Milne & Stanmore  FCCA 1410 (10 June 2016)
For full case: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/1410.html
- The parties have one child X born (omitted) 2013. The issue is whether there are any circumstances in which she can spend time with the father.
- The parties met in February 2012 through an online dating website. They began cohabitation in about June 2012 and separated about October 2012. The child was born after the separation. The mother has an older child, Y born (omitted) 2000.
- Except for three or four occasions for a few hours after separation, the child has only spent time with the father at a supervised contact centre. That stopped in September 2015 when the contact centre withdrew its services.
- The nature of the dispute is illustrated by this introductory paragraph from the family report by Mr S. He says:
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“There are widely disparate and contrasting accounts given by each parent regarding the nature of their relationship and the post separation period. There are allegations by both parents of physical, emotional and psychological abuse, compounded by mutual allegations of mental health issues on the part of the other parent. Ms Stanmore has a diagnosis of borderline personality disorder (BDP) with histrionic traits and depression. Mr Milne while not diagnosed with a psychiatric disorder, has in the past suffered from depression, and has attempted on two occasions to take his life. There have been mutual breaches of Intervention Orders by both parties, with Mr Milne being incarcerated for a period of five months in 2014 after being convicted of breaching intervention order against him”.
- Mr S goes on to say that the parents disagree on virtually every single aspect of the pre and post-separation parenting relationship, save that they produced a child together. Mr S notes that each parent accuses the other of having perpetuated psychological, emotional and physical violence on the other and each in turn denies this.
- The parties’ conflict is illustrated by some of the allegations each makes against the other.
- The mother alleges that after separation the father stalked her and made harassing phone calls. Amongst other things the mother alleges that after separation, when she was six months pregnant she and the father met and he raped her. As well as the abusive behaviour towards her she alleges he ill-treated their dogs. He allowed them to fight. On one occasion when he became particularly angry he kicked one of the dogs very violently. She alleges he would masturbate one of the dogs. She alleged to Mr S that the father had attempted suicide on four different occasions and that “he idolised suicide”.
- The father alleges the mother is mentally unstable, delusional and an unfit mother.
- The father has been convicted of assaulting the mother, punching her in the eye and he has served a term of imprisonment. The father says it was accidental notwithstanding that he pleaded guilty.
- The mother proposes that she have sole parental responsibility for the child, the child live with her and spend no time with the father. The Independent Children’s Lawyer supports the proposal.
- The father’s proposal is that the parties have equal shared parental responsibility for the child, that the child live with the mother and spend time with him until June 2016 and each Monday, Thursday and Sunday from 3.30pm to 7.30pm and each Friday from 12.00noon to 4.00pm. He proposes from June 2016 to 22 August 2016 the child spend time with him each Monday, Thursday and Sunday from 3.00pm to 7.30pm and each weekend from 12.00noon Friday to 12.00noon on Saturday. After 22 August 2016 he proposes that the child spend time with him on the alternate weekends and some time during the week.
- Section 61DA of the Family Law Act 1975 (Cth) requires the court to apply a presumption that it is in the best interests of the child that the parties have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe there has been family violence or if it is rebutted by evidence satisfies the call that it is not in the best interests of the child that the parents have equal shared parental responsibility.
- There are reasonable grounds to believe that there has been family violence. The husband’s conviction for assault and subsequent imprisonment is sufficient. In addition, I am satisfied that while the mother’s description of the fathers behaviour generally, while it may be exaggerated is accurate. The father was unrepresented at the hearing. He commenced his cross examination of the mother as follows:
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“All right Ms Stanmore. To start off with, scale between one and 10, Ms.Stanmore, how violent am I, one being not violent at all and 10 being extremely violent? —Nine”.
“Nine. Okay. Nine. Scale of one to 10, Ms.Stanmore, how fearful are you of me, one being not fearful at all and 10 being extremely fearful?— 10”.
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“So-okay. So you’re saying, Ms. Stanmore, to the court, then, that you are fearful of me – from day one that I met–that we met in the relationship. Is that correct?— No. It was—“.
“So when was it?— a normal relationship until I moved in with you, and then things got progressively worse until where we are today”.
- The father continued his cross examination which concentrated on the mother’s allegations of his violence towards her and her mental health. It continued the theme in his affidavits which was to concentrate on what he saw as the mother’s culpability for his failure to spend time with his child and the mother’s mental health. It illustrated his attitude to the mother which, as already said, is that she is mentally unstable, delusional and an unfit mother.
- I am satisfied that the mother is genuinely fearful of the father. While she does have some mental health problems, discussed later, I am satisfied that her fear is caused by the father’s behaviour. She is not delusional.
- The father has an unremittingly negative attitude towards the mother which may, in part be because he has not seen his daughter but it goes beyond that.
- The father lacks credit. He pleaded guilty to assaulting the mother but he says that he was not that it was accidental and caused by the mother’s behaviour.
- Family violence as defined in s.4AB of the Family Law Act 1975 (Cth):
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For the purposes of this Act, family violencemeans violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the familymember), or causes the family member to be fearful.
- The father’s behaviour comes within this definition.
- The usual pathway through the legislation is to consider the best interest considerations in s.60CC for determining whether the presumption of equal shared parental responsibility is rebutted because it is not in the child’s best interest. That is not necessary in this case. The parties have a complete distrust of each other and no ability to communicate. An order for equal shared parental responsibility requires the parties to comply with the requirements of s.65DAC.The order requires parents to make a decision about major long-term matters jointly and to consult the other person in relation to the decision to be made about that issue; and to make a genuine effort to come to a joint decision about that issue. The mother and father have no ability to do that. To require them to do so would result in constant disagreement and the potential for further litigation. An order least likely to lead to further litigation is a best interest consideration under s.60CC.
- The child’s best interests are met by making an order that the mother have sole parental responsibility.
- Section 60CA provides that in making a parenting order the best interests of the child is the paramount consideration. The best interest considerations are contained in s.60CC.
- There are two primary best interest considerations and additional considerations. I will take the additional considerations first.
- The child’s views, given the child’s age, are not a consideration.
- The child’s primary relationship is with the mother. The child has not seen the father since September 2015, the last attendance at the Family Life Contact Centre. The issue in this case is whether there is any way forward for the child to establish a relationship with the father.
- When Mr S saw the parties the child had not commenced spending time with the father at a contact centre. An order had been made for supervised time but it had not commenced. Mr S said that much will depend on findings the court made about the allegations each party made against the other.
- Mr S was referred to the child’s young age and said that young children formed bonds through continuous frequent stable contact with the parents. He said that the whole period of no time spent with her father required sensitivity and careful incremental steps introducing the child to her father. He said that this is best done under professional or expert supervision. He said that once this has been done a report as to the success of this should be provided with the possibility of determining whether the parents had made progress in addressing their parental relationship. He says the positive and constructive parental relationship will be crucial if the child is to eventually progress to unsupervised time with her father.
- A positive and constructive parental relationship does not exist between the parents, rather the opposite. The evidence shows that during the time the child saw the father at the Family Life Contact Centre in (omitted) the relationship remained hostile.
- The child had 12 or 13 visits with the father at the contact centre from May 2015 until September 2015. A report from the Centre of the visits up to 16 August 2015 shows that while the child had developed a relationship with the father it cannot be described as going beyond a relationship the child might have with an adult she knows through seeing from time to time. It was not a father daughter relationship. She had not formed the sort of bond which Mr S describes as being continuous, frequent and stable.
- On 28 June 2013 when the contact centre worker brought the child through to the father in the playroom, the child did not want to leave the worker and stood next to the worker. She took her father’s hand and walked to the rabbit hutch but then pointed to the windows calling, “Mum Mum”. The child called for her mother several times. This persisted. As soon as the worker with the father tried to engage in that activity the child called out for the mother. Towards the end of the first 25 minutes of the visit the child’s voice proclaimed louder and she squealed in a high tone “Mum Mum”. The worker suggested to the father that it would be best if the child was returned to the mother and the father agreed.
- Similar events happened on 5 July 2015 and the session finished after 45 minutes. On 12 July 2015 the child called out to her mother for the first 25 minutes but the worker was able to calm her down and the rest of the session went calmly. Towards the end of the visit the worker instructed the father that he would need to check the child’s nappy. The father said he had not had experience with changing nappies. The worker showed the father how to check if the nappy needed changing and the father changed the child’s nappy.
- On 26 July 2015 the child called for her mother throughout the session but was able to be distracted. The session went for its full time. Similar events happened on 16 August 2015.
- The incidents which resulted in the contact centre withdrawing its services occurred on 23 August 2015 and 12 September 2015.
- The contact centre has separate entrances and separate car parks for the parent who brings the child to the centre and the parent who is to spend supervised time with the child. The father claims that the mother was stalking him. The mother was charged with a breach of the Family Violence Intervention order the father has against her for stalking the father. She was placed on a community-based order which means that the charge must have been found proved. Plus, there is some basis of the fathers claim.
- The father says that he was not parking his car in the designated car park at the centre but rather parking at a nearby street and then he walks to the centre. He feared that if his car was parked where the mother could find it she might damage it.
- On 23 August 2015 prior to the time for the contact to commence, the father drove down a side street near the main road. The mother, her mother and the child were in the mother’s car outside a row of shops, one of which was a cafe. The father said he saw the mother filming him with a phone. He turned around and drove back to the front entrance of the centre, the main entrance which was the one that the mother and the child would use. Under the terms of the centre service contract he was not allowed to do that. He could only use the other entrance which was fenced off from and out of sight of the main entrance.
- Entry through either entrance required ringing the bell and waiting for a worker to open the door. The father said he went to the main entrance because at the other entrance, his entrance, often after ringing the bell it will be 10 minutes before a worker opens the door. He said he drove up to the main entrance because he wanted to report the mother’s behaviour.
- The centre withdrew its services by letter of 15 September 2015 from the coordinator. The paragraph dealing with 23 August 2013 says this:
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On 23 August 2015 both yourself and Ms Stanmore reported seeing each other in the streets local to the Children’s Contact Service. As a result of this incident you initially presented at the incorrect entrance to the Service, pacing and using a raised voice informing Workers you wanted to make a complaint. On this occasion another Service user expressed concern about entering the Service as a result of your behaviour. In this instance the alleged incident that took place outside of the Service was reported by yourself and Ms Stanmore to Contact Worker staff.
- The father claims he was not pacing and using a raised voice. He does acknowledge that he stopped his car immediately outside the entrance not in one of the designated car parking spaces. The observations of the workers reported to the coordinator have the greater probability of being correct. The father admitted action in stopping his car immediately outside the entrance is evidence of agitated behaviour.
- The mother acknowledges that she was in her car with her mother and the child as the father states. She said it was some time before they were due at the contact centre and they had stopped at the cafe. The child was sitting in the car with a drink and the mother says she was filming her with a phone. It was coincidental that the father drove past at the same time. She denied, as alleged by the father, that she was waiting there deliberately so that she could see where he went and follow and find where he parked his car.
- After driving past the first time the father turned back and drove past a second time on his way to the Contact Centre. He has been charged with breach of the Family Violence Intervention Order that the mother has against him in relation to the second time.
- The incident on 12 September 2015 occurred when the father took photographs of the grandmother. He says he was waiting outside his entrance to the centre which is at the far end of the car park from the street entrance when he saw the grandmother walk past on the street. He took a photograph of her and then walked up to the street and took another photograph of her. She was sitting at a bus stop a short distance from the service car park entrance. He said he did this to obtain evidence of the grandmother and mother stalking him.
- The letter of 15 September 2015 from the coordinator of the service says of this incident:
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On the 12th of September 2015 Ms Stanmore (SNR) reported to the Workers that she was “terrified” as you had allegedly taken a picture of her sitting at the bus stop prior to the visit. The Service notes that the bus stop is in the direct line of your entrance to the Service and that the Service can see no reason why either Ms Stanmore or Ms Stanmore (SNR) would need to leave their designated area and place themselves within the eye line or vicinity of your entrance to the Service. The Service observed on this occasion that Ms Stanmore (SNR) was standing in the vicinity of your entrance area pointing at your entrance gate and motioning her hand as if saying hello to someone.
It was further observed that when the Ms Stanmore left the Service to retrieve a jacket for a X she engaged in conversation with Ms Stanmore (SNR) Ms Stanmore ((SNR) then returned to the area in the direct line of your entrance. Your reporter when you entered the Service that you had had to take some photos. You also spoke of being stalked when arriving at the Service and not feeling safe. On this particular occasion both you and Ms Stanmore also failed to arrive at the Service at the designated times. You were required to attend at 12:50, pm, your recorded arrival time was 1:02 pm. Ms Stanmore was due to arrive at 1 pm, who recorded arrival time was 12:55 pm.
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Based the undesirable behaviour shown by yourself and Ms Stanmore (SNR) the Service has deemed there to be too much risk for the Service to continue.
- The mother’s explanation of events on 12 September 2015 is that her mother has a sore back. She could not get comfortable waiting in the car for the mother and she walked to the bus stop where she could stretch out.
- Whatever the explanation for the events of 23 August and 12 September 2015 the Contact Service has withdrawn. If the only available way forward for the child to have a relationship with the father is more time at a contact service then this is not possible. An alternative to the Family Life Contact Service is unlikely. If that service has decided there is too much risk any other service or individual is unlikely to be prepared to be involved. The father did not produce any evidence that a supervised contact service would be available.
- Whether the mother had on 25 August 2015 deliberately placed herself so she could observe the father, does not excuse the father’s behaviour. The mother was stalking him or breaching an intervention order this happened outside the contact service was not something the contact service could deal with. In addition, the management of the contact service was in a separate building a short distance from the building where contact took place. The people in that building are the workers who conducted the contacts. They are not responsible for management decisions about the use of the service. The father’s behaviour was illogical.
- The Service Coordinator considered both the grandmother and the father were at fault on the second occasion 12 September 2015. The mother’s description of her mother’s behaviour is inconsistent with her description of why the grandmother moved. Nonetheless, sensible behaviour by the father would have been to ignore the grandmother. She was on the roadway some distance from where the father was outside the entrance and he could have stayed there. Once past the entrance and that the bus stop she was out of sight of the father. He could have ignored her.
- The incidents of 25 August 2015 and 12 September 2015 are more evidence of the lack of trust between the parents. They do not have the positive and constructive parental relationship which Mr S regarded as crucial if the child was to eventually progress to unsupervised time with the father.
- Neither the child’s relationship with the father nor the relationship between the parents permits any order for the child’s time with the father rather than supervised time. This is not possible.
- An additional consideration is the effect on the mother if the child does have time with the father. This goes to the best interest consideration of the ability of each parent to provide the needs of the child.
- The mother was assessed by Dr D, Consultant Psychiatrist. The mother has Borderline Personality Disorder. Mr S summarised Dr D’s assessment.
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Dr D notes that “borderline personality disorder is a typically chronic condition that is not curable as such, but manageable depending on the persons inside and willingness to address and take responsibility for the multiple and complex personality driven deficiencies”…. Dr D further notes in his psychiatric assessment report of Ms Stanmore that she “remains susceptible to complex interpersonal difficulties arising from the ingrained borderline-histrionic personality. She may require further specific therapy to assist her in managing relationships in the future”…. In describing the characteristics of BPD with histrionic traits, Dr D comments that “the core traits consistent with this diagnosis” (of BPD) are “mood instability, poor sense of self, limited awareness of boundaries, self-harm behaviour, interpersonal difficulties and sexual promiscuity”. Dr D adds that “histrionic personality traits” are characterised by “dramatic emotions, superficial relations, attention seeking and seductive behaviour”.
- The mother has mental health difficulties. The father, despite regarding the mother as mentally unstable and describing her as dangerous, delusional and unfit as a parent, has not made an application that the child live with him. The mother will be the child’s sole carer. The child’s best interests require that she be cared for by a person in good mental health. If the father had not involved the contact Service in what he regarded as stalking behaviour by the mother and maternal grandmother the supervised time would have continued. Although the father made no proposal for more supervised time, it would need to be considered if suitable supervision was available. The father might have argued for an order for time with the child supervised by a contact centre or professional supervision provided.
- Because a contact centre or service could not be specified this would leave open the possibility of further proceedings. Given the relationship between the parties further proceedings would be likely given that some degree of communication and agreement between the parties would be necessary. If such an order was made it would not help the mother’s mental stability. This would affect her ability to provide for the child’s needs. The best interest consideration is will make an order that would be least lead to the institution of further proceedings is in a relevant consideration.
- Both parties have affidavits by family members. They were not cross-examined and their evidence does not need to be considered.
(1) That the mother have sole parental responsibility for the child X born (omitted) 2013.
(2) That the said child live with the mother.
(3) That there be no order for the said child to spend time and communicate with the father.
(4) The order appointing the Independent Children’s Lawyer is discharged.
(5) Otherwise all extant applications are dismissed.