FEDERAL CIRCUIT COURT OF AUSTRALIA
| BROWN & MABLE | [2015] FCCA 1460 |
| Catchwords: FAMILY LAW – Parenting – child now aged 4 years – child has not spent any time with father from birth – mother living on (omitted) – father living in (omitted) district – mother has history of chronic use of and addiction to alcohol with alternating periods of residential rehabilitation and subsequent relapse – father exhibits signs of psychiatric illness or disorder – family violence – whether the father represents an unacceptable risk to the child as a consequence of a mental illness or disorder – whether it is appropriate for the father to spend any time with the child – Order made in December 2013 placing child in care of Department of Family and Community Services with the Minister to have sole parental responsibility – whether it is appropriate for the mother to spend time with the child and whether it should be supervised – best interests of child. |
| Legislation: Family Law Act1975 (Cth), Part VII |
| Cases cited: Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Baranski & Baranski [2012] FamCAFC 18 |
| Applicant: | MS BROWN |
Respondent: Intervener: | MR MABLE THE SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES OF NEW SOUTH WALES |
| File Number: | NCC 2413 of 2011 |
| Judgment of: | Judge Coakes |
| Hearing dates: | 7, 8, 9 November 2012, 13 September 2013, 23, 24, 25 March 2015 |
| Date of Last Submission: | 25 March 2015 |
| Delivered at: | Newcastle |
| Delivered on: | 12 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Kelly |
| Solicitors for the Applicant: | Nash Allen Williams and Wotton |
| The Respondent: | Appeared for himself |
| Counsel for the Intervener: | Mr McGorrey |
| Solicitors for the Intervener: | The Crown Solicitor New South Wales |
| Counsel for the Independent Children’s Lawyer: | Mr P Davies |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW (Ms Costigan, (omitted)) |
ORDERS
All previous Orders in relation to the child X born (omitted) 2011 (“X”) are discharged;
The Minister for Family and Community Services for the State of New South Wales (the intervener) has sole parental responsibility for X until she attains the age of eighteen (18) years;
X is to live as directed by the Minister for Family and Community Services or her delegate;
X is to spend time with the mother for no less than two (2) hours per calendar month at a time agreed between the mother and the delegate of the intervener and the decision as to the time being supervised or not supervised shall be at the discretion of the intervener;
The mother is restrained from consuming alcohol during the period of forty-eight (48) hours prior to and during any time she is spending time with X;
The mother is to attend upon urinalysis testing as reasonably requested by the intervener or his delegate, and is to provide the intervener with the results of any such urinalysis testing;
The mother is to contact the intervener’s delegate at least twenty-four (24) hours prior to each scheduled period of spending time with X, failing which the intervener will cancel such spend time with appointment;
The intervener may suspend, temporarily reduce or permanently reduce the mother’s future spend time with arrangements with X, at the discretion of the intervener, if:
(a)the mother fails to attend urinalysis testing as reasonably requested by the intervener or her delegate; or
(b)fails to provide the intervener with the results of such testing; or
(c)the mother’s urinalysis results record a positive result for use of alcohol; or
(d)the mother fails to attend two (2) consecutive due periods for spending time with X without providing notice to the intervener’s delegate at least twenty-four (24) hour prior to each visit; or
(e)the mother is accompanied to a spending time visit with X by a person not authorised in advance by the intervener’s delegate.
X is to communicate with the mother by telephone on the following occasions each year:
(a)X’s birthday ((omitted));
(b)the mother’s birthday ((omitted));
(c)Mother’s Day;
(d)Christmas Day;
with such time to be implemented by the intervener contacting the mother’s mobile telephone number and the intervener making the child available to speak with the mother and by the mother ensuring that the intervener is made aware of the mother’s current mobile telephone number or any change of such number, that the mother agree with the intervener beforehand as to an appropriate time or period of time for communication by telephone on each such occasion, that the mother ensures she is available to receive such telephone call at the prescribed time and with the mother to ensure that her telephone is not diverted to an answering machine or message bank service, is not otherwise engaged and is located in a place able to receive telephone calls;
Within seven (7) days of the date of these Orders the mother is to inform the intervener in writing of her current mobile telephone number and keep the intervener advised of any subsequent changes to that telephone number;
The intervener is to ensure that X undergoes a formal review by a paediatrician on at least an annual basis between 2015 and 2020, and at such greater frequency as the paediatrician may require and that for such purposes the paediatrician be supplied with a copy of the affidavit of Dr G affirmed 2 August 2014 and any other material the paediatrician may require from the departmental case workers with such review to include an interview with X’s residential placement carers;
X is to spend time with the maternal grandmother Ms B and the paternal grandmother Ms S as directed by the intervener or his delegate;
Pursuant to Section 68B of the Family Law Act 1975 the father is restrained from spending any time with or communicating with X in any form whether written, by text message, by telephone or any other electronic means and the father is restrained from being in the presence of or the company of his mother at any time she is either spending time with or communicating with the paternal grandmother;
Pursuant to Section 68B of the Family Law Act 1975 the father is restrained from entering, or approaching, or being within 200 metres of any place where X is living or may from time to time be staying temporarily and any school X is attending;
The intervener or her delegate is hereby given the discretion to decide how to inform X of any particulars concerning her biological father, Mr Mable, whether upon her request or otherwise;
That within twenty eight (28) days of the date of these Orders the Intervener do all acts and things and sign any necessary documents to make application to the Registrar of Births, Deaths and Marriages for the State of New South Wales to include the father, Mr Mable born (omitted) 1966 on the birth certificate of X (a female) born (omitted) 2011 as the biological father of the child X;
That the mother is granted leave to provide to any psychologist or psychiatrist whom she may consult in relation to treatment for or recovery from her addiction to alcohol the report of Dr G of 20 August 2014.
NOTATION
A.The intervener intends to institute a gradual reduction in the mother’s arrangements to spend time with X over a period of two (2) months with fortnightly visits for two (2) months and monthly visits thereafter.
IT IS NOTED that publication of this judgment under the pseudonym Brown & Mable is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2413 of 2011
| MS BROWN |
Applicant
And
| MR MABLE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a tragic tale of a little girl, X, who was born on (omitted) 2011 and who is now four years of age, whose parents met at Alcoholics Anonymous, had a short and violent relationship, with X born after they separated for the last time.
X has spent no time with her father and little time with her mother, consequent upon her relapsing from time to time from her addiction to alcohol with periods of time spent in and out of residential rehabilitation for use of alcohol and my making an Order at the end of 2013 that X be placed in the care of the Minister.
X currently lives with an authorised carer and spends supervised time with her mother for two hours each fortnight.
The respective applications of the parents at the initial hearing in November 2012
Counsel for the mother informed the court that the mother sought final parenting Orders in accordance with her initiating application filed 14 September 2011, namely that X live with her, and that she have sole parental responsibility for her. At the hearing, the mother sought a further Order that X spend no time with the father, as set out in the outline of case document dated 5 November 2012 prepared by Mr Kelly, her counsel.
The father filed his response on 28 November 2011 seeking final Orders which lacked precision and were difficult to comprehend, but at the hearing Mr Mable was able to tell me that he was seeking equal shared parental responsibility and that he spend time with X on a gradually increasing progressive basis of 3 four hour periods for 3 times a week until she is 2 years of age, and then a six hour visit with 2 four hour visits per week until she is 3 years of age, followed by 6 hourly periods to include one sleepover with the continuing 2 four hourly visits to be increased when she is four years of age to 2 sleepovers in one week and with the 2 four hourly periods followed by one weekend from 3.00pm Friday until 5.00pm on the Sunday with the sleepovers to take place on the Friday night and the Saturday night, and to occur each week which the father clarified also includes the 2 four hour periods during the week, but the father then said that what he meant was 2 four hourly periods each week and a fortnightly weekend. From the age of five years, the father proposed an equally shared arrangement on a week about basis.
It is significant that at the time the father had his first interview with the author of the Family Report, Ms D, with such interview taking place on 14 February 2012, some 3 months after filing his response, the father had changed his application suggesting that X live with him and spend one hour per day with the mother and on a final basis, that the mother spend alternate weekends and half of the holidays with X provided that the mother’s time with X was supervised by another adult. The father told Ms D that he was seeking sole parental responsibility and that all communication between himself and the mother be by letter or email, and that all changeovers take place at the Police Station.[1]
[1] See Paragraph 55 of the first Family Report published 21 February 2012.
The father further amended his application whilst giving evidence on the second day of hearing, 8 November 2012, indicating that his application was to spend time with X indefinitely for one hour each week, supervised by family relatives to take place at (omitted), the home of his older brother Mr S and to be supervised by his brother or his eldest daughter A, aged 28 years and the father’s niece. The father suggested the time could be between 5.00pm and 6.00pm or 6.00pm and 7.00pm and on a Friday.
Ms D had noted in her Family Report that paternity was yet to be established.[2]
[2] Paragraph 55 (sic) on page 16 of the first Family Report.
There is a notation to the Orders of 7 December 2011 which precedes the Orders of 2 February 2012 that the father no longer sought parentage testing and then admitted to being the biological father of X born (omitted) 2011.
As part of the interim relief sought by the father in his response filed on 28 November 2011 was parentage testing, and on 2 February 2012, an Order was made by consent pursuant to Section 69W of the Act for a parentage testing procedure to be carried out to determine if the respondent was the father of X.
Parentage testing was carried out by (omitted) in early March 2012 and the certificate put into evidence[3] establishes that the father in these proceedings is in all likelihood the father of X.
[3] Exhibit ICL1 of 30 March 2012.
The father explained that what he sought by way of supervision was that either the Police or the Department of Family and Community Services or a member of his family monitor.
As at the first day of hearing, it is common ground that there was an Apprehended Violence Order in force made at Wyong Local Court on 16 January 2012 in which the mother and the child X were the protected persons and which was made for a period of 12 months, expiring on 16 January 2013 with the usual Orders (a), (b) and (c) with a further restraint upon the father not approaching the mother[4]:
STANDARD ORDERS
1. a) The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
b) The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
c) The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
[4] See Exhibit M1 dated 2 February 2012.
ADDITIONAL ORDERS
6. The defendant must not approach, contact or telephone the protected person(s) by any means whatsoever except through the defendant’s legal representative or as authorised by a parenting order under the Family Law Act 1975 unless the parenting order has been varies, suspended or discharged under section 68R of the Family Law Act 1975.
12. That the court extend the operation of the orders to include the following person(s), with whom the protected person has a domestic relationship: X, Date of birth: (omitted) 2011, Age, Male (sic)
The father sought a number of other Orders, some of a practical parenting nature but with a restraint upon the mother moving outside the State or outside a radius of 200km from (omitted), and a further Order that the mother shall require the father’s written permission to allow X to own or use a mobile telephone, and with the mother to be restrained from assaulting, stalking, intimidating, harassing the father or X or destroying or damaging any property or property items belonging to him.
The father also sought an Order that the mother undergo drug and alcohol testing at his request and notify him if she was taking any psychiatric pharmaceutical drugs within one week of commencing such medication.
The first illustration of the father’s disordered thinking occurred whilst I was clarifying the final Orders he was seeking, when he asked for an adjournment, in his words as follows:
“May I ask for an adjournment so I can organise someone else to ask the questions.”
I had refused an application by Mr Mable earlier in the day for an adjournment until after the AVO had expired for the reason he gave as follows:
“So that I feel unencumbered and unintimidated by the Court proceedings to ask the applicant relevant questions that may be of a sensitive nature and she may feel intimidated or harassed.”
The basis of the second application for an adjournment seemed to be based in his concern that he may be subject to further litigation based on the current AVO and in respect of which he required certain assurances which could not be given. Mr Mable told me he needed some extra time to have another legal representative ask the questions. The application for the adjournment was refused.
Counsel for the Independent Children’s Lawyer indicated that the view of his client could not be ascertained at that stage and that it was necessary for the evidence to be heard.
The father has at all times represented himself in these proceedings, and at the outset was informed by me of the procedure and order of events and witnesses and the evidence and relevant aspects of the procedure and which I am satisfied he understood.
As to the relevant law, the father told me on the first day that he had not researched the relevant part of the Act and I referred him to and the particular sections which he should read.
The respective applications of the parents, Independent Children’s Lawyer and the Intervener at the conclusion of the hearing on 25 March 2015
At the time final submissions commenced on the last day of hearing, it had been agreed that Orders could be made by consent as between the mother, the Independent Children’s Lawyer and the Intervener, but not the father as follows[5]:
[5] See Exhibit INT2.
1.All previous Orders in relation to the child X dob (omitted) 2011 (the child) are discharged.
2.The Minister for Family and Community Services (“the Intervener”) have sole parental responsibility for the child.
3.The child is to live as directed by the Minister for Family and Community Services or his/her delegate.
4.The child spend time with the mother for no less than 2 hours per calendar month at a time agreed between the mother and the delegate of the intervener, and the decision as to the time being supervised or not supervised shall be at the discretion of the Intervener.
5.The mother is restrained from consuming alcohol for 48 hours prior to attending spending any time with the child;
6.The mother shall attend upon urinalysis testing as reasonably requested by the Intervener or his delegate, and provide the Intervener with the results of any such urinalysis testing.
7.The Mother is to contact the Intervener’s delegate at least 24 hours prior to each scheduled spend time with child, failing which the Intervener will cancel that spend time with appointment.
8.The Intervener may suspend, temporarily reduce, or permanently reduce, the Mother’s future spend time with arrangements with the child, at the discretion of the Intervener, if:
a.The Mother fails to attend urinalysis testing as reasonably requested by the Intervener or his delegate; or
b.Fails to provide the Intervener with the results of such testing;
c.The Mother’s urinalysis results record a positive result for alcohol use;
d.The Mother fails to attend two (2) consecutive spend time with visits without providing notice to the Intervener’s delegate at least 24 hours prior to each visit;
e.The Mother is accompanied to a visit by a person not authorised in advance by the Intervener’s delegate.
9.The child shall communicate with the mother by telephone on the following occasions each year:
a.The child’s birthday;
b.The Mother’s birthday ((omitted));
c.Mother’s Day;
d.Christmas Day
with such time to be implemented by the intervener contacting the mother’s mobile telephone number and the intervener making the child available to speak with the mother.
10.Within seven days of the date of these orders the mother is to advise the intervener of her mobile telephone number and keep the intervener advised of any changes to that number.
Notation
A. The Intervener intends to institute a gradual reduction in the Mother’s spend time with arrangements over a 2 month period; with fortnightly visits for two months, and monthly visits thereafter.
This was supplemented during the course of submissions by three different supplementary minutes of Order proposed by the intervener[6] but with a common Order in each of the proposals in the following terms:
[6] See Exhibit INT4.
Pursuant to Section 68B of the Family Law Act 1975 the father is restrained from entering or approaching within 200 metres of:
1a) Any residence of X;
1b) Any school attended by X.
The variable part, also proposed under Section 68B restrained the father from, either:
a)“…..approaching or contacting X other than in accordance with the written approval of the intervener’s delegate”; or
b)“…..from approaching or contacting X other than by providing written letters and photos to the intervener, which would be provided to X at the discretion of the intervener; or
c)“…..from approaching or contacting X”.
It was the preferred position of the intervener that the first option referred to above should apply, namely, that the father is restrained from approaching or contacting X other than in accordance with the written approval of the intervener’s delegate.
The Orders proposed by the Independent Children’s Lawyer were to the effect that a specific Order be made for X to spend time with the father as follows[7]:
1.The child X born (omitted) 2011 spend time with the Respondent Father on a minimum of four occasions per year.
2.X’s time with her father will be supervised by the Intervener, Secretary, Department of Family & Community Services NSW.
3.The Intervener may suspend, temporarily reduce or permanently reduce the child’s future spending time arrangements with her father in the discretion of the intervener if:
i)The father fails to attend two consecutive spend time with visits without providing notice to the interveners delegate at least 24 hours prior to each visit.
ii)The father is accompanied to a visit by a person not authorised in advance by the intervener’s delegate.
iii)The father behaves at one of the spend time with visits in a manner which is aggressive or causes alarm in the opinion of the supervisor.
[7] See Exhibit ICL4.
4.Pursuant to Section 68B of the Family Law Act 1975 the father is restrained from entering upon or approaching within 200 metres of:
a)The residence of X; and
b)Any school attended by X.
All parties, including the father consented to an Order that the intervener make application to the Registrar of Births, Deaths and Marriages in the State of New South Wales to include the father’s name on X’s birth certificate as her father.
It is the mother’s position that X should not spend any time with or communicate with her father and that the intervener should not be given the discretion nor given the opportunity to exercise its discretion for the father to spend time with or communicate with X.
Whilst it was difficult at times to discern the father’s final proposal, and there were times where clearly during the evidence on the last three days he mentioned several times that it was his application that X live with him, by the time it came to submissions I concluded that he relied upon his draft minute of parenting Orders which he tendered on 26 April 2013.[8] In summary, the father proposed equal shared parental responsibility for X, that X live with the mother but spend time with him progressively during the first three months from 10.00am until 12.00pm each Saturday, supervised, but from then onwards unsupervised and for the next six months each alternate weekend from 8.00am on the Saturday until 6.00pm on the Sunday and each alternate Friday at 3.00pm until 6.00pm and then from the age of 4 years, each alternate weekend from 3.00pm on the Friday until 6.00pm on the Sunday, and for half of school holidays. The father proposed a number of practical parenting Orders but if the mother was institutionalised for any reason then X would live with him until the mother was physically and mentally fit to care for her again.
[8] See Exhibit F10.
The father also proposed that X’s name be changed to X and that his name and occupation of (occupation omitted) be included on X’s birth certificate.
Short History of the Litigation and Relevant Orders
It is relevant to set out a history of the litigation and uncontroversial significant events to give a better understanding of the path this matter took from the outset.
| Date of Event | Event |
| (omitted) 2007 | The mother's driver's license is suspended automatically in the State of Queensland after giving a blood alcohol content reading of 0.325 at 4.15am. (See Exhibit F1) |
| (omitted) 2008 | Mother completes 3 month residential alcohol rehabilitation course at “(omitted)” ((omitted)), (omitted). |
| (omitted) 2008 | The parties meet each other at Alcoholics Anonymous. |
| (omitted) 2009 | The parties commence cohabitation at the father's home at (omitted), with the mother shortly afterwards obtaining casual evening employment as a (omitted) at a (employer omitted) in (omitted), and the father working as a (occupation omitted). |
| (omitted) 2009 | Mother consumes excessive amount of alcohol and whilst driving her motor car is involved in a collision with a motorcyclist at (omitted) with the motorcyclist sustaining severe injuries and being hospitalised. The mother's blood alcohol reading is 0.29. Mother is charged with driving with the prescribed concentration of alcohol (high range) and aggravated dangerous driving occasioning grievous bodily harm. |
| (omitted) 2009 | The mother self-presented at (omitted) Hospital on recommendation of (omitted) Hospital; depression and suicidal ideation, admitted for two nights. |
| (omitted) 2009 | The mother discharged from hospital and relapsed on alcohol. |
| November 2009 | Incident at the home of the maternal grandfather where the mother is looking after the maternal grandfather temporarily and it is alleged the father visits and tries to gain entry, and there is a scuffle followed by minor injury to the maternal grandfather. The police are called. No police action (See Exhibit M6). |
| Late November 2009 | The parties separate. |
| December 2009 | An incident occurs at the father's home between the father and Mr R who is visiting the father's home at the request of the mother to collect some of her personal property. An argument occurs. The father chases Mr R shouting out the word "Bonsai" and holding a samurai sword above his head with Mr R throwing a council garbage bin towards the father. Police attend and arrested the father, seizing the samurai sword and knife (See Exhibit M6). The father was charged with stalking or intimidating Mr R with the intention of causing him fear, physical and mental harm, and with common assault of Mr R. |
| 15 January, 27 January and 13 February 2010 | The father consults with Dr R for a medico-legal report in relation to assault proceedings with opinion expressed that at the time of committing the offence, the father was suffering from a mental condition, namely major depression with chronic PTSD for which treatment is available in a mental health facility, but is not a mentally ill person as defined by the Mental Health (Forensic Provisions) Act 1990 - Section 32, with the recommendation made having regard to these factors the Court consider making an Order dismissing the charge and discharging the defendant into the care of a responsible person subject to the conditions that he receive appropriate monitoring and treatment including pharmacotherapy and psychotherapy (CBT) on a regular basis, anger management, and relationship counselling for a period not less than 12 months. The pharmacotherapy should include an adequate trial of an alternative antidepressant, which has anti-anxiety and anti-obsessional properties in addition to its antidepressant effect. |
| 16 February 2010 | The father is dealt with at Raymond Terrace Local Court for the charges in relation to Mr R when he received a conditional discharge and was discharged under Section 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) when the learned State Magistrate found that the father was either developmentally disabled, was suffering from a mental illness or was suffering from a mental condition for which treatment was available in the hospital, but not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 2007, and that it was considered relevant for the father to be dealt with more appropriately in accordance with the Mental Health (Forensic Provisions) Act 1990 (NSW), with the father being discharged subject to him accepting all reasonable treatment and directions of his GP and to continue to attend upon Dr R, a psychiatrist as directed for treatment and to accept all reasonable treatment of Dr R. |
| 17 March 2010 | Pending the outcome of an investigation, the (omitted) withdraws the approval previously given to the father to (occupation omitted) in any (employer omitted) facility consequent upon the outcome of proceedings at Raymond Terrace Local Court (See Exhibit ICL2). |
| March or April 2010 | The parties resume cohabitation. |
| July 2010 | The father returns from (country omitted). |
| Early August 2010 | The mother attempts suicide and is admitted to hospital suffering from exposure and depression and is discharged after 2 days. |
| 27 August 2010 | The mother appeared before the District Court of New South Wales for sentencing but with sentencing deferred to allow the mother to enter into a residential rehabilitation course. |
| 30 August 2010 | The parties separate. |
| 30 August 2010 | The mother enters the (omitted) alcohol and drug addiction treatment centre conducted by the Salvation Army at (omitted) on the (omitted) as a resident. |
| (omitted) 2010 | The mother learns she is pregnant. |
| September 2010 | A decision made by (omitted) that in light of the report by Dr A, consultant psychiatrist, approval to father to (occupation omitted) on a casual basis can be reinstated subject to certain conditions, namely that the father complies with the Orders made on 16 February 2010, and provides a report to the (omitted) for the ensuing 12 months as to satisfactory conduct (omitted). |
| (omitted) 2010 | The mother informs Mr Mable of pregnancy. |
| (omitted) 2011 | The father commences work as a (omitted) at (employer omitted), New South Wales. |
| March 2011 | The mother completes the program at (omitted) and is discharged. |
| April 2011 | The father is assaulted by a (omitted) whilst employed at (employer omitted) when kicked in the groin. |
| April 2011 | The father reports incident at (employer omitted) to (omitted) Police Station describing the assault (See Exhibit M6). |
| Approximately 15 March 2011 | Father contends the relationship ended, denied by mother relying on the earlier date. |
| (omitted) 2011 | Date of birth of the only child, X. |
| 9 June 2011 | The father is seen by Dr P, a psychiatrist on behalf of (omitted) Insurance Limited at the request of the (employer omitted). |
| 12 August 2011 | The mother is convicted in the District Court in Sydney of aggravated dangerous driving occasioning grievous bodily harm and is sentenced to a period of imprisonment of 2 years, suspended for a period of 2 years and required to enter into a good behaviour bond to be of good behaviour and accept the supervision and guidance of the probationary parole service (See Exhibit M3). The mother was also disqualified from holding or obtaining a driver's license for a period of 3 years commencing 27 August 2010. |
| 14 September 2011 | The mother files an initiating application for parenting Orders. |
| 8 November 2011 | Mr P, senior coordinator at (omitted) informs father that the Department is unable to provide him with any (employer omitted) approval until a full psychiatric report is provided from Dr K outlining nature of current management of his condition and treatment and an opinion as to his ability to perform full range of duties as a (occupation omitted), and in what capacity, e.g. casual, permanent part time or full time. |
| 28 November 2011 | The father files a response in relation to parenting Orders. |
| 30 November 2011 | Department advises father that a report from another psychiatrist will be acceptable provided it comments on the report of Dr K. The father is reminded he does not currently hold a valid (occupation omitted) approval (See Exhibit ICL2). |
| 7 December 2011 | Order made for appointment of Independent Children's Lawyer for X and Family Report Ordered. |
| 7 December 2011 | Ms Costigan from Legal Aid (omitted) appointed as the Independent Children's Lawyer. |
| 16 January 2012 | ADVO is made at Wyong Local Court on 16 January 2012 with the mother as the protected persons and the father as the defendant[9]. Order in force for 12 months. |
| 2 February 2012 | Consent Order for parentage testing and that the mother be restrained from being intoxicated by alcohol whilst X is in her care. |
| 14 February 2012 | Interviews conducted by Ms D for the first Family Report. |
| 21 February 2012 | First Family Report published. |
| 7 March 2012 | Non-mandatory reporter makes a Risk of Harm Report to FACS raising concerns that the mother is abusing alcohol and is unable to adequately care for X. FACS undertake initial assessment but do not follow up / complete their assessment. |
| 30 March 2012 | Matter adjourned to 7 November 2012 for Final Hearing as to parenting matters of 3 days. |
| 8 October 2012 | Directions hearing with Consent Order as to inspection of subpoenaed documents by ICL, confirmation of hearing date of 7 November 2012, and a notation that the father objects to Mr Kelly appearing as counsel for the mother, in part, and Mr Kelly considers it would be prudent for him to withdraw whereupon Mr Mable withdrew his objection with a second notation that the Court does not consider Mr Kelly as disqualified from appearing for the mother. |
| 9 November 2012 | Matter adjourned part-heard to 11 March 2013. |
| December 2012 | FACS receives a Risk of Harm Report when the mother is hospitalised with a head injury, after falling while walking X in pram. The mother returns high blood alcohol level, absconds from hospital without X, and is then scheduled and returned to (omitted) Hospital. X is placed in OOHC in a Temporary Care Arrangement. |
| 21 January 2013 | The mother is visited by FACS where X is returned to her care. From January to July, FACS Whole Family Team (WFT) are involved. X spends time with family day carers every Monday and Thursday. |
| 7 February 2013 | FACS conduct a risk assessment. |
| 17 February 2013 | A decline in the mother’s mental health is observed and noted by FACS. |
| 25 February 2013 | Department of Family and Community Services informed mother had relapsed with X's family day carers taking care of X over that weekend. |
| 1 March 2013 | Mother attends a meeting with FACS and Ms A (social worker) as part of Whole Family Team; safety assessment is undertaken and a safety plan is prepared. |
| 11 March 2013 | Hearing date vacated and adjourned to 26 April 2013 for hearing. |
| 28 March 2013 | Family day carers attend the mother's home and observed her to be affected by alcohol. X stayed with family day carers for about 4 to 5 days. |
| April 2013 | Mother and X vacate their rental property and stayed with the maternal grandmother. |
| 5 April 2013 | Mother admits to Department of Family and Community Services officers during a home visit that she has consumed wine 2 days earlier while X was in her care, alcohol is recovered, and a safety plan agreed that the mother continue to reside with the maternal grandmother. |
| 26 April 2013 | Request made pursuant to Section 91B to the Director General of the Department of Family and Community Services requesting the (employer omitted) to intervene urgently in the proceedings, with the notation that as a consequence of material produced in response to a subpoena to the Department of Family and Community Services, an issue arises as to the mother's health and ability to continue to care for X as a full time residential parent. Hearing adjourned. |
| Late April 2013 | Mother commenced 9 week relapse prevention course with (omitted) Outreach Program. |
| 3 June 2013 | Notice of Address for Service filed on behalf of the Director General, Department of Family and Community Services by Crown Solicitors. |
| 4 June 2013 | Orders made granting leave to the Director General, Department of Family and Community Services to intervene with interim Orders that X live with the mother subject to the mother being restrained from consuming alcohol during the period of 12 hours before and during any time X is in her care, and with the mother accepting the supervision of the Director General in relation to the care of X by permitting the Director General to conduct random home visits to her residence or any residence where X lives, that the Director General may enter the premises in which X resides, that the mother will accept reasonable directions of the Director General to submit to regular and random drug and alcohol testing, that the mother will accept all reasonable directions to attend at psychological counselling and to take any prescribed medication, and to engage with support services recommended by the Director General, and with a notation that if X is believed to be at immediate or serious harm, the Director General will take action under the Children and Young Persons (Care and Protection) Act 1998 and bring an application in a case seeking parental responsibility for X. |
| July 2013 | The mother commences second 9 week Relapse Prevention course at (omitted). |
| 19 August 2013 | Second Interviews conducted by Ms D for Family Report. |
| 23 August 2013 | Second Family Report published. |
| 30 August 2013 | A response filed by Crown Solicitors offers on behalf of the Intervener seeking allocation of parental responsibility to the mother, X to live with the mother, the father to have no contact except as agreed with the mother (except for letters or gifts), with the mother to accept 12 months supervision from the Department of Family and Community Services. |
| 13 September 2013 | Final day of hearing, Judgment reserved. |
| 28 November 2013 | Mother admits to consuming a can of Cougar Bourbon as recounted to case worker on 6 December 2013. |
| 6 December 2013 | Home visit by Department of Family and Community Services officers with the mother admitting to consuming 4 alcoholic drinks that day. X taken to stay with family day carers. |
| 9 December 2013 | FACS meeting with the mother and maternal grandmother to complete a Case Plan. X is placed in temporary care on the (omitted) NSW, Temporary Care Arrangement to expire on 9 February 2014. X continues to attend day care with previous providers, while the mother is instructed to complete detox and rehabilitation. The mother is to see X at family day care, and to have supervised contact from 21 January 2014. A plan is made for X to join the mother at (omitted) on 5 February after the mother has settled there. |
| 20 December 2013 | Application in a case filed by the Director General, Department of Family and Community Services seeking interim Orders that parental responsibility for the child X be exercised solely by the Minister for Family and Community Services and with X to live as directed by the Director General, and with X to spend time with the mother as assessed and directed by the Director General or his delegate and with the father to be restrained from having any contact with X or being within 200m of any place where she may be, and with the mother to attend a residential rehabilitation program. |
| 20 December 2013 | The father files an application in a case asking to spend time with X supervised for one hour per week between 11.00am and 12.00pm each Wednesday. |
| 23 December 2013 | Interim Orders made that parental responsibility for X be exercised solely by the Minister for Family and Community Services from 24 December 2013 and with X to live as directed by the Director General, and to spend time with her mother as assessed and directed by the Director General, and with the father restrained by injunction from having any contact with the mother or X. The mother ordered to attend the (omitted) residential rehabilitation program; the father's application in a case filed 20 December 2013 dismissed with no order as to costs; matter adjourned to 15 May 2014 for a directions hearing. |
| 21 January 2014 | Mother due to enter (omitted) residential rehabilitation program but notifies FACS that mother had recorded a positive reading on a breathalyser and had not been admitted that day. FACS place X into Temporary Care Arrangement until she is 18 years of age. |
| 7 February 2014 | Mother's urinalysis tested positive for alcohol at 0.238 with sample having been taken after mother had spent supervised time with X that day. |
| 13 February 2014 | Mother enters (omitted) Detoxification Facility at (omitted) Hospital for a 5.5 day stay. |
| 18 February 2014 | Mother enters (omitted) for residential rehabilitation program and noted that X is spending time with the mother for 2 hours each Tuesday and is otherwise in foster care. |
| 20 February 2014 | Intervener decides not to proceed with placement of X with the mother at (omitted) following two recent relapses. |
| 8 April 2014 | Amended response filed by Crown Solicitors on behalf of the Intervener. |
| 30 June 2014 | Father files application in a case to spend supervised time with X each Wednesday from 2.00pm until 4.00pm to facilitate gradual contact to be considered for either full time or part time care of X in the long term final Judgment, and for the child's name to be X. |
| 10 July 2014 | Order that Dr G be appointed as a Single Expert with the consent of all parties except the father and noting that the mother remains at (omitted) as a full time resident. |
| 18 July and 15 August 2014 | Mother interviewed by Dr G, consultant clinical psychologist for purposes of Expert Report. |
| August 2014 | Mother transitions to (omitted)’s ‘re-integration phase’ and off-site housing as she completed stage 1 to 4 of the residential rehabilitation program. |
| 21 August 2014 | Dr G psychological evaluation report regarding the mother is published and notation that mother still undergoing treatment at (omitted) on a non-residential basis and residing in a transition home with X spending time with the paternal grandmother and maternal grandmother as organised by the Department. |
| 24 October 2014 | Matter fixed for hearing on 23 March 2015 for 3 days noting that the mother is currently in reintegration accommodation at (omitted) under the auspices of (omitted) and seeing X supervised by (omitted), with a proposal by the Department that the time the mother is to spend with X be increased to twice per week, supervised by (omitted) from November. A notation that the father requires Ms K, case worker for cross examination and with the Department having a preliminary view of supporting restoration of X to the mother, and with the possibility of the mother resuming parental responsibility in March 2015. |
| 4 November 2014 | FACS advised by (omitted) that the mother tested positive on a breathalyser with a reading of 0.258 following a contact visit with X and mother admitting to consuming between 2 and 3 bottles of wine the night before and possibly on the day of testing. |
| Early November 2014 | Mother moves from (omitted) transitional housing to live with the maternal grandmother. |
| Approximately 28 November 2014 | Mother attends detoxification program at Ward 65 Rehabilitation Unit of (omitted) Hospital, Sydney, and admitted as an inpatient. |
| 14 December 2014 | Mother completes (omitted) Hospital detoxification program. |
| 17 December 2014 | Mother is discharged from Ward 65 Rehabilitation Unit at (omitted) Hospital. |
| 17 December 2014 – 2 January 2015 | Mother admits to consuming enormous amounts of alcohol. |
| 22 December 2014 | Mother admits to FACS caseworker that she had consumed alcohol the night before and needed to go to detoxification. |
| 2 January 2015 | Mother admitted for second time to detoxification program at Ward 65 Rehabilitation Unit at (omitted) Hospital. Mother admits to drinking up to 1 bottle of vodka per day. |
| 6 or 7 January 2015 | Mother transferred to a rehabilitation program at (omitted) Hospital. |
| 20 January 2015 | Mother completes rehabilitation program and commences living in private rental accommodation. |
| 27 January 2015 | Further amended response filed by Crown Solicitors on behalf of the Intervener. |
| 25-Mar-15 | Final day of hearing, Judgment reserved. |
[9] See Paragraph 13 above.
Background
The mother is now 43 years of age and living on the (omitted) of New South Wales at an address which she prefers not to disclose and is engaged in some casual occasional employment. On the evidence before me the mother has not re-partnered.
The father is 48 years of age and lives in his own accommodation at (omitted). He has occasional part time employment as a (omitted) and (omitted) and performs occasional voluntary work with ‘(omitted)’. The father is qualified as a (occupation omitted) but is not presently employed as such. On the evidence before me the father has not re-partnered.
The parties commenced their relationship in about (omitted) 2009 with several subsequent separations and a longer separation from November 2009 until about March or April 2010 and a final separation as asserted by the mother on 30 August 2010 when she entered a rehabilitation facility as a resident and with the father contending that final separation did not take place until mid-March 2011.
The one child of the relationship is X who was born on (omitted) 2011 and is now 4 years of age.
X lives with foster parents on the (omitted) at an address which is not known to either parent with the Secretary for the Department of Family and Community Services as intervener having been granted parental responsibility pursuant to Orders made on 23 December 2013.
The father has not spent any time with X and is not known to her. The father had a very brief encounter with X on two separate occasions whilst she was in a pram or push chair, and in the care of the mother, and when no more than a few months of age, if that.
The mother has no other children on the evidence before the Court. The father has one other child, Y who was born on (omitted) 1995 and is now 19 years of age. Y was born of the father’s relationship with Ms P which came to an end in 2002. Y suffers from or has been diagnosed with Asperger’s disorder and developmental delay.
The father has not spent any time with Y for some years, and on 13 January 2012 in the Family Court of Australia at Parramatta, His Honour Justice Loughnan made a number of Orders, but in particular that the mother have sole parental responsibility for Y, that Y live with her mother and with the mother to ensure that Y received letters and gifts sent by the father once per calendar month and on the child’s birthday and Christmas each year, and some other practical parenting Orders. No Order was made for the father to spend any time with or communicate with the child other than in the limited form referred to above.
The Evidence
The mother relied upon the following affidavits:
a)her affidavit sworn 18 September 2012 and filed 20 September 2012;
b)the affidavit of the maternal grandmother, Ms B sworn and filed 19 September 2012;
c)her affidavit sworn 5 September 2013 and filed 6 September 2013;
d)the affidavit of Ms S affirmed 12 May 2014 and filed 13 May 2014;
e)her affidavit sworn and filed 13 May 2014;
f)her affidavit sworn and filed 5 March 2015.
The father relied upon the following affidavits:
a)his affidavit affirmed and filed 28 November 2011;
b)his affidavit sworn and filed 20 January 2012;
c)his affidavit affirmed and filed 29 August 2013;
d)his affidavit affirmed and filed 20 December 2013;
e)his affidavit affirmed and filed 30 June 2014.
The intervener relied upon the following affidavits:
a)affidavit of Ms E sworn and filed 10 July 2013;
b)affidavit of Ms K affirmed and filed 30 August 2013;
c)affidavit of Ms E sworn 18 December 2013 and filed 19 December 2013;
d)affidavit of Ms K affirmed and filed 20 February 2014;
e)affidavit of Dr G affirmed 20 August 2014 and filed 29 August 2014;
f)affidavit of Ms H affirmed and filed 12 December 2014;
g)affidavit of Ms K affirmed 4 March 2015 and filed 6 March 2015.
Admitted into evidence were the two Family Reports of Ms D, a Family Consultant attached to the Newcastle Registry, the first of which was published on 21 February 2012 following interviews on 14 February 2012, and the second of which was published on 21 August 2013 following interviews on 19 August 2013.
I had the benefit of listening to and being able to observe both the mother and the maternal grandmother, and the father give sworn evidence and be cross examined together with Ms K, X’s case worker from the Department of Family and Community Services. Ms K was cross examined both on 13 September 2013 and on 24 March 2015, followed by Ms H who gave evidence in cross examination but only on 24 March 2015.
Ms D was cross examined on 13 September 2013 and again on 25 March 2015. Dr G gave evidence and was cross examined on 24 March 2015.
There were the following exhibits in the mother’s case:
a)M1 (2/2/12) – copy of the Final Apprehended Domestic Violence Order;
b)M1 (8/11/12) – documents produced in response to subpoena to Dr K;
c)M2 - clinical notes of and report by Dr V dated 12 March 2012;
d)M3 – bond to comply with conditions of suspended sentence relating to the mother from the District Court proceedings, total 4 pages;
e)M4 – mental health plan prepared by Dr N for the mother, completed 26 July 2012;
f)M5 – medical records of Dr L from the (omitted) Medical Practice in relation to the father;
g)M6 – COPS events entries marked with a blue tag and a red tag;
h)M7 – records from Department of Family and Community Services.
There were the following exhibits in the father’s case:
a)F1 – notice of disqualification of the mother dated 1 February 2007;
b)F2 –records from (omitted) dated 18 October in relation to mother’s drug use;
c)F3 – statement by the mother for use in Magistrates Court proceedings in Brisbane on 19 February 2007;
d)F4 – subpoena 9 – medical report of Dr K dated 24 March 2010;
e)F5 – note written by the mother to the father in early 2009;
f)F6 – notes of surgery consultations of the mother with Dr M dated 31 March 2009 and 3 April 2009;
g)F7 – transcript of academic report at TAFE for Mr Mable as at 4 July 2012;
h)F8 – record of the father’s employment with the (employer omitted) for the years 2008 and 2009, ending with last service 2 February 2010, dated 6 January 2011;
i)F9 – email from Ms O in (employer omitted) to (omitted) Ms N dated 15 June 2011;
j)F10 – revised minute of proposed parenting Orders by the father at hearing dated 26 April 2013;
k)F11 – minute of Orders sought by the respondent father dated 29 August 2013;
l)F12 – email from Ms U dated 11 March 2015;
m)F13 – (employer omitted) roster October to December 2014;
n)F14 – document entitled ‘Dispute Resolution Co-ordinator (omitted) (P)NCC 2413 OF 2011”.
There were the following exhibits in the case for the Intervener:
a)INT1 – 12 reports of urine analysis tests by the mother dated 11 April 2013 to 9 September 2013;
b)INT2 – draft minute of proposed order by intervener relating to the mother;
c)INT3 – 3 pages of supervision notes of Ms G entitled ‘Participants of contact X and Ms Brown’ dated 19 February 2015;
d)INT4 – 3 variations of supplementary Minutes of Order dated 25 March 2015.
There were the following exhibits in the case for the Independent Children’s Lawyer:
a)ICL1 (2/2/12) – copy of DNA parentage testing;
b)ICL1 (2/2/12) – Interim Orders proposed by the Independent Children’s Lawyer;
c)ICL1 (9/11/12) - bundle of 5 letters and correspondence relating to (omitted) being a letter from the father of 14 November 2010 to (omitted), and 22 November 2010 from the father to (omitted), and from the mother to (omitted) on 5 November 2010, and 2 letters from the general counsel for (omitted) in response to the father of 10 December 2010 and 29 December 2010;
d)ICL2 – documents marked with a pink tag being emails of 30 November 2011 between the father and Mr P and an earlier letter of 28 September 2011; a certificate of the father’s cessation of employment from the (employer omitted) of 17 March 2010; an email of 20 October 2011 from Mr P to Dr K; and a letter from the (employer omitted) of 30 September 2010 to Mr Mable;
e)ICL3 – Minute of Orders proposed by the Independent Children’s Lawyer;
f)ICL4 – draft minute of order proposed by the Independent Children’s Lawyer and also Order 6 from ICL case outline document and draft minute of 19 March 2015.
Credibility
A case of this nature involves a consideration of a number of evidential matters as asserted by each party to be followed by the Court making findings of fact which ultimately will be critical in determining the issues before the Court and determining an outcome in the child’s best interests.
I was left with the distinct impression that the mother did her best to be truthful about matters of which she had direct knowledge and which she could recall, but there were a significant number of matters about which she had no accurate recollection as a consequence of being adversely affected by alcohol.
I was not left with the impression that the mother reconstructed past events to suit her purpose or deliberately gave evidence in cross examination which was unreliable or inaccurate.
Whilst the father has at all times represented himself in these proceedings I was left with the distinct impression that he had little grasp of what it was he was required to establish to succeed with any of his applications. The father is clearly an intelligent and educated man with the ability to think clearly at times.
The ability of Mr Mable to answer basic questions in cross examination, irrespective of the identity of the cross examiner was compromised by an approach or attitude in which he was prone to portray himself as a victim. This is best illustrated by two particular examples, and of which there are others. The manner in which the father gave evidence was also severely compromised by an acute tendency to avoid answering questions and making a speech. He was constantly reminded to focus on and answer questions. His evidence was further compromised by his cross examination of Ms D on two separate occasions, most of which was irrelevant and seemed to me to be for the greater part an attack upon the credit of Ms D as opposed to eliciting from her matters which may assist his case. Whilst a party is not to be criticised for cross examining a Family Consultant appropriately when there is a relevant issue to be explored, the father’s cross examination of Ms D did not serve to advance that purpose one iota. It may well be that his cross examination was coloured by what he perceived to be bias on the part of Ms D, which on the whole of the evidence before me could not be demonstrated at all.
During cross examination by Mr Kelly on 9 November 2012, the father agreed there had been a lot of arguments between he and the mother, as well as some fights during the time they had been living together. Further, the father had deposed in his first affidavit filed 28 November 2011[10] that the mother often returned to his house extremely drunk and stoned on cannabis and was violent toward him. The father also deposed to the mother making it a habit to hit him in the face when angry and he was driving the car.[11]
[10] Paragraph 9 of the father’s affidavit filed 28 November 2011.
[11] Paragraph 45 of the father’s affidavit filed 28 November 2011.
Following the charges in relation to the samurai sword incident and the suspension by the (employer omitted) on 17 March 2010 of the father’s approval to (occupation omitted) in a (employer omitted) facility,[12] the father was referred to Dr A for examination to assess his current mental condition and suitability for employment as a (occupation omitted).
[12] See Exhibit ICL2 – A letter of 17 March 2010 from Ms T to the father.
When asked why he had told Dr A as appears on page 2 of Dr A’s report of 23 July 2010 as follows:
“With regard to the relationship with his girlfriend, Ms Brown, he told me that she was unstable but they had not been involved in any arguments or fights….”
he said that he could not recall that but when shown page 2 and again asked whether that was what he had told Dr A, the father tried to avoid answering the question and then said:
“Yes, it’s quite diffuse.”
When asked by me to answer the question the father agreed it was accurately reported and then said:
“Yes, I believe it is taken out of context by something I said. Maybe I had said, “There haven’t been any fights lately” and he wrote down “There haven’t been any at all”.”
I find the explanation given by the father to be completely implausible and that the report by Dr A is accurate.
I find this detracts significantly from the father’s credibility given his evidence as referred to in paragraph 55 above and bearing in mind he was seeing a psychiatrist with a view to obtaining a report which no doubt he hoped would be favourable to assist him in returning to work.
There are some other instances to which I will refer shortly.
Consequently, I tend to prefer the applicant’s evidence about the same issue where there is a conflicting account, although I have of course considered each matter where credit arises on its individual merit.
The Issues
It seems to me the issues involve a careful consideration of what are the most appropriate parenting arrangements for X, both in the long term and the short term, and in particular against a background of X living with an authorised carer from 9 December 2013 pursuant to intervention by the Department of Family and Community Services, and having spent limited supervised time with the mother since then with extended periods of absence from her, and having spent no time with the father.
a)Whether the mother represents any actual risk or potential risk to X which is unacceptable as a consequence of her addiction to and inappropriate use of alcohol.
b)Whether the father presents any actual risk or potential risk to X which is unacceptable as a consequence of his mental health.
c)Whether the parties engaged in domestic violence with each other.
d)Whether the father has a propensity to violence and whether he has engaged in a controlling, coercive and emotionally abusive manner towards the mother.
e)Whether, if X is to spend time with either parent it should be supervised, and if so it’s duration and frequency.
f)Whether, if the Secretary, Department of Family and Community Services is to have sole parental responsibility it should be at the discretion of the Secretary as to whether time is spent with the father.
g)Whether, if supervised time with the father was not appropriate, any other form of contact should be considered.
h)Whether the name of the father should be included on X’s birth certificate as registered with the Registrar of Births, Deaths and Marriages for the State of New South Wales.
i)Whether X’s surname should be amended to be Mable-Brown for all purposes.
The Relevant Law
I must have regard to Part VII of the Family Law Act, and the significant sections are, and to which I must have regard, section 60CA, which provides:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
I must then consider, in determining a child’s best interests, the matters set out in section 60CC, and there are two primary considerations:
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents.
(b) The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
There are a number of additional considerations in section 60CC(3) to which I must have regard insofar as they are relevant. I must also have regard to section 60B, which sets out the objects of Part VII and the principles underlying those objects, and I must have regard to section 61DA, which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child.
The relevance of the presumption of equal shared parental responsibility, when it does apply or is found to apply, is that the Court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the best interests of the child or reasonably practicable, the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents. (See subsection 65DAA of the Act).
It seems to me there is a shift toward the Court being required to consider in a much more practical manner how a child’s development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent, and it seems to me that this requires, where it is appropriate, an involvement in the whole of the ordinary household routine applicable in each parent’s home and if it is in the child’s best interests. (See the Full Court decision in Goode & Goode).
The Family Reports
The First Family Report published 20 February 2012
Ms D made the observation that the events as set out in the mother’s affidavits filed 14 September 2011 and 18 October 2011 and 25 January 2012 appeared to be supported largely by the subpoenaed material and provided some insight into the nature of the parents relationship with one another and appeared to offer a more likely explanation as to how the relationship evolved.[13] I concur with this opinion having heard the evidence and observed the parties.
[13] Paragraph 5 of the first FamilyReport.
Ms D observed that the father’s affidavits filed 28 November 2011 and 20 January 2012 were difficult to follow and appeared to reflect his current thought patterns which presented as somewhat disordered. I find on the whole of the evidence, and having observed the father give evidence, that the opinion expressed by Ms D was valid.
Ms D refers to Final Orders made in Parramatta in January 2012 which in fact were made on 13 January 2012 in relation to the father’s first child named Y to the effect that the mother have sole parental responsibility, and the father to spend no time with Y. It is incorrect that the latter Order was made. In fact, no Order was made as to the child spending any time with the father. The following Orders were made governing the father’s relationship with Y:
4.The mother shall do all acts and things required to ensure that the child receives letters and gifts sent by the father to the child once per calendar month and on the child’s birthday and Christmas each year.
5.The mother is to advise the father as soon as is reasonably practicable in the event the child is hospitalised or in the event that, apart from formal or informal short term respite arrangements, she is unable to care for the child.
6.The father is at liberty to obtain school reports, school photos and school news letters at his own request and cost and these orders are sufficient authority for such a purpose.
Whilst it is common ground the father has spent no time with Y since 2009, it is significant that Orders were made in those terms.
It is also significant in my view that the mother described concerning aspects of the father’s behaviour toward Y which as Ms D observed did not appear to be in accordance with the usual boundaries that would be in place with regard to a father – daughter relationship.[14] The mother had deposed to the father insisting on dressing Y on some occasions, holding her hand in public and giving her inappropriate kisses. When raised with the father, the mother reported that the father was dismissive and would eject her from the home if she criticised his parenting.
[14] See Paragraph 10 of the first Family Report.
It is to be emphasised that although Y subsequently made a complaint that her father had sexually assaulted her, the Family Court had made a finding that on the evidence before it that it was not possible to find that Y had been sexually assaulted by the father or that there was an unacceptable risk of such abuse in the future. Ms D commented on the Single Expert’s evidence in that case, concluding that “whilst the possibility that Y has been sexually abused cannot be excluded by the Family Consultant, there appeared to be no clear indicators to support that conclusion either”.[15]
[15] See Paragraph 12 of the first Family Report.
It seems to me that Ms D concluded correctly that it was the child Y’s estrangement from the father and the very poor relationship between Y’s parents with little or no prospect of cooperation between them as to any parenting regime which could be put into place which led to no Order being made for the father to spend time with Y. Further, it seems to me not insignificant that at the time that the Family Court proceedings were being conducted, Y was 16 years of age, albeit, her developmental age was significantly less.
It is significant in my view that Ms D tried to explore with the father his understanding of Child Development and in particular the Attachment Process but commented that the father was not receptive to information given to him and appeared to have very little understanding of the attachment process and of the developmental needs of children.[16] Ms D was not challenged by the father as to this conclusion.
[16] Paragraph 71 of the first Family Report.
Ms D abandoned the possibility of addressing that issue with the father when it became apparent to her that he had become defensive when he made comments about the child’s rights to a relationship with the father and questioning as to who was to determine whether the child’s relationship with the mother was more important than her relationship with the father.
It cannot be assumed that given the father’s qualifications as a (occupation omitted) that he’s either aware of or familiar with or understands the significance of the attachment process.
It is also of significant concern to me that throughout the father’s case, both in his affidavits and some of the reports and in his evidence, that he perceives that if the mother is disabled from being an effective parent for whatever reason, then X should live with him as of right. This is borne out also by his application from time to time for an Order that X live with him.
In my view, this demonstrates a very significant lack of insight on his part to X’s needs and what is in her best interests. It seems to me the father overlooks the fact that X is a complete stranger to him and whilst in the later stages of the hearing he has modified his stance by suggesting initially supervised and then gradually increasing time, it seems to me he has no regard to the inevitable disturbance X would experience if she is removed from her present carers with whom she has been for some time.
This sense of entitlement is supplemented by numerous assertions the father makes based on social research he conducts to bolster his case when he deposes, for example,[17] quoting from a source which he identifies:
“Fatherless daughters are more likely to have low self-esteem, to have sex before they really want to, get pregnant, be assaulted and not continue with their schooling. Families without men are usually poorer, and children of these families are likely to move downwards on the socio-economic ladder.”
This is but one of many examples upon which the father sought to rely but which I rejected during the course of the hearing for reasons given at the time.
[17] See Paragraph 10 of the father’s affidavit affirmed and filed 28 November 2011.
When asked to do so, the mother described the father to Ms D as:
“Totally unreasonable and that you can’t negotiate with him. She said that he refuses to compromise and that everything has to be done his way.”
The mother illustrated to Ms D several examples of what she perceived to be controlling behaviour by the father toward her.[18]
[18] See Paragraph 85 of the first Family Report.
Ms D described X at the age of 8 months as a beautiful baby, immaculately dressed and looking extremely well cared for at the time of the interview having just recently started crawling and cut her first tooth. Ms D observed that the mother behaved in an appropriate way toward X and was attentive to her needs with the child appearing to have an affectionate relationship with her mother, and which was reciprocal.
Ms D described X’s developmental needs in particular detail together with a description of circumstances which enable a child to feel safe and secure and the consequences if a child is stressed and traumatised. Ms D also described the importance of attachment and the consequence of it being damaged at a young age.[19] Her evidence in that respect is unchallenged and I accept her views.
[19] See Paragraphs 100-106 of the first Family Report.
Ms D also commented appropriately in my view as to the mother’s proposal for the father to have no time with X which needs to be considered in the light of the advantages and disadvantages it presents to the child.[20]
[20] See Paragraph 108 of the first Family Report.
Ms D expressed a view that ordinarily it would be recommended that a child in X’s position should spend frequent, short periods of time every few days with the other parent in order to allow their relationship to develop over time, but in this case, concerns have been raised as to the father’s parenting ability and with regard to his mental health with the consequence that these safety concerns may need to be prioritised over and above X’s need to have a relationship with her father.
Ms D carried out a detailed evaluation of the father, drawing from not only the mother’s reports, but the independent material found in various subpoenaed documents which subsequently became exhibits concluding that the PPP Screening Tool she used indicated serious, high level risk of harm to both the mother and X as a result of the past and present family violence perpetrated by Mr Mable.[21]
[21] See Paragraph 115 of the first Family Report.
Ms D suggested tentatively that if the evidentiary material supported the view that the father was the primary aggressor of the family violence and that there was an ongoing risk of harm to the mother and the child then an Order for no time with the father may need to be considered, but on the other hand if the Court found that there was minimal risk of harm to the child then lengthy periods of supervised time at a contact centre should be implemented with a further Family Report prior to a final hearing.
I am hesitant to conclude that the father represents as a risk of family violence in the sense of physical abuse or inappropriate physical handling but it seems to me that there is a very considerable risk of the father engaging in coercive and controlling behaviour toward X, and a distinct likelihood of instilling in her mind by persistent instruction the various beliefs he holds, and would expose her to the manifest difficulties he experiences in his relationships with others, whether it be the Police, the education authorities, treating doctors, former partners and to some extent his family, and his pervading sense of correctness following from such relationships.
That is not to say that the father is to be criticised for expressing an opinion when it is appropriate, but when it results in constant confrontation and complaints which are sometimes made without foundation, it is not in my view an appropriate example to be given to a young and impressionable child as she grows up.
It was abundantly apparent through the whole of the hearing, and I make a finding to this effect having observed the father over a number of days that he does not hesitate to be argumentative, and whilst that is not necessarily a disabling factor, it often flew in the face of logic, and again was illustrative of the father’s tendency to believe that he is right and is entitled to the view that his proposition is correct, as against a deal of other material which suggests otherwise. One of the most disturbing facets of the father’s behaviour, as I observed it whilst he gave evidence in chief and in cross examination, is that he is overwhelming and relentless. I find on this presentation that he would bring these qualities to any relationship he may have with X, whether it be face to face or otherwise, and I find that she would be ill-equipped to deal with these aspects of his personality.
Ms D made the valid observation,[22] as indeed did some of the medical reports to which I will refer shortly, that she understood the father had had many stressors in his life over a number of years, and that his behaviour is his own way of coping with the difficult situations in which he has found himself.
[22] See Paragraph 120 of the first Family Report.
Ms D expressed the view, with which I concur, that although his intentions may be good, if he lacks insight into his own behaviour and the impact that it has on others, he will continue to repeat his dysfunctional patterns of behaviour with regard to his relationships and during his other social interactions.
Ms D also made the following further observation, which I find has considerable weight and was not disturbed by the father either during cross examination of Ms D or as a consequence of any evidence he adduced:
“The father has already had many opportunities provided to him with regards to counselling, both from psychiatrists and psychologists, with no apparent improvement. It is doubtful that any further courses or counselling will help as the father appears incapable of applying the knowledge he acquires to his own situation. It may also be hypothesised that he is unable to process and understand the information at a level whereby he can incorporate it into an understanding of ‘the bigger picture’. This is what happens when there is some impairment of social behaviour and social boundaries – as is the case with those who have Asperger’s Syndrome (which is what Y has been diagnosed with). It may be useful for the father to explore this further with a counsellor or psychiatrist of his choice in the future.”[23]
[23] See Paragraph 121 of the first Family Report.
Ms D concluded that it was preferable for X to spend no time with the father, and further that very limited time with the father, for example on a couple of occasions per year briefly for identity purposes only would be of no benefit to X. Ms D also concluded that the ability for the father to send occasional letters and gifts would not be of benefit to X on the premise that the father was highly unlikely to be able to control his tendency to denigrate the mother and it would not be in X’s best interests to be exposed to any negative information about her mother, both now and into the future.
The Second Family Report published 23 August 2013
By the time of the interviews for the second Family Report, the intervener had become involved consequent upon the mother relapsing into excessive and inappropriate use of alcohol on more than one occasion and admission into a rehabilitation facility.
No useful purpose is served in my traversing the second Family Report in detail. Suffice to say that Ms D expressed the view, clearly correctly that the mother is a recovering alcoholic with a long history of alcohol misuse and will need ongoing support.
Ms D felt obliged to terminate the Family Report interviews whilst talking with the father for safety reasons due to his presentation and level of functioning at that time, and which she describes in detail.[24]
[24] See Paragraphs 30-40 inclusive of the second Family Report.
Ms D described the particular behaviour of the father which caused her to bring the interview to an end, and with her asking Mr Mable to leave. On any interpretation, I find that the father’s behaviour was not only unreasonable, but unwarranted.
Ms D formed the view[25] that there could be a number of reasons for the father’s behaviour during the interview but that he certainly presented as mentally unstable, with disordered thinking, some paranoia and a lack of awareness around social boundaries. Ms D found him to be quite disorganised to the point of being somewhat chaotic.[26]
[25] See Paragraph 39 of the second Family Report.
[26] See Paragraph 39 of the second Family Report.
In her evaluation, Ms D expressed the view that she was confident the mother was being supported and monitored by both support services and family members but would need ongoing support given her difficult circumstances and her alcohol dependency.
Ms D recommended that X live with the mother and that she have sole parental responsibility, that the Department of Family and Community Services continue to provide support and supervision as per their protocols and that X spend no time with the father, and that the father be restricted from approaching her residence or school.
Prior to the interviews for the second Family Report which were held on 19 August 2013, the father had complained to Court staff on 16 August 2013 about a “conflict of interest” concerning the selection of the same report writer, clearly Ms D, for a second interview after he had lodged a formal complaint about her, due to lack of scientific rigor and objectivity in regard to “research falsification and principles”.[27]
[27] See Paragraph 4 of the father’s affidavit affirmed and filed 20 December 2013.
The father asserted that this was evident by Ms D only recording the information that supported her personalised views, such as positive information that favoured the mother, and negative information about the father, with the father continuing to allege that this behaviour was continued during the second interview whereby he was asked to detail his current concerns about the mother in relation to a number of matters.
The father continued to complain in his affidavit about Ms D’s lack of objectivity, that Ms D tried to obscure facts arising from the evidence, that Ms D tried to cover up or diminish the mother’s ongoing bold and elusive behaviour and that she offered an unqualified opinion within her report by pretending to be a psychiatrist which the father felt in some Courts would be regarded as “contamination” and would be ruled as inadmissible or non-valid.
The father deposed to offering further information that refutes Ms D’s wild assumptions within the report that he had an ongoing mental illness.[28]
[28] See Paragraph 4 of the father’s affidavit affirmed and filed 20 December 2013.
The father also asserted that the Department of Family and Community Services had relied on the highly unprofessional Family Reports of Ms D which he described as follows:
“The contents of which have been proven to be as factually accurate as a fictional Tolkien novel during cross examination whereby my initial complaint to Court staff was noted.”
The father cross examined Ms D at length during the fourth day of hearing, 13 September 2013, but very little of his cross examination had any relevance. At one point, the father asked Ms D whether she was aware that he had made a formal complaint, apparently following the first Family Report to Ms D conducting the second interviews for the second report, such complaint having been made to the Dispute Resolution Coordinator. When asked by me what the complaint concerned, he said:
“About the disparity between the rosy picture painted of the applicant and the dim view of me despite the evidence.”
confirming that the complaint was about Ms D.
Ms D said that she had no knowledge of the complaint.
The father asked Ms D in cross examination whether she thought he had a personality disorder, to which Ms D responded:
“Mr Mable, I am not qualified to diagnose you with a personality disorder based on 2 interviews. The process to do that is a lot more complicated. But what I am able to do is say that you have certain aspects to your personality, certain traits which may or may not be indicative of a personality disorder but would certainly contribute towards the difficulties that you have been experiencing in your life to date.”
I find on the whole of the evidence before me, including the evidence given by Ms D at the resumed hearing in March 2015, that there is no basis whatsoever to support the father’s various complaints about Ms D in any shape or form. Unfortunately, it is yet a further very clear example of the father’s reaction to any comment made about him which he perceives to be adverse, whether it is or not, and for him to perceive himself as a victim.
It is of greater concern to me that the father embarks upon these criticisms and complaints with no evidence whatsoever. I have no hesitation in concluding that if he were to have a relationship with X he would not hesitate to try and influence her in his way of thinking when circumstances such as these arise, and that would be entirely inappropriate when the criticism has no foundation.
At the conclusion of Ms D’s evidence on 13 September 2013, and in response to a question from me, Ms D affirmed her view that her preference was that there be no communication with nor any time spent by X with the father, and that was in the context of the intervener suggesting that the father could send letters or gifts by posting them to a postal address agreed with the mother, and with the mother effectively to censor them by reading them and to give them to X if she felt they were appropriate.
Ms D said:
“My concern is that, even down the track, what benefit is it going to be to this child if she does have to wade through years’ worth of letters if they’re anything like the father’s affidavits which I found hard to read. I can only imagine how hard it would be for a 18 year old to have to make sense of that kind of information.”
When cross examined again by the father on 25 March 2015, Ms D reaffirmed her earlier opinion that her preference is that the father have no contact with X. Further, Ms D made it clear that in her view X’s best interests are served by the intervener and the Department having some discretion and deciding as X gets older, the extent to which X should be provided with information about the father and to decide whether to facilitate X meeting him or spending time with him.
The Report of Dr G
Dr G, a consultant clinical psychologist of many years experience, was asked by the intervener to prepare a report and express an opinion about a number of matters, as set out at the beginning of his report of 20 August 2014 but in particular to express an opinion as to the prospects of the mother successfully avoiding relapse in the future, and the likely impact of relapse on the mother’s capacity to provide for the needs of X, including her emotional and intellectual needs, and any recommendations he may have for future treatment or services which the mother requires to reduce the risk of further relapse.
Dr G found the mother appeared to be alert and present with appropriate eye contact, and whilst her affect was appropriate it was somewhat anxious at times with the mother becoming upset and teary when discussing sensitive topics.
The mother impressed Dr G as cooperative and was open to answering all questions. She spoke coherently and articulately with her first statement being “I’ve been looking forward to today, to be honest”.[29]
[29] See Paragraph 1 of Dr G report.
For the reasons which I gave during the hearing there is no evidence before me whatsoever to warrant a change of X’s surname to Mable-Brown as sought by the father. The evidence establishes that she has and is for all purposes known only by the surname ‘Brown’. For her to be told that her surname has changed as sought by the father would likely cause her distress and a questioning as to why it had occurred and with an attendant risk of confusion as to her identity.
Section 61DA
Section 61DA provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for this in subsections is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Whilst there have been no recent episodes of family violence and X has not been exposed to family violence this is a case where I am satisfied the presumption is rebutted under subsection (3), namely that it would not be in X’s best interests for her parents to have equal shared parental responsibility for her.
The mother is disabled from exercising parental responsibility by virtue of her addiction to alcohol, periods of absence in rehabilitation centres and disablement at other times. Further, it is more significant for the mother to concentrate upon her pathway to recovery without interruption.
I could not find that it is in X’s best interests for the mother to have shared parental responsibility for her with the intervener.
It is not appropriate for the father to have parental responsibility. My reasoning is that the father has had no involvement with her during the whole of her lifetime and knows nothing of her, save for the material he has read in the affidavits filed by the departmental officers and the other affidavit material filed in the case. Further, I could not be satisfied that the father has the ability to make appropriate decisions in relation to parental responsibility for her.
I find that it is appropriate for the intervener to have sole parental responsibility. My reasoning is that the intervener has a close involvement with X’s day to day care, is able to determine and monitor her placement and developments, determine her needs, particularly as to medical consultations and education, and is in by far the strongest position to exercise such power appropriately.
Section 65DAA
This section provides as follows:
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Given that I am not making an Order for equal shared parental responsibility, it is unnecessary for me to consider any further the provisions of this section.
Conclusion
I listened very carefully to the entirely appropriate submissions made by Mr Kelly, Mr Davies, Mr McGorrey and the father, although the father relied largely upon his written submissions.
Mr Davies, counsel for the Independent Children’s Lawyer urged upon me, and with some force that it is only in exceptional circumstances in relation to a parent that an Order is made for that parent to spend no time or not to communicate at all with a child, and certainly that is the thrust of the principle authorities. Mr Davies submitted that the father did not come anywhere near the criteria that are usually in place to warrant an Order for no time.
Mr Davies referred to the father’s obvious behavioural traits over the whole of the trial, but that must be measured against a stressful situation for the father, and it could not be shown successfully that the father has demonstrated the type of behaviour or risk to a child that would ordinarily result in such a parent being precluded from having any relationship or spending time with that child.
Mr Davies submitted that given the Department will have parental responsibility, it will have the capacity to facilitate the appropriate supervision, and even if the Court found that the father suffered from paranoid behaviour or disordered thinking, that that was not sufficient to warrant an Order for the father to spend no time with X.
Mr Davies submitted, correctly, that the intervener is able to provide an appropriate infrastructure for X to be made aware of her father, and that advice will be obtained from a psychologist as to how to best approach X being made aware of her father. Mr Davies submitted that the Court is under an obligation reflected in Section 60B to ensure that X has a right to know and be cared for by both her parents, but in this context, X having a right to spend time on a regular basis with and communicate with her father, not quite his words, but to that effect, and that for a meaningful relationship to occur, it was appropriate for the father to be given the opportunity of spending some time, which the Independent Children’s Lawyer suggested occur for a minimum of four occasions each year with appropriate safeguards as set out in the draft minute.[60]
[60] See Exhibit ICL4.
Section 60B of course is prefaced by saying that the objects of the Part are to ensure the best interests of children are met by certain matters as they are defined and that the principles underlying those objects are, as defined, except when it is or would be contrary to a child’s best interests. In this case, I am not able to accept the submissions made by Mr Davies that it would be in X’s best interests to spend time with her father on a minimum of four occasions each year.
My reasoning is that this entails a very considerable risk for X’s stability and continued wellbeing against a background of being in a stable home with her carer now for almost 18 months, well settled in her local community with her family, progressing at her pre-school and with a number of friends whose company she enjoys, and seeing her mother regularly.
The evidence establishes that it has taken her some time to become stabilised following removal from her mother’s care and placement with persons who initially were strangers to her and in a strange environment. The evidence before me is that she has now coped with and adapted to those very significant changes for her and that she looks forward to spending some time with her mother when that can occur.
To require her to spend time with her father for not less than four occasions each year or even one occasion, with a complete stranger who, although she may be told is her biological father, has no direct knowledge of her, brings a risk which in my view is not warranted.
Whilst it may serve the wishes of the father, it does not in my view serve X’s best interests at all. It is far too early.
Whilst the Independent Children’s Lawyer suggested a number of protective measures which could give rise to a suspension, the introduction of the father cannot be treated as an experiment. In my view, there must be compelling evidence in the first place to justify X spending time with her father, and such evidence is not there.
The issue of the father’s relationship with his older adult daughter of a previous relationship, Y, was raised briefly during the hearing. It seems that he had not spent any time with her since about mid-2009 and there is no sufficient evidence before me from which I can make any finding or draw a conclusion as to why that has occurred. The mother had raised in her case some inappropriate behaviour as she perceived it by the father toward Y.[61] The mother was not cross examined about the father’s behaviour in this context, and I therefore accept the mother’s evidence. I have no hesitation in concluding that there were certain aspects of the father’s behaviour as described which were totally inappropriate toward a teenage girl, particularly helping her dress, holding her hand in public and locking her in a wardrobe. It is immaterial that Y apparently suffers from Asperger’s Syndrome and is developmentally delayed with what has been described as a level of functioning of a much younger child.
[61] See Paragraphs 155-164 inclusive of the mother’s affidavit filed 20 September 2012.
I make these observations not in the context that X may be at the same risk but that it is a further illustration of the father’s failure to observe appropriate boundaries for bringing up a child or relating to a child.
Whilst it is true that on one interpretation, the father’s conduct does not meet the criteria to warrant an Order for no time which can arise, for example, where there has been sexual assault or abuse, gross domestic violence, physical assaults, alienation, exposure to inappropriate behaviour and other behaviour which may amount to an unacceptable risk within the meaning of the authorities, that is not the only test for finding it is not in the best interests of a child to spend time with a parent.
In this case, I am satisfied that there is no prospect of X having a meaningful relationship with her father as the father presently presents himself and for the reasons which I have given earlier. To embark upon an experiment, and I choose that word carefully, for her to spend some time with him presumes there will be a benefit for X, that it will be successful for her, that it will not lead to disturbance of her present stability and that whilst supervised, the father can be contained by a supervisor if necessary.
I find that none of the evidence adduced by the father in his case enables me to come to such a conclusion. In fact, I find to the contrary and propose to make an Order that X is to spend no time with the father and is not to have any communication with him.
I have considered also whether written communication from the father would be in X’s best interests and have concluded it is not. If the father were to send greetings cards at Christmas or Easter and write from time to time and send presents, it is inevitable that he would expect a continuing engagement with the intervener by its case worker as to what X’s response was, whether she liked her gifts, whether she asked more about her father and whether he could spend some time with her.
I have no hesitation in concluding on the whole of the evidence before me that the father has not brought a case or adduced sufficient evidence which establishes that there is a benefit in X having a relationship with him which is likely to be meaningful to her and not disturb her present stability.
It may be otherwise if the father adduces some medical evidence to which I have referred and is able to demonstrate that he has undergone therapy for the reasons given in some of the medical reports, and benefited from such therapy. The father gave evidence that he has not undergone any such professional therapy but rather relied upon advisors who seem to be friends and whose qualifications are not before me, and including a person in (country omitted).
It must be remembered that the father has brought no corroborating evidence at all, able to be accepted that he recognises he has certain behavioural traits, whether as a consequence of Asperger’s Syndrome or not, and that they have been addressed. The father has brought no independent corroborating evidence that it is appropriate for him to have a relationship with his daughter, and at the very least, that is something which it seems to me, he needs to do.
It is no excuse for the father to say that he has represented himself at all times and that this was something he had not thought about or was advised to do. The Family Reports of Ms D are very clear as to what he could have done, but did not do so.
I give considerable weight to the evidence of Ms D and her conclusion on more than two occasions, and after considerable cross examination and further evidence that she sees no benefit in X having any relationship with the father.
On behalf of the intervener, Mr McGorrey submitted that if the intervener was given wide discretion and flexibility as to how X could be made aware of and introduced to her father, perhaps being given some information progressively and the Department imposing a condition that the father undergo a mental health assessment and agree to certain conditions, then that may be an appropriate way to proceed. It is clear that Ms D supported that possible pathway and found that to be preferred over a fixed minimum number of visits as proposed by the Independent Children’s Lawyer, as Mr McGorrey recognised correctly, that was subject to the Court making an Order that there be some form of contact between X and her father.
Ms D had given evidence that she preferred the intervener make any such decision on the premise that the intervener and the case workers would have full knowledge or access to full knowledge of how X was performing and whether she would be able to manage time with her father.
Mr McGorrey submitted on behalf of the intervener that if the Court was to contemplate any form of relationship with the father through contact then the intervener would approach such matter with significant caution and that if it were to occur it would be a gradual process with X being given information over a period of time and the father being required to satisfy the intervener as to a number of matters.
The issue of any discretion to be given to the intervener has weighed heavily on my mind and it seems to me and I conclude that the intervener should not be burdened with deciding whether or not to facilitate a face to face relationship for X with her father or communicating with him. My reasoning is that there are a number of persons involved in the care of X including her day to day authorised carer who plays the physical role of the residential parent, case workers who may change from time to time, the body vested with the responsibility of implementing the intervener’s decisions, currently the Salvation Army and last but not least, the intervener.
Doing the best I can, and given that X is now making enquiries about her father, it seems to me that it is appropriate for me to make a specific Order that the intervener is to have a discretion to decide how to inform X of particulars concerning her biological father and the information which may from time to time be given to her about her father, but no more than that.
In other words, the intervener will not have the discretion as to whether X should be introduced to her father or not and will not have the discretion as to whether time should be spent or communication occur with safeguards as suggested by the Independent Children’s Lawyer or otherwise.
My reasoning is that it is not appropriate to give to the intervener the responsibility, in effect, of determining X’s relationship with her father. That is a matter for this Court. If it comes to pass that X expresses strong and consistent views which are soundly based about wanting to meet her father or spend time with him, then it is for the intervener to bring an application to the Court and for that to be considered on its merits. It must be remembered that the intervener does not have any direct means of assessing the appropriateness of the father having a relationship with X. For that additional reason, the responsibility is not to lie with the intervener. It is for the father to present evidence in support of a finding by the Court that it is appropriate for him to have a relationship with his daughter.
If the intervener were given the discretion to enable X to spend time with the father, and conducted an interview or interviews with the father in the first instance, it would have only the father’s version of his then current circumstances and state of mind and would not have the benefit of any corroborating information or medical evidence of the father’s behaviour at large. To some extent, the intervener would have the material which has emerged during the course of this hearing, but that could well be stale by the time X is perhaps expressing a strong wish to become aware of her father, for example when she is in her early teenage years. That is another reason for such discretion not being visited upon the intervener.
It was the submission of Mr Kelly, for the mother, that I could take into account the father’s behaviour during the trial, and he referred me to a Full Court decision of Baranski.[62] Mr Kelly submitted that the father’s behaviour in and out of the witness box was commensurate with the description of Ms D and other witnesses in the case.
[62] Baranski & Baranski [2012] FamCAFC 18
I accept the submission and find that the father’s behaviour was consistent with a lack of organisation, distinct disorganisation, disordered thinking and a distinct lack of awareness of social boundaries, particularly with some of the questions he attempted to put in cross examination to Ms D, Dr G, the mother and Ms K, and which I continually disallowed. Many of the questions demonstrated no understanding of what he was required to do or to establish in his case to begin a relationship with his daughter.
I have no doubt he loves his daughter and would like to have a relationship with her and believes that he has much to offer her. To a large extent, I can make allowances for the father representing himself, but it is not as if he is a foreigner to this Court or to the Family Court or the Local Court. The evidence before me is that he represented himself in a number of days of hearing in the Family Court before His Honour Justice Loughnan and again in the State Magistrates Court in relation to the apprehended violence proceedings and before me over a total of seven days.
I tend to the view that with that level of experience in representing himself, and with a good working knowledge of the procedure and what is required under Part VII of the Act, and clearly he has that knowledge, that he would have been much better able to focus on matters pertinent to his case. But he did not. That indicates to me an inability on his part or perhaps even a refusal to recognise those aspects of his behaviour, which to many, manifest as mental instability, disordered thinking, paranoia and behavioural characteristics for which I can conclude it is not in X’s best interests to be introduced to him or have a relationship with him.
Whilst Ms D expresses doubt that the father is able to benefit from counselling or is perhaps unwilling to engage in counselling, it nevertheless remains open to him to gain an awareness, with assistance, of why it is the Court perceives his social behaviour and awareness of social boundaries is impaired, and to address such impairments.
Mr Kelly urges upon me that the father poses an unacceptable risk of emotional abuse to X in that he does not know how to temper his own behaviour and would say and do inappropriate things with X. Mr Kelly emphasised that this was not put in the context of an unacceptable risk of sexual harm or abuse but that found and referred to by the doctors whom the father had seen including Dr P and Dr K and Dr R.
I accept the submission that the father represents a risk as far as emotional abuse to X and for the detailed reasons which I have given earlier.
Mr Kelly submitted on behalf of the mother that the intervener should not have any discretion as to whether X should have a relationship with her father and that it is the responsibility of the Court to determine that issue. I accept that submission.
During his submissions, the father again illustrated his sense of entitlement when he mentioned, in support of his application to have a relationship with X, his qualities as follows:
“I hardly need to mention that my child is isolated from the benefits of all the qualities that I possess in regard to education, cultural background, musical talents, language – foreign language skills, aside from my more formal training expertise area of (omitted) etc. I would like the Court to consider further contact or leaving it to the Department’s discretion to have contact graduating toward full time care to avoid any further applications before the Court and disruption.”
The father was supportive of the intervener being given the discretion as to deciding how to inform X of particulars concerning her biological father.
As to his conduct during the hearing, the father submitted that it is a very foreign environment to him, that he has no formal training, he has very little instruction and makes mistakes, just like many professionals and parents who make mistakes. The father referred to the only examples he had seen in performing such roles were what he had seen on television, and some of the earlier acrimony shown to him by both Mr Davies and Mr Kelly in cross examination.
I find on the whole of the evidence before me that neither Mr Davies, nor Mr Kelly displayed any acrimony towards the father. They were both extremely patient and could have objected many more times than they did, but rather, it seemed to me, took the view that it was better for the father to proceed as best he could subject to intervention by the Court.
For these reasons, I conclude that it is appropriate to make the Orders I now make.
I certify that the preceding three hundred and eighty-five (385) paragraphs are a true copy of the reasons for judgment of Judge Coakes
Associate:
Date: 12 June 2015
- AGLC
- BROWN & MABLE [2015] FCCA 1460
- Case
- [2015] FCCA 1460
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the extent of the Minister's parental responsibility for X, the conditions under which X would live and spend time with her mother, and the specific restrictions to be placed on the father's contact with X. Further issues included the mother's obligations regarding alcohol consumption and drug testing, communication protocols between X and her mother, and the involvement of extended family members. The court also considered the father's proximity to X and his presence with his mother during contact.
In its reasoning, the court discharged all previous orders concerning X and granted the Minister sole parental responsibility until X turned eighteen. X was to live as directed by the Minister, with specific provisions for supervised or unsupervised time with the mother, subject to the Minister's discretion. The mother was restrained from consuming alcohol for 48 hours prior to and during contact, and was required to undergo urinalysis testing. The father was significantly restrained from spending time with or communicating with X, and from approaching places where X resided or attended school. The court also made orders regarding X's communication with her mother on significant dates and the inclusion of the father's name on X's birth certificate.
The court ordered that the Minister have sole parental responsibility for X until she attains the age of eighteen. X was to live as directed by the Minister, and contact with the mother was to be at the Minister's discretion, with specific conditions imposed on the mother regarding alcohol, urinalysis, and notification of contact. The father was restrained from any contact with X and from approaching her, with specific exceptions for his mother. The Minister was also given discretion regarding informing X about her father and was ordered to apply to include the father on X's birth certificate.
Orders
Orders of the court
1.
All previous Orders in relation to the child X born (omitted) 2011 (“X”) are discharged;
2.
The Minister for Family and Community Services for the State of New South Wales (the intervener) has sole parental responsibility for X until she attains the age of eighteen (18) years;
3.
X is to live as directed by the Minister for Family and Community Services or her delegate;
4.
X is to spend time with the mother for no less than two (2) hours per calendar month at a time agreed between the mother and the delegate of the intervener and the decision as to the time being supervised or not supervised shall be at the discretion of the intervener;
5.
The mother is restrained from consuming alcohol during the period of forty-eight (48) hours prior to and during any time she is spending time with X;
6.
The mother is to attend upon urinalysis testing as reasonably requested by the intervener or his delegate, and is to provide the intervener with the results of any such urinalysis testing;
7.
The mother is to contact the intervener’s delegate at least twenty-four (24) hours prior to each scheduled period of spending time with X, failing which the intervener will cancel such spend time with appointment;
8.
The intervener may suspend, temporarily reduce or permanently reduce the mother’s future spend time with arrangements with X, at the discretion of the intervener, if:
(a) the mother fails to attend urinalysis testing as reasonably requested by the intervener or her delegate; or
(b) fails to provide the intervener with the results of such testing; or
(c) the mother’s urinalysis results record a positive result for use of alcohol; or
(d) the mother fails to attend two (2) consecutive due periods for spending time with X without providing notice to the intervener’s delegate at least twenty-four (24) hour prior to each visit; or
(e) the mother is accompanied to a spending time visit with X by a person not authorised in advance by the intervener’s delegate.
9.
X is to communicate with the mother by telephone on the following occasions each year:
(a) X’s birthday ((omitted));
(b) the mother’s birthday ((omitted));
(c) Mother’s Day;
(d) Christmas Day;
with such time to be implemented by the intervener contacting the mother’s mobile telephone number and the intervener making the child available to speak with the mother and by the mother ensuring that the intervener is made aware of the mother’s current mobile telephone number or any change of such number, that the mother agree with the intervener beforehand as to an appropriate time or period of time for communication by telephone on each such occasion, that the mother ensures she is available to receive such telephone call at the prescribed time and with the mother to ensure that her telephone is not diverted to an answering machine or message bank service, is not otherwise engaged and is located in a place able to receive telephone calls;
10.
Within seven (7) days of the date of these Orders the mother is to inform the intervener in writing of her current mobile telephone number and keep the intervener advised of any subsequent changes to that telephone number;
11.
The intervener is to ensure that X undergoes a formal review by a paediatrician on at least an annual basis between 2015 and 2020, and at such greater frequency as the paediatrician may require and that for such purposes the paediatrician be supplied with a copy of the affidavit of Dr G affirmed 2 August 2014 and any other material the paediatrician may require from the departmental case workers with such review to include an interview with X’s residential placement carers;
12.
X is to spend time with the maternal grandmother Ms B and the paternal grandmother Ms S as directed by the intervener or his delegate;
13.
Pursuant to Section 68B of the Family Law Act 1975 the father is restrained from spending any time with or communicating with X in any form whether written, by text message, by telephone or any other electronic means and the father is restrained from being in the presence of or the company of his mother at any time she is either spending time with or communicating with the paternal grandmother;
14.
Pursuant to Section 68B of the Family Law Act 1975 the father is restrained from entering, or approaching, or being within 200 metres of any place where X is living or may from time to time be staying temporarily and any school X is attending;
15.
The intervener or her delegate is hereby given the discretion to decide how to inform X of any particulars concerning her biological father, Mr Mable, whether upon her request or otherwise;
16.
That within twenty eight (28) days of the date of these Orders the Intervener do all acts and things and sign any necessary documents to make application to the Registrar of Births, Deaths and Marriages for the State of New South Wales to include the father, Mr Mable born (omitted) 1966 on the birth certificate of X (a female) born (omitted) 2011 as the biological father of the child X;
17.
That the mother is granted leave to provide to any psychologist or psychiatrist whom she may consult in relation to treatment for or recovery from her addiction to alcohol the report of Dr G of 20 August 2014.
NOTATION
A. The intervener intends to institute a gradual reduction in the mother’s arrangements to spend time with X over a period of two (2) months with fortnightly visits for two (2) months and monthly visits thereafter.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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