Tadic & Cupic 2013 FCWA 43
The case involved a 4 year old girl whose parents had separated in the year of her birth, and who lived with the mother. Several significant disputes between the parents were discussed in court. The father had burned a valuable painting purchased by the mother following a dispute on an unrelated topic. The father drove the wife and daughter to meet a man despite the wife protesting that she did not want to meet the man, and the father did not allow the mother to get out of the car. The father considered the man to be a half-brother of the wife who was not acknowledged by her family (personality domineering).
Six members of the father’s extended family signed a written statement to court that was highly critical of the mother.
A psychological assessor reported that the father held exceedingly a strong belief with a high emotional content, had a strong sense of entitlement, and viewed matters in a black and white manner. The assessor administered a psychometric test (PAI test) and noted that the father obtained high scores on scales for paranoia and stress, showing signs of suspiciousness and hostility (personality suspicious). The assessor considered there was a risk that the father would impose or inflict his views on the daughter whether or not they were emotionally beneficial for the daughter (coerce), and that supervised contact was warranted. The assessor’s evidence was admitted.
The assessor noted that the father had an obsessive preoccupation with the idea that his wife had a half-brother whom she did not acknowledge.
The father had discussed a situation where the wife went to her own parents’ house taking the child with her following an argument, with the father describing this as ‘child kidnapping’ as the action of removing the child from his house was against his will. The assessor considered that it was a perfectly normal reaction for a parent to remove a child from a situation where they did not feel safe.
The assessor recommended that the father receive a psychiatric evaluation prior to commencement of unsupervised access.
The judge found that the father’s behaviour amounted to controlling behaviour and that he was willing to coerce. The father lacked insight into the effects of his controlling behaviour in upsetting the child in the incident involving the car, saying that the daughter became hysterical because the mother was hysterical (impact on child).
The judge considered that the father held a deep and long-standing resentment towards the wife’s family.
The judge found that the father had been verbally abusive during access visits and was not child focused. The father had exposed the daughter to acts of personal violence against the mother and had denigrated the mother in front of the child.
The judge found that the parents were unable to communicate effectively in the best interests of the child (communication poor).
The judge considered that the appropriate legal steps involving parental disputes were to:
- identify the party’s competing proposals
- identify issues in dispute
- make findings on relevant facts
- proceed to making orders
The judge noted that the need to protect children from family violence trumps the benefit of a child having a meaningful relationship with a parent who is the perpetrator of family violence. The judge continued, “There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many …”
The judge noted that, once a complaint of family violence is raised, “a father … must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally” (parenting capacity, burden of proof).
The judge ordered that:
- the daughter live with the mother
- the mother have full or sole parental responsibility to make major long-term decisions affecting the child after communicating with the father
- the father have unsupervised access only on completion of a psychiatric assessment and completion of nominated courses on parenting and domestic violence (access conditional)
