Clarke and Mandeville (No.2)
[2007] FMCAfam 980
•30 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLARKE & MANDEVILLE (No.2) | [2007] FMCAfam 980 |
| FAMILY LAW – Child aged nine years – interim orders made for supervised contact – father seeks to spend unsupervised periods of time with the child – interim orders also required father to provide satisfactory drug tests to independent children’s lawyer and provide medical evidence regarding his current level of psychological functioning – father fails to comply with such orders – father fails to file any further affidavit material – whether appropriate to proceed further with hearing and depart from interim orders – best interests of child – presumption of equal shared parental responsibility – meaningful relationship with both parents – protective concerns. |
| Family Law Act 1975 ss.60CA; 60CC; 61DA; 65DAA;68L; 68LA |
| Clakre & Mandeville (No 1) [2007] FMCAfam 400 Dearman v Dearman (1908) 7CLR 549 M & M (1988) FLC 91-979 |
| Applicant: | MR CLARKE |
| Respondent: | MS MANDEVILLE |
| File number: | NCM 1082 of 2005 |
| Judgment of: | Brown FM |
| Hearing date: | 16 October 2007 |
| Date of last submission: | 16 October 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 30 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant in Person |
| Counsel for the Respondent: | Mr Hartley |
| Solicitors for the Respondent:: | Mandy Hull & Associates |
| Counsel for the Independent Children’s Lawyer | Ms Olsen |
| Solicitors for the Independent Children’s Lawyer | Boyd Olsen Lawyers |
ORDERS
The child of the relationship L born in July 1998 “the child” live with the mother.
The father spend time with the child as follows:
(a)For periods of two hours on alternate weekends or any such longer periods as the parties agree upon subject to the time being available at the Rxxx Centre on condition that each such period is supervised by the Director of the Rxxx Centre or his or her nominee;
(b)At any other times and on any other conditions as the parties may agree from time to time.
The parties share equally the costs of the supervision stipulated in order 2 hereof.
The father is not to consume any alcohol or illicit drugs in the period of 24 hours immediately prior to him spending any time with the child.
The mother authorise the principal of the school attended by the child from time to time to provide copies of the child’s school reports and school photographs of the child to the father at the father’s address Hxxx at the father’s expense.
The appointment of the Independent Children’s Lawyer continue until 15 April 2008.
In the event that prior to 15 April 2008 the father provides to the Independent Children’s Lawyer a medical report dealing with issues pertaining to his drug use and psychological and psychiatric health, treatment (if any) provided to him for such level of drug use, the compliance the father has shown with any regime of treatment prescribed for him and the relevance of any previous drug use on his mental health and capacity to parent the child appropriately the Independent Children’s Lawyer and the father have liberty to re-list the matter on 14 days written notice.
The application and response herein be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Clarke & Mandeville is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 1082 of 2005
| MR CLARKE |
Applicant
And
| MS MANDEVILLE |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Clarke and Ms Mandeville are the parents of L born in July 1998. The parties have been separated since at least 19 October 2004. Since that time L has lived with her mother.
The case is about what are the appropriate arrangements for L to spend time with her father. These reasons for judgement should be read in conjunction with earlier ex tempore reasons for judgement delivered in the case in Newcastle on 9 May 2007.
Mr Clarke wants to see L as much as possible. He proposes on alternate weekends and on one evening each week during school terms, as well as for half of each school holiday period.
Ms Mandeville is concerned that Mr Clarke has unresolved issues to do with the use of illegal drugs and is psychologically unstable. She also asserts that Mr Clarke has behaved in a violent way towards her in the past. As a result of these issues, she asserts that it would not be in L’s best interests for the court to make the orders Mr Clarke seeks.
It is Ms Mandeville’s position that the court should make orders that above all ensure L is protected from suffering emotional harm as a result of being exposed to abuse, neglect or family violence. As a result she proposes at the very least that any time Mr Clarke spends with L should be subject to rigorous professional supervision.
On the other hand, it is Mr Clarke’s position that such an outcome would not be in L’s best interests as it would not enable her to have a meaningful relationship with him. Professional supervision will allow him only to spend a limited time with L each fortnight in what he sees as the sterile and institutional environment of a contact centre.
Accordingly this case is about the application of the presumption of equal shared parental responsibility [Family Law Act s.61DA] to the case. As the evidence currently stands, will it be in L’s best interests for the presumption to be applied?
In deciding how L’s interests will be best served the court is directed to look at a long list of considerations in the Family Law Act [s.60CC]. Two considerations have primacy – firstly the benefit L is likely to derive from having a meaningful relationship with both her parents [s.60CC(2)(a)] – secondly the need to protect her from harm, both emotional and physical harm, as a result of being exposed to neglect, abuse or family violence [s.60CC(2)(b)].
Mr Clarke points to the first consideration and Ms Mandeville to the second one. However Mr Clarke and Ms Mandeville are not the only the parties to the case. Because of the issues raised by Ms Mandeville, it has been ordered that L be represented independently of her parents [s.68L]. The lawyer representing L is Ms Olsen.
The law requires Ms Olsen to form a view, on the evidence available to her, as to what the best outcome will be for L [s.68LA]. Ms Olsen is of the view that the proceedings concerning L need to be brought to an end. She shares Ms Mandeville’s concerns regarding Mr Clarke’s psychological condition and previous use of illegal drugs. Ms Olsen is particularly concerned that Mr Clarke has failed to comply with a number of orders made by the court on 9 May 2007 and beforehand.
The relevant orders required Mr Clarke to provide the results of a number of drug screening tests to Ms Olsen, as well as provide her with a psychiatric report concerning his mental health and the relevance to it of his drug use. Neither the medical report nor the drug screen testing reports have been forthcoming.
As a result of this failure on Mr Clarke’s part, Ms Olsen believes that the court has no alternative but to make orders that will result in either Mr Clarke spending no time at all with L or spending limited time with her in a supervised setting. She does not think it would be useful for L for the proceedings to be adjourned again to see if Mr Clarke will provide the reports which have previously been ordered.
Ms Olsen’s view of the case has been highly influenced by two family reports which have been prepared in the case. These reports were prepared by Ms Diane Lojszczyk, an experienced social worker, who has been a family consultant at the Family Court at Newcastle for over twenty years.
In the second of her reports, dated 16 April 2007, Ms Lojszczyk raised concerns about Mr Clarke’s then use of drugs, which in part arose because of Mr Clarke’s admission that he was using cannabis at the time. In addition it was also the position, at the time of Ms Lojszczyk’s second report, that Mr Clarke had not complied with requests from Ms Olsen to undertake a series of random supervised drug tests.
Accordingly Ms Lojszczyk recommended that the court not move to unsupervised time between L and Mr Clarke until Mr Clarke was able to demonstrate that he was drug free.[1] This, in part, was the background to the orders of the court made on 9 May 2007.[2] The central question for the court is what should be done regarding the time L spends with her father given Mr Clarke’s failure to accept the recommendations of Ms Lojszczyk and his apparent unwillingness to provide proof that he is currently drug free.
[1] See Family Report dated 16 April 2007 at paragraph 53
[2] See Clarke & Mandeville [2007] FMCAfam 400
Background to the proceedings
Mr Clarke began proceedings on 26 April 2005 seeking to spend regular periods of time with L. At that time it is common ground between the parties that he had not seen L since 19 October of 2004. On this occasion there had been an unpleasant altercation between the parties, to which L was witness.
Mr Clarke’s initial application was listed for directions on 3 June 2005. It had been prepared by a solicitor on his behalf. However the application was never served on Ms Mandeville and ultimately, on 8 July 2005 the application was dismissed in the absence of both parties.
Mr Clarke recommenced the proceedings on 11 May 2006, seeking essentially the same orders to that contained in his first application. At this stage he was acting on his own behalf and has done so in the period since. He has not filed any further affidavit material on his behalf since 11 May 2006.
On 2 August 2006 an order was made that L be independently represented. Ms Mandeville formerly responded to the father’s application on 16 August 2006. She proposed that for an initial period of three months Mr Clarke should spend four hour periods of time with L under the supervision of the Rxxx Centre.
Thereafter she proposed longer periods of time, including an overnight period on every second Saturday, provided that L slept overnight at her paternal grandparents’ home in Cxxx. In effect the professional supervision was to be replaced by supervision to be provided by L’s grandparents, Mr and Mrs C.
On 30 August 2006, no doubt with the assistance of Ms Olsen, the parties agreed that Ms L should observe L with each of the parties and report back to them and the court on the best means of reinstating the relationship between L and her father. Two such sessions of observations were scheduled. By this time it was close to two years since L had last seen her father.
Mr and Mrs C Senior took part in the second session with
Ms Lojszczyk. As a result it was agreed that L should spend some time with her father at their home in Cxxx. Unfortunately however
Mr Clarke found it difficult to travel from his home in Hxxx to Cxxx. As he does not have a car, he was restricted to public transport, which is limited on weekends. As a result he was not able to attend all the scheduled sessions with L, missing two of them.
As a result of these problems, the matter was re-listed before the court on 21 November 2006 and Ms Lojszczyk was requested to prepare a short family report in respect of her observations and impressions of the family up to this stage.
Ms Lojszczyk’s first report was released on 1 December 2006. It dealt with her observations of L with her father on 15 September 2006 and also on 29 September 2006, when Mr and Mrs C Senior had also been present. Ms Lojszczyk also reported on what she believed had occurred in the period since.
In respect of the first session she observed between L and Mr Clarke, Ms Lojszczyk was concerned that Mr Clarke spoke negatively about Ms Mandeville and her family to L. She was also concerned at
Mr Clarke’s heightened emotional state during the observation. As a result she recommended to Mr Clarke that he undertake a course of counselling.
The second session was more successful and Mr Clarke was found to behave more positively at it. L was content to spend time with her father and paternal grandparents, although she was reported by
Ms Lojszczyk to be a child who listened more than spoke. It was on this basis the parties were able to agree that L should spend some longer periods of time with her father at Mr and Mrs C’s home in Cxxx.
As previously indicated, Mr Clarke was not able to take advantage of all the scheduled visits. This was of concern to both Ms Mandeville and Ms Lojszczyk. Ms Lojszczyk spoke further with Ms Mandeville and Mr and Mrs C about their impressions of the periods L had been able to spend with her father at Cxxx. She was not able to contact
Mr Clarke to speak with him about the visits.
Ms Mandeville reiterated her concerns to Ms Lojszczyk about
Mr Clarke’s cannabis use in the past. She reported that she was happy for L to maintain a relationship with her paternal grandparents. However she believed that Mr and Mrs C Senior were placed in a difficult position in regards to supervising their son’s interactions with L, a role they found extremely stressful due to demands Mr Clarke made of them.
Mr and Mrs C Senior reported that they got on well with
Ms Mandeville and had no issues with her parenting of L. However Mrs C was concerned that her son remained “hateful” towards
Ms Mandeville and was unable to contain his feelings for her from L. She reported that Mr Clarke had said negative things to L about
Ms Mandeville although she and her husband had requested him not to.
In her report, Ms L paraphrased Mrs C’s concerns as follows:
“Mrs C views her son as still being consumed by the past and being incapable of moving on. She also sees him as focussing on his own needs and feelings and not what is best for L. Mrs C also expressed some concern as to where Mr Clarke may take L and whom he may expose her to if he had her in an unsupervised setting.
…
Mrs C also confirmed that Mr Clarke had had drug issues, at least in the past. They have had minimal contact with him over the last two years so unable to say what his drug status currently is.”[3]
As a result of these matters, Mr and Mrs C were not in favour of the father spending time with L on his own, although they believed he should be able to see her.
[3] See Family Report dated 30 November 2006 at paragraphs 28 & 30
In her first report, Ms Lojszczyk was unwilling to provide a definitive recommendation. However she was concerned about L spending unsupervised periods of time with Mr Clarke giving the issues raised about his past drug use and his negativity towards Ms Mandeville.
Ms Lojszczyk conceded that it was a limitation of her report that she had not been able to ascertain Mr Clarke’s position in respect of these allegations against him.
The matter returned to court on 6 December 2006. On this occasion Coakes FM ordered that Ms Lojszczyk should up-date her first report for the final hearing of the parties’ competing applications on 9 May 2007. 30 January 2007 was allocated as the time for the resolution of any interim issues between the parties. Each was given an opportunity to file additional affidavit material both for the interim and final hearings.
Mr Clarke did not avail himself of the opportunity to file any further affidavit material in anticipation of the interim hearing. Indeed he has filed no further affidavit since the one which was filed with his application on 11 May 2006. He has never formally responded to the issues raised by Ms Lojszczyk in her report. In addition neither Mr nor Mrs C Senior have provided any affidavit to the court. The only conduit of their views about the matter is through Ms Lojszczyk.
On 30 January orders were made which allowed for Mr Clarke to spend time with L on alternate Saturdays between 10.00am and 4.00pm subject to the time being supervised by one or other of his parents. It was also ordered that the Independent Children’s Lawyer was entitled to require Mr Clarke to undergo any drug testing as she might stipulate in the period leading up to the final hearing.
The second family report
Ms Lojszczyk’s second report was released to the parties on 17 April 2007. For this report, Ms Lojszczyk interviewed Mr and Mrs C Senior, Ms Mandeville, Mr Clarke and Ms S, the father’s current partner. She also interviewed L herself and observed her interacting with the father and Ms S.
Mr and Mrs C Senior indicated to Ms Lojszczyk that they were no longer willing to act as supervisors for any time Mr Clarke spent with L. They described Mr Clarke as irresponsible and unreliable. They reiterated their earlier concerns about Mr Clarke spending time with L on an unsupervised basis.
Mr Clarke confirmed to Ms Lojszczyk that he had had a falling out with his parents. Ms Lojszczyk questioned him about his use of cannabis and alcohol. He indicated an infrequent use of both, utilising cannabis on occasions as a means of self medication for depression. Accordingly he acknowledged that any drug screen testing would reveal the presence of THC (the active component of cannabis) in his system.
L was observed to be happy to see Mr Clarke. Ms Lojszczyk noted the conversation which took place between the two. It was her assessment that Mr Clarke “still presents as self-focussed with a restricted ability to appropriately engage with L.”[4]
[4] See Family Report dated 16 April 2007 at paragraph 37
L herself said to Ms Lojszczyk that she was sad and was missing her father. She reported that she would like to spend time with him at his home. She also reported a positive relationship with Ms S.
Ms Mandeville acknowledged to Ms Lojszczyk that L missed her father but described a child who was confused about her relationship with him. She also indicated her perception that L was being unduly influenced by promises made to her by her father.
Overall Ms Mandeville remained concerned about Mr Clarke’s non compliance with the random drug screen regime ordered by the court and organised by Ms Olsen. As a result she continued to be concerned at the prospect of L being exposed to drug use and other inappropriate behaviour if visits between her and her father were not supervised.
As a result of her observations of L and her various interviews,
Ms Lojszczyk made the following recommendations:
·Mr Clarke spend time with L at the Rxxx Centre;
·Mr Clarke undergo random and supervised drug screen testing as organised by Ms Olsen;
·Mr Clarke attend a parenting course;
·Mr Clarke attend counselling to address issues to do with depression, relationships and anger;
·Mr Clarke undertake a drug and alcohol assessment and participate in any treatment recommended;
·L continue to spend regular periods of time with her paternal grandparents.
The hearing of 9 May 2007
Mr Clarke did not provide any further affidavit material in anticipation of the final hearing which commenced before me on 9 May 2007. In particular he did not call any evidence from Ms S or provide any material to indicate that he had addressed any of the issues raised by either Ms Mandeville or Ms Lojszczyk.
I appreciate Mr Clarke was under labouring under a difficulty at the hearing. He did not have a lawyer and was compelled to act on his own behalf. However Mr Clarke is an intelligent person. He informed me and Ms Lojszczyk that he was undertaking a master’s degree. As a result he is a person of limited means, being dependent on a small student grant and government assistance.
Given the issues in dispute between the parties and Mr Clarke’s financial circumstances, I was surprised that Mr Clarke did not have access to Legal Aid to assist him with the services of a lawyer for the final hearing. Certainly it was clear that it was not Mr Clarke’s preference to act on his own behalf.
I was also concerned at the failure of Mr Clarke to grapple with many of the issues raised by Ms Mandeville and Ms Lojszczyk in their material. In particular Mr Clarke had failed to comply with the orders for drug screen testing made on 30 January 2007 and with Ms Olsen’s directions in this regard.
Notwithstanding these difficulties, I decided that I should embark on a hearing of the case and take some evidence from the parties, particularly Mr Clarke, to see if the matter could be advanced.
As I observed in the earlier ex tempore reasons for judgement, there are many issues in dispute between the parties. These issues can be grouped under a number of headings:
·When did the parties separate – was it in March of 2001 as the mother contends or in October of 2004 as the father contends;
·What was the father’s involvement with L between 2001 and October 2004 – was he extensively involved with L care as he contends or was his involvement more limited;
·
What were the circumstances of the incident between the parties of October 2004. Did the father seriously assault the mother in L’s presence whilst he was under the influence of alcohol as
Ms Mandeville contends or has the incident been blown up out of all proper proportion as Mr Clarke contends.
·What is Mr Clarke’s previous and current level of use of cannabis and alcohol;
·Does Mr Clarke suffer from any psychiatric condition which may have consequences for his ability to properly parent L.
Given the way the matter has preceded, it is not possible for me to resolve these issues definitively. I have not heard any evidence from Ms Mandeville nor seen her being cross-examined by Mr Clarke. In addition I did not receive any additional oral evidence from Ms Lojszczyk.
I did however have an opportunity to see Mr Clarke give evidence. His presentation in the witness box was a major factor behind my decision to adjourn the proceedings and order that a regime of supervised contact be implemented, subject to a number of conditions on Mr Clarke himself.
Mr Clarke’s evidence concerned me. I observed him in the witness box for about an hour and a half. In order to assist him in the presentation of his case I asked him a number of questions myself. I also observed him being cross-examined by Ms Burns, Ms Mandeville’s lawyer. I observed him before and after the luncheon adjournment.
Before lunch, Mr Clarke was verbose and apparently overly confident and somewhat argumentative in his presentation. After lunch, in marked contrast, he was flat and deflated. He appeared depressed. His confidence had left him and he indicated that he no-longer wished to pursue any questions with Ms Lojszczyk. Both types of presentation concerned me, the rapid and abrupt transition between the two more so.
Mr Clarke’s presentation in the witness box presented the court with a forensic difficulty. I am not medically qualified. Accordingly I am not competent to assess why there was such a change in Mr Clarke’s mood. I am also well aware that it is often artificial for courts to make assessments of a person’s veracity and personality in the intimidating and unfamiliar circumstances of the witness box.
However regardless of these riders, how a witness presents in the witness box is one of the major tools for a court to form an impression of a witness. In the present case, given the absence of any recent formal affidavit material from Mr Clarke, it became more important.
In the now somewhat dated decision of Dearman[5] Isaac J said:
“A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence will often lead a judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type.”
These comments appear apposite to how I approached the task of assessing Mr Clarke’s evidence. I was uncomfortable with his presentation, particularly given the tenor of the two family reports and Ms Mandeville’s evidence, which all raised concerns regarding
Mr Clarke’s mental state and his use of illicit drugs. My concerns were not lessened by the fact that he had failed to comply with the drug testing regime ordered or his unusual presentation in court.
[5] Dearman v Dearman (1908)7CLR 549 at 561
In cross examination, Mr Clarke acknowledged that he had not undertaken the required drug screen testing because he was aware that these would reveal the presence of cannabis in his system, although he denied that they would reveal the presence of any other illicit drug. The one drug screen test he had undertaken apparently showed the presence of THC.
Mr Clarke also acknowledged in his evidence that he had been depressed. He also indicated that his general medical practitioner was going to place him on a program to help him to get “clean [of] pot”. I did not find Mr Clarke’s accounts of his limited level of cannabis use particularly believable. My impression was that he was underestimating his use of the drug. In addition, I did not find his accounts of wanting to seek treatment compelling.
Overall my impression of Mr Clarke was of a person with a number of serious problems, who as a result led a somewhat disorganised life. I was concerned that, up to that stage, he had done little to assist his case, other than make voluble protestations in court regarding how hard done by he was, which protestations had then unexpectedly collapsed. Above all, I was concerned that his presentation in court had done nothing to dispel the significant concerns raised by both Ms Mandeville and Ms L.
After Mr Clarke had indicated that he did not wish to ask
Ms Lojszczyk any questions, I could not see any point in proceeding with the case further at that stage, as I had reached the conclusion that the only appropriate order was one for Mr Clarke to have supervised contact with L until he had taken some active steps to demonstrate that the drug and other issues raised by the mother had been addressed by him.
This was the background to the orders of 9 May 2007 and the ex tempore reasons for judgement which were delivered with them. In those reasons, I hoped to explain to Mr Clarke that the ball was in his court, so as progressing the advancement of his relationship with L was concerned.
After delivering the judgement, I said this to Mr Clarke:
“Now, there’s going to be an adjournment. It is going to be for five months or so. In some ways that’s a long time but in some ways it is a short time and you need to use the time wisely, because if there’s no advance between now and October I’ll just have to dismiss the application because there won’t be anything served by coming back.”
Events between 9 May and now
Mr Clarke has failed to file any further affidavit material. He has failed to provide any medical evidence in respect of his current psychological status or any drug treatment regime he is undergoing. The evidence foreshadowed from Dr B has not materialised. In addition, Mr Clarke has not provided any proof that he has attended a parenting course or any form of counselling for himself.
More importantly, Mr Clarke has failed to comply with any of the six requests made by Ms Olsen that he attend for a drug screen test.[6] This brings to eleven the number of drug screen tests Mr Clarke has failed to attend.
[6] See Ms Olsen’s affidavit filed on 4 October 2007.
Accordingly, I have reached the conclusion that it is an exercise in futility to expect Mr Clarke to willingly engage in such drug testing at this point. In addition, it does not appear to be an unreasonable hypothesis that at least one of the reasons Mr Clarke is unwilling to engage in the process is that he realises it will reveal his continuing use of his illicit drugs.
Ms Mandeville has provided a further affidavit in which she has detailed what has occurred in the matter since 9 May from her perspective. She has completed a parenting course at Relationships Australia. She has enrolled herself and L at the supervised contact program at the Rxxx Centre. She did this shortly after the orders of 9 May.
It took Mr Clarke some time to enrol in the program. I accept that services at the Rxxx Centre and indeed life in Newcastle generally were greatly disrupted by the severe flooding in the area over the weekend of 9-10 June 2007. However it was not until late July that
Mr Clarke attended at the Rxxx Centre for his induction interview and the ordered program of supervised contact began in late August.
Since the supervised contact began, Mr Clarke has attended regularly each fortnight to spend time with L. Ms Mandeville reports that L enjoys spending time with her father and has received many gifts from him. She also continues to ensure that L sees her paternal grandparents regularly.
Ms Mandeville’s current position is contained in her most recent affidavit as follows:
“It is my belief that despite the further adjournment of this matter and the very clear directions given to the father by the court, that he has failed to attend a parenting after separation course, that he has failed to supply drug urinalysis results and he has failed to provide a psychiatric result. I remain very concerned about L spending time unsupervised with her Father.”[7]
[7] See Ms Mandeville’s affidavit filed 15 October 2007 at paragraph 11
The legal principles applicable
The service of L’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused or neglected the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA. If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time and if this is not considered to be either to be likely to be in the child’s best interest or reasonably practical, the court is then required to consider the child living with each of his or her parents “substantial and significant” periods of time.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
Conclusions
In May of 2007, I had serious concerns that it would not be in L’s best interests for her to spend unsupervised periods of time in her father’s care. These concerns stemmed from the contents of the two family reports; the withdrawal of Mr and Mrs C Senior from the earlier process of supervision; the allegations of family violence and drug use made by Ms Mandeville; and Mr Clarke’s presentation in the witness box, which included some acknowledgement on his part of previous drug use and some level of difficulty in his psychological functioning.
In addition, in May of 2007, Mr Clarke had not been able to comply with earlier court orders which required him to supply a series of random drug screen testings to the Independent Children’s Lawyer. Given these various factors, I did not think that the stage had been reached when L’s best interests required the court to consider L spending unsupervised time with her father. Rather I considered that the court’s emphasis should be on protective concerns.
For that reason, I did not call upon the mother to present her case. I could see no point. At that stage, it was my view that the ball remained in the father’s court and it was incumbent upon him to satisfy the court that he was capable of spending time with L in a safe and emotionally supportive manner.
This was also consistent with the outcome recommended by Ms L. In making the orders I did on 9 May, I was not attempting to penalise
Mr Clarke for past failings nor was I wishing to place unnecessary bureaucratic hurdles in the way of his spending more time with L. Rather, I wished to focus on L’s best interests, particularly as
Mr Clarke himself had done little, if anything to dispel any of the concerns raised by Ms Mandeville, up to that stage of proceedings.
Accordingly I determined that it was appropriate, in the short term, to make an order for supervised contact subject to a number of conditions, the satisfaction of which was directed at putting to rest the concerns raised by Ms Mandeville herself, Ms Olsen and Ms L. At that stage, given the unwillingness of Mr and Mrs C Senior to act as supervisors, the only option available seemed to be professional supervision. In May I hoped that this option would be only a short term measure.
The central question which arises at this stage of the proceedings is what should be done – given the failure of Mr Clarke to satisfy any of the conditions which were ordered – to ensure that L has the most meaningful relationship possible with her father. I appreciate that any order for supervised time has limitations. Such arrangements are often artificial and stilted. As such they can have implications for the emotional well being of the child who is subject to them, particular in terms of the almost inevitable curtailment of the parental relationship involved.
Supervision has limitations. It may not provide sufficient time for the fostering of an appropriate parental relationship. It may prevent the parents concerned managing their own parenting relationship with one another. It may at best be a temporary or stop-gap measure. I am painfully aware that two hours per fortnight is a meagre amount of time and certainly is not sufficient to enable a parent to have a relaxed relationship with his or her child.
However notwithstanding these concerns, I am not prepared to ignore my earlier concerns and those of Ms Mandeville and Ms L. To do so would make a nonsense of the earlier orders, which were designed to protect L and which Mr Clarke has almost totally ignored.
The superior courts have cautioned against the use of too rigid guidelines in the application or otherwise of supervision to the time a parent spends with his or her child and whether that supervision should be professionally supervised or otherwise.[8] The Full Court has also noted that the decision as to whether or not to make an order for supervision is likely to have long term consequences for the child concerned, particularly in terms of the level of meaning in the relevant parent/child relationship. Accordingly it is a decision of some moment.
[8] See W and W [Abuse allegations: unacceptable risk] [2005] Fam CA 892at paragraph 115
Whether or not to make an order for supervision is one which should be made by reference to the applicable section 60CC factors. In this case I have reached the conclusion that it would not be in L’s best interests to move away from supervision at this stage. I think that an outcome which allowed for her to move immediately to spending unsupervised time with her father would constitute a serious threat to both her psychological and physical well-being, which in the circumstances of the case is unacceptable, notwithstanding the obvious implications such an outcome has for L’s potential to have a meaningful relationship with her father.[9]
[9] See M & M (1988) FLC 91-979
Accordingly, I have come to the view that the matters for consideration under section 60CC(2)(b) of the Act should be given precedence over those contained in section 60CC(2)(a) at this stage. I turn now to consider briefly the other relevant considerations contained in section 60CC(3).
L told Ms Lojszczyk that she wanted to spend time with her father [section 60CC(3)(a)]. Her preference was to see him at weekends at his place. I bear in mind L’s age at the time she expressed this view. I also bear in mind the fact that Ms Lojszczyk did not believe that L’s views should be given emphasis in the outcome of this case. At this stage, I do not think it would be in L’s best interests for these apparent views to be given precedence over other of the relevant applicable considerations.
The most important relationship that L presently has is with her mother, who is undoubtedly her major source of both emotional and physical care. L’s relationship with her father has been considerably curtailed over at least the past two years or so. L also has a significant relationship with her paternal grandparents. I accept that this has largely come about at the instigation of Ms Mandeville [section 60CC(3)(b)].
Given Ms Mandeville’s precedence in providing care for L, I am required to consider the potential impact on her of making an order for the father to spend unsupervised time with L.[10] I accept that Ms Mandeville does have a genuine and high level of concern that L spending time with her father on an unsupervised basis will constitute a risk for her well being. As such, an order for unsupervised time is likely to impact on Ms Mandeville’s parenting capacity and make her an anxious parent.
[10] A v A (1998) FLC 92-800 at 87,996
It is part of Mr Clarke’s case that Ms Mandeville is impeding his relationship with L to feed her own emotional needs [section 60CC(3)(c)]. This allegation is considerably weakened by the fact that Ms Mandeville has supported L spending time with her paternal grandparents. In addition, it is my view that Mr Clarke’s failure to comply with the orders for drug screen testing and his general unreliability in respect of the other parenting orders made up to this stage do not reflect well on his parenting capabilities [section 60CC(4)].
L has an Aboriginal background on her paternal side [section 60CC(3)(h)]. Mr and Mrs C Senior reported to Ms L that they do not participate in Aboriginal cultural activities. Mr Clarke identifies strongly as an Aboriginal person. From L’s perspective, particularly as she grows older, the matters which fall for consideration under this criterion are very important. It is likely to be important for L, as a child who has an Indigenous background, to be exposed to positive Aboriginal role models.
The best such role models are likely to be parents first and then grandparents. Exposure to such positive role models protects children of Aboriginal background from the corrosive consequences of racial discrimination which unfortunately remains a reality in Modern Australian Society.[11] However once again, notwithstanding the importance of these considerations, I do not think they should be given precedence over the protective concerns I have regarding L.
[11] B & R & the Separate Representative (1995) FLC 92-636 at page 82,398
Finality is generally preferable in children’s cases [section 60CC(3)(l)]. For that reason Ms Olsen urges me to finalise the proceedings as soon as possible. She can see no point in any further adjournment of the proceedings in the hope that Mr Clarke will get his house in order and comply with the earlier orders that were made.
This is a perplexing case. In spite of his self professed intention to attend to his drug use and psychological issues, Mr Clarke seems paralysed in regards to them. Notwithstanding this apparent paralysis, I cannot overlook the fact that L is likely to benefit from having a meaningful relationship with her father, provided the concerns regarding her psychological well being can be laid to rest.
In addition, although it took him some time to enrol at the Rxxx Centre, a delay in part explained by the Newcastle floods, Mr Clarke has now completed the necessary induction process and has been reliable in his attendance there to see L. Accordingly I do not doubt his devotion to and love for L. Obviously these are promising indicators. It is not beyond the bounds of possibility that Mr Clarke will organise his life in the not so distance future. I certainly hope so.
I have reached the conclusion that I should continue the order for supervised contact at the Rxxx Centre on a final basis. This, in my view, being the best means of ensuring L has a meaningful relationship with her father commensurate with the protective concerns raised by Ms Mandeville and Ms Lojszczyk.
In reaching this conclusion I fully realise that this is an imperfect solution to the issues raised in the case, particularly how L may have a meaningful and natural relationship with her father. However I can see no point in a further adjournment of the proceedings in the most likely vain hope that Mr Clarke will comply with orders requiring him to establish that he is drug free and psychologically stable.
In these circumstances I propose leaving a window open for Mr Clarke to establish his bona fides that he is able to move on from the order for supervised time and that such an outcome will not be potentially detrimental for L.
To this end I propose extending the appointment of Ms Olsen as Independent Children’s Lawyer for a further period of six months. If in this period Mr Clarke is able to provide her with evidence satisfactory enough to address her protective concerns regarding L, both she and the father will have liberty to re-list the matter before the court on short notice. Again the ball will remain in Mr Clarke’s court but only for the next six months.
It is implicit in these reasons for judgement that I do not believe it would be currently in L’s best interests for her parents to have shared parental responsibility for her. The presumption created by section 61DA is rebutted. However an order should be made that L live with her mother.
In addition, given the failure of Mr Clarke to comply with orders 6, 11 and 13 of the orders made on 9 May 2007, I can see no point in proceeding further with the hearing of the matter. At this stage, I see no alternative but to dismiss the various applications as I indicated would happen if Mr Clarke failed to fully utilise the adjournment which occurred on 9 May.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 22 November 2007
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