Becket and Peel (No.2)
[2012] FMCAfam 280
•13 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BECKET & PEEL (No.2) | [2012] FMCAfam 280 |
| FAMILY LAW – Parenting – children aged 10 & 12 – where the children lived primarily with the mother for most of their lives until 6 December 2010 – where the mother failed to protect the children from exposure to family violence and from coming into contact with persons with serious criminal records – where the older child has suffered psychologically as a result of the mother’s enmeshed relationship with him – where the children have been living with the father since 6 December 2010 and spending supervised time with the mother – whether the mother’s time should continue to be supervised – assessment of the mother’s claim that she recognises her past failings and is taking steps to remedy them – whether a restraint on the mother bringing the children into contact with certain named persons or alternatively with all unrelated adult males would sufficiently protect the children – whether the maternal grandparents would be suitable supervisors – where the father seeks sole parental responsibility and the mother seeks equal shared parental responsibility. |
| Family Law Act 1975, ss.60CC, 61DA, 61DB |
| B & B (1993) FLC92-357 Becket & Peel [2010] FMCAfam 1424 Moose & Moose (2008) FLC 93-375 |
| Applicant: | MR BECKET |
| Respondent: | MS PEEL |
| File Number: | NCC 2190 of 2008 |
| Judgment of: | Terry FM |
| Hearing dates: | 17, 18 & 20 October 2011 |
| Date of Last Submission: | 20 October 2011 |
| Delivered at: | Newcastle |
| Delivered on: | 13 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tregilgas |
| Solicitors for the Applicant: | Braye Cragg Solicitors |
| Counsel for the Respondent: | Ms Goodchild |
| Solicitors for the Respondent: | Neisha Shepherd Solicitor |
| Solicitor Advocate for the Independent Children’s Lawyer: | Ms O’Rourke |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
All previous parenting orders concerning X born … 1999 and Y born … 2002 are discharged.
The children shall live with the father.
The father shall have sole parental responsibility for the children.
The children shall spend time with the mother:
(a)Until 1 January 2013 for two hours each fortnight supervised by Ms B or some other person agreed between the parties, with the costs of such supervision to be borne by the mother.
(b)Thereafter and until 30 June 2013 for four hours on one day each month and unless otherwise agreed between the parties on the 1st Sunday of each month;
(c)Thereafter for seven hours on one day each month and unless otherwise agreed between the parties on the 1st Sunday of each month;
(d)In 2012 and each year thereafter for two hours on Boxing Day;
(e)In 2013 and each year thereafter for four hours on Mother’s Day;
(f)In 2013 and each year thereafter for two hours on each of the children’s birthdays;
(g)At such additional or alternate times as may be agreed between the parents.
Time in accordance with order 4(b) to (f) inclusive shall be subject to the following conditions:
(a)one of the maternal grandparents shall be present at all times while the children are with spending that time with the mother;
(b)it shall only take place either in the environs of the maternal grandparents home or in a public place;
(c)it shall not commence until both the maternal grandmother and the maternal grandfather have filed with the court and served on the father an undertaking that they will:
(i)be present (either together or singly) at all times while the children are with the mother.
(ii)abide by the order that time shall occur only at their home or in a public place;
(iii)ensure that the children are not brought into contact with or permitted to communicate with Mr D, Mr F, Mr T or any other adult male with whom the mother is pursuing a friendship or a relationship;
(iv)promptly notify the father should they have any reason to believe that the mother is in a relationship with a violent, criminal or anti-social male.
Until such time as both the maternal grandparents file and serve such an undertaking time shall continue to occur in accordance with Order (4)(a).
The mother is restrained and an injunction is granted restraining her from allowing the children to be brought into contact with or communicate with Mr D, Mr F, Mr T or any other unrelated adult male unless with the agreement of the father in writing.
Both parties are restrained from doing the following:
(a)using physical punishment to discipline the children or allowing any other person to do so;
(b)making critical or derogatory remarks about the other party in the presence or hearing of the children or from allowing any other person to do so.
The father shall keep the mother informed of the children’s extracurricular sporting activities, which the mother is entitled to attend unless the father communicates to her in writing that he is opposed to any particular attendance.
The mother may obtain from the children’s school copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and may attend sports days, school concerts or school assemblies to which parents are invited.
Each party shall behave respectfully to the other if they are both in attendance at the extra-curricular activities referred to in Order (9) or the sport days or the school functions referred to in order (10) and shall not attempt to discuss personal issues including issues relating to the children with the other parent at these times.
Each party shall provide authorisation to any medical practitioners of the children to allow all parties to have direct access to the children’s health and medical records.
Each party shall advise the other as soon as reasonably practicable in the event that the children while in their care are involved in an accident or medical emergency requiring treatment at hospital or are diagnosed with a serious illness.
Each party shall keep the other advised of their mobile telephone number and residential address and advise the other party of a change of address or contact telephone number within twenty four (24) hours of a change occurring.
IT IS NOTED that publication of this judgment under the pseudonym Becket & Peel (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2190 of 2008
| MR BECKET |
Applicant
And
| MS PEEL |
Respondent
REASONS FOR JUDGMENT
Introduction
X, 12 and Y, 10, have not had an easy life since their parents separated in 2003, and they had a terrible year in 2010.
They lived with their mother, and despite final orders having been made on 26 March 2010 which provided for them to spend six nights per fortnight with their father, X spent no time with him between 26 April 2010 and 6 December 2010 and Y spent limited time with him.
During this period the mother maintained a relationship with Mr F, a man with more than 80 criminal convictions, and despite court orders prohibiting her from doing so, allowed the children to come into contact with him.
X was constantly in trouble at school for violent and disrespectful behaviour towards teachers and other students, and was suspended several times.
The father commenced fresh court proceedings in June 2010 and in due course an experts report was prepared by Ms C, a Clinical Psychologist. On 6 December 2010, following the release of that report, I made interim orders which provided for the children to live with the father and spend supervised time only with the mother.
The change of residence has worked well. The children both accepted it, and Y had a good year at school in 2011 and X an improved one.
The orders sought by each party at the final hearing
The father sought orders that the children to live with him and that he have sole parental responsibility for them.
He proposed that the mother spend supervised time with the children once per month for two hours, indefinitely, and that supervision be undertaken by someone other than a family member.
Just prior to the commencement of the final hearing the mother (who had previously sought orders that the children return to her care) changed her position and indicated that she now sought orders that the children live with the father and spend time with her.
She proposed that the children’s time with her increase gradually until it was each alternate weekend from Friday until Monday and overnight from after school Wednesday until the commencement of school on Thursday each alternate week during school terms, and for half of each school holiday period.
The mother proposed that her time be unsupervised, but said that if the Court considered supervision necessary then her time with the children should be supervised by the maternal grandparents.
The mother proposed that an order be made restraining her from bringing the children into contact with Mr D, Mr F and Mr T, or alternatively restraining her from bringing the children into contact with any unrelated adult males.
The mother sought an order for equal shared parental responsibility.
The Evidence
The father relied on his amended application filed on 30 September 2011 and his affidavits filed on 28 June 2010, 27 July 2010, 19 October 2010 and 30 September 2011. He also relied on the affidavit of his wife Ms S filed on 30 September 2011 and the affidavit of Ms U filed 30 September 2011.
Ms U is the former partner of Mr T, who was in a relationship with the mother in 2011.
The mother relied on her amended response filed on 28 September 2010, her affidavit filed on 28 September 2011 and the affidavit of the maternal grandfather Mr V filed on 17 October 2011.
Two expert’s reports were prepared by Ms C, one in November 2010 and the other in April 2011.
The father, mother, maternal grandfather and Ms C were cross-examined. Ms S and Ms U were not required.
An assessment of the witnesses
The father was a good witness. He impressed as frank, open and honest. He readily conceded that the children were excited to see their mother and loved their younger half-brother and half-sister, who live with the mother.
The mother was a poor witness. She lied to Ms C during the report interviews in November 2010 concerning whether the court order prohibiting the children being brought into contact with Mr F was being breached and she lied to Ms C in April 2011 concerning when she had last seen Mr F.
The mother acknowledged that she had told lies during the course of the proceedings, commenting in her 28 September 2011 affidavit that “the lies I have told have got us into this situation”[1]
[1] Mother’s affidavit filed 28 September 2011 paragraph 49(i)
However, despite knowing that her failure to be truthful and her partnerships with violent men were causes for concern, the mother failed to mention in her 28 September 2011 affidavit that she had formed a relationship with Mr T in 2011 and that in … 2011 Mr T had been charged with assaulting his own mother. This emerged only during cross-examination.
The mother was not a witness of credit, to the point where I would not be prepared to accept any of her evidence at face value.
The maternal grandfather impressed as an honest witness, but demonstrated that he had a very limited understanding of the mother’s problems and about how her choices had impacted on his grandchildren.
Ms C prepared two very thorough reports. The mother’s counsel challenged some of Ms C’s opinions, querying whether they were soundly based and whether Ms C had neglected to consider alternative hypotheses. I shall consider those challenges later, but there was no dispute that Ms C had correctly understood the facts of the case.
Background
The father is 37 and the mother 35. They formed a relationship in about 1996[2] and they have two children, X born on … 1999 and Y born on … 2002.
[2] In his documents the father said that cohabitation commenced on … 1999, the day before X’s birth, but a relationship must have commenced earlier and elsewhere the father said that the relationship commenced in the late 1990’s. The mother said that the relationship commenced in 1996. She was not a witness of credit but nothing turns on fixing an exact date the relationship commenced.
The parties separated on 29 January 2003, when X was 3 and Y 10 months old. After separation, by agreement between the parties, the children lived with the mother and spent regular time with the father.
In … 2003 the father commenced a relationship with Ms S. They married on … 2006 and have a daughter N, born on … 2006.
The mother had a number of relationships after she separated from the father and the significant ones for the purposes of this judgment were with Mr D, Mr F and Mr T. I will consider these relationships in more detail later on.
The mother has two children from post-separation relationships, M born on … 2004 and W born on … 2011. The mother maintains that M’s father is Mr E. Mr D was at one time nominated as his father, but Mr D was in prison both prior to and well after M’s birth.
W’s father is Mr F.
Between 2003 and 2008 the parents managed parenting arrangements for the children without the need for court intervention, but in August 2008 the father filed an application in which he sought week about shared care.
The mother filed a response in which she sought orders that the children live with her and spend time with the father each alternate weekend and each Wednesday overnight.
A Family Report was prepared in late 2009 and the matter was listed for hearing in March 2010. However the parties reached agreement prior to the commencement of the hearing and on 22 March 2010 final orders were made by consent.
The final orders provided for the parents to have equal shared parental responsibility and for the children to live in an equal time arrangement, comprising two separate blocks of time with each parent each fortnight.
The following orders were also made by consent:
That the Respondent Mother be restrained from bringing the children into the presence of either Mr D, or Mr F, date of birth … 1979 and the Mother is to remove the children from the presence of those persons should they approach the Respondent Mother and the children.
That without admissions both parties be restrained from taking the children to visit with them at any gaol when they are spending time with them.[3]
[3] Orders 11 & 12 of the Orders dated 22 March 2010
On 27 April 2010, a little over a month after the orders were made, the mother ceased making the children available to spend time with the father. She alleged that X had disclosed that the father had hit him and had pressed a heated fork onto his fingers, scalding them. She also alleged that the children had disclosed that Ms S had pulled their hair, propelled them forward so they landed on the ground and locked them in their rooms.
On 28 June 2010 the father filed a fresh application, seeking orders that the children live with him and spend supervised time with the mother. He denied that there was any truth in the allegations and expressed concern that the mother was breaching the order concerning bringing the children into contact with Mr F.
The mother filed a response seeking orders that the children live with her and spend supervised time with the father and she also filed a Notice of Child Abuse detailing the allegations referred to above. The mother denied that she had allowed the children to come into contact with Mr F.
As 2010 wore on Y began spending some time with the father but X continued to spend no time with him.
In August 2010 an Independent Children’s Lawyer was appointed for the children and subsequently an order was made for Ms C, to prepare an experts report. The report was released to the Independent Children’s Lawyer on 29 November 2010 and to the parties on 6 December 2010.
In her report Ms C expressed grave concern about the children’s situation. X inadvertently revealed that the mother was breaching the order that she not bring the children into contact with Mr F, and Ms C considered that there was a very strong indication that he was suffering quite extreme emotional stress.
On 6 December 2010 I conducted an interim hearing and for reasons set out in a judgment delivered on 8 December 2010 made orders that the children immediately commence living with the father and spending supervised time with the mother.[4]
[4] Becket & Peel [2010] FMCAfam1424
The children have thrived in the father’s care since the orders were made.
To his great credit the father took two weeks off work immediately after the orders were made so that he could stay at home with the children and help them to adjust to the change of residence.
At the commencement of the 2011 school year the children were given a fresh start by being enrolled in a new school. Y is doing very well. X is struggling academically but he has had no behavioural difficulties at school.
To his great credit the father has recently arranged for both children to have tutoring to help them catch up academically.
With the assistance of the paediatrician the father has weaned X off Ritalin.
The children commencing spending supervised time with the mother soon after the orders were made. Over the Christmas 2010/2011 period it was supervised by Ms B and in February 2011 they commenced spending time with the mother for two hours each fortnight at A Children’s Contact Centre. This was continuing at the time of the hearing in October 2011.
The children also had contact with their maternal grandparents in 2011. The maternal grandfather attended their football games and the father agreed to the children visiting the maternal grandparents at their home on two occasions.
The mother’s relationships
The mother commenced a relationship with the father when she was quite young, possibly 18 or 19 years of age. They subsequently married and lived together until 29 January 2003, when the mother was about 26.
The father is a tradesman by occupation and does not have a criminal record.
The mother made allegations, both in affidavits filed in these proceedings and when speaking to Ms C, that the father had occasionally been violent to her and had occasionally stalked and harassed her after the end of their relationship. This was denied by the father and the allegations were not the subject of cross-examination during the hearing. I do not accept that there is any truth in these allegations.
In or about 2002 the mother commenced visiting Mr D in prison.
Mr D was serving a lengthy term of imprisonment for manslaughter, arising out of the drowning death of a man in 1992. When Ms C asked X in … 2010 what Mr D had been in gaol for X said as follows:
He was there for murdering a person. Do you know Q Street, Town R? Mr D and Mr J threw this man out of the window. He was wrapped up in a bag but he was still alive. He was trying to punch Mr D. Mr D kicked him in the balls… sorry, I mean ‘testicles’ (smiles). So they threw him in K Creek.[5]
[5] Experts Report dated 25 November 2010 p.48
The mother continued to visit Mr D after she separated from the father and it was her evidence that she and Mr D were “in a relationship” between … 2003 and the end of 2003 and recommenced their relationship in … 2004.
On two occasions the maternal grandparents accompanied the mother to the prison, and X told Ms C that he also had gone with the mother to visit Mr D in gaol.
In … 2004 the mother gave birth to M. The mother claims that his father is Mr E, a man with whom she had a relationship between … 2003 and … 2004. Nothing adverse was raised about Mr E during the proceedings.
Mr D was released from gaol in 2006, and upon his release he commenced living with the mother, X, Y and M at the maternal grandparents’ home. He remained there until … 2008, although there may have been separations during this period.
The mother admitted to Ms C that Mr D was violent to her. She made reference to him “belting me up, punching me, hitting me and pulling my hair,” and said that she sustained bruises from the assaults.[6]
[6] Experts Report dated 25 November 2010 p.27
X told Ms C that Mr D made threats to murder the mother and children and put them in K Creek. He also told Ms C in November 2010 that:
Mr D used to hit me over the head and throw me against the garbage tin.[7]
[7] Experts Report dated 25 November 2010 p.51
Y told Ms C that when he thought about Mr D murdering someone he could not get to sleep at night. He reported that Mr D used to threaten to kill the mother, and also said as follows:
Mr D pushed a chair on X and M. I got up and smashed a glass bottle on his shoulder. He threw me on the lounge. Then we ran to the car and that was the last time we seen (sic) him.[8]
When asked about his worry of his mother being hurt, Y said this was because Mr D had threatened her. Mr D demanded that his mother return to him or he would kill her. Mr D also used to make M urinate into a cup, although Y did not know why he did this. Y spontaneously added that Mr D had put X’s head down a drain.
[8] Experts report 25 November 2011 p.58
The maternal grandfather said that he eventually ordered Mr D out of his home. He said that he had found out that
once a criminal always a criminal.
It was not made clear during the proceedings the extent the father knew about what was happening to his children between 2006 and 2008. It is difficult to believe that he could have been completely oblivious to it, and Ms C was critical of his failure to act protectively of his children during this period.
In or about … 2008 the mother commenced a relationship with Mr F, which also began with her visiting Mr F in prison.
Mr F has an extensive criminal record. Ms C said that his record of convictions ran to 34 pages and in my interim decision of 8 December 2010 I said as follows:
Mr F .....is 31 years old and has something like 83 criminal convictions dating back to 1996, when he was 15. He has repeat convictions for driving while disqualified, stealing, negligent or reckless driving, possessing implements for breaking into cars or houses and damaging and destroying property. He was convicted in 1997 of breaching an apprehended violence order, and he has a number of convictions for assault. He has been sentenced to terms of imprisonment on a number of occasions.[9]
[9] Becket & Peel [2010] FMCAfam 1424
The children were exposed to family violence when the mother was in a relationship with Mr F. Ms C summarised the COPS records in her November 2010 report and the accuracy of her summary was not challenged. Among other things the COPS records revealed that the police were called to the mother’s home in February 2009 following claims that Mr F had assaulted her, and that the mother told police this was not the only time violence had occurred.[10]
[10] Becket & Peel [2010]FMCAfam1424 paragraph 13
The mother was somewhat evasive on this topic but her counsel in final submissions conceded that the evidence pointed to Mr F having been violent to the mother.
As previously mentioned in March 2010 a final order was made restraining the mother from allowing the children to come into contact with either Mr D or Mr F.
The father became suspicious soon after the order was made that it was being breached. The mother denied it at the time, but during the interviews conducted by Ms C in November 2010 X revealed that it was being breached and at the interim hearing on 6 December 2010 the mother revealed that she was pregnant to Mr F.
The mother continued her relationship with Mr F after the interim orders were made and in … 2011 was involved in a criminal enterprise with him. This consisted of the mother driving Mr F to the car park of a licensed club, watching him break into a car and drive off in it, following him in her car to a remote location, watching him place items from the stolen car, including its tires, into her car, waiting while Mr F set fire to the stolen car and then driving him back home.
Mr F was arrested and charged shortly after these events and went back to prison. The mother was not charged and is recorded as having cooperated with the police.
The mother (after first telling Ms C that she did not know where he was) eventually admitted to Ms C that she had visited Mr F twice in prison after the birth of W on … 2011. Ms C had the following conversation with the mother:
Ms C:You previously told me you didn’t know where Mr F was, and now it seems you are visiting him in jail. Can you understand why the Court might have problems with your truthfulness?”
Ms Peel : Well, I don’t want to keep Mr F from his child.”
Ms C : How long will he be in jail?”
Ms Peel:He hasn’t been sentenced. The trial is probably on 15th April.
Ms C: Will you be going?
Ms Peel:No, because I don’t like his family or his brother. I don’t like them, never have, and they are not nice to him.
Ms C:What do your parents think about your relationship with him?
Ms Peel:They don’t like the jail part but they say it’s hard when you have a child to him. They hope he’ll grow up some day.
In her affidavit filed on 28 September 2011 the mother said that she was no longer in a relationship with Mr F and did not intend to have any further involvement with him.
She also said that she was not in any other relationship.[11] This was untrue.
[11] Mother’s affidavit filed 28 September 2011 paragraph 24
During cross-examination on 17 October 2011 the mother admitted that she had commenced a relationship with Mr T in 2011, she said in …. The mother was coy about the extent of it and told the father’s counsel that Mr T stayed over at her house from time to time.
Mr T does not have an extensive criminal record. However the unchallenged evidence of his former partner Ms U was that on Mother’s Day 2010 Mr T assaulted her by punching her twice on the arm and pulling her hair. She further reported that on 19 January 2011 Mr T pulled her hair so hard that he forced her to the ground and when she tried to get up punched her in the face.
Ms U said that she did not report either assault to the police but on the day of the second assault she separated from Mr T.
In or about … 2011 Mr T was charged with assaulting his mother. Ms U reported Mr T’s mother as telling her that her son had tried to smother her with a pillow.
Mr T was convicted of this assault in … 2011 and placed on an s.9 Good Behaviour Bond for twelve months. An Apprehended Violence Order was taken out against him for the protection of his mother.
The mother admitted that she had found out about this assault shortly after it happened, and had accompanied Mr T to court on at least two occasions, including on the day he was sentenced. She revealed none of that willingly.
The mother did not initially suggest when being cross-examined by the father’s counsel that she and Mr T had separated, but after being questioned about the criminal charge she volunteered that they had separated on 5 October 2011. She was unable to explain why they had separated on that particular day.
I had a very strong impression during this passage of evidence that the mother was being untruthful.
It was suggested to the mother that during a recent telephone conversation between she and the father the father had heard Mr T in the background. The mother denied that Mr T had been there.
The mother was not a witness of credit and I can place no weight on her claim that she and Mr T have separated.
In her amended response filed on 28 September 2011 the mother proposed that an order be made prohibiting her from bringing the children into contact with Mr F or Mr D but did not seek any order about not bringing the children into contact with Mr T. At the end of the hearing she indicated that she would amend her proposal to include his name.
The effect of the mother’s past actions on the children
Ms C was rightly critical of the mother for:
· Subjecting the boys (for years) to very violent, criminal partners.
· Exposing the boys to the criminal lifestyle and anti-social attitudes of her partners.
· Exposing the boys to repeated domestic violence.
The effects on the children have been many and varied.
Y expressed fear of Mr D and X described Mr D’s crime with horrified fascination. Both children were aware of Mr D threatening and assaulting their mother.
Y told Ms C that Mr F was mean to his mother and that he would become frightened that Mr F would hurt his mother.
X’s relationship with his mother was of grave concern to Ms C when she conducted the 2010 interviews. She said as follows:
Ms Peel seems very enmeshed with her son X, who is a “confidante” and “friend” to her. He is very parentified in this role. In my opinion, she has placed extreme pressure on the boys to collude with her position in terms of currently rejecting their loved father; denying domestic violence perpetrated by Mr F; and having to lie to me in interview about their home life. In my opinion, the mother has subjected/and is subjecting the children to severe emotional abuse.
The mother’s counsel submitted that I should not accept Ms C’s opinion that X had an enmeshed relationship with the mother but there was strong evidentiary foundation for it in numerous things that X said to Ms C.
Ms C reported as follows for example:
[X] told me proudly:
“I am very protective of my Mum. When we go out, I don’t like her talking to other men. (Q. Why not?) I am very curious (sic) of my Mum. I don’t like her to speak to men because they could hurt her.
Ms C also reported as follows:
When asked whether he worried about his mother, X sighed and replied:
All the time. I don’t like her being at home by herself. Anything could happen. (Q.) Someone could try to hurt her. (Q.) I think about this at school. Sometimes I have to come home sick ‘cause I don’t like being away from Mum. I asked Mum if I could have Home Schooling and she said no.
Ms C’s description of X’s extreme distress when he realised that he had inadvertently revealed to her that the mother was still bringing the children into contact with Mr F is also compelling evidence of X‘s intense feeling of protectiveness for his mother.[12]
[12] Other evidence concerning the mother’s relationship with X is found at pages 38,43,80 of the November 2010 report
X had an extremely difficult time at school during 2010. Ms C summarised the contents of the school records relating to X at pages 74 to 76 of her first report. There are numerous references to X being rude to teachers, refusing to do work, and punching and threatening other students. X was suspended from school for a period of time. Towards the end of 2010 he was referred to a paediatrician and over the objections of the father was prescribed Ritalin.
X spent no time with the father between April and December 2010 and Y’s time with him was irregular.
There was some suggestion that the mother’s reluctance to comply with the 23 March 2010 orders was related to the reduced child support she received after the orders were made, but that does not fully explain the breakdown which occurred in the children’s relationship with the father.
It is impossible to believe that the mother’s need to hide her continued involvement with Mr F, and the unhealthy relationship X had with the mother, did not contribute to that situation.
It is of concern that not only have the children suffered harm as a result of the mother’s relationships, nowhere in the mother’s material did she show any recognition of that fact.
When talking to Ms C she was entirely self-focused. When Ms C asked her about how living with Mr D had affected the children the mother said that they were
Scared; but scared for me mostly
She expressed no concern for the children’s situation during the 2006-2008 years.
The mother expressed no concern for or regret about the dreadful year X had at school in 2010.
There is considerable strength in and evidentiary support for Ms C’s conclusion that the mother has “quite a lot of difficulty with empathy, in putting herself in someone else’s shoes and understanding how they might feel.”
Ms C rightly identified that it would be extremely detrimental for X and Y to again be exposed to violent and criminal men who were in relationships with the mother. They would be placed at risk of physical and emotional harm and exposure to family violence, and it would be highly destructive for X if his protective instincts were again be awakened. His secure placement with his father could be undermined and his education set back, perhaps irreparably.
Whether the mother is likely to place the children in the same situation again
Ms C’s opinion was that the mother had some Borderline Personality traits, and it was implicit in her assessment of the mother that there was little prospect of change and a considerable risk that the mother would continue to form damaging relationships.
The mother’s counsel argued that Ms C’s assessment of the situation was wrong, and that the mother was a victim of domestic violence who was suffering from post-traumatic stress disorder.
The mother’s counsel challenged Ms C about her description of the mother as having a blasé effect when giving information about violent relationships, and her observance that the mother’s emotional tone when describing events during her relationships did not match her words.
Ms C agreed that some of the traits which indicated a personality disorder such as borderline personality disorder were also traits that were present in people suffering from post-traumatic stress disorder but said that others were not. She particularly pointed to the mother’s unstable relationship history and splitting, which she said were symptoms of a personality disorder but not symptoms of post-traumatic stress disorder.
In my view Ms C adequately justified her conclusions in this regard and indeed her description of the mother’s presentation to her struck a chord with how the mother presented in the witness box.
Ms C is a very experienced clinical psychologist. She was employed by the Employer CC in Town Z for 30 years and was attached to W Children's Hospital Town Z (Child Protection Team) from 1991 until 2006. She has 35 years clinical experience in child and family mental health settings and prepares many Expert Reports for this court.
Ms C spent considerable time speaking to the mother and to X and Y both in November 2010 and April 2011 and she painstakingly read the subpoenaed material prior to the preparation of her first report.
In my view Ms C’s conclusions about the mother were not demonstrated to be biased or erroneous, and if Ms C is right there is little prospect of the mother changing.
Even if the mother is right and she has simply been a victim, there was no sign at the hearing in October 2011 that there was no further risk of the mother entering into unstable and violent relationships.
The mother made no changes to her lifestyle after she lost the children in December 2010. She continued her relationship Mr F after the interim orders were made and was involved in a criminal enterprise with him in … 2011. She gave birth to his child in … 2011 and believes that he is entitled to have a relationship with that child.
It is difficult to avoid a suspicion that but for Mr F going back to prison in … 2011 the mother might still be with him.
At some point in 2011 the mother formed a relationship with Mr T and although Mr T did not then have a criminal record, he had assaulted his previous partner on two occasions and he subsequently assaulted his mother, an offence for which he was charged.
The mother did not end her relationship with Mr T after this assault. She lied in her affidavit filed on 28 September 2011 about whether she was in a relationship, and she continued in a relationship with Mr T until at least 5 October 2011, only 12 days prior to the commencement of this hearing.
In her 28 September 2011 affidavit the mother said that she now has some insight into her past behaviour and into the effects of her past behaviour on the children. These are words. The mother said absolutely nothing in the witness box to suggest that she truly regretted anything that had occurred in the past or truly had any insight into the damage she had done to her children by her past choices.
The mother did not however provide a report from any counsellor or psychologist to confirm the nature of the counselling she had received in February 2011 or provide any independent evidence to confirm that she had shown any insight during that counselling.
I am not convinced that the evidence establishes that the mother has learnt any lessons from the past, and given the extent to which the mother is willing to be untruthful if the truth does not serve her, I am not prepared to accept, in the absence of evidence from a psychologist or counsellor that the mother has indeed ever seen a counsellor in the past, at least for the purpose she claims, because there was some indication in the evidence that the mother may have seen a psychologist or counsellor in connection with a victims of crime claim. Nor am I prepared to take the mother’s word for the fact that she intends to commence counselling in the future.
The best interests of the children
In determining appropriate parenting orders for X and Y, I am required to treat their best interests as the paramount consideration. S. 60CC(2) and (3) of the Family Law Act 1975 sets out the matters to which I must have regard in order to determine the children children’s best interests.
The primary considerations in s.60CC(2) are as follows:
a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
X and Y have a meaningful relationship with the father and should continue to do so. The only risk to that relationship would be if X’s protective instincts in regard to the mother were awaken again. If that occurred his relationship with his father could be undermined, just as happened in 2010.
The children have a relationship with their mother, but it is not a particularly meaningful one at present. The mother sees them only once a fortnight at a contact centre and is not able to provide any nurturance or guidance for them.
It does not automatically follow however that the children would have a meaningful relationship with the mother if they spent longer periods of time and unsupervised time with her. If more time and unsupervised placed the children back in the situation they were in prior to December 2010 the reverse could be the case.
The relationship X had with the mother prior to December 2010 was not a meaningful relationship; it was an unhealthy relationship and it was of very limited value to him. It was impeding his ability to obtain an education and his ability to have a relationship with his father.
Whether it is possible to craft orders which will ensure that the children have a meaningful relationship is open to question and I will need to return to this after considering the remaining s.60CC(2) and (3) matters.
As for the second primary consideration, I am satisfied that there is no risk of the children being subjected to or exposed to abuse, neglect or family violence in the care of the father.
X retracted his allegations against the father during the March 2011 interview with Ms C.
The mother claimed that the father had been violent to her, but these claims were not pursued by the mother’s counsel during the hearing and I am satisfied that there is no substance in them.
There was no suggestion that there was any violence in the relationship between the father and Ms S.
There is an unacceptable risk that the children might be exposed to abuse (as it is defined in the Family Law Act) or family violence if they spent unsupervised time with the mother. I do not accept that the risk of the mother re-partnering with someone like Mr D or Mr F has passed.
The mother said that the risk of the children being exposed to abuse or family violence in her care would be removed if an order was made restraining her from bringing the children into contact with named persons or into contact with any unrelated adult males.
In some cases this would provide a solution to the problem, but not in this case.
The mother cannot be trusted to comply with such an order. She flagrantly breached the 2010 order concerning Mr F and she has been repeatedly untruthful during the course of these proceedings.
The only way to manage the risk, in the absence of evidence that the mother has changed, is to require that the children’s time with her be supervised. If time is supervised at a contact centre or by a person such as Ms B, a private paid supervisor, then the risk of the children being brought into contact with unsatisfactory male friends or partners of the mother would be removed, and supervision of this nature would also provide some protection against the mother having inappropriate conversations with the children, causing them to be worried about her.
It was the mother’s case that the maternal grandparents should also be deemed appropriate supervisors. The maternal grandfather gave evidence and confirmed that he was willing to provide supervision if he was required to do so.
On the positive side the maternal grandparents have a good relationship with X and Y. They have kept in contact with them since the children went into the father’s care in December 2010, and the father has no difficulty with the maternal grandparents as people.
The maternal grandfather said that if the children made any negative comments about the father or the father’s wife while they were visiting he would not jump to conclusions but would talk to the father first about any issues that were raised. This would guard against the children’s placement with the father being undermined by alleged disclosures, as happened in 2010.
On the negative side however, the maternal grandfather has an unrealistic view of the mother. He conceded that she did not always tell the truth, but he considers that she is a generally good mother and said that he was unable to understand why the court had made orders giving her such restricted time with her children. He said that “there are drug addicts who get more time with their children than my daughter does.”
The maternal grandfather has gone along in the past with some very dubious decisions by the mother. He went with her to visit Mr D in prison, and although he was aware that Mr D was “in for murder” (to use his words) he allowed Mr D to live in his home with his daughter and his grandchildren after Mr D was released on parole in 2006.
As the maternal grandfather described it, he went along with his daughter for a while until he put a stop to it. That “while” lasted nearly two years, during which time the children were threatened and abused and exposed to family violence.
There is a considerable risk that the maternal grandfather might accept at face value his daughter’s assessment of any new male friends that she made and might let his guard slip in relation to allowing the children out of his sight.
There is also little chance that he would be watchful for signs of the mother emotionally burdening the children with concerns about her own welfare.
The other difficulty is that the maternal grandfather works a four-on four-off shift roster. He currently works Tuesday, Wednesday, Friday and Saturday. If the mother had the children each alternate weekend or for half of the school holidays the maternal grandfather would not always be there.
The mother proposed that the maternal grandmother be the other supervisor but she did not call the maternal grandmother to give evidence, which in the circumstances of this case creates a very considerable concern.
I must also have regard to the additional considerations in s.60CC(3) and the first of these are any views expressed by the children and any factors (such as the children’s level of understanding) that the court thinks are relevant to the weight to be given to those views.
The only independent evidence about the views of the children was contained in Ms C's March 2011 report. In relation to X said as follows:
“When asked what he wanted to happen in the future, X replied:
‘I don’t know. The Judge will make the best decision…. The Judge made the best decision last time, cause I hadn’t seen my Dad for a while.’”
Y told Ms C that he “wanted to go back to shared care so that we can have equal days and see both of them.” When Ms C asked Y what he had in mind he nominated two days about with each parent.
During final submissions the mother’s counsel conceded that not a great deal of weight could be placed on this statement by Y.
The Solicitor Advocate for the Independent Children’s Lawyer questioned the father during cross-examination about whether the children had said anything to him following her recent meeting with them. The purpose of this appeared to be to elicit information from the father about the children’s views.
The father’s answers were hesitant and not very precise. He did suggest that Y had told him that he was worried about seeing the mother outside of the contact centre.
The Solicitor Advocate for the Independent Children’s Lawyer should not have sought to elicit evidence about the children’s views in this way. The evidence given was really in the nature of evidence in chief.
The proper way for this information to have been elicited was for the father’s counsel to have asked for leave for the father to give some additional evidence before he was cross-examined.
Nothing turns on this however because the father’s answers were such that I cannot place any weight on the information that emerged.
I must consider the nature of the relationship of the children with each of the children’s parents and any other persons (including any grandparent or other relative of the child).
Ms C’s observation of the relationship between the father, Ms S and the children during the interviews for the second report was overwhelmingly positive. She said as follows:
Both Mr Becket and his wife related warmly and appropriately to the children. They were very child-focussed and talked at length about the boys’ achievements. The boys responded well to this praise. Mr Becket and Ms S had a detailed knowledge of the boys’ school activities and lesson content, and it was apparent that both were actively involved in assisting the boys with their homework and school projects.
The boys talked easily with both their father and stepmother. X seemed more focussed on his father, often stroking him and laying on his shoulder. Y was more focussed on his stepmother, and there was significant physical affection between them.
There was much excited talk about the new home, with the boys seemingly involved in aspects of planning for this. Both boys also talked positively of their new school; the friends they had made there; and their anticipation of the time they could spend with these friends out of school once they had moved house next week.
Ms C also observed a very positive relationship between the children and the mother. Both boys hugged and kissed the mother and Ms C said as follows:
Ms Peel engaged warmly with all her children and asked them appropriate questions about their lives. She was not negative about the father to the boys. Rather on some occasions, her non-verbals when the boys discussed their father, were very positive.
The children have a good relationship with their siblings: N, who is the father’s child; and M and W, who are the mother’s children.
There was no dispute that the children had a good relationship with the maternal grandparents.
I must consider the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent.
I am satisfied that the father has the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the mother.
During the interviews for the first report in November 2010 Ms C commented that “Mr Becket’s narrative about his ex-partner was not overly hostile.”
Since the interim orders were made the mother has started ringing the father from time to time and he has been willing to speak to her.
The father readily agreed during cross-examination that the children were excited to see their mother during visits at the contact centre. I am satisfied that the only reason the father is proposing that the children spend limited time with their mother is his concern for their physical and emotional welfare. He commented during cross-examination “I don’t believe Ms Peel has changed.”
I am not convinced that the mother has the willingness and ability to facilitate and encourage a close and continuing relationship between the father and the children. She did nothing in 2010 for example to critically consider the children’s “disclosures” in the light of the long and uneventful period during which they had spent time with him since separation in 2003.
The mother’s counsel submitted that even if this was so it should not concern me, given that the mother’s application now was only to spend time with the children. It does concern me however, because it could lead to comments which had a subtle unsettling effect on the children.
I must consider the likely effect of any change in the children’s circumstances including the likely effect of separation from:
(i)either of their parents or
(ii)any other child, or other person (including a grandparent or other relative of the children) with whom the children have been living.
The father adopted Ms C’s recommendation that the children should spend supervised time with their mother, and that it should occur once a month.
Ms C did not explain in her report why she had recommended that the frequency of supervised time be reduced to once per month, and she was not cross-examined about it.
One possible reason for this recommendation might be to guard against boredom and dissatisfaction arising because of the limited facilities at a contact centre or in Ms B’s rooms.
This reduction in time would represent yet another change for the children. It would result to them having a very limited relationship with their mother in the long term.
Also, unless additional arrangements were made for the children to see M and W, it would result in the children having a very limited relationship with those siblings.
Some additional time in this regard might be possible however. M has visited the father’s home in the past (prior to the March 2010 orders) and in theory he could do so again, which would create an additional opportunity for them to have a relationship with X and Y.
However a reduction in time is not desirable and should be avoided if possible.
The mother proposed that the children spend unsupervised time with her on alternate weekends and for half of the school holidays (after a gradual increase in time). This would be a significant change for the children and I cannot be satisfied that this change would be beneficial.
There is an unacceptable risk that the children would again be exposed to violent and unsuitable men in relationship with their mother and be at risk of abuse and emotional harm.
The mother’s alternative proposal, of time outside a contact centre supervised by the maternal grandparents, would also represent a change and in some respects such a change would be beneficial. It would allow for longer periods of time to occur, and they could occur in the more congenial setting of the maternal grandparents’ home. Outings could occur if the maternal grandparents could be trusted to comply with the requirements of supervision.
This would be a detrimental change however if the maternal grandparents did not adhere to the requirements of supervision.
I must have regard to the practical difficulty and expense of the children spending time with a parent and whether that practical difficulty and expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
The parties all live in Town Z and live relatively close together. The father and children live in Town AA. At the time of the hearing the mother was living in Town R with M & W, but she said that she anticipated moving because the house she was living in was for sale, and might move back to the maternal grandparents’ home. The maternal grandparents live in the nearby suburb of Suburb BB.
The only practical difficulty that exists is with finding appropriate people to provide supervision if long term supervised time is ordered.
A Children’s Contact Centre will not continue to be available. A has many calls on its services and it has a policy of not allowing any one family to use its services for supervised time for more than about 12 months. This family is nearing the end of their 12 months.
There are private supervisors available and the parties used Ms B while they were waiting for a place at A. The father said that he was required to pay Ms B only $5.00 more per visit than the fee he was required to pay the A Contact Centre. He said that while the A premises seem to him to be superior, the premises at which Ms B conducted the supervised time were satisfactory.
Using Ms B again is an option for the parties, although Ms B also may impose a limit on the length of time she will do supervision.
Common sense suggests that there may be other private supervisors available, but I was not given any concrete information about this.
I am required to consider the capacity of each parent any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs.
The father has the capacity to provide for the needs of the children including their emotional and intellectual needs. He demonstrated a strong commitment after the interim orders were made to ensuring that the change of residence worked, and he has demonstrated a strong commitment since then to ensuring that the children improved academically. He has recently engaged a tutor for them.
The father has involved the children in sport and this has provided an excellent outlet for them.
The father has shown a commendable willingness to take on board the advice of professionals.
Ms C expressed this concern about the father in her second report:
…. I am concerned that Mr Becket may still minimise the seriousness of the mother’s parenting incapacities and the harm it does to the children. Even though he is aware that the mother is still continuing her relationship with Mr F, Mr Becket feels that she should have unsupervised visits with the children as long as these don’t disrupt their school progress. At best, this is naïve position, and at worst it is unprotective of the children.
Part of the father’s attitude seems to reflect his acknowledgement of the boys’ attachment to their mother and his belief that as the children’s mother, Ms Peel “deserves” to have a meaningful relationship with them. While this may be admirable in most cases, in this one such an attitude may be quite unprotective of the children.
I am concerned that in the future, even if there are strict orders on the mother’s contact, then the father may relax these to accommodate what he perceives as the children’s need to see their mother. It is thus recommended that the father and his new wife attend some counselling to address this issue, and that the counsellor be given a copy of the Orders and a copy of my reports.
The father gave evidence at the hearing that he and his wife had contacted Child Dispute Services recently to obtain the names of some suitable counsellors who might assist them to address the issue raised by Ms C.
The mother provided for the children’s day to day needs between 2003 and 2010 but she exposed them to risk of physical and psychological harm and showed no capacity to provide for their emotional needs.
X has suffered emotional harm as a result of his relationship with the mother and his education was severely adversely affected in 2010.
There was nothing anywhere in the evidence – in the mother’s affidavits, in her answers during cross-examination or in the information she gave to Ms C – to suggest that she recognised the harm she had caused to the children. The mother’s focus was entirely on herself. She expressed no sorrow or regret for what had happened to her children, rather she painted herself as a victim of violent and criminal men.
The mother has not demonstrated any change in her capacity to provide for the children’s emotional or intellectual needs. There was no evidence that the risk of her re-partnering with men such as Mr D, Mr F or Mr T had passed, and no evidence that she understood the risk to the children of them being forced to become concerned about her welfare.
I must consider the maturity sex lifestyle and background of the children (including the lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant.
This does not assist me in this case as a separate consideration.
I must consider the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.
As I observed in my 8 December 2010 judgment, if any criticism can be made of the father is that he was not sufficiently protective of the children in the years leading up to August 2008 when he commenced proceedings for the first time.
However the father was persistent during 2010 in seeking orders for the children to live with him and he has shown an excellent attitude to the children and the responsibilities of parenthood since the interim orders were made.
The mother has shown a very poor attitude to the children and to the responsibilities of parenthood by exposing them to abuse and family violence and by subjecting X in particular to emotional harm.
I am required to consider any family violence involving the children or a member of the children’s family.
The issue of family violence has been comprehensively discussed earlier in this judgment.
I must consider any family violence order that applies to the children or a member of the children’s family if the order is a final order or the making of the order was contested by a person.
On 19 September 2011 the mother applied for a family violence order against Ms U, the former partner of Mr T. This is not relevant to these proceedings save that it demonstrates to my mind that at least until that date the mother was invested in her relationship with Mr T.
I must consider whether it is preferable to make the order least likely to lead to further proceedings in relation to the children.
The mother’s counsel submitted that the order most likely to lead to further proceedings was an order for supervised time.
I agree that if this order is made then further proceedings may occur for a variety of reasons.
Supervised time could become unviable because of lack of suitable supervisors, the children might become restive about attending at restricted venues, and the mother might apply to the court again seeking unsupervised time.
However an order for unsupervised time, or an order that time be supervised by the maternal grandparents, could also easily lead to further proceedings, if, for example, the father formed the view that the children were again being placed in a situation of risk.
I must have regard to any other fact or circumstance which the court thinks is relevant.
In Moose & Moose[13] the trial judge made an order which required a father’s time with his children to be permanently supervised at a contact centre. The Full Court allowed an appeal against the decision partly on the basis that the trial judge had failed to consider the long term effects on the children of an indefinite order for supervised time at a children’s contact centre.
[13] Moose & Moose (2008) FLC 93-375
The long term effects on X & Y of seeing their mother only at a contact centre are that they will have a very limited relationship with her, and time may break down if they become bored and restive about attending.
There was no evidence, either from the mother or in the contact centre notes, to suggest that there was any sign of this occurring at present, but common sense suggests that as time passes it could occur.
I was not given any information about Ms B’s premises but it is reasonable to assume that the place where she carries out supervised time may also have some limitations.
There are limitations on what X and Y can do with their younger brother and sister within the confines of a contact centre or under the supervision of Ms B. The contact centre recently asked the mother recently not to bring M for a few visits because M and Y had been interacting so rowdily that the visits were being spoilt for the other participants.
The advantage of supervision by the maternal grandparents is that it could take place in the maternal grandparents’ home and there would be a much greater range of activities available. Outings could also take place with one or other of the maternal grandparents present.
Parental Responsibility
On 8 December 2010 I made an interim order that the father have sole parental responsibility for the children. Pursuant to s.61DB of the Family Law Act. I must disregard that order when considering the allocation of parental responsibility on a final basis.
Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them absent a finding that there are reasonable grounds to believe that a parent of the children or a person who lives with a parent of a children has engaged in abuse of the children or family violence.
Mr D committed acts of family violence and in all likelihood so did Mr F, but they are no longer living with the mother.
If past partners are not relevant then the presumption applies, unless I decline to apply it because I do not consider that it would be in the children’s best interests for it to apply.
The mother sought equal shared parental responsibility, and her counsel submitted that the facts in favour of this were the mother’s long history of being the children’s primary caregiver and the fact that the mother and father were communicating quite well at present.
The mother’s counsel acknowledged that the mother had not herself respected an earlier order for equal shared parental responsibility. The mother did not consult with the father before taking X to a paediatrician and consenting to Ritalin being prescribed. She submitted however the mother should not be punished for her past actions, and she would not be able to do anything like that again because the children were living with the father, and it was therefore safe to include her as a person who shared parental responsibility for the children.
I do not consider however that it would be in the children’s best interests for an order to be made that the mother share parental responsibility for the children with the father. The mother made a number of very poor decisions about the children after separation, which impacted very badly on them right up to the end of 2010, and there was no evidence that she was capable now of making good child focussed decisions for them.
The father sought an order for sole parental responsibility. He can be trusted to make good decisions for the children and I intend to make this order.
Ms C’s recommendations
In her November 2010 report Ms C recommended that the children live with the father and spend supervised time with the mother and have no telephone communication with her.
In her March 2011 report Ms C continued that recommendation save that she recommended that the frequency of the supervised time be reduced to once per month.
Ms C also recommended that supervision be by an agency or a mutually agreed person but not by a member of the mother’s family or her friendship group.
Ms C said during cross-examination that it was important that time be supervised not only because of the mother’s lifestyle but because of the pressure she could put on the children.
During cross-examination I asked Ms C whether the children might reach an age when it would be safe for them to spend unsupervised time with the mother, because they would have an improved capacity to protect themselves. Ms C said that Y might reach that point in his teens, but for X it would be dangerous for him to spend unsupervised time with the mother for many years to come, in case he was again drawn into acting as the mother’s protector, with all the damage to him which this entailed.
Ms C prepared a thorough report and her recommendations had a sound basis. Subject to my concern about the fact that Ms C did not explain why she recommended monthly rather than fortnightly time I consider that Ms C’s recommendations deserve to be given weight, although of course I am not obliged to follow them if I consider that there is good reason for departing from them.
Conclusion
X and Y enjoy spending time with their mother. She may not be perfect and she may not be able to provide them with nurturance and guidance to the same degree as the father, but they want to continue to see her, and one of the principles underlying the objects of the parenting section of the Family Law Act is that children have a right to know and be cared for by both their parents, provided that their safety is not comprised.
The issue of how the children can safely spend time with the mother is the issue in this case.
The risks to the children in spending unsupervised time with the mother are that they might again be exposed to violent, criminal and anti-social men, and that X might again be placed in a position where he was made to feel responsible for the mother and was thus emotionally harmed.
There was nothing in the evidence to create any confidence that the risk of the mother choosing a violent, criminal or anti social partner had passed. The mother’s counsel argued that there was, and that weight should be given to the mother’s statements in her affidavit that she realised that she had made poor choices in the past, but I do not accept that submission.
The only way the children can safely see their mother is if their time with her is supervised. A restraint on the mother bringing the children into contact with dubious men would be of no value. The mother is untruthful when it suits her, fails to comply with court orders when it suits her, and she has no empathy for the children, such as might act as a natural brake on her exposing them to harm.
The mother’s counsel submitted that if supervision had to occur then the maternal grandparents should be accepted as appropriate supervisors. This would allow the children to spend more time with the mother and to spend that time in the more relaxed and expansive settings of their home or in public places.
The mother’s counsel also submitted that it was undesirable to make an order for long term supervision and that therefore interim orders only should be made at this stage and the mother given a further opportunity to demonstrate that she had engaged in counselling and was capable of making permanent changes in her life.
The father’s counsel argued that supervision had to be by a private supervisor or at a contact centre, as Ms C proposed. He opposed the use of the maternal grandparents and referred me to B &B (1993) in which the Full Court said as follows:
Both social science literature and experience demonstrate that it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists. ……Fami1y and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children's behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.
For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children[14].
[14] B &B (1993)FLC92-357
The father’s counsel strongly opposed the idea of interim orders. He submitted that the mother had ample time between the making of the interim orders and the commencement of the hearing to engage in counselling and to change her lifestyle, but she failed to do so, and that I could have no confidence that she would be either willing or able to make changes in the future if given a further opportunity to do so.
The Solicitor Advocate for the Independent Children’s Lawyer acknowledged that weight had to be given to Ms C’s opinion that continued close supervision at a contact centre or by an unrelated individual were necessary, but said that the problems with accessing this type of supervision in the longer term and the limitations of this type of supervised time needed to be taken into account.
The Solicitor Advocate for the Independent Children’s Lawyer proposed orders which would see supervision (by Ms B) continue for a further twelve months but thereafter would allow for the children to spend short periods of unsupervised time (two hours and then seven hours) with the mother provided that it occurred “at the home environs of the maternal grandparents.”
First of all I do not intend to make interim orders. The parties have been engaged in litigation, with one short break, since August 2008. They took part in a final hearing in October 2011and the proceedings need to be brought to an end if possible.
I accept the submission that the mother has had ample time between December 2010 and the date hearing to engage in a therapeutic relationship with a counsellor or psychologist had she been truly motivated to do so. She did not to that and there was only her bare assertion, on which I can place no weight, that she was likely to do so in the future.
It would impose hardship on the father, the children’s primary carer, if I made interim orders and he was obliged to come back in twelve months time and take part in a further hearing, and it would be most unfair to do this when there was no sign that anything was likely to change.
I intend to make final orders. The mother can of course come back to court in the future if she feels that circumstances have changed, and then the father will have to engage again in proceedings, but any application and affidavit the mother files can be carefully scrutinised to ensure that the application has merit before the matter proceeds too far.
Secondly, I consider that supervision by a paid supervisor needs to continue for some period into the future. X needs time to get his education on track. The mother’s counsel and the Solicitor Advocate for the Independent Children’s Lawyer both proposed this and Ms C recommended it.
The mother may not, as her counsel submitted, be a drug user or an alcoholic or a person with mental health issues, but she poses a considerable risk to her children’s well being nevertheless. The children had a truly dreadful year in 2010. X was set back in his education and cannot afford another year like that.
Close supervision, provided by someone like Ms B, until at least the end of 2012, when X will have completed his first year of high school, is in my view required.
But what to do after that, given that there may be difficulty obtaining other independent supervisors and that boredom and resistance may set in? Should the maternal grandparents be considered as supervisors?
To try and arrive at a solution I need to bear carefully in mind the evil I am trying to protect the children from, namely exposure to unsatisfactory and possibly criminal and violent males and the children being made fearful for the mother’s wellbeing by her telling them stories of her experiences.
Time supervised by or at least in the presence of the maternal grandparents, rather than just time occurring in the environs of their home, ought to protect against the first evil if there is an added safeguard of the maternal grandparents being required to sign and serve on the father an undertaking that they will not allow this to occur.
I have serious misgivings about the maternal grandparents’ judgment, given that they allowed Mr D to live in their home on and off for two years but if they signed an undertaking they would be subject to the most serious consequences if it was breached.
This may not entirely protect against the second evil, because supervision in the presence of the maternal grandparents would not be the kind of close supervision which would occur at a contact centre or in Ms B’s rooms, but if that time did not occur until the end of this year, two years will have passed in which the children have been living with their father and in a reparative environment.
I can require the maternal grandparents to at least let the father know if the mother forms another relationship, so that he can have some forewarning that problems might occur and be extra vigilant.
I appreciate Ms C’s concerns, but it is not proposed that the children live with the mother. If they are only visiting her, and for short periods, and if the father is vigilant and prepared to act promptly if he sees any signs of anything going wrong, and if the time is only once per month rather than once per fortnight once it moves to time in the presence of the maternal grandparents, then risk of harm to the children will not be unacceptable.
I therefore intend to make orders along these lines. I do so with misgivings, but I consider that there is merit in the concern of the Solicitor Advocate for the Independent Children’s Lawyer that unless this is done time could all too easily cease altogether or the matter prematurely come back to court.
I recognise that from the mother’s perspective this is limited time with her children, but there is nothing to stop the mother bringing another application if she engages in a therapeutic relationship with a counsellor and is able to demonstrate at some point in the future that she has insight into the needs of her children and that her lifestyle has changed.
I recognise that these orders limit the time the children can spend with their siblings M and W, but note that there are other ways in which the siblings could interact, for example at the home of the maternal grandparents with the mother absent.
I intend to order that the time continue to take place once per fortnight while it is supervised by Ms B or another approved supervisor. The children are used to this arrangement and it is likely to continue only for another twelve months. Thereafter time will be monthly, as time supervised by the maternal grandparents does carry an increased level of risk.
Dealing with some additional matters, the father sought an order that the mother pay all the costs of the supervision either at the contact centre or by Ms B or a similar person.
The mother is not working at present and is in receipt of Centrelink benefits, and there is a risk that if the mother has to meet the whole of the cost that time might not always occur. However she is paying only $30.00 per month child support and in my view it would not be unreasonable to ask her to make an additional contribution and meet the costs of the supervision, given the extent to which the father is otherwise providing for the financial needs of the children.
Although not expressly referred to during submissions issues were raised during the hearing about whether the mother should have other types of interaction with the children such as telephone communication or being permitted to attend their school events.
Ms C recommended against telephone communication and there is merit in the suggestion that this should not occur. The mother has no insight into the harm she did to the children up to the end of 2010 and has little child focus, and there is a risk of X in particular being destabilised by having lengthy telephone conversations with his mother, especially if the mother decided that he, her eldest son, should again be made her confidante for any difficulties she was experiencing with partners.
The Solicitor Advocate for the Independent Children’s Lawyer proposed that the mother be permitted to attend events at the children’s schools and attend some of their extra-curricular activities unless the father informed her in writing that he was opposed to a particular attendance.
The father’s counsel did not address this issue during submissions.
It is difficult to find a reason to oppose such an order. It would not be desirable for the mother to turn up at school every day or even every week and go into the children’s classrooms but the children might enjoy it if she attended (perhaps with M & W) isolated events such as sports days, special assemblies or Christmas concerts, and I intend to make the order proposed by the Solicitor Advocate for the Independent Children’s Lawyer in that regard.
With some trepidation I also intend to make an order that the children spend time with the mother at such additional or alternate times as may be agreed between the parents.
Ms C was concerned that the father might allow the mother more time with the children than was good for them, but I will be making orders which I have to assume may be in place until the children are 18. The matter will be out of the court system once the orders are made. The court cannot in reality control the father’s decisions (if he decides to agree to more time) once the proceedings are ended and common sense requires that this be recognised in the orders.
For all of the above reasons, the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding two hundred and seventy two (272) paragraphs are a true copy of the reasons for judgment of Terry FM
Date: 13 April 2012