Cranston and Strickland (No.2)
[2008] FMCAfam 1112
•10 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CRANSTON & STRICKLAND (No.2) | [2008] FMCAfam 1112 |
| FAMILY LAW – Child aged 7 – family violence – arrangements for child to spend time with father – whether time should be supervised – practicality of professional supervisor – whether time can be supervised by child’s paternal grandparents. |
| Family Law Act 1975, ss.0B |
| Re: W (sex abuse: standard of proof) 2004 FLC 93-192 A v A (1998) FLC 92-800 W & W [abuse allegations; unacceptable risk] [2005] FamCA 892 |
| Applicant: | MS CRANSTON |
| Respondent: | MR STRICKLAND |
| File Number: | ADC 6014 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 2 October 2008 |
| Date of Last Submission: | 2 October 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 10 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms G Giorgio |
| Solicitors for the Applicant: | Ginny Giorgio & Associates |
| Counsel for the Respondent: | Mr J Bowler |
| Solicitors for the Respondent: | Caldicott & Co |
| Counsel for the Independent Children’s Lawyer | Mr T Stephen |
| Solicitors for the Respondent: | Legal Services Commission |
ORDERS
The hearing listed before the court on 29, 30 and 31 October 2008 be vacated.
The matter be re-listed for final hearing on 23 & 24 April 2009 at 10:00am.
The father undertake a parenting course, as endorsed by the SA Family Pathways Program within three weeks of the date of these orders and provide proof of enrolment to both the independent children’s lawyer and the mother’s solicitor.
The father spend time with the child of the relationship [X] born in 2001 at the home of the paternal grandparents and subject to their supervision on three occasions on weekends spaced at monthly intervals as follows:
(a)On the first occasion on Saturday between 11:00am and 2:00pm and the following Sunday between 11:00 am and 2:00pm;
(b)On the second occasion on Saturday between 10:00am and 2:00pm and the following Sunday between 10:00am and 2:00pm; and
(c)On the third occasion on Saturday between 10:00am and 3:00pm and the following Sunday between 10:00 and 3:00pm.
Either the maternal grandfather or paternal grandmother or such other person as nominated by the mother collect the child from a location to be nominated by the mother and return the child to the mother at a location nominated by her at the end and beginning of each period referred to in order (4) above.
On the completion of periods of time the father spends with the child set out above the independent children’s lawyer arrange for Dr Coats to re-examine the child and provide an updated family assessment report.
The trial directions and interim issues be further adjourned to 17 February 2009 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Cranston & Strickland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 6014 of 2007
| MS CRANSTON |
Applicant
And
| MR STRICKLAND |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Ms Cranston “the mother” and
Mr Strickland “the father”. They are the parents of [X] aged seven and a half.
These reasons for judgment should be read in conjunction with earlier reasons delivered on 2 April 2008. In that judgment, I set out some of the background to the case and the applicable legal principles. I will not repeat those principles or the background now in any great detail.
On 2 April 2008, I determined, primarily on the basis of a report from Mr Trevaskis, a psychologist and the gravity of the mother’s allegations that the father had been violent towards her, in [X]’s presence, that there should not be an order made for [X] to spend time with his father.
Prior to this determination, Ms Cranston had moved to an undisclosed location outside of Adelaide, in order, she said, to maintain her security and so that [X] could “just be a kid again”.
The absence of the mother, from Adelaide, poses difficulties for [X] to spend time with his father, particularly in an institutional setting, which is likely to have limited time available for such a purpose. I was told that Ms Cranston lives a two hour trip away from Adelaide, presumably by air.
In April of 2008, I also fixed the parties’ competing applications for final hearing on 29, 30 and 31 October 2008. I invited the Department for Families and Communities to intervene in the proceedings. As I understand the matter, the Department does not propose to intervene.
One of the purposes of fixing the case for final hearing was so that the court would be able to examine the mother’s allegations of family violence and ascertain whether they were true or otherwise. This essentially being the basis on which she opposed the father spending any time whatsoever with [X]. I thought it better that this examination took place sooner rather than later.
Mr Strickland does not accept any of Mr Trevaskis’ conclusions or his characterisation of [X] as a vulnerable and traumatised child, as a result of his exposure to family violence. It is Mr Strickland’s position that Ms Cranston has fabricated her allegations of violence against him.
In March of 2008, Mr Strickland proposed that he spend time with [X], under the supervision of his parents, Mrs and Mr S. Mr Trevaskis was not in favour of such an outcome, recommending that the only basis on which the father should spend time with [X] was on neutral ground and with a neutral supervisor. I formed the view that neither Mr and Mrs S themselves nor their home satisfied either of these criteria.
At the time of the first interim hearing, the father did not propose any professional form of supervision, in the alternative to his parents. Accordingly, this was not an option explored in March/April 2008. Again, given the interim nature of the proceedings, I determined that it was better to have a final hearing to explore the issues of family violence sooner rather than later.
At the time, I appreciated that this final hearing may not conclusively establish, according to the pre-requisite standard of proof, whether the father had or had not been violent towards Ms Cranston in the past. Rather, my fundamental task, both at the interim and final stage, was to examine the degree of risk the father’s behaviour posed to [X] and make orders commensurate with the degree of that risk.
If I came to the view that it constituted an unacceptable risk for [X] to spend time with his father, I should make an order which prevented the father from spending time with [X]. Clearly it was better that such a momentous decision be made on the basis of as much evidence as possible. That was another reason in favour of having the final hearing as soon as it could be arranged.
This was the background to the father bringing another application on 23 June 2008. He sought to spend six periods of supervised time with [X] at an appropriate children’s contact centre, prior to [X] being examined by another independent expert and a second family assessment being prepared to ascertain if [X]’s behaviour and apparent attitude towards his father had changed.
The mother vigorously opposed this application, asserting that it was incumbent upon the court to ascertain first, through some form of independent assessment, whether [X] remained resistant to seeing his father and/or was currently sufficiently resilient emotionally to spend some time with him.
As I recall, Mr Stephen, the independent children’s lawyer supported the mother’s approach. Accordingly, on 28 July 2008, I made orders that required the parties to enrol at the [Omitted] Children’s Contact Centre and that they commission Dr Coats, another psychologist, to prepare a second family assessment report.
Dr Coats’ report is now to hand. The father has changed his position. He now seeks the vacation of the forthcoming trial dates and the rescheduling of the final hearing for the early part of 2009. In the interim, he proposes that he spend time with [X], on every third weekend, on both the Saturday and Sunday thereof, at his parents’ home in [H] and subject to their supervision.
Thereafter, after a few visits, [X] could revisit Dr Coats, who could report back to the court on the success or otherwise of the visits and recommend what further steps should be taken, depending on [X]’s response. In the father’s submission, this process of review will provide invaluable feedback for the court and act as a protection for [X].
The mother opposes both aspects of the father’s application. It is her position that the final hearing should proceed as scheduled and, in the interim, the court should make no orders whatsoever for [X] to spend time with his father. It remains the mother’s position that it is incumbent upon the court to adopt a cautious approach in respect to [X] and begin the task of assessing the evidence which each wishes to call.
Mr Stephen, the independent children’s lawyer is in favour of the father’s position. He is concerned at the potential for the paternal relationship between [X] and his father to be permanently severed. It being now approximately twelve months since [X] last saw his father, apart from two brief periods of observed interaction in the offices of Mr Trevaskis and Dr Coats respectively.
Mr Stephen has reached his position primarily on the basis of Dr Coats’ recommendations, which are as follows:
“1. That the child remain living with the mother.
2. That the child spend supervised time with the father, either through the Children’s Contact Centre or some other vehicle or person trusted by the mother and child, with a number of short episodes across different days in lieu of the impracticality of regular weekly or fortnightly times.
3. That the father undertake to consult with a suitable child-centered counsellor or psychologist to come to an appreciation of the likely impact of his past behaviour on the mother and child and with a view to developing an approach to the child that encourages [X] growing in trust, respect, and confidence in his father’s capacity to manage himself and provide a safe and nurturing environment of care.
4. That progress in this matter be reviewed in some 6-8 months.” [1]
[1] See Dr Coats’ report at page 11
Mr Stephen acknowledges that the mother’s allegations of family violence against Mr Strickland are in the most serious category and, if true, constitute a serious threat to [X]’s wellbeing. However, he is alive to the logistical difficulties of [X] spending any lengthy periods of time, with his father, in a supervised setting, at a children’s contact centre. Mr Stephen is also concerned that the institutional setting of such a centre may not be the most conducive environment in which [X] is to be reintroduced to his father.
Dr Coats was hopeful that [X] would be able to come to the Adelaide area, during a school holiday period, and spend a number of extended supervised daytime sessions, with his father, on consecutive days, so that the two could engage in “normalised activities” with a view to rebuilding a “meaningful connection” between the two.
On this basis, Dr Coats opined as follows:
“It would be helpful to consider whether there are viable alternatives to the use of a Children’s Contact Centre for the supervision. The mother may be able to suggest suitable persons who have the confidence of [X]. Otherwise, it may be expedient to begin at CCS, subject to them being willing to provide periods on consecutive or closely bunched days (for example, during school holidays or a long weekend).”
Ms Cranston is not in a position to recommend any person in whom she has personal confidence as a supervisor. She is not in favour of Mrs S Senior, although in the past the two have had if not a warm relationship at least a workable one, so far as [X] is concerned.
Ms Cranston concedes that [X] has a viable relationship with his paternal grandparents. She acknowledges that she telephoned them, on [X]’s behalf, on the occasion of Father’s Day, in September of this year. Thereafter, she says that Mr & Mrs S endeavoured to facilitate some form of communication between the father and [X].
There is a significant evidentiary dispute about what did or did not occur on this occasion and who, if anyone, was at fault. However, it is now Ms Cranston’s position that she does not trust the paternal grandparents.
Notwithstanding this level of difficulty, Mr Stephen contends that
Mr & Mrs S’s home provides the most natural and conducive environment in which [X] could spend some time with his father safely. In essence, it is Mr Stephen’s position that such a course would be proportionate to the degree of risk, which Mr Strickland poses to [X], given the absence of any viable alternative.
Underpinning this position is Mr Stephen’s concern that [X] has not seen his father for an extended period of time and, as such, his apparently negative view of his father may become entrenched to such a degree that the relationship cannot be resuscitated. As such, Mr Stephen submits that the court needs to consider how [X] may maintain his relationship with his father, in these very difficult circumstances.
It is Mr Stephen’s view, shared by Mr Bowler, the father’s counsel, that it would be premature for the court to embark upon the final hearing until some further and more thorough investigation of [X]’s relationship with his father (and the means by which it may be revived) has been undertaken. Otherwise, Mr Stephen contends the hearing scheduled for later in October must necessarily be an interim one.
Dr Coats’ report
Although I have not had the opportunity of seeing Dr Coats being cross-examined, my impression is that his report is a thorough one. It is not presented as a critique of Mr Trevaskis’ earlier assessment. Rather, Dr Coats shares many, if not all of Mr Trevaskis’ views about [X], particularly his emotional fragility, where his father is concerned.
The essential difference between Mr Trevaskis’ report and that of Dr Coats is that six months have passed and [X] has necessarily had the benefit of not being exposed to any direct conflict between his parents and the anxiety this will precipitate within him.
Dr Coats found [X] to be an emotionally mature child. He indicated to Dr Coats that “there’s a little part that wants to see him (his Dad) and there’s this other part that’s trying not to see him”. He rated his father at five on a scale to ten.
In terms of why he was reluctant to see his father, [X] reported that he was “scared, angry because he’s almost threatened everybody in my whole family”. However, [X] indicated he was willing to spend some time, with his father, in Dr Coats’ presence, provided he felt safe.
Whilst with his father, Dr Coats reported [X] appeared “relatively comfortable” without any “overt signs of distress or discomfort”. The conversation was marked by “an apparent ease and occasional episodes of mutual fun”.
After this interaction, [X] reported that he acted “happy” to avoid incurring his father’s displeasure. However, he indicated that he would be more comfortable spending time with his father, if he behaved in the way he had behaved in Dr Coats’ presence in future. [X] rated his degree of comfort with his father, whilst Dr Coats was there, as being seven out of ten.
Ms Cranston was described by Dr Coats as being emotionally resilient. He did not think that she was unduly influencing [X] to maintain a negative view of his father. However, for obvious reasons, the fact that [X] was living away from his father and had not seen him for some time was likely to reinforce any negative associations [X] had of his father.
Overall, Dr Coats found [X] to be highly wary of his father and to be unwilling to spend time with him unless he felt very safe indeed. He expressed anxiety about his father and described having nightmares about him.
Dr Coats assessed the father as having a limited level of insight of his previous behaviour on the child concerned. For this reason, Dr Coats recommended that Mr Strickland undertake a course of counselling.
However, notwithstanding these difficulties, Dr Coats believed that [X] and Mr Strickland might be able to reconstitute their relationship over time, provided Mr Strickland was willing to take some level of responsibility for his previous behaviour and convince [X] that he was capable of change.
In his report, Dr Coats opined as follows:
“On this basis, although he is not optimistic it can happen in a brief time, [X] is open to the father taking the impact of his past threatening actions seriously and changing his approach. If [X] can see the father is taking charge of himself and presenting with the appropriate self-control and sensitivity to other’s feelings, then [X] will be relieved to spend comfortable time with him. However, this cannot happen easily or quickly as [X] is starting this process from a low level of trust in the father’s willingness and capacity to make these changes. It will also be difficult to achieve if the father persists in not acknowledging that he has engaged in actions (other than arguing with the mother or telling [X] off) that have functioned to traumatize the mother and the child. This has been the case in both assessments.
I note that the mother is also pessimistic on this issue, so she is not in a position at present to offer [X] encouragement with any conviction or confidence. [X] will thus need to somehow become convinced in himself over time that spending time with the father, initially supervised and then possibly unsupervised, is a safe and beneficial proposition for him. Otherwise, he will wish to stay away from the father and this would be a tragic outcome for both.”
Mrs S
I heard some additional oral evidence from Mrs S. She is 60 years of age. Her husband is 64. Besides Mr Strickland, they have two daughters.
Besides [X], Mr and Mrs S Snr have one other grandchild, [Y] aged 10. They see her on four occasions each week and [X] reportedly enjoys a close relationship with his cousin.
Mrs S presented as a pleasant person, who was obviously anxious to see [X]. It was her case that her son [Mr Strickland] had never behaved inappropriately towards her and she had never had cause to caution him about any aspect of his behaviour.
It was her evidence that she thought [X] and his father had a “good father and son relationship”. She was, however, aware that issues to do with [X]’s anxiety about his father had been raised in these proceedings.
Her evidence was that she would try and deal sensitively and appropriately with any anxiety [X] might exhibit, as a result of coming into contact with his father. She felt she would be able to respond appropriately if [X] was upset, including contacting his mother if necessary.
She acknowledged [X] was a child who was sometimes “in his shell” but she believed he was comfortable at her house and, if he was to come visit there, she would do all that she could to make it as normal and familiar experience as possible.
In the past, Mrs S said that she had a good relationship with
Ms Cranston. This had included Ms Cranston allowing [X] to attend a Christmas celebration, with his grandparents, in December 2007, whilst Mr Strickland had been in prison on remand.
She confirmed that Ms Cranston and [X] had telephoned her on Father’s Day this year “out of the blue”. As previously indicated, what happened next remains a bone of contention between the parties.
Mrs S also said she was aware and understood why Ms Cranston did not want the father to know what her address was. [X] will also be aware of this. This issue may potentially add yet another level of difficulty to the case and more pressure for [X].
Overall, Mrs S believed that she would be able to cope with any difficulties which may arise if [X] visited with his father, at her home and subject to her supervision. She also believed that she would be able to moderate her son’s behaviour, if it was impacting unduly upon [X].
I have no reason to disbelieve Mrs S. However, for obvious reasons, she is closely aligned with her son. In this regard, I am concerned that she may have underestimated the difficulties which may arise and may not fully appreciate the degree of [X]’s diffidence and sensitivity towards his father.
However, the fact remains that, at this juncture, Mrs S is the only viable supervisor. In addition, it does not seem to me to be dramatic to say that [X] is at the crossroads of whether he will or will not be able to resuscitate his relationship with his father. I agree with Dr Coats’ assessment that this may potentially be tragic for both [X] and
Mr Strickland.
Discussion
Mr Stephen has recommended that Mr Strickland undertake a parenting course, as endorsed by the SA Family Pathways programme.
Mr Strickland is willing to undertake such a course. However, from the mother’s perspective the programme envisaged is inadequate and falls well short of what Dr Coats recommended.
What Dr Coats seems to recommend is an intense course of child focussed therapy. Mr Strickland can see no basis for him to attend such a course. Publicly, at least, he vehemently denies that he has ever done anything seriously wrong towards Ms Cranston and [X]. The purpose of the proposed counselling is so that Mr Strickland can acknowledge his alleged past failings and deal with them.
Given Mr Strickland’s trenchant denial of behaviour, I am concerned that it may be unduly utopian to expect that he will either go willingly to such a course or will benefit from it. After all, in a theoretical sense, it would seem to me that the efficacy of such treatment rests on its subject acknowledging past antisocial behaviour and being willing to change it.
The objects underlying the part of the Family Law Act dealing with children emphasise the entitlement of children to know and be cared for by both their children and have regular interaction with them, provided of course such relationships and interaction are in the best interests of the children concerned [section 60B]. Accordingly, the termination of a worthwhile relationship between a parent and child must always be the last resort considered by the court.[2]
[2] See Re: W (sex abuse: standard of proof) 2004 FLC 93-192 at 79,217
It is the father’s fear that, if some graduated and cautious approach is not taken to the resumption of his time with [X], the child may indeed have his paternal relationship terminated. He contends that his proposal represents a reasonable response to counter any risk of [X] occasioning psychological harm, by contact with him, which he contends is minimal.
At this juncture, he would prefer to concentrate on steps to reinstate his relationship with [X] rather than embarking upon an adversarial process with the mother, which may not result in the court being able to satisfactorily determine the truth or otherwise of their relationship together but may still potentially leave the issue of how [X] is to have some form of meaningful relationship with his father outstanding.
From the mother’s perspective, the assessment of any risk to [X] is the court’s fundamental task in this case and that assessment can most readily occur when the court has made its assessment of the veracity of each of the parties, particularly whether the father was violent towards the mother in the past.
In addition, the court will also be better placed to assess the impact of any order, pursuant to which [X] spends time with the father, on the mother herself, as [X]’s primary carer. It being recognised by relevant authority that excessive anxiety, on a primary carer’s part, may adversely impact on that parent’s ability to care for the child concerned.[3]
[3] See A v A (1998) FLC 92-800 at 87,996
The Full Court of the Family Court has indicated that it is both inappropriate and impractical to set guidelines as to the circumstances in which supervised time between a parent and child is appropriate and whether such time should be professionally supervised or otherwise. Non-professional supervision has been said to provide a more realistic and relaxed setting for parenting time than the institutionalised circumstances of a children’s contact centre.[4]
[4] See W & W [abuse allegations; unacceptable risk] [2005] FamCA 892
I remain concerned that, for [X] to spend time with his father, in any other setting than one in which [X] feels completely comfortable and at ease, would potentially expose [X] to a risk of suffering emotional harm, which would be a risk unacceptable for the court to take. The essential question for the court, at this stage, is whether
Mrs S’s supervision, in conjunction with her husband, will assuage this concern, particularly given that the mother’s allegations of family violence remain untested and she does not currently have a trusting relationship with Mrs S.
I agree with Ms Giorgio, counsel for the mother, that I will be in a better position to estimate the magnitude of the risk likely to be occasioned to [X], from spending time with his father, when I have heard the evidence of both parties.
However, at this stage, given the tenor of Dr Coats’ report (obviously also untested at this juncture) that there is the possibility of the relationship between [X] and his father being revived, it seems unlikely that the outcome of the hearing, scheduled for late October 2008, will be a complete severance of the relationship between the two, by court order.
It seems to me highly likely that, if the hearing in late October 2008 does proceed, it will result in the possibility of some arrangements, on a trial basis, with Dr Coats or some other expert reporting back about their efficacy and impact upon [X].
I accept, in general terms, that the court should do all that it can to minimise the effects of litigation on both the parties and children concerned in that litigation. Ordinarily, the court should ensure that, as far as possible, there is only one final set of proceedings. I also acknowledge that protracted interim hearings, which avoid the court grasping the nettle of evidentiary conflicts, are to be avoided.
Necessarily, if and when an order is made for [X] to spend time with his father, it will have some flavour of experimentation about it. It cannot be known, with complete certainty, how [X] will react to his father, both short term, in his presence and in the longer term, psychologically, away from his father.
Unfortunately, the ideal set of circumstances recommended by
Dr Coats for [X] to re-engage with his father are not available. There is no person, who has the complete trust of the mother, able to supervise a number of short episodes across different days between [X] and his father.
At best, a children’s contact centre in Adelaide is likely to be able to offer the parties one or two hours per fortnight. Given the mother and [X] live far away and there will be considerable expense entailed in them coming to Adelaide, this does not seem to be a viable option. In addition, it is not a situation likely to lead to relaxed and extended parenting time.
Ms Cranston no longer has any trust in Mrs S. I have no reason to think that [X] does not enjoy a good relationship with his paternal grandparents. Certainly, from the mother’s point of view, she was able to countenance [X] spending time with them in the past. She also took it upon herself to ring them, on [X]’s behalf, on Father’s Day.
[X] knows his grandparents and their home. Dr Coats observed no overt signs of distress in the child when with his father. There have been some benefits to [X] in having a period to recuperate, with his mother, away from his father. It seems likely that, on some levels, [X] would like to see his father and to delay the introduction may cause this desire to be snuffed out or his negative attitude about his father to become more entrenched.
[X] needs to re-engage with his father in a safe and calm environment. Mr Strickland was capable of self-control when with [X] at both
Mr Trevaskis’ and Dr Coats’ rooms. I am satisfied that Mrs S will provide such a sufficiently safe and calm environment for [X], provided the periods of time are not too long and are well spaced.
The essential task for the court is to assess whether Mrs S and her husband will be able to manage effectively, and so mitigate the degree of risk entailed, in [X] meeting with his father. I have come to the conclusion that they will be able to manage this risk and the benefits of the court having more evidence available to it as to how [X] may reformulate his relationship with his father outweigh the detriments which will be occasioned by delaying the final hearing scheduled for later this month.
I am fortified in this view by my conclusion that the final hearing already scheduled is not of itself likely to resolve the central issue in this case, namely if it is appropriate for [X] to have some form of relationship with his father, how should that relationship be best managed so that it can be a meaningful one. Rather it will be a prelude to more investigations.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 10 October 2008
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