father, the Child has gained a considerable amount of weight;

the Father blames the Mother for the Child’s, at times, bad behaviour. The Father simply does not believe, as Dr W tried to explain, that some of the Child’s behaviour was quite normal for a family in high conflict; and

the Father yells and speaks over the Mother when she is talking in the presence of the Child, which is disrespectful and rude. That behaviour was noted by Dr W in the July 2011 Family Report.

The Father submits that:

the Mother has failed to adequately care for the Child by virtue of her mental health illness, which illness restricts her capacity to adequately care for the Child’s physical and emotional needs;

the Mother has failed to ensure that the Child is adequately supervised whilst in her care, resulting in the Child becoming distressed due to a lack of communication or interaction from the Mother;

the Mother has failed to ensure the Child’s safety by being unable to get out of bed due to her mental health illness whilst the Child is in her care;

the Mother often returns the Child earlier to the Father because she states she is too sick to care for the Child on her own; and

the Mother also often fails to exercise her time with the Child because she says she is too sick to care for the Child on her own.

The Father further submits that the Mother, due to her mental health illness, has lacked the ability to spend time with and communicate with the Child. The Father has repeatedly facilitated the Mother spending time with the Child by permitting the Mother at her request to spend time with the Child at his home and in his presence. During such time the Father has attended to all of the Child’s physical and emotional needs due to the Mother’s inability to do so.

Generally speaking, the attitude of both the Mother and Father to the Child is that of loving and caring parents exercising normal parental responsibilities. Both parents clearly love their child, both parents accept that the other parent is, all other things being equal, a good parent, and when with the Child both parents do remarkably similar and normal things and activities.

The Father’s focus on the alleged inability of the Mother to care for the Child by reason of her mental health illness is otherwise dealt with in these Reasons for Judgment, and the views there expressed need not be reiterated. So far as the Father’s attitude to the child with respect to her weight gain is concerned, his primary motivation in dealing with that matter appears to be to have the Child weighed regularly so as to be able to blame the Mother for any weight gain. In so doing, he appears to ignore the effect that that might have upon the self-esteem and confidence of the Child, agreeing that it is a “terrible thing” but justifying it on the basis that it is necessary to prove that the weight gain (which the Child might grow out of in any event) occurs when the Child is with the Mother and not with the Father. The difficulties which arise with respect to the enmeshment of the Father and Child and the dominance of the Father have already been canvassed and need not be repeated.

Family Violence or Family Violence Orders involving the Child or a member of the family– section 60CC(3)(j) and (k)

The Mother submits that the Adult Daughter, the Father’s step-child, has outlined a sexual assault she recalls occurring by the Father when she was eleven years old. The Adult Daughter also deposes to violent behaviour of the Father, including hitting her and being controlling over her. The Mother had thought that because the Father had sexually assaulted the Adult Daughter when she was a child, there may have been a chance that he also assaulted the Child, but that, on the evidence, is not the case. With respect to the alleged sexual assault on the Adult Daughter the evidence indicates that there is no likelihood of a sexual assault by the Father on the Child.

The Father submits that the Child has been exposed to psychological harm and/or emotional neglect whilst she has been in the care of the Mother due to the Mother’s mental health status.

There is no evidence of family violence of a sexual kind involving the Child, and on the evidence, it is unlikely that that the Father would involve the Child in such violence.

The evidence does not establish family violence of any other kind involving the Child.

Order less likely to lead to further proceedings – section 60CC(3)(l)

Because of the necessity to proceed gradually with respect to any changes to the live with and time spent arrangements, for reasons set out above, these orders must necessarily be interim orders, and unless there are final consent orders between the parties, there must be a further hearing of the matter by the Court to make final orders at an appropriate time in the first half of 2013.

Any other factor or circumstance that the Court thinks is relevant

There are no other factors that the Court considers relevant.

Consideration

Parental responsibility

The presumption of equal shared parental responsibility applies in this case. An equal share in a parental responsibility is consistent with the underlying objects of the FL Act. It does not seek to derogate from the role of either parent as a caregiver per se; and, in the circumstance is not likely to alter the day-to-day care regime of the Child significantly. Thus, its impact on the Child will be minimal. The April 2012 Orders provided for equal shared parental responsibility in any event.

The Court will order equal shared parental responsibility to be ongoing in this case.

Time spent

Where a parenting order provides for equal shared parenting responsibility the Court must consider whether the Child spends equal time with each of the parents as that is presumed to be in the best interests of the Child. That is qualified by a requirement that the Court consider whether the Child spending equal time with each of the parents is reasonably practicable.

The Court must determine, having regard to all of the primary and other considerations under s.60CC(2),(3),(4) and (4A) of the FL Act (and the underlying objects in s.60B), whether it is in the best interests of the Child that the Child spend equal time with each parent, or whether some other arrangement is appropriate.

Ultimately, in this case, the Court would have ordered the Child to spend equal time with each of the parents, save for the view expressed by Dr W and Mr R that the Court ought to proceed by way of gradual transition from the existing time spent arrangements to changed time spent arrangements which provide for greater time with the Mother, and to alterations with respect to the live with arrangements, if that was to be ordered.

Having regard to all of the circumstances of this case, the Court considers that the existing six nights with the Mother and eight nights with the Father per fortnight arrangement ought to continue for the time being. A change to an equal time arrangement ought not occur until the end of term three of the Victorian school holidays this year, that is on or after 7 October 2012. Thereafter, the Child ought to spend equal time with the Mother and Father. The Court also considers that there ought to be more telephone contact with the non live with parent, and will provide for three calls per week to the non live with parent each week.

In order to assess the efficacy of those arrangements the Court will leave in place the existing orders with respect to the attendance by the Mother and Father upon their respective treating practitioners, and also for the attendance by the Child upon a counsellor recommended by the ICL, if that is considered necessary by the ICL. The Court will also provide that a further updated Family Report be provided to the Court by 28 February 2013, and that the matter be set down for final hearing in April 2013.

The above programme will facilitate assessment of the changed time spent arrangements, and properly allow the relevant counsellors to consider whether any other change to the Child’s living arrangements are necessary or appropriate. The arrangements set out are consistent with the broad framework for a gradual change recommended by Dr W, and to a lesser extent Mr R.

Otherwise, the interim orders will include ancillary orders in similar terms to those in the existing April 2012 Orders. The Court has not made any orders with respect to special days (save for Father’s Day which is the subject of an existing order) including Christmas, New Year, Easter and the parents’ birthdays. The Court assumes that those matters can be discussed and agreed between the parties’ solicitors. If not agreed by early November 2012, the liberty to apply can be exercised, and arrangements for the Court, as presently constituted, to deal with those matters, and any other further interim issues which might arise, in the week commencing 26 November 2012 can be made.

I certify that the precedingone hundred and fifty (150) paragraphs are a true copy of the reasons for judgment ofLucev FM

Date: 16 July 2012


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