Cannon & Acres 2014 FamCA 104
The case involved a girl aged 12 years whose parents had been in ongoing conflict since they separated when she was aged 5 years (intractable conflict). The child was described as mature.
The judge noted there had been three final hearings, and the child had been examined, interviewed, counselled and assessed in what had proven to be a fruitless search for a solution to the parental conflict, as the litigation and counselling and alternate dispute resolution had not brought peace (repeated assessments). Instead the litigation had defied the will and wit of the child’s parents and the family law system to end the parental conflict.
The judge found that the child had in the past endeavoured to meet what she perceived as the needs of her parents to make them happy (please both parents). The father had shown little or no insight into his obsessive and uncontained behaviour including his demands to have more time and longer communication with the child, despite her wishes (parenting style authoritarian). The child had been assaulted, harassed, verbally abused and stalked by the father. The father was unable or unwilling to see how his behaviour had impacted upon the mother causing her serious emotional insult with consequential impact upon the child.
The hearing arose after the father arranged for a summons to be served on the mother for contraventions. The father sought a roster of contact for the full year and complained that he had received only a partial roster. The child had decided that ‘enough was enough’ and she determined that it was time to make herself happy and to meet her own needs. The child told the father that she no longer wanted to see or to communicate with him (contact nil, child’s wishes). The child repeated her view to professionals who assessed her.
The judge met with the child after the ICL and counsel for both parents all passed on a request from the child to speak to the judge (judge interview a child). The judge set conditions for the meeting: that the child be informed that she was not required to see or speak to the judge; that the meeting would be recorded; that the decision about parenting was for the judge to make; and that the Independent Children’s Lawyer and the Family Consultant would be present in the interview. The child expressed a clear wish to speak with the judge, and she told the judge that she no longer wanted to see or communicate with the father. The judge found that the child’s views were hers and that her views ought to be given considerable weight. The father did not accept this finding by the judge but continued to blame others. The judge found that the father was incorrect both to blame others for the circumstances and to reject the views expressed by the child as the child had made her views crystal clear.
The judge expressed views about the father. The judge found that one important issue was the father’s behaviour in terms of his constant demands for the child to spend more time with him, and not letting the child off the telephone. The father had attempted to deflect concerns onto others (externalising attributions). The father had described himself as being a ‘happy go lucky person who does not bear grudges’ but the judge disagreed. One expert had prepared a family report in 2008. The mother and child subsequently consulted this expert for therapy and the father was aware of this. The father then engaged the expert to provide family therapy to try and resolve the entrenched issues between the parties which impacted on the child. The expert gave evidence in the 2012 trial and the father requested an order that the child consult with this expert. Later the father lodged a formal complaint to AHPRA that the expert had provided therapeutic assistance for the mother and was not impartial when accepting the views of the mother, but had colluded with the mother. The complaint was dismissed by AHPRA. The judge found that the father’s police record was indicative of a personality trait that ‘rules’ do not apply to him, as noted by one expert (personality narcissistic).
An assessing psychologist provided a personality report based on the PAI psychometric test. The test results revealed a substantially elevated egocentric sub-scale, suggestive of histrionic or narcissistic personality pattern that are linked to criteria of a sense of entitlement, being interpersonally exploitative, lacking empathy and lacking remorse. Treatment of these personality traits requires long term therapy for a parent and requires the parent to be ready to change.
The judge made other findings about the father: that the father tried to understate what were difficult circumstances; and that the father endeavoured to intimidate a school principal so that the father would get his own way.
The judge found that the father’s claims about 38 contraventions were too general and lacked the detail required to inform the Court and mother of the specifics of the various complaints, so the complaints could not succeed. The judge dismissed the father’s claim for contraventions.
The father alleged that the mother had alienated the child from him, and that statements made by the child were well rehearsed indicating some form of coaching. A family consultant reported that the child did not impress as being alienated because of any undue influence by the mother, while noting that there would be some unintentional influence by virtue of the close relationship between the child and her mother who is the primary carer. The family consultant found no indication of undue intention or negative influence on the child by the mother, and the judge agreed with this finding. The judge found that the child was polite and had difficulty confronting the father. The judge found no cogent evidence that the child had been coached into forming the views she expressed. The judge found that the mother had endeavoured to facilitate a meaningful relationship by encouraging the child to spend time with and to communicate with the father, where the father made that task onerous.
The judge found that the father had over many years made telephone calls to the child when he had yelled at her and verbally abused her and the judge was satisfied that this amounted to threatening coercive and/or controlling behaviour by the father to the child, causing the child to be fearful, and meeting the definition of family violence. The judge found two instances when the father had assaulted the child: once when he held her on the bed and demanded that she seek overnight time with him; and again when he physically restrained her from answering a telephone call from the mother. The judge found that the father was not constrained by social norms or requirements to comply with orders or laws to which he does not have regard. The judge found that the child was in need of protection from the behaviour of the father.
The judge found there were various occasions when the father had placed himself conspicuously in the presence of the child and mother including at school events when the father had not been invited, and that while individual incidents did not amount to stalking, nonetheless the accumulative effect displayed a lack of empathy which was typical of stalkers. An assessor reported that stalking can result in psychological harm, and opined that the mother’s significantly heightened vigilance was shared in common with other stalking victims, and that the mother’s anxiety symptoms fell into the category of post-traumatic stress. The judge found that the father has been guilty of stalking the mother in terms of his constant demands for information. The judge found that the father’s entrenched pattern of behaviour including stalking, verbal abuse, harassment and assaults on the child provided evidence that joint or shared parental responsibility cannot work. The judge found that the father showed little or no insight into the impact of his behaviour on the child.
The child’s capacity to decide was assessed. The child reported that she stopped seeing her dad because ‘he doesn’t seem like a very nice person, we did get on, kind of, but from the past, he just lies, yells and gets angry’. The child said the trigger for her decision to stop seeing the father was when he ‘started taking mum to court again’. She said ‘I just got sick of it happening’. She stated, ‘I think it should be my decision … in a few years or something I might decide I will see him. When I am older I will decide.’ The judge gave weight to the child’s wishes.
The mother alleged that the father pushed boundaries of contact and communication and insisted on contact with the child at times when it was unwelcome and unpredicted. The judge found that the father was domineering and overbearing (personality domineering). The judge found that the father’s harassing, intense and at times abusive behaviour towards the mother and the child had become a burden for the child.
The father proposed family therapy but, on the advice of the consultant, the judge declined to order any therapy for the family.
The ICL submitted that the child spend no time with the father and have no communication with the father. The judge made an order that the child initiate communication with the father.
The judge permitted information from the hearing to be passed to AHPRA.