Boswell and Orton
[2009] FMCAfam 1206
•20 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOSWELL & ORTON | [2009] FMCAfam 1206 |
| FAMILY LAW – Parenting – time the father should spend with six year old child – supervision – relevant principles to be applied. |
| Evidence Act 1995, s.128 Family Law Act 1975, ss.4, 60B, 60CA & 60CC |
| Champness & Hanson (2009) FLC 93-407 Rice v Asplund (1979) FLC 90-725 |
| Applicant: | MR BOSWELL |
| Respondent: | MS ORTON |
| File Number: | PAC 101 of 2009 |
| Judgment of: | Cole FM |
| Hearing dates: | 1 & 2 September 2009 |
| Date of Last Submission: | 2 October 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 20 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Conte-Mills |
| Solicitors for the Applicant: | Levy Partners |
| Counsel for the Respondent: | Ms Ross |
| Solicitors for the Respondent: | Herman Bersee |
ORDERS
The mother have sole parental responsibility for the child [X] born [in] 2003.
[X] live with the mother.
The father spend time with [X] as follows:
(a)by telephone at times as agreed between the parties, but failing agreement each Monday, Wednesday, Friday and Sunday between 7.30pm and 8pm (SA time), with the father to telephone the said child on the mobile telephone provided and maintained by the mother;
(b)at such times and on such days as can be accommodated by the [M] Children's Contact Centre; and
(c)at such times and at such places as may be agreed between the parties.
The parties attend upon a Family Advisor at a Family Relationship Centre located near them for referral to an appropriate parenting course, which they will attend as soon as practicable.
The father attend upon a Family Advisor at a Family Relationship Centre located near him for referral to an appropriate anger management course.
The father be restrained and an injunction is hereby granted restraining him from consuming marijuana for twenty-four (24) hours prior to and during any time the said child is in his care.
The father be restrained and an injunction is hereby granted restraining him from denigrating the mother, the maternal grandparents and the maternal family in the hearing or presence of the said child or allowing any other person to do so.
All applications do otherwise stand dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Boswell & Orton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
PAC 101 of 2009
| MR BOSWELL |
Applicant
And
| MS ORTON |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings are about the child [X] and what time and on what conditions she should see her father.
[X] was born [in] 2003 and is aged six this year.
The parties agree that [X] should live with the mother in [M].
Proposals
The applicant father seeks to spend time with [X] as follows:
a)each school holiday period from 9am on the first Monday after the end of the school term until 6pm on the Saturday immediately preceding the start of the following school term; and
b)by telephone at times as agreed, but failing agreement each Monday, Wednesday, Friday and Sunday between 7:30pm and 8pm.
He also seeks an order that the mother make the child available to him at the start of each period of school holiday time at a place half-way between the parties’ residences, with the father to make the child available for collection at the same place at the conclusion of the school holiday time.
The mother, following the recommendations of the Family Report Writer, seeks that the father spend time with [X] as follows:
a)supervised time until [X] is at least thirteen years of age, with all visits to take place at the [M] Children's Contact Centre for such times and for such duration as the Centre permits; and
b)by telephone, with the father to telephone the child on the mobile telephone that will be supplied by the mother on up to four occasions each week between the hours of 7pm and 7:30pm (Central Standard Time).
The mother also seeks orders that:
a)the father be restrained from abusing the mother, the child and the mother’s parents and from abusing, harassing and denigrating the mother and her family in the presence or hearing of [X];
b)the mother and the father each separately undertake a parenting course as soon as practicable;
c)during any period of time the father spends with the child he be restrained from using or consuming marijuana for a period of twenty-four hours prior to and during such period; and
d)the father enrol and complete an anger management course.
The father does not concede that any of the matters referred to in paragraphs 6(a) and 7 above are necessary and does not consent to orders in those terms.
Background
The father is in receipt of a disability pension and earns some income from teaching [omitted] and working as a [omitted]. He was born in 1957 and is aged fifty-two this year.
The mother is in receipt of a benefit from Centrelink and earns some additional income from [omitted] teaching. She was born in 1970 and is aged thirty-nine this year.
The parties met in December 2001. They married [in] January 2003 and [X] was born [in] 2003.
They separated on 28 June 2004 and the mother moved back to [M] to reside with [X].
Proceedings were instituted in the Federal Magistrates Court on 16 July 2004 and final orders were eventually made that [X] live with the mother and the father spend time with [X] at times to be agreed between the parties.
The parties attempted a short period of reconciliation in Sydney, in or about September 2004, but the mother returned to [M] in or about October 2004.
The mother has remained residing in [M] since that time, with the father residing in Sydney.
In the period from 2004 to 2007, [X] spent some time, including some extended periods of time, with the father on her own.
In late 2007 the father travelled to [M] to see [X] and arrangements were made by the mother for him to stay at the vacant house of her grandmother at [P] with [X].
The mother attended at the house to collect some items, with the agreement of the father. She found the father smoking marijuana through a water pipe inside his motor vehicle. [X] was in the car with him.
Thereafter, the mother ensured that [X]’s time with the father was substantially supervised by her or a family member, which resulted in the time being shorter and the “supervisor” being in the vicinity of where the time was being spent. Matters deteriorated from there, the father conceding that he became abusive and threatening towards the mother and her parents and spitting in the mother’s face. Verbal threats were also made to shoot members of the mother’s family.
The parties subsequently attended mediation; however final agreement was not reached. Following that the father has spent only supervised or semi-supervised time with [X]; the mother or a family member remaining in the vicinity.
On 12 January 2009, the father filed an Initiating Application in the Federal Magistrates Court. Since that time there has been a pattern of the father travelling to [M] to see [X] subject to the supervision of the mother or the mother’s family.
The evidence
The applicant father seeks to rely on the following:
a)his Initiating Application filed on 12 January 2009;
b)the Affidavit sworn by him on 6 September 2008;
c)the Affidavit sworn by him on 25 May 2009;
d)the Affidavit sworn by him on 15 August 2009; and
e)the Affidavit of his partner, Ms C, sworn on 25 August 2009.
The respondent mother seeks to rely on:
a)her Response filed on 24 February 2009;
b)her Affidavit sworn on 20 February 2009;
c)her Affidavit sworn on 12 August 2009;
d)the Affidavit of her father, Mr O, sworn on 17 February 2009; and
e)the Affidavit of her mother, Ms O, sworn on 17 February 2009.
Each party refers to the Family Report of Kerry Cavanagh dated
17 July 2009.
The Affidavits of the respondent’s father, Mr O, and mother, Ms O, were admitted by agreement and Counsel for the applicant did not seek to cross-examine either deponent.
An application was made to admit the Affidavit of Ms C on the morning of the trial and this was done by consent.
An application was also made (which was opposed) to admit an affidavit and psychiatric report of Dr W dated 24 August 2009. It was conceded, however, in submissions that:
a)Dr W had seen the applicant on three of six occasions;
b)Dr W had not sighted the report of Kerry Cavanagh;
c)Dr W had not been shown all of the documents filed by the parties with this Court; and
d)Dr W had not received any input from the applicant mother’s solicitors.
In the circumstances, due to the fact that the report was sought and supplied extremely late, the mother’s solicitors had not received any prior notice of the report, the information supplied to Dr W was incomplete and the Family Report Writer had not been given the courtesy of being advised of Dr W’s involvement in this matter or supplied with a copy of the report, I decided that the report should not be admitted.
Leave was also sought to tender DVDs taken by the father of his time with his daughter. The DVDs were intended to corroborate the father’s position that he enjoyed a good relationship with his daughter. This was, following submissions of Counsel for the mother, not an issue. The issue was whether or not that relationship could be enjoyed in appropriate conditions. The matter was not pressed further and leave was declined.
The witnesses
The father
The father gave evidence and presented confidently before the Court.
His answers were candid and at times brutally frank. At no stage, however, did he display any comprehension of how they impacted upon his case and, in particular, any consideration of his ability to understand the consequences of his actions on his daughter, her mother and her mother’s family.
A number of issues were raised that were matters for concern in respect of his parenting. These included his marijuana consumption, his aggressive behaviour and language directed at the mother, his aggressive behaviour and language toward her family and his inability to comprehend the needs of a six and a half year old child.
Father’s marijuana use
The issue of the purchase and consumption of marijuana by the father, the mother and the father’s partner meant that Counsel for the father and the mother applied for and by consent obtained certificates pursuant to s.128 of the Evidence Act 1995 for the father, the mother and the father’s partner, Ms C.
The father was questioned at length in respect of his marijuana consumption. His responses were:
a)He no longer smoked in the presence of his daughter. He did abstain from smoking when his daughter was with him after it had been ordered by the Court.
b)When asked about his consumption his response was: “I do more than three cones per day. I smoke at night. I have chronic back pain”. When asked how many he smoked he said: “I couldn’t say how many, I do not count”. He stated that he bought two bags per week of hydroponic marijuana which he mixed sixty to seventy per cent with tobacco. He used a water pipe saying: “joints were for high society people”.
c)when asked if he could stop, his answer was: “I’m not sure I can stop”. When asked later by me how long he had gone without marijuana he answered that he had gone periods of time without having any when he did not have any money. If he had money he bought marijuana and smoked it. In other words, the only time he had ceased consuming marijuana was when he was unable to buy any and the short period his daughter had been with him following the orders of this Court. There was no evidence of his voluntarily going without marijuana for an extended period of time.
Father’s relationship with the mother and her family
This matter began when the mother started restricting the father’s time with [X] following her discovery of the father smoking a water pipe in the car with her daughter.
The father conceded this had occurred in paragraph 15 of this Affidavit sworn on 25 May 2009 stating that:
… I regret the circumstances that occurred on that occasion and accept that I should never have exposed [X] to those set of circumstances.
That statement would have been one of the rare statements of regret offered by the father in the course of these proceedings, his oral evidence being mainly unapologetic and focused on the fact that other people were to blame for his actions.
The father was also questioned regarding his relationship with the mother and her family. Again his answers were clear and he said, amongst other things:
a)He had a terrible relationship with [X]’s mother. He did not think she was a good mother. He had a very bad relationship with the whole family.
b)They (the mother and her family) are racist and biased red-necks.
c)He shot them (the mother and her family) many times in his head. He went on to say this was all in “talk” form and said in the anger of the moment.
d)Mr O has to wear a skirt because his wife wears the pants.
He did not at any stage concede anything positive about the mother, which is at odds with the mother’s evidence when asked about him.
Father’s concessions
He was quite candid in conceding the allegations about his aggressive behaviour. He admitted that:
a)He has sworn at the mother and her family and said things such as calling them red-necks “because that’s the way they are”. When it was put to him that he considered them to be racist biased red-necks he said: “absolutely”.
b)He has threatened to kill them and accepted that this was an offensive and the frightening thing. When asked why he did so he said: “it was the thing to do”.
c)When it was put to him that as set out in paragraph 5 of the Affidavit of Mr O he said he would go to [L] and would kill or shoot Mr O’s sister and brother-in-law and would drive to [M] to “kill the rest of us”, he agreed that he did say that, but not about the brother-in-law, “because he’s a really nice guy”.
d)That he had spat on the mother’s face on one occasion.
e)He also conceded on another occasion when [X] was in the back seat of the car he spat at the ground on the mother’s side of the car in anger.
f)When being re-examined by his Counsel he said that he had on many occasions shot the mother and her family in his head.
g)He went on to say: “I really don’t like these people” (referring to the mother and her parents).
h)If he said something that was offensive or obscene then it was because he was provoked or they were preventing him from seeing his “baby”. He claimed that “all the mother has to do is open her mouth to make me go off”. It was never his fault. At no stage did he take any responsibility for his actions.
i)He said he did not have a problem with anger and an anger management course would not assist.
j)[X] had witnessed or been near when some of these events happened.
At no stage did the father demonstrate any understanding of the effect of his behaviour on the mother of his daughter, her family and, most importantly, his daughter.
Nor did he seem to be able to appreciate the need of a six and a half year old for attention and supervision. He conceded, amongst other things, that:
a)He did not usually get up until lunch. When it was put to him that if [X] was with him this would not be appropriate he responded that he would get up when she does. He then told how [X] would come in and wake him up using her little finger to lift his eyelids up to ensure that he was awake. This did not reassure me. It is not for [X] to wake him.
b)He did take long showers (up to one hour). He could not say what [X] would do whilst he was having a shower.
c)He taught [omitted] from 3:30pm to 8:30pm. He teaches in the garage which is under the same roof as his house. He said that when he was teaching [X] would be watching TV or next door with the neighbours. His plans at best could be described as vague.
d)When he went to the [workplace omitted] [X] would accompany him. Friends would then take her home at 9pm. It did not occur to him than that it would be wrong to have a child of this age out until 9pm at a [omitted]; nor that it was inappropriate to have friends to take her home whilst he stayed on at the [omitted]. He did say he would try not to work when [X] was with him but he also did say that he would have to earn some money to supplement his income.
He also appeared unable to appreciate that due to his behaviour the mother may have some serious concerns about the safety of their daughter.
He did not consider it necessary for him to attend a parenting course. He also did not consider it necessary for him to have to spend supervised time with [X] at a Children’s Contact Centre. According to him that was the place where criminals go.
His reaction to the Family Report was completely negative. He characterised Ms Cavanagh as a person who was responsible for the breakup of many relationships. He dismissed her as saying he had no idea what she does, all he knew was that she had two pages of qualifications. He was not prepared to take any elements from the Report on board to assist him with spending time with his daughter.
Ms Cavanagh
Ms Cavanagh’s evidence was interposed near the end of the cross-examination of the father.
Her report was admitted with the consent of both Counsel.
She confirmed her recommendation that the father’s time with [X] be supervised until [X] was the age of thirteen. Her reasons were set out in her Report and included the father’s:
a)anger issues;
b)personality traits;
c)marijuana use;
d)mental health issues;
e)physical health, including his back pain;
f)capacity to manage his daughter’s behaviour;
g)insight or lack thereof into his daughter’s needs and ability to respond to them in an age appropriate way, including his insistence on calling her “baby” and holding her in an inappropriate way; and
h)capacity to supervise her.
It was her opinion that she would not trust the father to behave himself. He had enormous problems regulating his emotions and was quick to blame other people. He was in the habit of blaming others for provoking him. He was not prepared to take responsibility for his own actions. It was her opinion that he should undertake an anger management course as soon as possible.
If he was serious about wanting to be a good parent then he should look at doing the courses on positive parenting and ways of dealing with children’s behaviour. This was not something he was prepared to contemplate.
When the evidence of the father’s marijuana consumption was put to her, Ms Cavanagh was of the view that it appeared excessive. She also expressed concerns that some studies had shown that there were serious consequences arising from excessive use.
She noted her concerns about the state of the father’s mental health. He appeared to display some mental health issues - she was not certain as to whether or not there was a personality disorder or some brain damage from the excessive smoking of marijuana - and she thought these had a reasonable prospect of deteriorating over the years. She was impressed that the father had seen a psychiatrist but was sceptical that he would keep on seeing someone.
Comment was made on the way the father held [X] during the session. Whilst Ms Cavanagh was anxious to point out that she did not consider this to be abuse, she did say that this was developmentally inappropriate. She described the father as having held [X] with a hand under her bottom in a similar way as someone holding a baby. This treating of [X] like a young child was, in some ways, corroborated by the father’s insistence on calling [X] “baby” and variations thereof.
Ms Cavanagh expressed concern at the fact that the father seemed unable to call his daughter by her name. Throughout the period of time that the father and the child were with Ms Cavanagh she was referred to as “baby”, “baby girl” and “baby [X]” (this was echoed in the evidence given by the father).
She noted that [X] did not like being called this at school but also noted that to the best of her memory [X] did not express concern during the interview. She went on to state, however, that she was not basing her opinion on the reaction of [X] but on her opinion as a psychologist. As a psychologist, she saw the terms as developmentally inappropriate. It sends the wrong message and may be, in part, why [X]’s behaviour had deteriorated. She had no concerns about it being used as a term of endearment from time to time but considered that it was inappropriate if it was used all the time.
These observations further confirmed Ms Cavanagh’s view that the father had no idea of what was appropriate. It was not appropriate, for example, for [X] to be at the [omitted] until 9pm and then taken home by someone else. In Ms Cavanagh’s view the child was there to spend time with the father, not to be palmed off on strangers.
While her observations of the mother and [X] were cut to half an hour due to the fact that [X] was becoming anxious about her interview with Ms Cavanagh, she considered that in that time she had got a good view of the mother’s behaviour management and her relationship with [X].
Ms Cavanagh did not think that [X] had been primed for the interview. It was quite possible that she had been influenced indirectly, having been witness to the conflict between her parents that has occurred over the years.
When Ms Cavanagh was asked if she considered that it was a backward step to now have the father’s time occur at a Contact Centre, she responded that she did not see this as a backward step but more as a protective step.
Unfortunately, whilst Ms Cavanagh was clear that the father’s time with [X] should be at the Children’s Contact Centre, no enquiries had been made as to whether a Contact Centre would take on a matter such as this for six or seven years.
Ms C
Ms C, the father’s partner, also gave evidence.
She is a former [omitted] who is currently on Work Cover due to a work-related injury to her leg. She resides at her own home some thirty minutes’ drive from the father’s residence. They are not residing together, although they would see each other three to four days per week. They have no plans to reside together until such time as Ms C decides whether the father will be a permanent part of her life.
She has witnessed a number of incidents between the mother and the father at the handovers of [X]. She has, on her evidence, attempted to intervene to tell both parties that their behaviour is unacceptable. Unfortunately this did not mean that their behaviour has changed.
Although the parties have on the occasions referred to in the affidavits argued vociferously in front of [X], Ms C went on to say that on each occasion they have stopped because [X] wanted the visit to proceed. In other words, it appeared to me on her evidence that it was the child that had to intervene.
She agreed that the father may treat [X] a bit childishly but suggested that this may be because he has lost time with her.
Ms C confirmed that the father had threatened to shoot the family and had been abusive in front of [X].
She also confirmed that the father smoked marijuana and that on occasion she has shared marijuana with him.
It was her evidence that she used marijuana when in pain from her injury. She was in pain most days and would have a couple of pipes per day. She was clear, however, that if she was minding her grandchildren than she did not smoke. She also stated that she would try and budget for buying a $50 packet of marijuana per fortnight. She had been consuming marijuana since she started in 1991, save for a break of some five years between 1994 and 1999.
She understood that she may be nominated as a supervisor, which responsibility would mean that she would have to maintain a clear head in order to deal with any matters arising and would be unable to engage in the dispute between the parties, amongst other things.
There was no evidence, however, to support a conclusion that she would be able to step in and stop the visit should the father display some of the behaviour complained of.
The mother
Evidence-in-chief was taken by agreement from the mother, Ms Orton (formerly Boswell). The parties had agreed for [X] to spend some time with her father at a local bistro on the Friday prior to the trial. The mother had remained at the restaurant as part of the substantive supervision that had been occurring over the previous years.
An incident arose when it came time to leave and the father was insisting on taking [X] to the mother’s car and put her in the car seat. The parties argued over this and [X], the six and a half year old, said “I have had enough of this” and walked to the car.
The mother gave evidence on how she seeks the handovers to occur in a Contact Centre or in a public place. She recalled how the father had in 2007 said that he would kill her and her family. She commented on how his threats and abuse had really affected her behaviour and that of her mother. She presented as someone who had genuine concerns for her daughter’s safety.
She made a point, when attending at handovers, to try and not give the father any eye contact. She does not want to engage with him.
She acknowledged that her daughter enjoyed a relationship with her father. As a consequence, she had taken steps to enable that relationship to continue, which meant that she had to do things such as stay at the bistro while [X] was with her father and stay outside in the car when [X] was spending time with her father at [P].
She displayed an insight into her daughter that was not evident with the father. It was interesting to observe her talk about the songs that [X] likes and how she likes to perform and how she told her father to get off the stage because he did not know the song she was doing.
She was clear when questioned that she did not consider herself responsible for making the father behave in an inappropriate manner. It was his own bad behaviour that caused this to come about.
She was adamant that [X] needs to know that women need to be respected (being something she felt she did not receive from the father).
She confirmed that the current problems began when she found the father in the car with [X] smoking marijuana. That was the moment she says she withdrew [X] from spending unsupervised time with the father out of concerns for her safety.
She agreed that the [X] likes to see her father.
She conceded that she was a marijuana user but stopped smoking when she became pregnant with [X]. When she returned to [M] she smoked on a casual basis but now has not smoked for in excess of twelve months. When asked, she responded that if a urine test was conducted immediately, it would be clear.
She supported an order that [X] have time with her father on the telephone. She volunteered to get [X] a pre-paid phone so the father can contact her directly and she would not have to speak with him. She indicated that she had encouraged [X] to ring her father in the past.
When asked to talk about the positive qualities of the father she answered that he can be patient, he can be a really good cook and is a good musician. In other words, that she was prepared to concede some of his positive qualities. This was not something the father was able to do for the mother.
She also advised the Court that her home is now connected to the Internet and that she would have no issue with [X] e-mailing her father. She did not understand what Skype or web-cam involved, although it appeared from her general demeanour that this would not be opposed.
She spoke of [X]’s school where there were some sixty-two children. It was clear she had an active involvement with the school. She conceded that she had not discussed the school with the father due, in part, to the fact that when she spoke with him on the phone it usually ended up with him yelling at her. It would be appropriate to have these discussions she said: “if he was civil to me”. She went on to say that unless he showed her some respect and was prepared to reflect on his behaviour, then she had concerns about whether or not they would be able to communicate.
It is of note that although her evidence was that she was in receipt of a Centrelink benefit and a small income from her [omitted] teaching, she was prepared to contribute to the cost of the father travelling to [M] to see his daughter. This is in the context of a man who would spend up to $100 per week on marijuana consumption. In other words, she was prepared to support her daughter’s relationship with her father.
Mr O and Ms O
The affidavits of the mother’s parents, Mr and Ms O, were accepted without the witnesses being called for cross-examination.
The evidence of Mr and Ms O was basically conceded by the father. In other words, his abuse to the family, including the incident where he spat at the side of Ms O referred to in paragraph 5 of her Affidavit and went on to abuse her whilst she was holding [X], amongst other things, is not in dispute and paints a poor picture of the father.
The law
The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations to which the Court must have regard pursuant to s.60CC.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)the parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how a court determines what is in the child’s best interests and points to a consideration of the matters set out in sub-ss.(2) and (3) (per s.60CC(1)).
The primary considerations are contained in s.60CC(2) and are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) sets out additional considerations, which are:
(a)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;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child),
to provide for the needs of the child including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Island child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j)any family violence involving the child or a member of the child’s family;
k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)any other fact or circumstance that the court thinks is relevant.
The mother seeks sole parental responsibility. The father in closing submissions concedes this point and the evidence would support this conclusion, particularly in view of the father’s admissions. I therefore do not propose to discuss this further and turn to a consideration of the factors I must have regard to in determining what is in [X]’s best interests.
Section 60CC(2)(a) - the benefit of the child of having a meaningful relationship with both of the child’s parents
The mother concedes that the child enjoys a relationship with her father. She has concerns about whether that relationship is meaningful, particularly in view of the father’s apparent inability to act in an age appropriate manner to his daughter and put her needs ahead of his own.
Nevertheless, she has continued to allow him to spend time with the child while she has taken on the somewhat difficult role of substantive supervisor.
Taking into account the evidence of the parties and their submissions through Counsel, the benefit of the relationship is not in issue. How that relationship can be promoted and on what terms is what this is about. Whether it can be promoted, having regard to the father’s attitude to the mother and her family, is a concern under s.60CC(2)(a) as well as being a concern under the other considerations that I will consider in due course.
Section 60CC(2)(b) - the need to protect the child from physical or psychological harm being subjected to, or exposed to, abuse, neglect or family violence
The issues that arise under this heading include:
a)the father’s excessive use of marijuana;
b)a father’s aggressive and abusive behaviour towards the mother and her family;
c)the father’s inability to regulate his own emotions and to take responsibility for his actions; and
d)the father’s inappropriate conduct.
Marijuana use
The father’s consumption of marijuana is a significant issue. I have referred to the father’s evidence that he smokes on average more than three cones of marijuana per day. He also says that he has been without marijuana for periods of time but that has been only when he has not had sufficient funds to purchase any. If the father has sufficient funds then I have no confidence that he will be able to refrain from consuming marijuana during the periods of time that he proposes to spend with his daughter.
I therefore cannot be confident that:
a)[X] will not observe the father consuming marijuana whilst she is in his care;
b)the father will be unaffected by marijuana whilst [X] is in his care;
c)should the father continue to consume marijuana at the current rate there would not be a deterioration in his mental health as referred to by Ms Cavanagh; and
d)the father will be available and sufficiently alert to cater for the needs of his six and a half year old daughter.
Should [X] be left with him for an extended period of time he may well be under the influence of illicit substances, be incapable of properly supervising a young child such as [X] and have no concept of the dangers that his behaviour may present. In the circumstances there is an unacceptable risk that [X] may be exposed to a risk of physical or psychological harm.
His evidence is that he usually consumes his marijuana at night, he sleeps in as a matter of course until around midday, he is in the habit of taking long showers, he will be taking lessons with students whilst the daughter is in his care and he has no problem with taking her to the bistro where he plays and having a friend take her home at 9pm.
As Ms Cavanagh said in her Report at page 13:
It didn’t seem to occur to him that she would need to be supervised at the bistro because he would be working and how she might feel about being taken home by strangers. He also did not seem to think that there might be a problem with [X] being unsupervised when he was teaching at home. Mr Boswell was almost incapacitated by his bad back when I saw him and I believe he will not be able to care for a lively child. In addition he will not be able to smoke marijuana for his pain while she is in his care. It is not appropriate that he put her in the care of his friends.
Aggressive behaviour
He is a man who is prepared to make serious threats against the child’s mother and her family and has no understanding of the effect that this may have on his daughter, let alone the mother and her family. He does not concede that he is in any way responsible for his actions, stating that he has been provoked by the actions of the mother and her family.
I do not have any confidence that he would be able to govern his behaviour should he perceive that the mother and her family are not in agreement with him. I also have no confidence he will be able to regulate his emotions in the presence of his daughter and therefore find that this constitutes an unacceptable risk on the evidence currently before me.
As Ms Cavanagh said, there is no evidence that the father realises in any way that the mother’s family is also [X]’s family and that she is deeply attached to them. I accept her opinion that this is emotional abuse of [X] and that this is not conceded by the father. I note her statement at the end of paragraph 8 of her Report that:
It is not in [X]’s best interests to have frequent face-to-face contact with Mr Boswell as she is likely to be further emotionally and psychologically abused by his attitude towards her maternal family.
There is no sign that he is prepared to take any responsibility for his actions and I can not be confident that the child [X] would be protected from psychological harm should she be left in the care of the father for any extended periods of time.
Section 60CC(3)(a) - any views expressed by the child
[X] is six and a half years old. She is too young for her view to have any weight on the outcome of this matter. It is, however, notable that:
a)[X] told the report writer that she does not think her father would look after her properly because he would not put her to bed at the right time.
b)[X] is also aware that her mother does not believe he would adequately care for her and is opposed to her staying with him.
c)[X] is clearly conscious of the conflict and, it would appear, moving to take some steps to extract herself from that situation. I say this because I note her reaction when the parties were arguing over who got to strap [X] into her car seat and she responded by walking to the car saying: “I have had enough of this”.
Ms Cavanagh was firm in her opinion that she did not consider [X] had been primed. She also considered it was quite likely that she had been influenced indirectly. This is to be expected when the child has been witness to a number of disputes and to some fairly extraordinary behaviour on the part of her father.
Section 60CC(3)(b) - the nature of the relationship of the child with:
(a) each of the child’s parents, and
(b) other persons (including any grandparent or other relative of the child)
There appears to be no dispute that [X] enjoys a good relationship with her mother. This is supported by the findings of Ms Cavanagh.
There also does not appear to be any issue raised about the relationship that [X] enjoys with her maternal grandparents.
It is conceded that, subject to the concerns set out above, [X] enjoys her relationship with her father. The question is whether or not that relationship is or can be enjoyed in appropriate circumstances. On the evidence before me at present, it would appear that in the event that [X] spends extended time with the father this would not be the case.
Section 60CC(3)(c) - the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing a close relationship between the child and the parent
Counsel for the father in closing submissions criticised the mother for saying: “I’m not going to put myself out for him any more” and “why does he deserve my energy”. In view of the admissions made by the father regarding his behaviour this seems an extraordinary criticism which I find to be unwarranted.
The mother, in spite of all the abuse and threats of violence, has by putting herself in the position of the substantive supervisor managed to enable the father to spend time with his daughter. She has also enlisted the assistance of her family. It was open to her to cease contact but she chose not to do so.
She was, in the course of her evidence, able to concede positive aspects about the father’s character.
The father on the other hand had no hesitation whilst giving evidence saying things such as: “I really don’t like these people” when referring to the mother and her parents.
This is a person who acknowledged that he had threatened to kill the mother and her family and when questioned about this by his Counsel said: “it’s handy for them to think like that”. He then went on to say that he shot them many times in his head. He justified this by saying that was said in the anger of the moment. That is not good enough.
I therefore find that there are serious concerns about the father’s willingness and ability to facilitate and encourage the relationship between his daughter and her mother and the maternal family.
Section 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(a) either of his or her parents; or
(b) any other child, or other person
There appears to be common ground that [X] should continue to see the father. What is in dispute is what conditions, if any, should be imposed on that time.
On the evidence before me it is not appropriate that [X] have extended times with her father at this stage. In the event that this was to occur then I would consider there would be an unacceptable risk to [X].
In so far as Ms Cavanagh recommends that the time [X] spends with her father should be supervised, I accept that recommendation.
This means that [X] will continue to live with her mother and see her father in appropriate circumstances; that would require supervision for the foreseeable future.
Section 60CC(3)(e) - the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father lives in Sydney and an order for supervision will mean his time with [X] will be severely curtailed. There is, however, little that can be done in the circumstances presented by the father where his excessive marijuana consumption, his refusal to take responsibility for his actions and his continuous denigration of the mother and her family have meant that the Court cannot find the order sought by him is in [X]’s best interests.
The practical difficulty and expense is therefore acknowledged but there is little choice.
The Full Court in the matter of Champness & Hanson (2009) FLC 93-407 at paras.215 - 216 stated that:
215.... It is sufficient to say a number of authorities highlight the difficulties associated with such orders [in relation to indefinite supervision], especially when the supervision is to be provided by a children’s contact service, see for example RG v JR (2006) FamCA 293 and H v K (2001) FamCA 687. On the other hand, the Full Court has accepted it is within the proper exercise of a trial judge’s discretion to make such an order, see for example Carpenter and Lunn (2008) FLC 93-377 at [291].
216However, as Fogarty and May JJ said in Re C & J (1996) FLC 92-697 at 83,341-342:
The Court is given a wide range of powers in relation to children … Ultimately the determinant is the best interests of the child. That discretion should not be circumscribed by absolute rules which appear to exclude one of the otherwise available possibilities. In addition, access orders are never “final”. No doubt his Honour was fully aware of that and intended by that comment to indicate that there must be a practical end to litigation and that he was determining the matter at that point for the foreseeable future. But access orders need to be moulded to the particular circumstances of the case and it may be unavoidable in a particular case to make orders for a limited period of time or orders which provide a graduated process and the potential for review depending on developments. This is especially so in a case of this sort.
… The Court has the widest discretion to make whatever orders are appropriate in the best interests of the child by way of access or contact. Supervision is one option.
The Full Court further stated at para.219 - 220 when considering this issue
219.We nevertheless acknowledge that the Full Court has expressed concern about the absence of some kind of review mechanism when orders are made for long-term supervised contact. Part of the concern, expressed in cases such as H v K (2001) FamCA 687, is that parties are left with “no mechanism for moving forward” and that the parent seeking to remove the supervision requirement will have difficulty in meeting the “changed circumstances” test in Rice v Asplund (1979) FLC 90-725.
220.We do not accept the Rice v Asplund test would prevent the father from seeking to discharge the supervision requirement. The basis of the order was the acceptance by his Honour that the father would need to “demonstrate a clearer understanding of the impact of his violent and controlling behaviour and of appropriate standards of parenting before the Court should consider discharging the requirement for supervision.” Accordingly, should the father bring an application supported by plausible evidence suggesting he had addressed these issues, we have difficulty in seeing how Rice v Asplund could prevent him from having his application heard.
Supervision of the father’s time with [X] until she reaches the age of thirteen is an option open to me, although it is certainly not an ideal solution. The father opposes supervision of any sort. He is not, despite the suggestion of the mother, prepared to seek the assistance of his family in Canberra (because they are very busy people and it would be an imposition upon them). I cannot find that Ms C, his partner, will be able to control his behaviour and terminate any visit. The parties managed to date because of the mother’s willingness to be present. That is a matter for her, however, and I will not order that the supervision be undertaken by her. The father’s time with his daughter needs to be supervised. The only option is the [M] Children's Contact Centre. The father says he will refuse to spend time with [X] should this occur at the Contact Centre. That would be his choice and would be unfortunate because the decision should be about what is best for [X], not what is best for him. In the event that the parties can agree on other options, such as the father’s family, then I have included the order for time as agreed to accommodate this.
Section 60CC(3)(f) - the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
I find on the evidence before me that the capacity of the mother to provide for the needs of the child, including her emotional and intellectual needs, is far superior to that of the father. I have referred previously to the fact that he had no understanding of the impact of his behaviour on his daughter. He in fact appears unable to even consider the consequences of his actions.
In addition I accept the finding of Ms Cavanagh that the father, for the reasons set out in her Report, has only a limited capacity to attend to the child’s needs. He is restricted by his health, his inability to take responsibility for his actions and his excessive marijuana use, amongst other things.
Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the child
I have commented on the fact that [X] is six and a half years old. Her mother has been her primary care-giver since birth. She is just entering primary school. Ms Cavanagh indicated that while she is mature in some areas, such as performing and entertaining, she displays immaturity in other areas.
What is clear from the evidence is that there is some element of “parenting” starting to be evident in her behaviour, where she is becoming the peacemaker between her parents. This is inappropriate and the parents should immediately take back the responsibility for behaving appropriately.
Section 60CC(3)(i) - the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
Save that the mother may have from time to time discussed with [X] why she is remaining a substantial presence when [X] is seeing her father and, she concedes, she may have on occasions said things to push the father’s buttons (which should cease forthwith), I have no major concerns regarding her attitude towards [X] and to the responsibilities of parenthood.
I have previously in these Reasons discussed the father’s approach towards [X] and to the responsibilities of parenthood. I have expressed concern over, amongst other things:
a)his insistence on calling [X] his “baby” and not by her Christian name;
b)his excessive marijuana use;
c)his complete and open dislike of the mother and her family, which ignores the fact that these people have a significant role to play in [X]’s life;
d)his failure to accept responsibility for his actions; and
e)his health, including his significant back complaint.
His attitude towards the child and to the responsibilities of parenthood is such that in the circumstances I cannot order that [X] spend an extended period of time with him.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family
Family violence is defined in s.4 of the Act as:
… conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
The father has conceded that he has made numerous threats towards the mother and her family. He has conceded those threats were designed to instil fear.
He has conceded that he spat on the mother, spat on the other side of the car were the mother was sitting and spat at the maternal grandmother.
There is no question that family violence has occurred and he has conceded that [X] has witnessed some of these events.
His refusal to take responsibility for it or to take steps to curb it, such as undertaking an anger management course, leads me to conclude that there is an unacceptable risk that it may continue.
Section 60CC(3)(k) - any family violence order that applies to the child or a member of that child’s family
In spite of the matters outlined above, there are no family violence orders in place.
Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
The ordering of supervision over a protracted period of time not only creates unfortunate circumstances in which the child will spend time with her father but also provides for an arrangement that does not have any practical longevity.
Reference was made to this earlier in these Reasons. Consideration has to be given not only to making appropriate arrangements for the protection of the child but also the effects of the child having to see her father in what is essentially an artificial environment.
Unfortunately, the father was not prepared to concede the need for supervision and was therefore unable to consider options, such as that proposed by the mother where her family would take [X] to Canberra to spend time with the father and his extended family (where they reside), but with such time to be substantially supervised by one of his family members.
It is not a perfect arrangement. Nevertheless, in view of the findings that the best interests of [X] will not be met by spending an extended period of time alone with her father and that any period of time should be supervised, the arrangement proposed in the orders I will make represent the best option available.
Should the father:
a)establish a history of supervised time with his daughter free of the incidents such as those referred to in these Reasons;
b)consider options such as those proposed by the mother with his extended family in Canberra;
c)attend and complete an anger management course;
d)continue to attend upon a psychiatrist in respect of his marijuana consumption and his issues with the mother and her family and follow any recommendations by the said psychiatrist;
e)attend a course directed towards positive parenting of children around [X]’s age; and
f)be able to demonstrate a significant change in his approach to [X]’s mother and the Orton family,
then consideration would have to be given to varying the orders for the father to spend time with [X] on an unsupervised or extended basis.
Conclusion
[X] enjoys her relationship with her father. The mother concedes this point.
The mother, however, expresses concern about [X] spending extended unsupervised time with the father. Based on the evidence, her concerns are warranted.
Ms Cavanagh corroborates this and recommends that [X] have supervised time with her father until she is thirteen years old. Her evidence did not change under cross-examination.
The evidence regarding the availability of the [M] Children's Contact Centre was restricted to the closing submissions of Counsel for the parties, with no evidence having been produced during the trial.
Counsel for the mother said in paragraph 3 of her written submissions that:
The Centre has indicated that if the father travels to [M] every one to two months it would look at two sessions of two hours each on consecutive days for six months to be reviewed and adjusted depending on the demands of the service. Alternatively it could provide two hours per fortnight.
Counsel for the father indicated in her submissions that the father agreed with the statement set out above. In addition, she advised that:
Contact could take place for two hours each visit on a Saturday and Sunday. It is unlikely however that such contact could occur for two consecutive weekends and would depend on the centre availability and staff availability each time. It may be that the visit would take place for one hour or 1½ hours instead of two hours depending on the availability of the service. It may be possible for the service to reschedule a visit on a Wednesday afternoon as well, but again, subject to availability.
This statement was accepted by Counsel for the mother.
How it will work, however, is not clear, as it will depend on when the father will be able to attend in [M] to see his daughter. Furthermore, the evidence before the Court is that the father will not attend if he has to attend at the Children’s Contact Centre.
I have considered the evidence presented by the parties in their affidavits and presented by each party personally in Court. I accept that there are sufficient grounds for the mother’s concerns.
Until such time as the father is prepared to curb his marijuana consumption, accept some responsibility for his actions and concede that taking courses, such as anger management and positive parenting, may assist to provide him with some tools that will help him with his parenting of his daughter and his relationship with her mother, then I must reluctantly order that his time with [X] be supervised.
Counsel for the father has suggested that the orders made be made on an interim basis. The difficulty with this is that the parties have been in conflict for some time and in effect it places the Court in the position of parenting the parties and their behaviour to ensure that they properly comply with the directions of the Court. I am not prepared to do that.
I have already commented on the difficulty with making orders of the sort proposed. If the father is able to satisfy the concerns that have been so properly put by the mother and Ms Cavanagh, then it would be open for him to file a further application.
To paraphrase the authorities, the father would need to demonstrate a clearer understanding of the impact of his behaviour and of the appropriate standards of behaviour before the Court could consider discharging the requirement for supervision.
Whilst I can not exclude the possibility that the solicitors for the mother may say that this falls within the confines of the Rule in Rice v Asplund (1979) FLC 90-725, the other side of the argument would be that if that change in the father’s position can be established then it would certainly be a significant change that would warrant a review of the orders at that time.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Cole FM
Associate: Ms N. Julius
Date: 20 November 2009
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