BARTON & CASEY
[2017] FamCA 1080
•20 December 2017
FAMILY COURT OF AUSTRALIA
| BARTON & CASEY | [2017] FamCA 1080 |
| FAMILY LAW – CHILDREN – Parental responsibility – Where there is no prospect of discussion of long term issues with mutual compromise and agreement between the parties – Where the mother has made good decisions for the child – Ordered the mother have sole parental responsibility for the child FAMILY LAW – CHILDREN – With whom a child lives – Where the child has a meaningful relationship with both parents – Where the father’s intoxication has put the child at risk – Where the child has been sheltered from knowledge of the father’s violent behaviour towards the mother and third parties – Where the father may have abdicated his financial responsibility for the child – Where the father may have sexually abused the child whilst intoxicated – Where the child could be exposed to violence or be unintentionally injured if left in the unsupervised care of the father – Ordered the child live with the mother – Ordered the child spend time with the father not less than four times per year; with conditions at the mother’s discretion |
| Family Law Act 1975 (Cth), ss 60CC, 64B |
| APPLICANT: | Ms Barton |
| RESPONDENT: | Mr Casey |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | (P)NCC | 2943 | of | 2015 |
| DATE DELIVERED: | 20 December 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 28 - 30 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Duane |
| SOLICITOR FOR THE APPLICANT: | Stacks The Law Firm |
| COUNSEL FOR THE RESPONDENT: | Ms Beck |
| SOLICITOR FOR THE RESPONDENT: | Steven Young Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Bithrey |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That all prior parenting orders in relation to B born … 2009 (“the child”) are discharged.
Parental Responsibility
That the mother have sole parental responsibility for the child.
The mother shall advise the father in writing of matters involving the long term welfare of the child including:
(a) Change of school;
(b) Progression to high school;
(c) Change of residential area;
(d) Specialist medical treatment.
The mother shall in the event of a medical or other emergency for the child notify the father as soon as practicable and in the event that the mother is unable to make contact with the father on the day of the event the mother shall notify one of the paternal grandparents.
Residence
That the child live with the mother.
Spending time
That the child spend time with the father on one occasion each calendar month for six months from the date of these orders at C Group, D Town.
Thereafter, the child to spend time with the father not less than four times per year; at the discretion of the mother as to period of time, date, level of supervision and changeover arrangements.
Communication
Each party shall advise the other of a postal address (which may be a Post Office Box) for the receipt of correspondence in accordance with these orders.
Each party shall advise the other of a telephone number (which may be a mobile number or landline) for receipt and provision of information about the child in accordance with these orders.
That the father be permitted to send letters, cards and gifts including for the child’s birthday, at Christmas and at Easter, which the mother shall provide to the child unless she has reason to believe that the contents are inappropriate for the child to have.
The mother shall assist the child to forward to the father any cards, letters, gifts which she wishes to send to him.
Restraints
The father is restrained from contacting the child by telephone without the prior written consent of the mother.
The father is restrained from contacting the mother by telephone on any telephone number other than the one nominated by the mother pursuant to Order 9, and is further restrained from contacting the mother by telephone on the nominated number other than in accordance with these orders.
Passport
The mother is authorised to apply for an Australian travel document (including a passport) for the child without the written consent of the father.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barton & Casey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2943 of 2015
| Ms Barton |
Applicant
And
| Mr Casey |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are competing applications between the applicant mother and respondent father for parenting orders in respect of one child, B aged eight.
The trial ran for three days, 28-30 August 2017, concluding within the allocated time.
The parties
The applicant is the mother, Ms Barton, aged 46, who commenced these proceedings under the name of Ms Casey.
The mother lives with her partner Mr E on a property in D Town, a town in regional NSW. The maternal household includes B the subject child, and Mr F (20) the elder child of the parties. Mr E’s three children aged between 26 and 17 years visit the maternal residence two or three nights per week.
The mother is working as an assistant on a farm.
The respondent is the father, Mr Casey, aged 53. Post- separation the father remained living and working on the farm that was jointly run by the parties prior to the relationship breaking down.
He is now living with his brother and sister-in-law in D Town. The father has not re-partnered.
Background
The parties grew up on farms within a short distance of each other. They commenced a relationship in May 1987 when the mother was 16 and the father 23.
The parties married in 1992 and commenced cohabitation on the same date. They lived on a property owned by the father’s parents in K Town on the mid North Coast of NSW.
In 1997, Mr F, the first child was born. He is a young adult and remains living with the mother.
In 2009 the subject child B was born. She is eight.
On 20 October 2015, after twenty eight years together, the parties separated.
Short History of Relevant Events
For the first five years of the marriage the parties worked hard side by side, uneventfully compared to later years.
Early in 1997 the parties took over the farm previously run by the father’s parents. Later that year their first child was born.
In 1999 the mother contracted Ross River fever and was seriously ill for a period.
On New Year’s Eve 2006 the mother’s family celebrated the New Year and the 60th birthday of the maternal grandmother. The celebrations were marred by physical fights. The mother was assaulted by her sister and miscarried a pregnancy soon after. The father was assaulted by the mother’s brother in law. Mr F was assaulted by his maternal cousins.
The mother believes that the marriage relationship began to break down from this time.
In 2009 the subject child was born.
In June 2009 the father did not step back from a mutually aggressive confrontation in a pub with the mother’s nephew then aged 19 or 20. Police were called. They challenged the father with having “been in the young man’s face”. His response was “you can’t help saying what you think”.
Having heard all the evidence I conclude that this was an accurate self-assessment by the father. He does not step back, does not hesitate to express his opinion and to criticise. He lacks self-restraint.
From late 2012 the father was too sick to work for about 18 months.
In 2013 he was diagnosed with a disease.
It was the beginning of a raft of difficulties for the family.
The mother had two children aged 15 and three to care for alone, as well as a sick husband and the farm.
Farm product prices dropped around this time reducing their income by about 40 per cent.
In 2013 the father was too sick to be aware of it but there were floods and fires affecting the area.
The father was critical of the mother’s efforts at that time. “No fertiliser was put on; management was very ordinary.” When pressed to consider all that the mother had to do, the father commented sharply “We had an employee working”.
Between October 2012 and December 2014 the mother reports the father’s physical and mental health steadily declined. The father was diagnosed with depression in early 2014 and by the end of 2014 the mother reports the father’s drinking had increased. The father readily conceded in the witness box that it had. His general practitioner referred him to a psychiatrist.
There were bitter arguments arising from the objection of the mother to the father riding the quad bike with the child when he had been drinking. The father took the view that “just round the farm” was alright.
Tensions rose. There were fights and arguments. The father conceded that he would say of the mother, “Look at the fat arse on her”.
In February 2015 the father crashed his car into a tree. He was charged and later convicted with mid-range PCA and disqualified from driving by the D Town Local Court for a period of six months. As a result of police intervention with the father, the fire arms, licensed to the father, were removed from his control.
In late February 2015 the father commenced seeing psychiatrist, Dr L. The father was diagnosed with Bi-polar disorder and medicated.
The mother noticed a gradual reduction in the erratic behaviour of the father. However the father began to express doubts about the diagnosis. To the mother’s observation he did not always take his tablets each day.
The end of the marriage - accusation of sexual misconduct
In October 2015 an event took place which ended the marriage in dramatic circumstances.
On the evening of that day the father came into the house drunk. He agreed in oral evidence that he could have been swaying and probably held onto the kitchen door to maintain balance. He had been in a paddock or in the shed drinking. He did so to “get away from the fights.”
He came into the house, spoke to no-one, including the mother watching television in the lounge room, went into the bedroom took off his jeans and boots and got into bed.
He did not recall his wife asking “Do you want your tea or not?”
He recalled that “I had a few beers, was tired and wanted to go to sleep.”
I conclude that the father was heavily intoxicated.
During cross-examination the father at first agreed that he noticed the child in the bed when he got into it. When asked whether she was asleep or not, he became unsure whether “she was there, or come in after.”
It is uncontested that the child regularly slept with her parents in their bed. She was aged six. They had argued over it. The mother was inclined to allow it. The father thought she should sleep in her own bed.
About 30 minutes after the father had gone to bed the child came out of the bedroom and made a complaint to the mother that the father had asked her to touch his penis, “Dad keeps making me touch his willy. He keeps putting my hand on his willy about six times.”
The mother went into the bedroom and confronted the father immediately. The father denied it, and went back to sleep:
Motherthe child just came out and told me that you’ve been getting her to touch your willy.
FatherDon’t be stupid, I wouldn’t do that.
The mother rang the paternal grandfather. In response to her request he came over straight away. The child repeated to her grandfather what she had told her mother. The father, not without protest, left with the paternal grandfather after about 30 minutes.
The mother spoke to a solicitor, contacted police and the Department of Family and Community Services.
On or around 3 November 2015 the father returned to live in the family home.
On 3 November 2015 the mother, the child and Mr F moved to separate accommodation.
On 4 and 11 November 2015 the child was interviewed by JIRT.
On 9 November 2015 an interim Apprehended Domestic Violence Order (“ADVO”) was taken out for the protection of the child.
Court proceedings
On 23 November 2015 the mother filed her Initiating Application in this Court.
In December 2015 the father assaulted the paternal grandfather then aged 80 years. He knocked his father to the ground, stood on his throat before kicking his face causing injury to his nose. The police became involved and charged the father with assault occasioning actual bodily harm.
On 9 December 2015 arrangements for time were made by consent pending an interim hearing. The orders provided for the child to live with the mother and spend time with the father supervised by family friends. At this court event before a registrar, the Court was informed that there were no pending charges against the father in relation to the child’s disclosures and the JIRT investigation had concluded.
Later in December 2015 a Final Apprehended Violence Order (“AVO”) was made for the protection of the paternal grandfather, naming the father as defendant.
On 25 January 2016 the first period of supervised time occurred as per interim orders. This is the first occasion the father had seen the child since separation, a period of about three months.
Children and Parents Issues Assessment (“CAPIA”) - 8 February 2016
On 4 February 2016 the parties attended the Registry for a CAPIA with a Family Consultant provided by the Family Court.
The Family Consultant identified that the child loved her father and had enjoyed spending time with him in the past. Her opinion was that the child was at an unacceptable risk of harm in the care of the father until he addressed his own mental health, his anger, and his abuse of/dependency on alcohol.
Interim Hearing
On 12 February 2016 the matter came before me for determination of the interim dispute. The parties handed up orders, which were made by consent, providing for the child to live with the mother and spend time with the father supervised by C Group, D Town.
On 23 June 2016 the mother made a statement to police regarding continued harassment by the father. Allegations include the father both stalking and intimidating her while she tended to the livestock jointly held by the parties. The father was also reported to be sitting in the car watching the mother while she worked.
On 22 July 2017 the father consented to an AVO being put in place protecting members of the M and N families. These being friends and neighbours.
The father breached this AVO on 17 September 2016 when he assaulted Mr M, by striking him with a star picket.[1] The father was arrested and subsequently charged with assault occasioning grievous bodily harm and contravene AVO.
[1] Exhibit 14
On 16 September 2016 an interim AVO was made for the protection from the father of the mother.
Mother moves to live with new partner
On 17 October 2016 the mother began living with her partner Mr E. The mother moved with the children to D Town, the regional town where they were still living at date of trial.
On 8 December 2016 a tractor driven by the father collided with the neighbours' fence. The father was charged with recklessly destroying or damaging property.
On 9 December 2016 the father was incarcerated in N Town gaol for a period of eight weeks for the assault occasioning actual bodily harm and the contravention of the AVO which occurred on 17 September 2016
On 27 December 2017 the mother and children returned to the former matrimonial home to run the farm while the father was in gaol.
On 31 May 2017 the father was placed on a good behaviour bond and intensive corrections order for the 8 December 2016 tractor incident.
Evidence
The documents relied on in respect of the application were as follows:
The Applicant Mother
(a)Amended Initiating Application filed 31/05/2017;
(b)Affidavit of the mother filed 9/08/2017;
(c)Affidavit of the mother’s partner, Mr E, filed 9/08/2017;
The Respondent Father
(d)Amended Response filed 26/06/2017;
(e)Affidavit of the father filed 4/08/2017;
Reports
(f)Children and Parents Issues Assessment dated 8/08/2016;
(g)Family Report dated 28/10/2016;
Oral Evidence
The Mother - Ms Barton
The mother was a straightforward witness, willing to make concessions. For example, in the context of allegations raised by the child about her father’s abusive conduct, the proposition was put that the child was not particularly articulate. The mother agreed, “she talks fast, she does jumble her words”.
There were some minor inconsistencies in the mother’s evidence. However I accept that she told the truth to the best of her recollection, orally and in her affidavits.
The mother agreed that her concerns about the father would be somewhat alleviated if he was assessed and treated. I interpret the mother’s reservation as a reflection of the father being episodically violent and uncontained for years without serious action by him to get, and act on, professional help.
The Mother’s Partner - Mr E
Mr E has been a farmer all his working life. He was 50 at time of trial.
Mr E has been quietly supportive of the mother and subject child. He has resisted engaging with the father despite serious provocation.
After the father became aware early in 2016 of a new relationship for the mother, he began leaving numerous messages on her voicemail.[2] The messages are full of cruel sexual invective. This practice continued for more than a year.[3]
[2] USB annexed to the mother’s Affidavit filed 9/08/2017
[3] Affidavit of Mr E filed 9/08/2017, par 71
Mr E describes their impact on the mother the first time she received a message this way:
She looked up and I saw tears rolling down her cheeks, she looked hot and bothered. [Ms Barton] could hardly speak. She replayed the messages on her phone.[4]
[4] Affidavit of Mr E filed 9/08/2017, par 44
In April when the mother and Mr E went to check on the cattle the father followed them, parked when they did, sat in his car and stared at them.
In December 2016 when the father went to gaol he rang the mother and directed her to look after the farm. The mother did so and Mr E helped her. He described a desolate scene when they arrived with dead animals and sick ones strewn around the farm.
Mr E has taken legal action to recover wages for months of work he put in over that period.
The Paternal Grandfather - Mr Casey Snr
The paternal grandfather was described to the father, by counsel for the mother as a “straight shooter”. The father agreed. Having seen him in the witness box I also agree.
The paternal grandfather is the person the mother turned to for help in October 2015 and he did not let her down. He arrived, listened to what the mother and the child had to say. He then removed his intoxicated son from the house to the home of the paternal grandparents.
Four days later the mother called on his help again. Friends of the father at the local bottle shop had driven him to the home because he was too drunk to drive. The grandfather arrived, found his son collapsed in a boat in the shed. Even with the assistance of the parties’ 18 year old son the grandfather could not move him.
There was no joy for the paternal grandfather in becoming a witness but he did so, I am satisfied, to do what he could to ensure a good outcome for his granddaughter.
I accept his evidence without reservation.
The Father - Mr Casey
The father was not an impressive witness in his own case. He was defensive rather than open about his past conduct towards the mother. He was dismissive about the extent of his mental health problems. For instance, when he was asked why he was referred to a psychiatrist in 2014 he said he was not sure why he went.
However in relation to the alleged abusive incident with the child in October 2015 my impression was that the father accepted that he may have done what the child said he did. If it was so, he agreed he had to be held accountable for his actions.
QYou were in an intoxicated state and got a bit confused?
A Possibly.
Q What do you mean?
A That I was that drunk, I didn’t know what I was doing.
I conclude that the father does not have a clear memory of events other than being startled by the mother confronting him. I also conclude that he accepts that the child said what the mother reports she said and cannot deny that it might be accurate.
Six weeks later the father brutally attacked his father. The proposition was put that the attack was prompted by “Your Dad stepping in with your wife and daughter.” The father conceded it as a partial cause, “I was drunk, he was butting in, it was a bad relationship.”
Overall I formed the impression that the father has been deteriorating in his health and behaviour since his recovery from Q fever in 2013. It was from then that his routine heavy drinking began. He has lost his family and the farms which he had worked so hard to maintain as a result.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
Parental Responsibility
The relationship between the parents is at a low point. There is no prospect of discussion of long term issues with mutual compromise and agreement.
The mother has made good decisions for the child, including that she maintain a relationship with the father in a safe setting.
By his acceptance that the child should live with the mother, the father was acknowledging, appropriately, that the mother provides and cares well for her.
In those circumstances the mother having sole parental responsibility is the best course.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
the child has a meaningful relationship with both parents. She loves them both.
There are benefits to the child now, and growing up, of maintaining the relationship with her father. One benefit is that she will feel reassured that her father loves and values her. Another is that she will not feel responsible for her parents’ separation.
However her safety must take priority in circumstances where the father’s behaviour when intoxicated has put her at risk. Where his uncontained anger has seen close family members physically and emotionally hurt.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child was seven and a half years when she expressed her views to the Family Consultant in October 2016.[5] She was at that time missing life on the farm, especially her animals and pets. In that context she said she would not mind going back home.
[5] Family Report dated 28/10/2016, pars 53-63
She was assessed as an intelligent child who lacked a level of maturity for her age. She readily slipped into baby talk.
The child said she was enjoying time with her father at C Group. The records of that organisation confirm that.[6] Visits with her father have been joyful times, playing games and laughing.
[6] Exhibit 10
She was positive about whole weekends with her father and agreed that school as a changeover place would be best. She knew her parents disliked each other.
She reported feeling safe in her father’s care.
The Family Consultant considered that the child was naively focused on a return to normal, being the farm and her animals.
I give some weight to the child’s view that she would like to spend weekends with her father tempered by the information about what that represented for her.
The child has been sheltered from knowledge of the father’s violent behaviour towards third parties.
She was well aware that soon after she told her mother about what the father had done to her in October 2015 the parents separated. She would have her own memories of those events and her lengthy JIRT interview.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The child has her closest relationships with her mother, older brother and her father.
She has developed an affectionate and appreciative relationship with the mother’s partner and his young adult and teenage children.
She was used to regularly seeing her paternal grandparents. The father asserts that the relationship between the mother and his parents has broken down. If that is so, given the confidence the mother has had in the paternal grandparents it is possible those relationships will be restored in future.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
The father has since separation wanted to see and spend time with the child.
The mother has made decisions based on the needs of the child since separation including the decision to move off the farm in early November 2015.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
In his Case Outline document,[7] the father included the bland statement “The father has not been assessed to pay child support”.
[7] Exhibit 3
The mother did not raise child support as an issue.
If it is the case that the mother and her partner are providing for all the financial needs of the child, including fees for the faith based school she attends, then the father has abdicated his responsibility in that regard.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The Father
The father had been a loving father to both his children. They enjoyed camping, fishing and activities around the farm; for the child, raising poddy calves. Mr F spoke positively about that to the Family Consultant in 2015:[8]
…whilst the father may have been abusive to the mother at times he was not abusive to him or to the child. He [Mr F] reported the relationship between the father and [the child] as “really good”.
[Mr F] was shocked by the father’s assault on the paternal grandfather
[8] CAPIA dated 8/08/2016, page 3
The father’s habit, increasingly from 2012 of becoming intoxicated after work put the children, especially the child, at risk in his unsupervised presence.
The behaviour of the father towards the mother, the paternal grandfather, and certain friends and neighbours in the past few years reveals poor judgment and in some situations criminal recklessness.
The father lives with the knowledge that he may have molested his daughter whilst drunk and that he has used vile belittling language to that child’s mother, also whilst drunk.
The mother
The mother has the capacity to meet the children’s needs and has done so. She acted swiftly and protectively of the child in October 2105. She consented to supervised time so the child could safely see her father whom she loves and missed.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The child is an eight year old girl. She has been diagnosed with Dyslexia and has had certain learning difficulties arising from Attention Deficit Disorder (“ADD”).
The mother has observed sustained improvement at school in 2017, attributable to treatment by a chiropractor, natural therapy remedies and ongoing counselling.
The mother also obtained medical advice. Drugs were prescribed which the mother was reluctant to start until all other approaches had been tried.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
I asked the father whether he had given any thought to the possibility of the child listening to the dreadful messages and sexually evocative sounds which he left on the mother’s phone. He had not. His focus, stirred by jealousy and vengefulness, was on the mother. It was entirely irresponsible parenting by him.
The mother has done her best to protect the child from both the father’s behaviour and its impact on herself.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
The father has been the subject of orders protecting the child, the mother the paternal grandfather and others from his violent conduct.[9]
[9] Exhibits 6 and 12
3/11/2015 Provisional Order – the child
9/11/2015 Interim ADVO – the child
20/11/2015 Interim ADVO – the child
1/12/2015 Interim ADVO – paternal grandfather
14/12/2015 Final ADVO – paternal grandfather
16/05/2016Interim Apprehended Personal Violence order for five named members of the M family
22/07/2016Final AVO 2 years for five named members of the M family (neighbours)
23/06/2016Provisional Order ADVO – mother
23/06/2016Provisional and Interim Orders ADVO – mother
16/09/2016 Interim or Final AVO for mother
17/09/2016 Contravene AVO (Mr M)
8/12/2016 Contravene AVO (neighbours)
The impulsive, and also the considered, acts of violence and aggression by the father raise an inference that the child could be exposed to violence or be injured in an unintended way if left in the unsupervised care of her father.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
In February 2016 the Family Consultant, who has qualifications and experience as an Alcohol and Other Drug Social Worker recommended to the father, through her assessment, that he may benefit if he obtained a referral to therapeutic counselling to address alcohol abuse/dependency; grief and loss.
To his credit the father did so. He saw a counsellor for alcohol consumption.
The father asserts that he has modified his behaviour.
However as late as July 2016 a psychologist engaged by the father noted that the father viewed counselling as “jumping through hoops”. At that time the father reported that he did not feel he currently experienced any major issues with a mood disorder anger or alcohol.[10]
[10] Family Report dated 28/10/2016, pars 74-78
In the Family Report of October 2016 the Family Consultant recommended that the father continue accessing services.[11] It may be that the father does so to good effect.
[11] Family Report dated 28/10/2016, par 106
If the mother is approached by the father in due course about unsupervised time, but she is unpersuaded that his behaviour and attitude has genuinely altered, then there may be a further application to the Court by the father.
The Court should not make orders based on the possibility of changed conduct.
Any other fact or circumstance that the court thinks is relevant
The father revised his position[12] and proposed six months of supervised time at a Contact Centre whilst he undertook the following:
a)CDT testing with report to the mother;
b)Attendance on a psychiatrist with a report to the mother.
[12] Exhibit 4
Thereafter, if testing revealed resultants consistent with non-problem level drinking and compliance by the father with the recommendations of the psychiatrist then time with the child would begin as proposed in his Minute of Orders.[13]
[13] Exhibit 3, pages 7-8, Orders 3-8 inclusive
I have not adopted such a course. To do so would be to make orders based on hope and good intentions rather than evidence.
If the father had undertaken that course of action and provided positive results to the mother the hearing may have been avoided.
If there had been expert evidence from a treating psychiatrist for the father setting out diagnosis, recommendations and treatment if any for the father that evidence could have been tested and may or may not have produced the outcome desired by the father.
Conclusion
The child will continue to live with her mother who will have the responsibility for making decisions about her long term and day to day care
The orders will provide for the mother to keep the father advised of decisions she makes about the long term welfare of the child and of any medical emergencies.
In relation to spending time there will be a further six months of supervised time.
Thereafter the mother will have the discretion over how often and in what circumstances the child spends time with her father, with a nominated minimum of four times per year.
I am confident that the mother would not agree to unsupervised time whilst ever there was doubt in her mind about safety. I am also confident that if and when she considered it safe to do so, unsupervised time including weekends and holidays would follow.
The father still has the opportunity to do what he proposed to the Court, in order to reassure the mother that the child would be safe in the father’s care.
There is also provision for communication, restraints and obtaining a passport.
Orders are made accordingly.
I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 December 2017.
Associate:
Date: 20 December 2017
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