Davidson & Rowlands

[2007] FamCA 278

FAMILY COURT OF AUSTRALIA

DAVIDSON & ROWLANDS [2007] FamCA 278

FAMILY LAW - CHILDREN - With whom a child spends time  - Best interests of a child - Supervision

APPLICANT: MR DAVIDSON

RESPONDENT: MS ROWLANDS

INDEPENDENT CHILDREN’S LAWYER: Mr Scally

FILE NUMBER: NCF 281 of 2006

DATE DELIVERED: 12 February 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: Mullane J

HEARING DATE: 12 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Myers of Messrs Cameron & Myers, Solicitors

COUNSEL FOR THE RESPONDENT: Mr J. Hamilton

SOLICITOR FOR THE RESPONDENT:

Kim Monnox & Associates

Solicitors

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr Scally of Legal Aid Commission Of NSW

Orders

1. pending further order  each parent must not make derogatory statements about the other or to discuss proceedings between the parties in the presence or hearing of any of the children or permit anyone else to do so;

2. pending further order the children have such contact with the father as Unifam facilitates under the program, Keep In Contact, and if Unifam advises unsupervised contact;

3. pending further order the mother must ensure the children have privacy from any telephone conversations with the father;

4. otherwise, the father's application in the case filed 1 February 2007 and the mother's response to an application in the case filed 12 February 2007 are dismissed;

5. the mother's application for costs regarding these proceedings is reserved;

6. the mother's solicitor must provide an assessment of the costs to the father's solicitors within 14 days;

7. Ms K is removed as party to the proceedings.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 281  of 2006

MR DAVIDSON

Applicant

And

MS ROWLANDS

Respondent

REASONS FOR JUDGMENT

1. This is an application by the father to remove a requirement for supervision of contact in circumstances where three supervisors have ceased to be willing to supervise his contact with the parties' three children, a daughter who is 10, a son who is nine and a younger daughter who is six. 

2. I gave fairly detailed reasons in a Judgment of 11 October.

3. The father, until early last year when he had a crisis which led to his admission to the mental health services and a diagnosis of bipolar disorder, had been a long term user or marijuana.  He had been using for about 20 years and that had been in circumstances where he had repeatedly said he was going to stop using it because his marriage, from the beginning, was at stake.  And each time when the mother continued with the marriage he secretly resumed using cannabis until it was discovered again.

4. The Court takes judicial notice that long term use of cannabis is now established to be connected with the suffering of chronic depression, the experiencing of delusions and psychosis and, indeed, I think the medical evidence in relation to the father is that his mental health problem is one of the results of his use of cannabis, or at least has been facilitated, or encouraged or aggravated by that.

5. Though when one reads the material that is submitted by the father, it seems that his way of thinking of these things is that his use of cannabis was his way of self-medicating an underlying mental health problem.  I do not know that there is any psychiatric evidence, or evidence by a mental health professional qualified to give the opinion, that says that his cannabis use did not aggravate rather than moderate his mental health problems.

6. The Judgment in October deals with the issues from the mother's perspective.  Not surprisingly, she is distrustful of the father because of a long 20 years of deception about his cannabis use and then also just in the months before the separation he deceived her by an affair he had with a fellow worker.

7. The father does not recognise the mother's perspective in relation to those matters and in relation to her concerns about his mental health.  He does not really concede when he sent a text message to his 10 year old daughter saying goodbye when he was suffering from depression, that she may have thought that he was going to kill himself.  He does not recognise the gravity of that situation and the reaction his daughter might have to that in terms of spending time with in the future.  He does not really have any serious recognition of the different perspective that his former wife has in relation to his behaviour and that his children might have.

8. The evidence now is from his treating psychiatrist that he has been cannabis free according to renal drug tests.  It appears the test results in evidence cover a period from April to December last year.  The affidavit of the doctor is sworn in November.  The last test was subsequent to that. 

9. The father’s use of cannabis was an addiction.  I say that because, quite apart from the well known health risks, his marriage was repeatedly at stake and also to some extent his relationship with his children, but for 20 years was not able to give it up.  The inference from the fact that he did not in 20 years give it up, despite what was at stake suggests that he was not able to.  The father swore an affidavit that he is still not using cannabis.  I think on the evidence, on the balance of probabilities, he is cannabis free at the moment.  On the balance of probabilities, I would think at this stage that he is and has been cannabis free since April 2006. 

10. Whether that means one can be confident that he will remain cannabis free, given the length of his addiction, is another issue.  His treating psychologist has sworn an affidavit and although I would be concerned that the lady displays some serious lack of objectivity in relation to opinions that she has expressed about the last supervisor, who impressed the Court as someone who could be relied upon to protect the children, but whom the psychologist seems to accept from the father is somebody who is malicious or somehow in league with the mother, and she also seems to have a lack of objectivity in relation to some other opinions that she has expressed.  Those matters give concern about the reliability of her opinions of the father.  But it seems on the evidence that since the episode in early 2006, the father's mental health problem, his bipolar disorder, has been successfully managed by medication.

11. So, it would seem at this stage the main concern one would have would be whether the mother is convinced of that or would be convinced of that, what her attitude would be, whether she is capable of confidently encouraging the children that they are safe with their father, and also the children's own present state of mind.  And it seems in that regard one would have to also be concerned that the elder daughter has been quite angry as recently as November when the mother had agreed to unsupervised contact and the elder daughter was very vocal, hostile and angry about the possibility of unsupervised contact. 

12. There are various options.  One is to remove the supervision requirement now; suck it and see.  That may well be at the children's expense.  If it is traumatic and if the elder daughter is as angry now as she was then about not being supervised, then it may well frustrate the whole process and lead to the children being eve more reluctant or hostile to unsupervised contact, or to contact altogether. 

13. Another option is to wait until the Court expert's report is available.  I think, the interviews are in March and so it should be available by April, which is two months time. 

14. But it seems to me there is a third option -- a more immediate prospect.  That is the Unifam program.  The parties were ordered to participate in the Unifam program in the October orders.  There has been a waiting list but their interviews, I think, are to occur, at least one of them, this week.  So, it seems that the father is being interviewed and subject to him being accepted into the program then the mother would be interviewed and then the participation would commence. 

15. My understanding of the program is that it involves the staff not just seeing the parties, but having the children reporting on the progress of the program in terms of the way the parents are responding and how contact is working and also includes supervised interviews with the children and the contact parent. 

16. I think, overall, that the Unifam program is the best option.  That will involve someone who is well trained in this field facilitating whatever contact is appropriate and developing and assisting the family to move to a situation, if possible, where the children can spend time with their father without having a supervisor present.  The supervision, if it is required, will be supervision by a professional and not by someone such as the three previous supervisors.

17. I suppose it represents some risk to the father because it seems that at least the last supervisor he nominated refused to act as a supervisor after the first contact occasion and I am told returned the children an hour early.   If a professional is involved that professional is going to be much more likely to advise that contact cease if the father's behaviour is not compatible with the children's interests. 

18. A major concern that I have, is that the father does not recognise the children's perspective and does not recognise the way his behaviour affects them.

19. The father seeks a non-denigration order and he also seeks an order for privacy for phone conversations.  I do not think that I need to be satisfied that the mother has behaved inappropriately in those areas, but I am satisfied that it is in the children's interests that there be an order restraining each of the parties from denigrating the other or discussing any proceedings between the parties in the presence or hearing of the children or letting anyone else do that.  And I also think it is in the children's interests that there be an order that the mother ensure the children have privacy for telephone communications with their father. 

    RECORDED   :   NOT TRANSCRIBED

20. This is a situation where the father had two supervisors nominated to supervise the contact and those supervisors both declined to act further and the father made an application for Ms K to be appointed.  Ms K gave evidence that as a nursing sister who had worked in a casualty ward and was used to being abused by people who overdosed or who were affected by illegal drugs and large quantities of alcohol presented no real problem for her.  She was able to cope with that and she was sure that she would be able to manage to supervise the father's contact.  Ms K abandoned that view part of the way through the first occasion. 

21. It may be that this is a time to deal with the costs issue because the mother says that she would not have had to come here today at all or oppose the father's application for unsupervised contact if the supervisor that he had chosen had been prepared to continue to supervise, when in fact it transpired she was not prepared to do that.  

22. But I think at this stage what is more appropriate is that the costs be reserved and that they be quantified.  I suspect that there may be other costs applications that are going to arise in these proceedings because they seem to be prone to interim applications.  This is, I think, the third or fourth interim application that I have dealt with.  And it may be that the costs are better to be dealt with together rather than in isolation. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date:  28 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DAVIDSON & ROWLANDS