Chase and Coulter
[2008] FMCAfam 699
•7 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHASE & COULTER | [2008] FMCAfam 699 |
| FAMILY LAW – Children – benefit of meaningful relationships with both parents – need to protect children from harm – father’s acquired brain injury – short term memory loss – anger dyscontrol – need to comply with treatment prescribed by doctors – willingness of paternal grandmother to ensure compliance – whether supervision of time with father is required. |
| Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA Federal Magistrates Court Rules 2001 (Cth) rr.15.09, 15.10 |
| Goode & Goode (2006) FLC 93-286 Jones v Dunkel (1959) 101 CLR 298 M and M (1988) FLC 91-979 WK v SR (1997) FLC 92-787 Re W (Sex abuse: standard of proof) (2004) FLC 93-19 |
| Applicant: | MS CHASE |
| Respondent: | MR COULTER |
| File Number: | LNM 2044 of 2005 |
| Judgment of: | Roberts FM |
| Hearing dates: | 18 & 19 February 2008 |
| Date of Last Submission: | 19 February 2008 |
| Delivered at: | Launceston |
| Delivered on: | 7 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stanton |
| Solicitors for the Applicant: | Walsh Day James Mihal |
| Counsel for the Respondent: | Mr T McGuire |
| Solicitors for the Respondent: | Temple-Smith Partners |
| Counsel for the Independent Children’s Lawyer: | Mr P McVeity |
| Solicitors for the Independent Children’s Lawyer: | McVeity & Associates |
ORDERS
That all extant Orders are discharged.
That the children [A] born in 2003 and [B] born in 2005 (“the children”) are to live with MS CHASE (“the Mother”)
That the Mother and MR COULTER (“the Father”) have equal shared parental responsibility for the children.
That the Father spend time with the children as follows:
(a)each second week from 5.00 p.m. on Wednesday until 5.00 p.m. on Sunday, such to commence on the second Wednesday after the making of these Orders;
(b)on Father’s Day from 11.00 a.m. until 3.00 p.m.;
(c)on Christmas Day from 3.00 p.m. until 7.00 p.m.;
(d)on each of the children’s birthdays from 3.30 p.m. until 6.00 p.m.; and
(e)at such other times as may be agreed between the parties.
That in the event that the children are spending time with the Father in accordance with these Orders on Mother’s Day, they are to returned to the Mother at 9.00 a.m. on that day.
That for the purposes of the handover of the children the Father’s nominated agent shall meet the Mother or her nominated agent at the [X] car park in Devonport unless otherwise agreed.
That the Father is hereby restrained from being present when the children are being collected from, or returned to the Mother.
That at any time that the children are with the Father they must sleep overnight at the residence of the Father’s parents.
That the Father is to keep regular appointments with his general practitioner for the purpose of reviewing his psychopharmacological treatment and such is to be at intervals not exceeding 12 weeks, unless otherwise directed by his general practitioner.
That the Father must at all times comply with any pharmacological treatment prescribed by any registered medical practitioner and he must on all occasions take any medication prescribed in the presence of his own mother.
That the Father must attend all appointments deemed necessary by any treating medical practitioner.
That within 14 days of today the Father must do all such acts as are necessary to ensure that a medical referral is provided to him by his general practitioner to attend an initial assessment with a Consultant Psychiatrist for the purpose of reviewing his psychopharmacological treatment.
That the Father’s solicitors have leave to provide copies of
Mr de Jong’s report dated 31 August 2007 and copies of these Orders to the Father’s general practitioner and to any Consultant Psychiatrist to whom the Father is referred.
IT IS NOTED that publication of this judgment under the pseudonym Chase & Coulter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DEVONPORT |
LNM 2044 of 2005
| MS CHASE |
Applicant
And
| MR COULTER |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is MS CHASE (“the Mother”) and the respondent is MR COULTER (“the Father”). The case concerns the parties’ two children, [A] born in 2003 and [B] born in 2005.
The hearing of this case is really one of the many unfortunate and continuing aftermaths of a terrible accident that befell the Father as a teenager when he was hit by a car as a pedestrian. While his many broken bones may have mended, he has been left with the residual effects of an acquired brain injury that is incurable and will affect every day of his life and the lives of those around him. The main effects of his acquired brain injury are the loss of short term memory and a lack of ability to control frustration and anger. It is really those effects that this case is all about.
The main issues in dispute are:
·when and for how long the children will spend time with their Father;
·what supervision or support the Father should receive; and
·where and how the children should move from one parent to the other at handover times.
Both parties seek Orders that the children should live predominantly with the Mother and that the parties should share parental responsibility equally. In my view it is very much to the Mother’s credit that she seeks an Order for equal shared parental responsibility because she clearly made a deliberate choice not to rely upon the Father’s acquired brain injury as a reason to seek sole parental responsibility. That bodes well for the future because it is indicative to me that the Mother wishes to include the Father in the children’s futures; or put another way, she does not seek to use his acquired brain injury to exclude him from future decision making in relation to the children.
By the same token, the Father is to be congratulated for realising his limitations resulting from his acquired brain injury and therefore not seeking anything other than to spend time with his children.
Proposals
What the Mother seeks is set out in the Case Summary Document filed on her behalf on 4 February 2008. Although it is not straightforward, I interpret her request to the Court as follows:
·That the children live with her.
·That the parties have equal shared parental responsibility for the children.
·That any time that the Father spends with the children is to be supervised during day time blocks of five hours by an independent adult (i.e. who is not related to him).
·That [B] spend time with him each week from Thursday afternoon until Friday evening with the overnight stay to be at the paternal grandparent’s home.
·
That [A] spend time with him in week one from Thursday at
1.30 p.m. until Saturday at 2.00 p.m., spending Thursday and Friday nights at the paternal grandparent’s home, and in week two from Thursday at 1.30 p.m. until Friday at 6.30 p.m., again with the overnight period to be spent at the grandparent’s home.
In each case, it is anticipated that [A] would be at school on the Friday.
·That the Father not sleep in the children’s room at the grandparent’s home.
·That the Father not spend more than five hours in a block of time with the children (i.e. that he take a one hour break after five hours before spending further time with the children).
·That the Contact Centre or some other independent person and place be used for handover of the children.
·That the Father comply with the medication regime and check up procedures recommended by Mr John de Jong (the Rule 15.09 court expert).
The Father’s proposal had been set out in his Summary of Argument, but it changed immediately upon his Counsel opening and then changed even more by the end of the hearing. As I understood the final version, it was as follows:
·That the parties have equal shared parental responsibility for the children.
·That the children live with the Mother.
·That the Father spend time with [A] each week from 9.00 a.m. on Thursday until 5.00 p.m. on Saturday.
·That he spend time with [B] each week from 9.00 a.m. on Thursday until 5.00 p.m. on Friday.
·That he spend further time with them on particular special occasions.
·During any time that he has the children or either of them they would sleep overnight at his parent’s home and his Mother would not leave him alone with them or either of them for more than five hours, when there would be a “break” of at least one hour when the paternal grandmother, or possibly the paternal grandfather, would be with the children. During those “breaks” the Father may or may not still be present.
·That the paternal grandmother would give an undertaking to the Court that she would ensure that the Father took his prescribed medication.
It was apparent from the Summary of Argument submitted on behalf of the Father that he accepted the recommendations of the court expert, Mr De Jong in relation to regular reviews of his medical condition.
The Father’s proposal was strongly supported by the Independent Children’s Lawyer (“ICL”). That was made clear by the ICL at the start of the hearing, and again in his closing submissions when he indicated a clear preference for the Father’s proposal.
Relevant Law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[1].
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [2]
[2] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children[3].
[3] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[4].
[4] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[5].
[5] Subsection 60CC(3)
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence[6]. 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.[7]
[6] Section 61da
[7] Subsection 61DA(4)
However, if the presumption is applicable, it does not necessarily follow that equal shared parental responsibility will be ordered. Similarly, if the presumption does not apply, it does not follow that sole parental responsibility will automatically be ordered. The court may make such parenting orders that it considers proper in the particular circumstances of the case.
If the court is going to order that the parents are to have equal shared parental responsibility, then the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[8]
[8] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[9]
[9] See subsections 65DAA(2) and (3)
The court must follow the legislative pathway that is provided by the Act[10].
[10] See Goode & Goode (2006) FLC 93-286
Background
The Mother is 30 years old and the Father is 26 years old. Neither party is engaged in any outside employment.
They started living together in early 2002 and separated in late 2005.
The two children named above are the two children of their relationship. The Mother also has two other older children from previous relationships.
Approximately two weeks after the older child was born, he was placed with the paternal grandparents and lived with them until he was aged approximately 18 months, when he returned to live with the parties.
These proceedings commenced in November 2005. On 21 December 2005 interim orders were made providing for the children to live with the Mother and spend time with the Father on Thursdays and Fridays, with the older child spending Thursday night with him.
In 2006 the Father was imprisoned for breaches of a Family Violence Order.
On 29 June 2007 the orders of 21 December 2005 were discharged by consent and further orders made. They provided for the children to live with the Mother and spend time with the Father as follows:
·with [A] each week from 9.00 a.m. on Thursday until 5.00 p.m. on Saturday;
·with [B] from 9.00 a.m. on Thursday until 5.00 p.m. on Friday; and
·on special occasions such as Father’s Day, Christmas Day and birthdays.
Those orders also provided for the handover of the children to be between the Mother and the maternal grandmother at the [X] car park in Devonport and that the children were to sleep overnight at the paternal grandparents’ home during any time spent with their father.
In August 2007 orders were made pursuant to this Court’s Rules[11] with the consent of the parties for a psychologist, Mr John de Jong, to be appointed to report to the Court on the following issues:
a)Whether the Father’s acquired brain injury effects his capacity to relate to and care for the children;
b)If such an effect exists, the nature and extent of it;
c)The practical strategies that the Father might adopt to minimise any negative effects; and
d)How any time he spends with the children might be structured to minimise any negative effects.
[11] See Rule 15.09, Federal Magistrates Court Rules 2001
On 31 August 2007 Mr de Jong provided a comprehensive report to the Court and copies were distributed to the lawyers for the parties and the ICL.[12]
[12] See Rule 15.10.
On 7 September 2007 the matter was set down for a final hearing in the November sittings of this Court in Devonport. For various reasons, the matter was not heard until the February sittings.
The Father had filed his trial Affidavit in anticipation of a hearing in November and that Affidavit he made the following statement
I need to comment on further issue. Since June 2007, I have been involved in allegations made against me that I have acted inappropriately towards my girlfriend’s daughter … The specific allegations were that I had molested her. I strenuously and emphatically deny those allegations. I have since in any event, received confirmation that no criminal charges will be laid against me because the Director of Public Prosecutions believes that there is “insufficient evidence”. I still maintain that there should be (sic) any evidence at all because I simply would not behave in that way.
Following that disclosure by the Father, the Mother unilaterally stopped making the children available to spend time with the Father. As a consequence, the Father did not see the children between mid December 2007 and the hearing of the matter in mid February 2008.
I am pleased to say that at the end of the hearing the parties reached an interim agreement that the Father would spend time with the children from 9.00 a.m. until 4.00 p.m. on Tuesdays and Thursdays and that the handover of the children would be assisted by a family friend. It was pointed out by the ICL that “this is a totally pragmatic agreement, it doesn’t involve a concession by either party that they like making this agreement because in relation to both parties it’s a shift from their position.”
The agreement reached was also conditional upon the maternal grandmother:
·being present throughout the time that the children spent with the Father;
·ensuring that the Father took his medication correctly; and
·reporting to the ICL any matter causing her to be reasonably concerned about the safety of the children.
The paternal grandmother informed the Court that she would abide by those conditions.
The affidavits and Court Expert report
Initially, the Mother appeared to be relying upon a number of affidavits sworn by her. However, it became clear by the end of the hearing that she was really only relying upon her trial affidavit filed 29 June 2007.
The Father relied upon:
a)a trial affidavit filed 22 November 2007;
b)an updating affidavit filed 4 February 2008;
c)an affidavit by his mother filed 22 November 2007;
d)a further affidavit by his mother filed 4 February 2008;
e)an affidavit by a friend. (So much of that friend’s affidavit was struck out that he was not required for cross-examination. I found the remaining balance of his affidavit to be of little assistance to me.)
Mr de Jong’s report was admitted into evidence.
The Father, the Mother, the paternal grandmother and Mr de Jong all gave oral evidence.
The parties positions
It is to the Mother’s credit that she is not seeking to prevent the Father spending time with the children. Indeed, the crux of her case was very well summarised in Mr de Jong’s report when he said:
(The Mother) said that the children loved (their Father) but she is concerned for their safety while they are in his unsupervised care.
She says that she has observed that the Father does not take his medication on occasions and he becomes violent and aggressive. She also says that there is a significant history of family violence, which is clearly resulted from his acquired brain injury.
Her counsel submitted that I could be left in no doubt that supervision of the Father’s time with the children is required.
On the other hand, the Father’s counsel submitted that Mr de Jong had retreated from his use of the word “supervision” in his evidence and that it would be sufficient for me to make an order that the Father’s mother be substantially present when he spends time with the children.
He pointed out that Mr de Jong had described the paternal grandmother as “the third parent” in this matter and submitted that, if there was any risk to the children, it would be properly addressed by her.
In her Affidavit evidence, the paternal grandmother had said:
I am prepared to commit, and have the flexibility in my employment to be available at all times that the children are with [Mr Coulter]. That is, I would forego work, if it meant
[Mr Coulter] could spend time with the children. I make no concession that [Mr Coulter] needs constant supervision, but both and I have spoken and we understand the difficulties that [Mr Coulter]’s brain injury presents.
I am also conscious that this appears to be a very big issue for [Ms Chase], and if it gave her peace of mind, I would be prepared to do it.
The parties clearly had very polarised positions about the issues, so the report and oral evidence of Mr de Jong was of great assistance to me in relation to the matters that I have to decide.
Mr de Jong’s evidence
At the time that Mr de Jong conducted interviews for his report,
Mr Coulter was living with a girlfriend and her child. However, he had separated from her the time of the hearing.
The Father, the Mother, the children, the Father’s former girlfriend and the Father’s mother were all seen by Mr de Jong for the purposes of his report.
The Father was already known to Mr de Jong because he had earlier dealings with him when the Father had been referred to him by his general practitioner.
Mr de Jong reported that:
(The Father) denied any significant aggressive or violent behaviour towards (the Mother) during their relationship, saying he pushed her down one time, lost his temper and shouted at her several other times. He asserted that most of the allegations made her against him were untrue.
He also reported:
When asked concrete, closed questions about possible anger problems, (the Father) denied any problems whatsoever with anger since he has stopped associating with (the Mother). He denied even being indirectly irritated by (her). He denied any problems with anger in his current relationship with (his girlfriend) and denied any problems with frustration while he has the care of the children. He indicated that he has learnt from experience not to react and benefited from the medications prescribed to stabilise his mood.
Mr de Jong interviewed the Father’s former girlfriend and reported that she related her views with unguarded and direct honesty. She had said that the Father does get angry a lot, and in relation to the taking of his medication she had said:
He won’t take his medication. He reckons he does not need it. But he settles a lot when he does take it. He does not flip out as much. He has not taken any since the script ran out two months ago.
Mr de Jong also interviewed the paternal grandmother. She confirmed that, as a result of a Care and Protection Order obtained by the State authorities after allegations of maltreatment by the parents, she had had the full time care of the older child from when he was two weeks old until he was 18 months old. As a consequence, she has a strong bond with him that she said is reciprocated by him. She has remained actively involved in the care of both children. She has also been involved in the handover of the children and they sleep in her home at night.
The paternal grandmother told Mr de Jong that the arrangement had been working well and that she and her husband had been gradually extending more unsupervised care to their son, saying that small progressions are working well.
She also told Mr de Jong that she is less worried about problems associated with his anger dyscontrol than she is about his poor working memory that leads him to forget things easily.
The paternal grandmother also conceded that the Father is still easily frustrated by things that go wrong, or noisy, high stimulus situations. By way of example, she told Mr de Jong that he is much more irritable after spending time on the computer or playing video games.
She also told Mr de Jong that the Father’s mood is much more stable when he takes his medication. When the paternal grandmother was informed of the comments by her son’s girlfriend about him not taking his medication, she indicated that she had been unaware of that but undertook to encourage him to take his medication.
When the Father was seen with the children they were initially unsettled. Both were crying and Mr de Jong asked the Father to help his mother with the older child. Mr de Jong reported as follows:
With two crying children in the room the situation was a little stressful. (The paternal grandmother) worked confidently to comfort both children. (The Father’s girlfriend) stood without moving. (The Father) did not appear to know what to do and in consequence did very little. The Writer asked him directly to help his mother with (his son). He made a brief gesture of soothing (his son) but stood up immediately when this did not succeed. He then became frustrated and expressed some anger towards (the Mother) for upsetting the children. His remark was misplaced as the transfer of care had taken place 90 minutes earlier, and it was unhelpful for the stress it added to an already difficult situation. He was asked by the Writer to stop making these remarks and asked again to help with (his son) whereupon he picked (him) up. The Writer and (the paternal grandmother) then left the room.
Upon returning 30 minutes later the children had settled considerably. (The younger child) was sitting on the floor leaning against her Father. (The older child) was playing with toys also leaning against his Father. The Father was playing in a calm and relaxed manner appropriate to the situation. (His girlfriend) sat in a chair uninvolved. The Writer then left the room for an interview with (his girlfriend).
Upon returning some 20 minutes later, (the younger child) was being cradled by (the paternal grandmother) and (the older child) was continuing to play comfortably with his father.
In relation to the specific term of reference about whether the Father’s acquired brain injury affects his capacity to relate and care for the children, Mr de Jong reported:
There is a documented history indicating that the acquired brain injury has caused significant impairment (of) personal and interpersonal functioning. The concluded opinion of this assessment is that the acquired brain injury does reduce his capacity to relate to and care for (the children).
In relation to the nature and effect of the Father’s condition, Mr de Jong said the following:
Impaired memory function, and working memory specifically, causes (the Father) to forget some things. His mother noted that he still forgets to turn off the stove, or do things required of him. This impairment is unlikely to improve in the future. For this reason, he is considered to need the supervision and support of another person at all times while the children are in his care. This is currently being adequately provided variously by his mother, his father and girlfriend.
Having regard to all the information available to the Writer, the balance of evidence suggests that anger dyscontrol is still a significant issue. There is a documented history of poor frustrations tolerance, stress in high stimuli settings, impulsivity, disinhibition, poor social judgment, and interpersonal sensitivity that together gives rise as to anger dyscontrol. (The Father) is not considered to be an angry person by nature, but the evidence is that he has little control of the frustration that does arise in challenging situations, and little control over the force of his impulsive and excessive angry outbursts. Added to this, the Father has now developed a very hostile attitude towards (the Mother) and her boyfriend. This hostile attitude and his poor anger control suggests a continued risk of anger and aggression in the future. (The Father) demonstrated very poor insight into his own anger problems and/or a strong motivation to minimise his anger problems when questioned by the Writer. He denied any anger problems whatsoever since his release from prison. This contrasted markedly with the report of others, and his current girlfriend in particular. The prognosis in this regard is that the factors underlining his anger dyscontrol are unlikely to change in the future and that meaningful management can only be achieved with pharmacological treatment. The issue of (the Father’s) anger dyscontrol is important because there is a risk that the children will be distressed through being exposed directly or indirectly to his anger. There is no indication that the children have suffered, or are at risk of suffering any direct physical harm in consequence of (the Father’s) anger (Emphasis added).
Mr de Jong went on to say:
(The Father) demonstrated a close relationship with the children and his love for them is not disputed. He appeared to have poor judgment of what their needs were or how he should respond. He appeared to lack confidence in his parenting and he was easily frustrated by more demanding or stressful situations. He demonstrated an ability to play quietly with them on the floor, however, when they became distressed he quickly became frustrated, lost confidence, and withdrew. This lack of social judgment is likely to be a function of his brain injury. There is probably some potential that these difficulties could be ameliorated by increased interaction and experience with the children, and (his mother’s) approach of slowly progressing his care of the children is very appropriate. He may always be perceived by the children as somewhat aloof and insensitive to their needs.
In relation to the practical strategies that the Father might adopt to minimise any negative effects of his condition, Mr de Jong reported as follows:
(He) genuinely wants to be a good father and have an active role in their care. In order to achieve this it is very important that he complies with medication prescribed to him. His care of the children should be conditional upon compliance with pharmacological treatment. It would assist him to have regular reviews with his medical practitioner but also assist him to have regular reviews with a psychiatrist on a continuing basis. There were conflicting reports about his compliance with medication, and no conclusion is made to the veracity of the reports offered. However the possibility that he is not taking his medication and making a false report is very concerning. Sodium valproate (Epilim) levels can be easily evaluated by blood tests ordered by his general practitioner.
Given the contents of the paragraph quoted above, it is pleasing to see that the Father is prepared to consent to Orders requiring him to comply with any medication regime and to keep regular appointments with his general practitioner, in addition to consulting with a psychiatrist.
Mr de Jong went on to say:
The Father’s care of the children should be supervised at all times by another adult to minimise the risk associated with his poor working memory. His care of the children should also be supported at all times by another adult to minimise the risk associated with his poor frustration tolerance and poor judgment of their needs. The Writer’s concluded opinion is that very good supervision and support is currently being provided by the paternal grandparents. (The Father’s girlfriend) provides some limited support and supervision she was neither assertive nor agentic in assisting with the care of (the children) and the impression was formed she would have difficulty being assertive with (the Father) if difficulties arose. It is suggested that the time the children spend with (the Father and his girlfriend) be limited to no more than five hours in any one block of care to reduce any risk of possible harm.
Transfer of care should be changed to occur at a contact centre to minimise the risk of conflict between the parties. Given the high level of mutual hostility expressed by (the Father and the Mother), it is considered in the best interests of the children that the parties simply do not encounter each other at all.
Mr de Jong went on to say:
(The Father) has had extensive counselling since the accident. The effectiveness of this is limited if he minimises his own anger problems and externalises responsibility for problems to other people. Notwithstanding that (the Mother) has in all likelihood also contributed to the conflict, it was very clear that (the Father) still minimises responsibility for his own anger and he is quick to feel persecuted and blame others for difficulties that arise. He could achieve some better anger control if he was motivated to do so through individual psychotherapy. This would complement, and not be a substitute for, pharmacological treatment.
In response to the specific request to Mr de Jong to report on how any time the Father spends with the children might be structured to minimise negative effects, he commented:
The current parenting arrangement seems appropriate. It is important that (the children) spend time with and sleep overnight with the paternal grandparents. These have become very important attachment relationships and should not be disrupted. From that position of safety and support it would be appropriate and sufficiently safe for the children to spend up to five hours in one block with (the Father and his girlfriend).
As the father is no longer living with that girlfriend, it was not surprising that Mr de Jong was cross-examined about that recommendation. He indicated that he had heard that the Father’s relationship with his girlfriend had dissolved and that there should be supervision by some other person.
When it was suggested to him by the Mother’s counsel that somebody needed to be with him constantly, Mr de Jong responded:
Well, a person could make a reasonable estimate as to … the likelihood that (the Father) would probably be in good shape for the first several hours of his time with the children and then he could become progressively more fatigued towards the end of that time. There could be scope for him to spend some short periods of unsupervised time if circumstances are going well and he is in good shape. I was impressed with the paternal grandparents’ ability to be able to judge how much support was necessary and I felt confident that they would intervene as required.
It was clear that in using the word “supervision” Mr de Jong did not mean that the other adult should be physically in the Father’s presence at all times, but rather that the person should be in the general vicinity. It was also clear that Mr de Jong’s use of the words “supervision” and “support” were almost interchangeable.
When asked by the Mother’s counsel whether he could provide an estimate of when and how it would be appropriate for the supervisor to be physically separate from the Father, his response was:
No, I can’t make an estimate other than to say it will be appropriate from time to time for that to occur and a person such as the paternal grandmother or grandfather would be in a position to know when that’s appropriate and I wouldn’t like to see the supervision requirement be so restrictive as to be a trip-wire for further litigation each time that (the Father) is unsupervised.
Mr de Jong agreed that it was critical to the Father’s ongoing time with the children that he takes his medication as prescribed. When questioned by the Father’s counsel, Mr de Jong said that it would be reassuring if there was an Order requiring the Father to take his medication in the presence of his mother.
Mr de Jong agreed when questioned by the Father’s counsel that supervision by a stranger would be a backward step and would not allow strengthening of the relationship between the Father and the children. He also agreed that the paternal grandparents were “doing a good job” and that should continue.
Also while being questioned by the Father’s counsel, Mr de Jong expressed his concern that his previously suggested time frame of five hours had been made “at a time when there was also the presence of another person there” and said that he would probably revise that time estimate if there was not going to be another adult present.
When he was questioned further about that, he commented that a period of two hours would be enough for the Father to be quite fatigued on his own with the two children. However, he was clearly not in favour of an order being made in those terms, because it might then become a “trip-wire for further litigation”. When questioned further by the Father’s counsel he indicated that he would trust the paternal grandmother’s day-to-day judgment in relation to that because some situations would be more stressful than others.
When Mr de Jong was questioned earlier by the Mother’s counsel, he had conceded that the children having a full weekend with their Mother and older siblings may enable them to better develop their relationships as a family unit.
Should the parents share parental responsibility equally?
I said above that it is to the Mother’s credit that she seeks an Order for equal shared parental responsibility. She does that notwithstanding her allegations of violence, so I am of the view that it shows that she is prepared to be inclusive in relation to the children’s future welfare.
Section 60CC(5) provides that if the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection Section 60CC(2) or (3). In the circumstances, I believe that it is appropriate to make an order for equal shared parental responsibility.
Should the children spend equal time with the parents?
Neither party is seeking such an order, so I do not really think it is necessary to comment further.
However, it is clear that I must consider the Primary Considerations and any relevant Additional Considerations in Section 60CC in relation to the time that the children spend with their father and any conditions to be imposed.
Primary considerations
As mentioned above, there are two “primary considerations”. They are:
·the benefit to the children of having a meaningful relationships with both parents; and
·the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
It is clear that in this case there is a significant tension between those considerations. It is perfectly clear that the difficulties in relation to this matter, and the Mother’s fears in relation to the safety of the children, are mainly attributable to the two main effects of the Father’s acquired brain injury, being his inability to control his frustration and anger, and his short term memory loss.
In relation to the first of those, I note that Mr de Jong stated that there is no indication that the children have suffered or are at risk of suffering any direct physical harm as a consequence of the Father’s anger dyscontrol. However he did say that there is a risk that the children could be distressed by being exposed directly or indirectly to his anger.
I also note that the Father’s mother appeared to be more concerned about her son’s short term memory loss than his anger management difficulties. She referred to the example of him forgetting to turn off the stove.
It is quite clear that the Father needs to keep taking his medication in accordance with the directions of his treating doctors and I am pleased that his mother is prepared to ensure that she is present and witnesses him doing so each day.
The Court must balance the desirability of the children having a meaningful relationship with their Father and any risk to them. In those circumstances, it is also pleasing that the Father’s mother is prepared to do so much to assist him. I note that in her Affidavit she states that she is prepared to forego working if that is necessary.
I accept the genuineness of the paternal grandmother’s dedication to her son, and that can only give the Court confidence that she will assist in any way possible to ensure that the children are safe while still fostering a meaningful relationship with their father.
I also accept that it would not be appropriate to specify particular lengths of time that the Father should be able to spend with the children without his mother or father being physically present. Clearly, that will depend upon the particular situation at any given time, and like Mr de Jong, I have confidence that the paternal grandparents are managing that well and that they will not leave the children alone with their father at times when it is not appropriate.
Relevant additional considerations
The children’s views
In view of the children’s ages, this is not a relevant consideration in this case.
The relationships of the children with the parents and other people (including grandparents)
There is no doubt in my mind that the children have warm and loving relationships with their mother and with the two half-siblings that live in her household. After all, they have spent all their lives with them. Further, I accept that the children have good relationships with their mother’s wider family.
Similarly, I accept that the children have a warm and loving relationship with their father and with his parents.
Clearly, all of these relationships must be fostered to the maximum extent that is possible.
In Bright and Bright v Bright and Mackley[13] the late Treyvaud J said:
…it is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
[13] (1995) FLC 92-570 at page 81,658
Those are sentiments that I wholeheartedly endorse. It is perfectly clear to me that the children’s relationships with their wider families on both sides must be continued.
The willingness and ability of the parents to facilitate and encourage the children’s relationships with the other parent
I have some concerns that the relationship between the Mother and the Father has deteriorated to such an extent that Mr de Jong reports that there is a high level of mutual hostility between them.
However, it is encouraging that the Mother does not appear to be using the Father’s acquired brain injury as a means to stop a relationship between him and the children. As I have said, that is to her credit.
While the father appears to be irrationally hostile towards the Mother, he is not trying to undermine her role as the parent with whom the children will live predominantly.
The likely effect of any change in the children’s circumstances
The Mother is seeking to have the Father’s time with the children supervised during day time blocks of five hours by an independent adult. That was clearly a change in circumstance that Mr de Jong did not consider to be in the children’s best interests. Indeed, he agreed that it would be a backward step that would not allow strengthening of the relationship between the children and their father. I agree with him in relation to that. I also agree that the paternal grandparents “have been doing a good job” and that should continue.
Mr de Jong suggested that because of the high level of mutual hostility between the parties it would be in the interests of the children that they do not encounter each other at all at times of handover of the children. He therefore suggested that such should take place at a contact centre. However, it is my view that that objective can be achieved without using the scarce and valuable resources of a contact centre.
For example that can be achieved by the Father not being present at the time of handover and I can see no reason why the handover should not continue to be at the cinema car park.
The practical difficulty and expense of the children spending time with and/or communicating with a parent
There are clearly practical difficulties in relation to the children spending time with the Father that arise from his acquired brain injury. However, I have considered those difficulties elsewhere in these Reasons.
The parties live within relatively close proximity so there is no significant expense associated with the children spending time with their father.
The capacity of the parents and others, including grandparents, to provide for the children’s needs
This factor includes physical, emotional and intellectual needs.
Nothing suggests to me that the Mother is unable to provide well for the children’s physical, emotional and intellectual needs. However, it is quite clear that the Father has some disability in this regard. Notwithstanding this, I am confident that with the assistance of his parents he will provide for the children’s needs to the best of his ability.
The attitudes of the parents to the children and to parental responsibilities
In some respects there is some overlapping between this factor and the factor referred to immediately above.
Again, I have no concerns about the Mother’s attitude to the children or to her parental responsibilities. It is quite clear to me that she has been involved in this litigation solely because of her very natural concerns for the children’s welfare.
Mr de Jong reported that the Father wants to be a good parent and have an active role in their care. Clearly, his limitations in relation to care of the children are not so much related to any lack of attitude as they are to his acquired brain injury, and I have referred to that extensively elsewhere in these Reasons.
Any family violence and family violence orders
When he was interviewed by Mr de Jong, the Father conceded that he had pushed the Mother down on one occasion and lost his temper and shouted at her on other occasions. However, he asserted that most of the allegations made by her against him were untrue.
Given that there have been Family Violence Orders in existence and that the Father was sent to prison for a breach of such orders, I have no doubt that the Father is significantly understating the violence between him and the Mother. Consequently I accept Mr de Jong’s observation that the Father minimises his own anger problems and externalises responsibility for that to other people.
I note also that Mr de Jong observed that the Mother “has in all likelihood also contributed to the conflict”.
In my view, because of the hostility between the parties it would be in the children’s best interest to ensure that the parties do not come into contact with each other and the orders that I propose to make about the handover of the children will provide for that.
Naturally, the Court cannot do anything about accidental meetings from time to time, and the clear evidence is that such meetings have caused difficulties in the past. However, it is my view that both parties need to exercise restraint if such accidental meetings occur in the future.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
At the conclusion of his report, Mr de Jong suggested that it would be appropriate and sufficiently safe for the children to spend up to five hours in one block with the Father and his former girlfriend. I have dealt with that aspect above. However, Mr de Jong went on to say:
This should be an appropriate balance of shared time and responsibility for the next two years until (the older child) starts attending school. Adjustments may need to be made then to accommodate school.
I note that Mr de Jong made that recommendation almost a year ago. However, I am of the view that I should make orders with the children’s schooling in mind and with a view to avoiding litigation in the future.
I also note that Mr de Jong appeared to accept the proposition that it is in the interests of the children to spend whole weekends with their mother as well.
As a consequence, I am of the view that I should make orders that provide for fortnightly time to include a weekend with the Father and for such to extend beyond the weekend so that the Father can become involved with his children’s schooling. In my view, such “substantial and significant time” is in the children’s best interests and it will also allow the children to take part in normal weekend activities with their Mother and half-siblings.
Further, I can see no reason why the children should be treated differently, and it is my view that it will be generally more convenient for the parties if both children go from their Mother to their Father and vice versa at the same time. That will result in less handovers and less need for transportation.
Any other fact or circumstance that the court thinks is relevant
Although there was an allegation made that the Father had sexually molested his former girlfriend’s child, the only evidence that I have in relation to that is his own evidence that he will not be prosecuted.
Because no additional evidence was put before me, I infer that neither of the parties, nor the ICL thought that there was any useful evidence that could be provided.[14]
[14] See Jones v Dunkel (1959) 101 CLR 298
Given the lack of evidence, and the support and assistance that the Father will receive from his parents, I can only conclude that any risk in relation to these children is not unacceptable.[15]
[15] See M and M (1988) FLC 91-979, WK v SR (1997) FLC 92-787 and Re W (Sex abuse: standard of proof) (2004) FLC 93-19
Conclusion
For the reasons set out above, I will make orders that provide for the children to live with their mother and for both parents to share parental responsibility equally.
There will also be an order for the children to spend time with the Father:
a)Each second week from 5.00 p.m. on Wednesday until 5.00 p.m. on Sunday. That will provide for the children to be with him for four days and nights each fortnight, but it will also allow the children to spend weekends with their mother and half-siblings. It will also enable the Father to be involved in the children’s schooling on Thursdays and Fridays.
b)On special days such as Christmas Day, birthdays and Fathers Day.
An order will provide for the handover of the children between the Father’s agent and the Mother or her agent at the cinema car park, unless otherwise agreed. In this regard I expect that the Father’s mother will usually be responsible for the collecting and returning of the children and I note that she has been co-operative when the mother has had transport difficulties in the past.
As mentioned above, there will be an order preventing the Father from being present at handover times.
The parties are agreed that the children should sleep at the paternal grandparents’ house at all times when they are with the Father, so there will be an order to that effect.
For obvious reasons, I will make the necessary orders requiring the Father to continue to receive appropriate medical treatment. The Father is seeking such orders, in any event.
I will also order him to comply with any pharmacological treatment prescribed by his doctors and to take any medication so prescribed in the presence of his mother. However, I do not consider that it is necessary for his mother to give undertakings to the Court in relation to that. I am confident that she will be made aware of her son’s obligation to take his medication in her presence and she will do everything possible to ensure that he does not breach any of the orders that I make. She would not want to jeopardise her son’s time with the children.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Roberts FM
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