Dawson and Arnott (No. 2)

[2009] FamCA 244

FAMILY COURT OF AUSTRALIA

DAWSON & ARNOTT (NO. 2) [2009] FamCA 244

FAMILY LAW – CHILDREN – Interim parenting orders – Violent behaviour by the Father at changeover – Pending criminal charges and lengthy criminal history – Trauma to the Child from witnessing events – Supervised contact ordered – Review in three months

APPLICANT: Ms Dawson

RESPONDENT: Mr Arnott

FILE NUMBER: BRF 1467 of 2005

DATE DELIVERED: 24 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 24 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tolton of Counsel appeared for the Applicant Mother

SOLICITORS FOR THE APPLICANT: Mugford Lawyers

COUNSEL FOR THE RESPONDENT: Ms Kellie of Counsel appeared for the Respondent Father

SOLICITORS FOR THE RESPONDENT: Affleck Lawton Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Emerson, Solicitor of Emerson Family Law appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Father’s time with the child, … born … December 2004, is to be supervised at the N Contact Centre or such other Contact Centre as agreed in writing between the Mother and the Father.

2. The Mother and Father to comply with any appointments made by the Contact Centre for intake interviews and comply with the intake procedure of the Centre within seven (7) days of this Order, with the costs of the Contact Centre to be borne by the Father.

3. The Father to undertake random drug testing as called for at the discretion of the Independent Children’s Lawyer but not more than once per month.

IT IS ORDERED THAT:

1. The proceedings be adjourned for case management review at 10.00 am on
   24 July 2009 at the Brisbane Registry of the Family Court.

2. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Dawson & Arnott is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1467 of 2005

MS DAWSON

Applicant

And

MR ARNOTT

Respondent

REASONS FOR JUDGMENT

1. The parties are the parents of a male child born in December 2004.  The father is 35 years of age and the mother is 26.  The parties, as I understand the material, cohabited from September 2004 when the mother would have been about six months pregnant and they separated in January 2005 when the child would have been about one or 2 months of age.

2. The litigation history of this matter makes for sad reading.  Having separated in January 2005, litigation commenced by May 2005.  There appears to have been a period of relative stability in 2006 but the matter was back before the Courts on a regular basis throughout 2007 and certainly 2008.

3. Consent orders were entered into on 14 April 2008.  Those orders were made when the matter was placed into my docket.  The orders were of an interim nature and as I understand it they provided for a stepped increase in the father's time with his son, starting at supervised time at a contact centre for a period of three months and thereafter three months, daytime contact supervised by the paternal grandparents, thereafter daytime contact unsupervised for a period of three months and ultimately I understand it was to build up to a period of unsupervised over night time.  There were provisions in the orders for drug testing and contribution to the cost of the contact centre and such like.

4. Those orders were to extend over a period of some nine months.  Further consent interim orders were made before myself on 26 November 2008 with the period of unsupervised time extending for daytime periods from 9.00 am until 5.00 pm.  This was a significant increase.  It previously had been four hours one day a week but was going to be extended to eight hours each Sunday and thereafter it was to extend commencing 7 March, for a period of overnight time.

5. The orders specifically provided for changeover points to be at a park.  I do not believe it is necessary to elaborate on the other terms of the orders.

6. Counsel for the father made submissions along the lines of a conspiracy theory on the part of the mother that the incident to which I shall advert shortly on 15 February, occurred shortly before unsupervised time was about to commence and shortly before the matter was due to come back to Court again.

7. The incident of 15 February is described in some detail in the Queensland Police Service file which has been produced under subpoena.  There are also references to it in the affidavit of the mother filed on 19 February 2009 and she appends the statement given to the police setting out her version of the events of that time.

8. As a result of the incident of 15 February, the father has been charged with a series of serious criminal offences.  In summary form, the father, whilst driving his vehicle, struck the mother's current husband, Mr D, drove a distance of about 25 metres with Mr D on the bonnet of his vehicle.  At that stage Mr D either rolled off or fell off and the father left the scene in his motor vehicle.  Mr D suffered a number of injuries as a result of the incident in question.

9. The father was arrested by the police that evening at his home.  He was apprehended consuming or had just previously consumed cannabis.  Various professionals have been recommending for some time that the father give up his long term addiction to various illicit drugs.  It does not bode well that he had cannabis at his disposal on the evening of 15 February, such that it was in his house and he was consuming it.  It would be an indication that it has been an ongoing practice of his.

10. The mother instituted proceedings immediately after the incident.  She seeks for the father's contact to be suspended for a period of some 12 months.  Ms C refers to this in her third report.  The father, through his counsel, submits that there should be a return to daytime unsupervised time by the father with the child, presumably back to eight hours on a Sunday with changeover to be outside the B Police Station or at the N Contact Centre.

11. I just pause there, my Associate drew my attention to the fact that back in about 2006 or 2007 there was a letter from the NContact Centre saying that the father is likely to be banned from the centre.  I gather from subsequent events that that did not take place.

    RECORDED   :   NOT TRANSCRIBED

12. Before the Court there are three reports from Ms C dated 2005 and the second report of March 2008 and a current report prepared in the last week.  I note in the report of 3 March 2008, paragraphs 4.3, 4.4, Ms C observes:

    "[The father] says he wants to be such a role model to his son, he wants to spend time with his son, yet he only wants to spend time with him if this happens on his terms.  He wants his son to behave in a moral and lawful way, yet he will only comply with legally binding orders if it suits him.  He is prepared to accept the consequences of his past poor behaviour, for example, having supervised contact, but only if other parties ensure that [the mother] is held accountable for any poor behaviour she exhibits, for example, arriving late.  Adopting a stance of I will if she does is unhelpful and immature."

13. Paragraph 4.4:

    "It's difficult to draw any other conclusion than [the father] wants his own way more than he wants to have a relationship with his son.  If he really wanted to see [the child] he'd do whatever the Courts required of him."

14. Dr K did an assessment.  Dr K is a psychiatrist in private practice in Brisbane who regularly gives assessments on litigants in this Court.  In his report of 2 November 2007 he says this:

    "34 year old man does not have an access 1 psychiatric disorder other than recurrent substance abuse.  This has been a problem over many years.  There is a history of significant antisocial personality behaviour and in my view this man has an antisocial personality disorder."

15. I pause to note there that I have taken evidence over many years from numerous psychiatrists and the general tenor of their evidence is that if somebody has a personality disorder of the type as described, it is not amenable to medication and it is rarely amenable to treatment.  It can ameliorate with the passing of years, but it takes many years for such influence to occur.

16. Dr K’s report continues:

    "I thought he was a glib unreliable historian who was keen to paint a picture of himself as having reformed and indeed focusing his life now exclusively on contact with his son.  In my view this is, in these circumstances, always something of a red flag and of considerable concern."

17. He concludes the report:

    "Given the past history and recent events, in my view, this man should only have supervised access and this should be with someone to whom he has no emotional attachment."

18. I return to the report of 3 March 2008 of Ms C and in that report she made recommendations that provided the father had three clear drug screens from amphetamines and had a further positive report from his psychologist and participates without incident in three months contact at a contact centre then she proposes the stepped improvement in time and that in effect one month later was reflected in the consent orders of April 2008.

19. In her latest report, at page 9, paragraph 5.1 under the heading Assessments And Conclusions, Ms C observes:

    "Since the previous report (approximately 12 months ago) [the father] has fulfilled the requirements the Court determined would be necessary for him to spend time with his son.  Despite some relatively minor concerns raised by the parties, it appears that contact between [the father] and his son progressed reasonably well until the parents had face to face contact.  This direct contact heralded an extraordinary decline to the dynamics surrounding the emerging relationship between [the child] and his father.  [The father’s] sense of entitlement around spending time with his son and [the mother’s] entrenched desire to raise [the child] without [the father’s] influence, combined with a relationship history of resentment, dysfunctionality and volatility provides a backdrop to almost certain disaster when there is contact between them."

20. Paragraph 5.2:

    "Although [the father] has participated in all the mandated programs there is a sense that he is motivated by appeasement and of a grudging need to tick the boxes rather than a genuinely held view that he needs to modify his behaviour or increase his impulse control capacity.  Although [the mother] presents as more balanced and moderate, it's likely she has a strong capacity to be provocative.  She readily blames [the father] for any poor or unsettled behaviour that [the child] exhibits and minimises any unhelpful behaviour on her part."

21. In paragraph 5.6, she concludes her report:

    "I recommend that [the father] participate in a supervised contact at a contact centre until the current criminal proceedings are finalised.  Although one might take the view that [the father’s] poor behaviour disqualifies him from spending time with [the child], I believe [the child] would suffer by not seeing his father.  Further, [the father] needs to be able to explain to [the child] why he behaves so badly in front of him."

22. She then goes on to speculate about the outcome of the criminal proceedings.  I am not sure that I entirely agree with the methodology or the recommendations of Ms C, but I will leave that for another day.

23. On today's date the Independent Children's Lawyer and the mother's legal representatives seek orders that the father's time be supervised at a contact centre.

24. For the father, counsel produced a Case Summary document.  It was submitted that the argument could be made that the mother's behaviour reflects a concern to remove the father from the child's life.  It was summarised as she knows which buttons to push and does so.  Counsel referred to the fact that this incident occurred at a time when overnight contact was about to start.  The previous incident which occurred in mid-2008 at a contact centre was at a time when contact was about to take place outside the confines of a contact centre.  She adverts to the fact that an earlier unpleasant incident on 4 January was followed by a request from the father for changeover to be outside the B Police Station.  There had been communications to that effect, but the arrangement about this was later vetoed by the mother's current husband.

25. Counsel inferred that it was something of a coincidence that Mr D had a crowbar readily available in his vehicle.  She said it was possibly a set up to preclude the increase to overnight time.  It is certainly a conspiracy theory writ large.  I am not prepared to accept it based on the conjecture involved at this point in time.  I do not discount it, but I am not persuaded by it.

26. At an interim hearing such as this I have to take matters largely on the basis of undisputed facts and based on the recommendations of the professionals who have interviewed the parties and know the matter over a period of years. 

27. I have had regard to the father's lengthy criminal history as set out in the Queensland Police Service file.  It is a criminal history redolent with examples of violent behaviour extending over many years.  It does not make for happy reading.

28. I take into account the fact that the father is facing serious criminal charges.  It is a condition of his bail that he have no communication with the mother or her current husband.  It was submitted on his behalf that he has done everything he can do to demonstrate a wish to become a responsible parent.  He had been very patient.  The obvious response to that is he has not been patient enough.  If he is conscious of the fact that the mother knows how to push his buttons, he certainly allows them to be pushed and he reacts in a totally unacceptable manner.  I do not apply the criminal standard of proof, I look at people's behaviour, at what they have done.  I leave the Criminal Courts to assess matters according to the Criminal CodeAct 1899 (Qld).

29. I have had regard to the report of Dr K which is only 15 months old and he insists there should only be supervised time so long as the father continues to take drugs.  He was still taking drugs, as recently as a couple of weeks back.  I have had regard to the report of Ms C, she says it needs to be supervised.

30. The view that I take is this child undoubtedly has suffered trauma in witnessing the events of 15 February.  Probably as much as seeing the events there is the trickle down effect of the child picking up on the behaviour of the adults impacted by the father's behaviour and not surprisingly, that reaction would have been dramatic. 

31. So in a period of uncertainty, what I propose to do is adjourn this matter for three months.  I will bring it back on before me in that period, but in the meantime the father's time is to be supervised at a contact centre.  The father's edged his way to the stage where he was about to have overnight time, for whatever reasons he is now facing serious criminal charges.  I accept what Ms C says is that the child does benefit from a relationship with the father, but to protect all concerned it can go back to time at the contact centre.

32. I note that counsel tells me that even on a plea of guilty it would take 12 months to process through the system.  If he was to go to trial, it would take two years.  I accept that at face value.  I will be reviewing the matter in three months.  Hopefully the matter can settle.  I do not require any further material to be produced, but if it is, I will have regard to it.

33. It is hardly a matter that is ideal for the Less Adversarial Trial system, so orders will issue in those terms.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  24 March 2009