FAMILY COURT OF AUSTRALIA
| DEAN & CRAWFORD | [2008] FamCA 848 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child |
| APPLICANT: | Ms Dean |
| RESPONDENT: | Mr Crawford |
| INDEPENDENT CHILDREN’S LAWYER: | Sharon Moore |
| FILE NUMBER: | NCF | 231 | of | 2006 |
| DATE DELIVERED: | 25 September 2008 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | JUSTICE MULLANE |
| HEARING DATES: | 26 & 28 August and 9 September 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr I. Duane |
| SOLICITOR FOR THE APPLICANT: | John R. Quinn & Co |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms D. Burns |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Sharon Moore |
Orders
The mother has sole parental responsibility for the parties’ sons J CRAWFORD born … August 2000 and B CRAWFORD (also known as B DEAN) born … August 2002.
The mother is restrained from using any surname other than “[CRAWFORD]” for each of the boys.
The mother must cause the Birth Certificate of the child B and his school records to be amended accordingly and the father must sign any documents submitted to him by the mother necessary to implement this order.
Any prior orders for the children to spend time with the father are discharged.
That subject to agreement by the W Family Support Service (or some other supervised contact service in W) (“the contact centre”) the boys are to spend time with their father at W and supervised by the contact centre for 2 hours every 3 months.
Within seven days the independent lawyer for the boys must provide the contact centre with a copy of the Judgment (including these Orders).
Each party must:
7.1contact the contact centre within 7 days and arrange an appointment for assessment for suitability for supervision of the time the child spends with him or her;
7.2 attend the assessment;
7.3comply with any appointments made by the contact centre for supervised time;
7.4 comply with all reasonable rules of the contact centre; and,
7.5comply with all reasonable requests or directions of the staff of the contact centre.
The husband must pay any reasonable fees of the contact centre for each provision of supervision at least 14 days before the supervision is to be provided.
Otherwise any outstanding applications of the parties are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Dean & Crawford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCF 231 of 2006
| MS DEAN |
Applicant
And
| MR CRAWFORD |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant mother is 39 years of age and not in paid work. The respondent father is 45 years of age and also not in paid work.
When the parties commenced cohabitation in 1999, the mother was 30 and the father was 35. Their final separation occurred on 16 September 2004.
They have two sons, J (aged 8) and B (aged 6).
Since the separation the boys have resided with the mother.
Orders were made on 20 September 2004 for the boys to reside with the mother and spend time with their father every second weekend on Saturday from 1pm to 4pm and at such other times as the parents. There was also an order for the parents to have “joint responsibility for the long term care, welfare and development for the children.”
Those orders were made by consent as final orders.
On 15 March 2006 the Local Court made an interim order suspending the orders of September 2004. The boys have not spent time with the father since then.
The main issues in these proceedings are whether the parties’ two sons, J aged 8 and B aged 6, should continue to spend time with their father and, if so, the extent of that time, whether it should be supervised, and what particular orders should be made for the arrangements.
Another issue is who should have what parental responsibility or the boys.
There is also an issue about whether the mother should be required to use the father’s surname for the boys.
CREDIT OF THE APPLICANT MOTHER
The mother has had 3 criminal charges found proved beyond a reasonable doubt (although no conviction or penalty was imposed) comprising:
16/12/99 make false statement in instrument
29/4/04 shoplifting
29/4/04 goods in custody suspected of being stolen
The mother told the Single Expert, Dr R, in September 2007 that she was fearful of the father and still sleeping on a trundle bed between the boys. But in affidavits she swore in July 2008 and December 2006, she said that she had slept in a trundle bed between the boys prior to separation and did not allege that she had done so since separation. When this inconsistency was drawn to her attention in cross-examination, she was evasive. Then she claimed she had ceased sleeping on the trundle bed between the boys “only in the last 2 months”. That, however, did not explain her failure to allege in either affidavit that she had done so.
On balance, the finding is that when she spoke to Dr R, she lied and she had not been sleeping on the trundle bed since before the parties separated in 2004.
When interviewed by Dr R, the mother said that she saw the father rape a male person while she was sitting in their car. When she was cross-examined about this alleged incident, it was clear that she did not see the father rape anybody and her evidence of the incident could not be relied upon as evidence of any rape. The mother lied when she made the allegation to Dr R.
When it was put to her in cross-examination that when she told Dr R she saw the father rape a male person that was not true. She replied, “I don’t know”. When the question was repeated to her, she then conceded that it was untrue.
The mother made numerous adverse allegations against the father in her interview with Dr R which were not the subject of evidence in her case, although she filed two substantial affidavits for the hearing.
When the mother was in cross-examination she alleged that, “on many occasions” she had seen the father have sex in a toilet block with another male. But in cross-examination she did not provide evidence of a single such incident. She lied when she said she had observed such incidents. The only incident where she alleged she observed the father having sex with a male person, was an incident which she alleged she observed from 200 metres away. She was sitting in a car, and it was “the middle of the night” after midnight. It was in a large park at T and the father was not under a light. She said the other person was a male figure, but she could not describe him. She said she observed the father to kneel on the ground and give the man oral sex.
Later in her cross-examination she alleged that she had observed the father having sex with other men in their home. But there was no evidence of this at all, except evidence of the father regarding an occasion when the 2 of them had sex with a male prostitute. On the balance of probabilities she lied.
In cross-examination the mother denied that she had ever suffered hallucinations. But she was treated over several days at F Hospital for psychiatric problems in October 2003. The medical records recorded that for six weeks she had “no idea what was happening”. She said she had total inability to concentrate, plus confusion and increasing agitation and distress. She said it escalated to a point where she would either wander for two to three days sleeping in parks or have suicidal/homicidal thoughts “of chopping people into little pieces”.
The staff specialist in psychiatry, Dr D, reported to her general medical practitioner that she had presented with a 6 weeks history that included “visual hallucinations”. It was diagnosed as most likely a “manic episode”. It was recorded that her mother, grandmother and aunt all suffer from Bi-polar Effective Disorder “so she had a genetic loading”. She has also been using a medication which the doctor considered may have elevated her mood. She had also been using amphetamines and had a history as a chronic amphetamine abuser and in addition she had had a testosterone implant, which the doctor considered might have contributed to the mania. The doctor recorded that she had suffered a psychiatric “break down” in about 1997. She was treated with medication.
She as continuing to take mood stabilising and sedating medications and having daily visits by the staff of the Lake Macquarie Mental Health Team after the treatment at the hospital in October 2003. She had further consultations in relation to her mental health in December 2003 and January 2004.
By December 2003 she presented as being mentally well “though under a great deal of psycho social stressors.” It was intended that she would continue to be monitored by her general practitioner when she relocated to the Hunter Valley, which she was doing in December.
The mother conceded that her mental health “went down from the beginning of the relationship”. She did concede that she had an occasion at about the end of 2000 where she had to ask the husband whether two people were real.
In cross-examination the mother alleged that the father had pressured her into working as a prostitute on one occasion. But she did not make any such allegation to Dr R nor in her affidavits.
The mother alleged in cross-examination that the father had sexually assaulted her during the relationship. But she made no such allegation to Dr R or in her affidavits. When this was drawn to her attention, she said, “I can’t recall everything. It is very upsetting.” When she was asked why she had not made any such allegations in her affidavits, she replied, “Because there’s that many things I could write down – too many”.
It was also drawn to her attention that she had made a claim for compensation from the Criminal Injuries Compensation Tribunal in respect of alleged physical abuse, but had not alleged any sexual abuse by the father. She alleged that the Tribunal had told her that she could raise only one allegation in her claim. This evidence was so unlikely as not to be probative.
In relation to the proceedings she said that she had been very stressed and anxious in anticipation of the proceedings and because she did not want to see the father, and she was anxious about the boys having to see him. But she did not seek any outside help. She had been having counselling but had ceased that in April 2008. She said that she had been “able to manage my anxiety”.
She claimed that the father had not spoken to her and the boys for at least 18 months. But other evidence corroborated the father’s evidence of such conversations with the boys. Evidence also established that she had telephoned the father and spoken with him in May 2007, usually late at night, once for 42 minutes, once for nearly 3 hours, once for 17 minutes, and once for 32 minutes.
Her evidence that he had not spoken to her or the boys by telephone for 18 months was false. She was particularly evasive when her phone records were produced to her and she was cross-examined about her allegation that there had been no such calls for the last 18 months. Later, she made concessions that he had had telephone conversations with the boys in the first half of 2007 and then in the latter half of the year.
The mother’s evidence was that only two occasions of contact occurred after the orders of December 2004. She denied the suggestion that she made excuses for not taking the children. She claimed that she was “pushing for the boys to see him”. She conceded that when she consented to the orders in 2004 she “knew there’d be no detriment to the boys if contact occurred.” But her evidence in her affidavit is that there were 3 occasions when she took the boys to W for contact pursuant to the orders. On the first and third occasions contact occurred. On the second occasion the father says he attended, but the wife and boys did not. The wife says she and the boys attended, but the husband did not. On the third occasion she took the boys to W but contact didn’t occur. Her evidence is that the father engaged with her at the changeover location. He called her name, she responded, they argued, and she told him she would not come back, and she didn’t. She apparently left before there could be any meaningful contact.
The mother conceded that in December 2006 she telephoned the father asking where he was, notwithstanding there was an Apprehended Violence Order restricting his behaviour for the purpose of protecting her.
In her affidavit the mother claimed that in an incident in 2001, the husband assaulted her by pushing her and she fell backwards and landed on a bottle of liquor, which broke. She swore in her affidavit, “I could not move”, and, “After approximately half an hour I started to move because [J], who was in the room was crying and very distressed because of the noise and the fact that I could not get to him”. But in cross-examination after considerable evasion, she conceded that it was untrue that she was “unable to move” and it was also untrue that she could not get to J. She said that the false evidence in the affidavit was “probably a bit of an exaggeration”
In her first affidavit she alleged that in May 2003 the father threatened to kill her if she left. When her subsequent affidavit was drawn, on her instructions, the allegation was omitted from the description of the incident. She said she did not know whether she told her solicitors “to take that out”. But she conceded that she did read the old affidavit and make the changes.
The mother described an incident where she alleged that B, when less than one year of age was placed in child’s spring seat by the father. The seat was in the garage and suspended by ropes from the roof. She said that one of the ropes broke and she heard the child screaming. She said she ran outside and then, “I walked into the shed and saw B hanging upside down about 6½ feet above the ground, suspended by a rope that was tangled around one of his ankles. I reached up and untangled his ankle. I observed that there was a rope burn around his ankle.” From other evidence it emerged that this is probably a gross exaggeration of the height at which B was when he was released.
However, when the mother was asked whether she had thought that B would need to be checked out by a doctor “for a brain injury” after the incident, she said that she did not think that and, “I’m a qualified nurse”. However, cross-examination revealed that she was not a registered nurse, and her only experience was working in operating theatres as a “theatre scout”, whose duties were to locate any instrument needed by the surgeon, open the sterile packet, and provide the instrument.
She did not give evidence that she had ever had any training or experience in diagnostics in relation to medical conditions or, in particular, head injuries. On the balance of probabilities the mother intended by saying she was “a qualified nurse” to convey that she was trained and qualified in skills relevant to diagnosing brain injuries and was a registered nurse.
The mother swore in her affidavit regarding an incident in May 2003 that the husband had hidden the car keys from her for three days and that during that period, “We were 35 kilometres from the nearest town and I needed to get medical supplies for [J]”. But when cross-examined about his she eventually conceded that the statement that she needed to get medical supplies for J was false.
The mother made the following statements in her affidavit material on oath, all of which were established by the evidence to be untrue:
· “The respondent has not telephoned to request a contact visit since Father’s Day 2005”.
· “The respondent did not send any present to the children at Christmas”.
· “The respondent did not … send Christmas cards” (for the children).
· “The respondent has sent one birthday card to [J]”. (in fact he sent more.)
· “The respondent … did not send a birthday card to [B]”.
· “The respondent has not sent any birthday presents to either of the children”.
She also failed to acknowledge in her affidavit that the father had sent Christmas presents for the boys each Christmas, but conceded some of this in cross-examination.
The mother swore in her affidavit, “The respondent has never assisted in feeding the children, changing their nappies or bathing them”. But she conceded in cross-examination that this was untrue. She conceded, for example, that at times while she was out playing poker machines at a club, he minded the children. She conceded there was an occasion when J was air-lifted from the upper Hunter Valley to the Royal North Shore Hospital and she went with him. She conceded that the husband minded B for a week while she was away.
She alleged in her affidavit that “the father never took the children to the doctor of the medical centre”. But in cross-examination she conceded that on at least one occasion he did take B to the doctor.
She made serious allegations of an incident on 14 August 2004 which, she alleged, lead to the final separation. She alleged in her affidavit that the father arrived home at 2.30am and appeared to be affected by drugs. He was wearing only a G string and a bra. She alleged that he told her, “I have just fucked a 13 year old bitch and gave it to her hard”. Her evidence was that he also had make-up on, and nail polish on his finger nails and toe nails.
When she swore an affidavit in October 2004 in proceedings in the Local Court, she made no reference to this incident. She said she had left the respondent because he had verbally abused her in front of the children on a number of occasions and had on occasions made threats of violence towards her and the children. She also stated, “Compounding my fears is the fact that since the respondent has been incarcerated, a number of persons have contacted me either by telephone or in person demanding repayments of moneys allegedly owed by the respondent”. She said that “as a result of my fears I have made an application for an Apprehended Domestic Violence Order”.
The mother swore in an affidavit in October 2004, “On or about 17 February 2004 the respondent was incarcerated until 1 September 2004. Immediately there after he received a further jail sentence and is due to be released from the […] Correctional Facility on 13 November 2004.” In cross-examination by the children’s representative, the mother said that she meant by “incarcerated” that he “was let out of jail on 17 February 2004”. She insisted that that was what the meaning of the word was, but then eventually said she “No, I don’t know what it means”. She said in cross-examination that she was “certain he wasn’t taken into custody until 19 or 20 August. She denied that she fabricated the information in that paragraph of the affidavit. She adhered to her evidence that she did not know what “incarceration” meant, although she had sworn to the truth of the statement.
In oral evidence the mother claimed that her telephone landline was disconnected in late 2006. But then after further questions, she said it was in 2005.
B was born in 2002. But cross-examination revealed that the mother did not register his birth until 2004. When she registered him, she registered him under the surname of “Dean”. She said that was “Because “Crawford” did not seem appropriate”. Apparently the registration occurred after the parents had separated. She did not include the father’s details in the birth registration. She alleged that this was because, “I wasn’t allowed to. Because if the father wasn’t there they would not allow it.” She did not contact the father about the registration.
Sections 13-18 of the Births Deaths & Marriages Registration Act 1995 (NSW) and Regulation 5 of the Regulations under that Act are relevant. Under Section 16 the birth must be registered within 60 days. Section 14 requires that the staff at the Registry of Births Deaths & Marriages do include the details of the child’s father in the registration. Under Section 15 the parents are jointly responsible for having the birth registered. There is a requirement that both must sign the birth registration statement in Section 15 “but the Registrar may accept a birth registration statement from one of the parents if satisfied that it is not practicable to obtain the signatures of both parents”.
Section 14 sets out how a birth is registered and Regulation 5 sets out the information required to be provided by the person(s) registering the birth. Regulation 5 includes in the required information, “the full name, occupation and (at the time of delivery) usual place of residence of the father of the child”.
The mother’s evidence that she did not register the birth previously because “There was no need to. You have 3 years to register”, was false. Her evidence that the staff at the Registry Office refused to allow her to include the details of the father in the registration is also false. She subsequently said that she “Wasn’t allowed by the staff to put his details in because I wanted to use ‘[Dean].”
Although there are provisions in Section 18 of the Act requiring that the Registrar not include registrable information about the identity of the child’s parents unless one of the circumstances there set out is satisfied, that obligation on the Registrar does not detract from the obligation of a parent to have the birth registered and to supply the information listed in Regulation 5.
On the balance of probabilities the reason the mother did not seek to have the father join in the registration application was that she intended to register B under the surname of “Dean”, rather than “Crawford”, and she knew the father would not agree to this and would not sign the form if it showed the child’s surname as Dean. Because she was obliged to provide particulars of the father, if known, on the balance of probabilities she falsely purported she did not know the father.
Overall the mother presented as a person who in the proceedings was prepared to exaggerate and lie in order to assist her case. She did not present as a reliable witness. Accordingly, in relation to allegations made by her against the father, the Court has been wary of accepting her evidence. But in many situations her evidence was accepted only to the extent that it was corroborated by evidence of the father or other evidence, or the father’ version was even less credible than the mother’s.
CREDIT OF THE RESPONDENT FATHER
The father has a criminal history which involves the use of more than 20 aliases and proof in Court beyond reasonable doubt (although sometimes not without a conviction being imposed) of more than 60 different offences involving dishonesty.
The father’s first such dishonesty offence occurred when he was 16 and the most recent conviction for an offence involving dishonesty was in September 2003. His criminal records produced do not cover the period since 9 May 2007.
During cross-examination the father conceded that in 2001 he arranged for a male prostitute to attend on him and the mother “for a threesome”. He conceded that while the man was there the father stole his wallet.
The father conceded in cross-examination that many of his fraud convictions involved using pretences, forged cheques or worthless valueless cheques to obtain motor vehicles. He conceded that he often told people he would pay for a motor vehicle, but did not. He funded the drug habits of himself and the mother by selling such motor vehicles.
Whilst the father freely admitted in cross-examination using illegal drugs, selling illegal drugs, stealing, all sorts of fraudulent activities, and abusive behaviour, he was very evasive when asked questions about whether he had sex with men or asked about his cross-dressing habit. He appeared to regard his dressing behaviour and his bisexuality as somehow worse than his criminal history. He lied about and understated his interest and activity of having sex with men and he also understated the extent of his cross-dressing activities.
In his affidavit sworn 3 July 2008 the husband swore, “I have not used drugs for three years”. But in cross-examination, he conceded that he used amphetamines in May or June of this year. He failed to disclose that relapse in his affidavit or any other document. When asked why he did not disclose it, he answered, “I don’t know”.
The father could not be regarded as a reliable witness. However, the problems with his credibility did not appear to be as serious as those of the mother.
THE CHILD J
J turned 8 in August. Both the children reside with the mother in the home she owns in the Hunter Valley. There is precious little evidence by either of the parties about the boys.
J has a lung disorder resulting from his premature birth, and also suffers asthma, for which he takes preventative medication.
Dr R related in her report regarding J:
Assessment of [J]
[J] presented as a polite, cooperative nearly eight year old wearing glasses. He was observed echoing his mother's words and looking to her for reassurance when they were seen together. He appeared fond of his brother [B]. He had no separation anxiety. When seen alone, he often spoke without reflection and had some echolalia.
[J] denied having any worries/problems/scared feelings. He said his father "does sometimes" live in his house and, when this was explored, explained Dad "use to - not now" live with them. He recalls his father having a beard and said they had no photographs of him. Asked if he wanted to see his Dad, he responded "yes because I love him so much".
For the dream of a sleeping boy, lake drew a stick figure and a heart. This was a Good Dream "about his Dad because he loves him". For a Bad Dream, he drew an immaturely executed figure with a crooked mouth. [J] explained the boy was "hating his Dad", who gets angry. Asked if his Dad was angry, [J] initially said "no.. .he's a nice Dad" before saying he was angry sometimes. He similarly denied having a "hitting Dad" before adding "sometimes he did - seen it lots of times, some Dads can hurt people in the family", but this did not happen in his family.
In a Rocket into Space, where he can take one other person with him, [J] chose "my Dad", because "he loves me so much". He said Dad rings him on the telephone.
If given 3 Magic Wishes, [J] would wish for
1. a web blaster
2. a toy plane that flies up to space and comes back gain
3. to go in a rocket to the moon
If he could be any creature, he would like to be a kangaroo as "I love bouncing so much", while he would hate to be a spider because "they kill you".
For a Family Drawing, [J] drew four figures and a rocket ship. They were Dad, Mum, him and [B] going in the rocket ship to the moon. [J] stated "I love my Mum and my Dad".
Feedback from his school
[J] is a "nice little boy" who is making good progress academically and socially.
Dr R in her summary said of J:
[J] - is a sweet natured nearly eight year old with some developmental idiosyncrasies on the autistic spectrum. He probably has some recollections of his father but appears to have elaborated on the memories with fantasies (presuming he actually is NOT receiving calls from [the father]), undoubtedly triggered by his observations of other fathers with their children.
J in fact was receiving calls from his father. Dr R saw the boys in 2007. This year J is in 1st Class and B is in Kindergarten, but they are in the same class because it is composite class.
Both the boys have excellent relationships with their maternal grandparents. Their mother is obviously their main attachment. She has been their main care-giver for all of their lives.
Their father was in prison and therefore not living with the boys in the period leading up to the parents’ separation. Since February 2005 he has not spent any significant time with them. Accordingly, they do not have a significant relationship with him but it appears that J has idealised his father.
THE CHILD B
B turned 6 in August.
He enjoys good health.
Dr R reported from her interviews and observations in 2007:
Assessment of [B]
[B] presented as a sturdy, lively age appropriate nearly five year old who related well to lake and had a positive relationship with his mother.
A planned pregnancy, because his mother wanted a sibling for [J], [B] was a normal delivery at thirty six weeks gestation. At the time his father had been in a drug rehabilitation centre. He had been breastfeed for three months and although slow to crawl had walked and talked within normal limits. When [B] was one his father had been imprisoned but, when at home, [the father] maintains he was involved in the care of his children. [The mother] had only felt supported by her parents.
Currently at Preschool, [B] has had no difficulties with learning, behaviour or friendships.
Feedback from the Preschool
[B] has been going well and will be ready for school next year. There are no concerns about hid development or his mother's care of him.
In her summary she said of B:
[B] - presented as a developmentally age appropriate nearly five year old. He has had little time with his father since his birth and is very unlikely to have an attachment or a significant relationship with him.
THE MOTHER’S ATTITUDE TO THE FATHER
The mother professed to be fearful of the father, but from the evidence, it appears that this was significantly exaggerated.
The Court does accept that the mother was harassed by numerous telephone calls and letters she received from the father as he pursued her after separation and even after Apprehended Violence Orders were made and he was convicted for breach of such orders.
The Court finds that the mother maliciously fabricated and exaggerated allegations against the father. There is a real likelihood that she will continue to do this if the father spends unsupervised times with the boys and there is a supervisor available to give objective evidence of what happens.
The mother testified that in the weeks after the consent parenting orders were made in December 2004, she was “pushing for the boys to see him”, and, “I was happy for them to see him”.
It appears that her change of attitude has to some extent been attributable to the father’s harassment of her and unwanted affections. However, one has to take into account that in May last year she was apparently still interested in pursuing a relationship with the father, given the lengthy telephone calls that she had with him late at night, which she instigated.
In cross-examination the mother presented as resolute in her hostility to the father and opposition to the boys spending time with him. She denied that it was harmful for the boys not to see their father. She denied that she “just wanted to get on with your life without the father”.
She has established a romantic relationship with another man which she did not disclose in her affidavits or in her interviews with Dr R. She denied that it would make her life “more simple” if the boys had no relationship with the father and she did not have to take them to see him. She denied it would make her relationship with her new man simpler if the father was not in the boys’ lives. She denied it might be a problem for her in her relationship with her new boyfriend if the father had a relationship with the boys.
She said she believes that the father did have sexual intercourse with a 13 year old girl.
She said in cross-examination that she proposes the father be excluded from the boys’ lives, till they are able to look after themselves, “In my view at least 15”.
In cross-examination by the father he asked her whether she thought that one of the “most precious things children have growing up is experience with parents and a bond?” She replied, “It depends. I don’t think you deserve that chance … I don’t know if the children deserve it.” She conceded that she does not know of any occasion that he “laid a hand” on the children, but she said he was violent in front of the children. When he asked her, “Do you think I would hurt them?”, she replied, “I don’t know”. She gave the same answer when he asked whether she knows that he loves them. She said she does not accept that he has reformed.
When the children’s representative asked why she was seeking to prevent the children having any time with their father, she replied, “For the children’s welfare and safety”. She said, “If the children see him supervised or unsupervised, I’m concerned about his behaviour, his permissiveness”.
THE FATHER – ALCOHOL, DRUGS & MENTAL HEALTH
Dates are dates of charge (later found proved) or event.
· 16.10.83 Possess prohibited drug - fined $80
· 6.1.84 smoke prohibited drug - fined $200
· 1986 Father commenced amphetamine use
· 16.8.87 possess prohibited drug - fined $250
· 6.6.97 Father attends periodic detention with drugs in possession. Charged.
· February 1999 parties meet at H Rehabilitation House at …, where both receiving treatment for addiction to illegal drugs.
· When parties commenced cohabitation in April 1999, the mother had been using amphetamines since 1993 and the father since 1986. The mother’s evidence is that they were using up to 3 times per day.
· During the cohabitation the father’s favourite drugs were amphetamines, particularly ICE and K2. He also used heroin and marijuana.
· March 2001- parties living at …. Father received telephone call, presumably from someone with whom he has had dealings regarding drugs. He said, “You say they are on their way here – I’ll fucking kill them.” Father ends call and tells mother, “go and get [J] and go to the bedroom and don’t move.” The father picks up a baseball bat and comes into the bedroom and slams door. The father shouts, “I’ll kill you. You bastards won’t get me. I’ll smash your fucking heads”. Father kicking bedroom door while saying this. J very distressed. Mother asks who is after him and father says, “Some bastards I ripped off”. Four hours later father allows mother to take J back to his bedroom. No-one arrives.
· 13.9.01 Caravan Park Manager finds syringes in caravan father has just vacated.
· 1.3.02 Father found by police in car in T Park 1.15 am. Testifies at about that time they were obtaining their illegal drugs from a supplier nearby and they used to go to the park to take drugs.
· 11.5.02 police found father naked in car at T Park at about 11pm. A number of empty plastic satchels were in car and Police found one containing cannabis. Father said he is regular user of amphetamines and last injected about 5pm.
· 12.5.02 Possess prohibited drug – convicted in absence. Warrant to issue. No record in Exhibit CR2 of subsequent penalty.
· June 2002 Father attends 6 weeks of drug rehab at G Rehab Centre at ….
· 12.7.02 Possess prohibited drug - convicted in absence. Warrant to issue. No record in Exhibit CR2 of subsequent penalty.
· 2.10.02 COPS entry – Police talk to mother re warrant for father. Father in Rehab Centre “[G]”
· 9 June 2003 father commences 4 weeks of rehabilitation at G Rehab Centre
· August 2003 father sent to O Rehab Centre, has about 4 weeks
· September 2003 father sent to F Rehab Centre, for 2 weeks before appearing in court on criminal charges.
· 9.11.04 father in jail. Receives two playing cards with pin holes through them. He recognises them as “prison speak that I will be killed when I got out.” Father speaks to prison governor and they agree to send it to the Police. The father tells police he has “grave fears” for his personal safety and that of his family. He told the police that in his “drug dealing times” he dealt with people who threatened him.
· 20.12.04 Family Law proceedings before Local Court. Father promised mother he will give up drugs if they reconcile.
· Mother says she stopped drugs in November 2004 and has since been supported by the community mental health team.
· 21.5.05 COPS entry. Father found in known (to police) drugs house
· May or June 2008 the father testified that he had just been arrested again for breach of the Apprehended Violence Order. The charge is yet to be heard. “I thought I was going back to jail. It was all getting too much. I relapsed.” Uses amphetamines and alcohol. Injects two nights in a row and drinks a bottle of whiskey in two days. The father then goes into the Magistrates earlier referral into treatment program for three months.
· Father says has not used since. Has had 3 urine tests on MERIT program, but does not have copies. Report from the program went to the Magistrate on 8 September 2008. Also counselling report. Father has yet to attend for pre-sentence report. Father says has 3 prior convictions for breaching Apprehended Violence Order. Father also says that as at 9 September 2008 he has been having “a few beers recently” – 2 or 3 times and 3 at a time.
THE FATHER – ABUSE AND OTHER ANTI-SOCIAL CONDUCT
With convictions, date is date of conviction.
· 13.12.79 possession of stolen property - fined $300
· 15.2.80 steal car - 12 months probation
· 15.2.80 unlicensed driver - fined $200
· 17.11.81 drive dangerous speed - fined$250 and disqualified12 months
· 26.1.82 drive whilst disqualified – fined $200 and disqualified for 6 months.
· 6.1.84 carry cutting weapon - sentenced to rising of the court
· 27.3.85 utter forged cheque – Recognizance to be of good behaviour for 3 years and accept supervision of Probation & Parole.
· Utter forged cheque (8 counts ) fined $800
· 30.3.89 drive dangerous speed – fined $1500 and disqualified for 3 years
· fail to appear $200
· 29.8.90 re drive disqualified - 100 hours community service and disqualified to 29/8/05
· failed to appear - 100 hours community service.
· 11.11.94 pass valueless cheque (8 counts) on each 7 months imprisonment. Total compensation $2,869.
· Stealing (2 counts) on each 7 months. Total compensation $2,114
· Drive Disqualified (2 counts) 6 months on each
· Obtain financial benefit by deception 7 months and compensation of $400
· Fail to appear 1 month
· Exceed speed - fined $400 and Court costs of $46
· Disqualified driver 4 months
· Drive unregistered - fined $400 and Court costs of $46
· Drive uninsured – fined $600 and Court costs $46
· State false name and place of abode - fined $200 and Court costs $46
· Fraudulently use licence (2 counts) - fined $400 and Court costs $92
· Fraudulent misappropriation (2 counts) - on each count 7 months and compensation $150
· Disqualified Driver 6 months from 11/3/96. Disqualified till 10/9/90
· Drive unregistered vehicle - fined $500 and Court costs $46
· Drive uninsured - fined $800 and Court costs $46
· Pass valueless cheque (3 counts) - on each 7 months - total compensation $940
· Break, Enter & Steal - 12 months minium term 8 months. Release subject to supervision.
· 22.6.97 Father becomes aggressive and abusive to tobacconist when trying to sell him mobile phone.
· The parties commenced cohabitation in about April 1999. In the following 5 and a half years of cohabitation the father was in paid work for only 1 or 2 days. The mother was in paid work in nursing until 2000, and thereafter not in paid work.
· 7.4.98 Larceny - fined $1,000, Court costs $51 and compensation $20.
· 3.11.99 Father and his previous partner have argument about Father seeing their daughter. (Separated since August 98.) Father threatens her “you are a fucking bitch and you are going to pay”.
· 3.11.98 Obtain money by deception (12 counts) minimal additional 6 months imprisonment for each (concurrent).
· Fail to appear 6 months
· Pass valueless cheque (2 counts) min 6 months additional
· Obtain money by deception Minimum 6 months additional
· In October 1999 the father told mother that he had completed an anger management course.
· 3.11.99 obtain money by deception (2 counts) 6 months on each from 20/8/99 to 19/2/2000.
· 5.2.01 Mother and Father involved in verbal and heated argument. Mother wanted to go to her brother’s place for a family party. The father grabbed her and demanded she leave the premises without J. The father threatened her that if she left him he would slit his throat, her throat and the baby’s throat. The mother left and went to her parents’ home.
· 8.2.01 - AVO restraining the father for the protection of the mother – not to engage in conduct that intimidates the mother and not to stalk, assault, molest, harass, threaten or otherwise interfere with her.
· 18.2.01 father hires a male prostitute come at about 11.30pm for “threesome” with the parties. When leaving, man discovers his wallet is missing. Father has stolen it. Father became aggressive to him. Man leaves, but reports to police. Appears father not charged.
· 12 April 2001 Use unregistered vehicle - fined $300, Court costs $56.
· Use uninsured motor vehicle - fined $300, Court costs $56
· Exceed speed more than 15klmh – fined $300, Court costs $56
· State false name and address- fined $300, Court costs $56
· April 2001 – About 8 weeks after the Apprehended Violence Order an incident occurred. The father came home at about 8pm the mother asked why he had not been home in time for dinner. He responded aggressively. She had needed the car to get some formula for J. He called her, “a fucking bitch”. He came at her and pushed her very hard against her chest with such force that she fell backwards approximately 7 feet and landed on top of a Jim Beam liquor bottle which broke with the force. She screamed. She thought she had broken her back. She had hit her spine on the liquor bottle. She was frightened to move but eventually did move because J was crying and distressed.
The father told her, “I’m sorry. I won’t do it again. Don’t go to the Police or I will slit your throat.”
· Obtain money by deception (5 counts) convicted in absence. Warrant to issue.
· Make false instrument – convicted in absence. Warrant to issue. Later sentenced to rising of the court.
· Use false instrument –convicted in absence. Warrant to issue. Later sentenced to 2 months to be suspended on entering bond to be of good behaviour for 2 months.
· 13.5.02 Drive while cancelled –convicted in absence. Warrant to issue. Later sentenced to 6 months imprisonment to be suspended upon him entering bond to be of good behaviour. Disqualified for 2 years from 20.11.02
· 20.11.02 make false instrument -12 months -suspended on entering bond.
· Use false instrument - 12 months - suspended on entering bond.
· Drive whilst licence cancelled - 3 months -suspended on entering bond.
· Obtain money by deception - 6 months suspended on entering bond.
· Obtain money by deception -12 months suspended on entering bond.
· Larceny - 3 months suspended on entering bond to be of good behaviour for 3 months
· May 2003 – the parties and both children were living in a rural area. Both the children were sick. The mother sought the father’s assistance to look after B while she treated J for his asthma. The father was affected by drugs. He refused the request and swore at her. The mother again requested his help. The father spat on her and pushed her. His lifted his hand in a clenched fist. The children started to cry. The mother told them to run and get into the car. They were in their pyjamas and it was about 9am. She strapped the children in the car and went to drive off. The father pulled her out of the driver’s seat and told her, “You’re not leaving. I’ll fucking kill you, you bitch.” He spat on her again. The mother managed to free herself, entered the car and started the ignition. The father opened the door, turned off the ignition and removed the keys. He pulled her from the car and punched her in the stomach. The children were in the back seat screaming. The mother alighted from the car and then removed the children from the car. The father hid the keys for the car for 3 days. They were 35 kilometres from the nearest town.
· May 2003 Father commenced taking Mother (and sometimes children) on visits to homosexual beat at T Park at night while he seeks out men for sex. The Court accepts her evidence:
69. In 2003 the Respondent and the children and I resided at the property [in regional New South Wales]. Approximately once a month, if we were driving in the car with the Respondent, the Respondent would detour to [T] Park. I observed that there were several young men in the park. On the first occasion we went I said to the Respondent:
"Why are we coming here?"
He said:
"I want to get someone to suck my cock."
The Respondent parked the car, took the keys and would leave the children and I in the car. The Respondent walked into the park. Sometimes he would return to the car approximately thirty minutes later and on several occasions we waited in the car at the park for periods of up to one hour. On most occasions he would return to our car with his shirt undone and, in front of the children, would say, words to the effect:
"I've just been with a mad young fellow and sucked his cock and it was mad. "
· 4.6.03 the mother testified:
65On the evening of 4th June, 2003 we were living at [regional New South Wales]. We had received notice from the sheriff that the sheriff was to attend the home the next day to lock it up and evict us and sell our furniture and effects.
66Approximately two kilometres north of Raymond Terrace we were driving home in the car when the Respondent insisted on giving a 19 year old male hitchhiker a lift. The Respondent invited the hitchhiker home, but the hitchhiker refused and got out of the car at Karuah. After the hitchhiker got out, the Respondent said to me in a loud voice:
"I just wanted to fuck that bloke. I wanted to bash him and hurt him, but I wanted to knock him off and put him in the ground."
I said to the Respondent:
"Stop talking like that, the children can hear every word you're saying."
The children were sitting in the back seat of the car. The Respondent refused to stop and kept repeating his threats about the hitchhiker.
67.When we got home I carried the children out of the car and put them to bed. The Respondent never carried the children from the car to the house and did not put them to bed. As soon as the Respondent came into the house he took his clothes off in the dining room and started to masturbate. I was trying to pack our belongings because the sheriff was coming the next day to lock up the house and our contents if the contents were in the house at 10.00 am. I walked into the dining room and saw the Respondent masturbating. I also observed that he had stuck a cucumber in his anus. I said:
"Stop doing that. What if the children walked out and saw you? You know the kids can walk out of their room at any time."
The Respondent walked out of the dining room saying:
"I want to flog that hitchhiker. I want to fuck him up the arse."
I continued to pack up our belongings in the kitchen.
68I continued to pack our belongings and approximately half an hour later I went into the lounge room and observed the Respondent with a cucumber in his anus and makeup on his face. The Respondent had a camera and was attempting to take photographs of his backside. The Respondent said to me:
"Take a photograph of me."
I said:
"You're obscene."
The Respondent came up to me, put his face right against mine and said:
“You take this photograph or else."
I took several photographs of the Respondent to avoid drama. I threw the camera at him. I said to him:
"What if [J] and [B] wake up and see you?"
The Respondent said:
"I don't care. All I want to do is fuck that hitchhiker up the arse and give him a good flogging and watch him scream. "
I said:
"Please stop this. Just think of the children. Just help me pack our belongings because this is all we own and it's all the children have."
The Respondent walked towards his bedroom and I continued to pack our things. Some minutes later I heard [J] get out of bed. I went to [J], but found him standing at the bedroom door watching the Respondent masturbate on the bed. I picked [J] up and carried him out into the kitchen where I gave him something to drink and put him back in his bed and waited for him to go to sleep.
· The father conceded in his evidence that he was using ICE at time. He also said in cross-examination of this incident, “We were on acid mucking around. A few photos were taken of me mucking around and she took the photos.”
· 23.9.03 Make false instrument - 12 months suspended on entering bond.
· Obtain money by deception - 12 months suspended on entering bond. Conditions include attending Narcotics anonymous meetings for 6 months.
· Use false instrument - 12 months suspended on entering bond – similar conditions and also Probation & Parole supervision for 7 months.
· Drive while Disqualified – 10 months imprisonment commencing on 18/9/03. Non parole 5 months. Conditions include rehabilitation approved by Probation & Parole Service. Disqualified 2 years until 19.11.08
· 23.9.03 Obtain money by False Pretences 1 month (commencing 18.9.03).
· 14.8.04 the wife’s evidence, which the Court accepts, is:
62.On 14th August, 2004 the Respondent and our two children were living in my home [in the Hunter Valley]. The Respondent had been away from the home for approximately six hours and arrived home at 2.30 am.
63.The Respondent walked into the kitchen wearing only a G-string and one of my bras. I said:
"What are you doing dressed like that? I hope no-one has seen you. Where have you been ?"
64.I observed that the Respondent appeared to be affected by drugs. The Respondent said:
I’ve just fucked a 13 year old bitch and gave it to her hard."
I said:
"You are sick. That's against the law, as well as what about the poor girl? Look at you, you've got makeup on, nail polish on your fingernails and your toenails. "
The Respondent said:
"I don't give a fuck, it was good."
At that time [J] woke up and walked into the kitchen and saw his father standing there. I immediately picked [J] up and took him back to bed and comforted him. When I had attended to this, I went back to the kitchen and said to the Respondent:
"Get yourself properly dressed so the children don't see you again."
· Within a few days father arrested and then gaoled.
· Drive whilst Disqualified – 3 months 14.8.04 to 13.11.04. Disqualified another 2 years.
· During the cohabitation the father told the mother that he had “picked up” a woman at the Wollongong station and raped and killed her. Mother has since reported this to police and searches of missing persons records and other police records has not found any missing or dead woman who might have been the victim. On the balance of probabilities the father did tell the story to mother, but it was untrue.
· September 2004 - Separation – mother leaves, taking children.
· 10.11.04 Interim AVO by Upper Hunter Valley Local Court
· 15.12.04 - 12 month AVO by Upper Hunter Valley Local Court
· 15.2.05 – Mother & Father Phone conversation. Court accepts Mother’s evidence:
5. About five minutes later, the phone rang again and I answered it and it [was the father] again. This time he said, "I miss home, I want to come back home. Why are you doing this to me? Why? Why?" He kept saying things like this over and over again. I said, "Don't ring again." I hung up the phone.
6. About five minutes after the second call, [the father] rang back again and this time he kept saying things like "I miss home, I want to come back again. Why are you doing this to me?" I tried to keep calm .and said, "You need to clean up your act, you need to get your life together. You should go away and get a job.
I said, 'Why weren't you at [W] on Saturday?" (Visitation access rights at McDonalds [at W] for [the father] to see [B] and [J])
[The father] said, "I had a breakdown on Saturday and spent the day in the psychiatric ward. I have been taking drugs."
Then [the father] said, "I like what you've done to the house. I like the colour, and the wooden blinds."
I said, "Well what colour is it now?"
He said, "It's cream."
I said, "How do you know this?"
He said, "I wanted to be close to you and the children. I came and sat on the verandah recently for a few hours.
· In cross examination the father conceded that until 2005 for “years and years” he had been “ripping people off” “almost daily”.
· 14.6.05 Contravene AVO in January - Bond for 9 months, condition he comply with conditions of Apprehended Violence Order
· Contravene AVO in February - Bond for 9 months, condition he comply with conditions of Apprehended Violence Order
· 16.11.05 Upper Hunter Valley Local Court extends AVO until December 2009
· 15.4.08 last letter from father to mother pursuing reconciliation. Between suspension of orders for boys to spend time with him in March 2006 and 15 April 2008, father sends mother dozens of letters seeking to resume relationship. Also pursues her by telephone. Appears stopped only when mother was about to take further proceedings for breach of the AVO.
· In cross-examination father agreed that he has been aggressive to mother and to his previous partner. When it was put to the father that he had a problem with aggression towards women he loves, he did not accept responsibility. He replied “I had a problem with drugs”.
· He says that when on ICE he “had an insatiable sexual appetite” and became aggressive and “out off control”. When asked if he became violent to the mother in sex, he replied, “there was push and shove in our relationship” and “the relationship was lively, yes”. He said the relationship “because of the drugs, destroyed us”.
· 25.6.08 – the father makes 6 telephone calls to the mother. He concedes the phone calls were harassing. He says that he did not think so at the time and did not mean to harass her.
In cross-examination the father conceded that from the mother’s perspective he had not accepted “No” as an answer in terms of her wish that the relationship not resume or continue. He replied, “Yes, I have accepted ‘No’, but I always thought we could have worked things out.” When it was put to him that the only reason he stopped pursuing her was because he knew he was going to go to gaol, he made that concession.
He said that he believed there was a “big push by her parents” for her to be rid of him, but he appeared then to vary between saying that the relationship is over and then implying that it might still be repaired. It did not appear that he has really abandoned hope of reconciling with her. Then he later said that he wants to “remain friends” with her and “try to do what we can for the children. It is important that we try to be friends – because it’s in the best interests of the children.”
It was put to him that he still harbours some thought that the relationship can be resurrected and he replied, “No, not no more”. When asked when he changed his view, he said, “I sent another letter to her recently. I said, ‘Please don’t have me arrested again.’ That has done it for me.”
In cross-examination he said, “The last time she had me arrested”, he believes is malicious. He said he contacted Legal Aid and they told him he can send presents and cards for the children. He said that until he received the most recent affidavit, he did not know that he was not able to contact the children by telephone. He said he believed he could. He discovered that the Apprehended Violence Order provides that he can only contact he children if it is agreed by the mother.
He said that he also only recently realised that the suspension order had continued. He said he thought it continued until the matter got to Court. He said he thought he could talk to the mother about the children and about things relating to the children. He said, “I won’t make the mistake again. Its 3 or 4 times she’s had me breached.”
He conceded that he had been aware for a long time that there was an Apprehended Violence Order between him and the mother. He said, though, that he did not realise that he could not contact her at all. He also said that, “The first couple of years I was trying to contact her regarding the children, because the order was for joint parenting”. He conceded that there were a large number of letters that he sent to her pleading her to resume the relationship and he knew the volume and length of the letters was a breach of the Apprehended Violence Order. He conceded that he also knew that ringing her repeatedly was a breach of the orders. He conceded that he knew there was a real prospect that he would go to gaol if found guilty of breaching the orders. He also conceded that only when in July this year he was refused bail in the proceedings for breach of the Apprehended Violence Order, did he stop sending her letters.
He said that his present attitude is that he does not want to resume the relationship and he believes there is no future in it. He considered that it is “very intimidating” for her to receive letters or phone calls from him and said he will only contact her in accordance with the court orders.
Since he was released from prison, the father has had the support of Pastor Y, who supported him as the Prison Chaplain.
He has also had support since March 2008 by Ms H, a Family Support Worker at W Family Support Services. She has assisted him with counselling, referral to an Anger Management Course, and a referral to a children’s discipline course, and a communications course. He in August had already commenced a 10 week parenting course covering management of day to day issues of parenting and problem solving. In addition he has completed a Parenting After Separation course. Her evidence is that ongoing support will be provided to him after this hearing.
He said he is aware that the mother does not want to resume the relationship and he believes that. He conceded that it is very intimidating for her to receive letters and phone calls from him when she does not want the relationship to resume. He said he will only contact her in accordance with court orders. He conceded that his phone calls and letters could have had a “disastrous” effect on her capacity to parent the boys. When it was put to him that her mental health has a direct effect on the boys and their well-being, he replied, “Of course”. But he said he never thought she was frightened of him. He conceded that it does not assist the boys for their mother to feel harassed by him.
In cross-examination the father said, “I won’t be breaching the orders again”. He said that until the hearing he thought it was okay to phone the mother about the children. It appears that he wanted to see the boys and knew that if was contrary to their interest for him to telephone the mother, but he still did so.
EVIDENCE OF THE SINGLE EXPERT
Dr R is the Single Expert. She is a Child & Family Psychiatrist. She graduated in Medicine and Surgery in 1977 and completed her speciality in Psychiatry in 1987. She has worked as a Clinician in Psychiatry at Royal North Shore Hospital from 1989-1993, at the Tresillian Family care Unit from 1994 to 2002, as a Visiting Medical Officer and locum at Westmead Hospital, Royal North Shore Hospital, Jade House Family Unit and Penrith child & family Community Mental Health Team in the years from 1991 to 2001. She has been involved in private practice in supportive and exploratory psychotherapy and child and family psychiatry since 1990. She has prepared reports for the Family Court as a Single Expert and previously as an Order 30A Expert since 1987. Her practice also includes preparation of reports for the Medical Board Motor Accidents Authority and the Children’s Court Clinic. She has engaged in teaching activity with the Community Medicine Faculty of the University of New South Wales in 1987, and the Institute of Psychiatry as an occasional lecturer and supervisor of trainee psychiatrists since 1989.
She interviewed each of the parents and J alone, and also saw the mother with the children. She interviewed the paternal grandfather. She interviewed the mother on 24 July 2007 and the father on 31 July 2007.
She reported from her interview of the father:
Declaring he still loves [the mother], [the father] referred to how "a lot happened" in the five-six years they were together. There were "a lot of drugs" and "it was that ice" which caused him to be in an out of gaol: before using ice, he had only been to gaol once. Tearfully he stated he was "not a bad man... would never harm any of my children - they're part of me.. .just love the boys, want to be part of their lives". He has been "trying to keep it together" and has not used illicit substances for years ("no needle for more than two years", last "joint" about eighteen months ago) as he is "fighting for my boys". He referred to his "kids scattered everywhere" and how he wanted it to be better, to no longer abandon them. His last imprisonment was at the end of 2004 for three months for driving when unlicensed and while there he had received [the mother’s] letter telling him she had taken out an A VO and their relationship was over. He had "just stopped" the drugs and continues to get cravings, at which times he stays home, watches TV and eats. The process has been "really hard". He feels he no longer needs to go to N.A. because he gets "strength looking at the kids' photos". He had "started to go to Church" (but has not been for some time nor contacted the pastor who had helped him while he was in [W] Gaol). He described his supports as "myself - I'm the only one who can do it". He would like the A VO, which lasts until 2009, changed so he can go to [the mother’s] home as he knows he could work things out with her, although there would be "no chance while her parents are there". He alleged they have threatened to sell her house if she recommenced a relationship with him. He declared he was "not backing away" from his efforts to see the boys. As he became tearful again, he explained it was because he was "thinking of the last seven years". Since he stopped using, his "emotions have come back" but he only cries when he thinks of his children. He is "scared, worried them poor little boys will grow up and have what happened to me" happen to them.
On unemployment benefits, [the father] generally stays at home alone because he does not "like the world out there much". He sleeps a lot and jokes his new addiction is eating - he has put on forty kilos! He has had counselling for two years through the Personal Support Programme (PSP), part of Joblink Plus. He has "a lot of qualifications" in plant operating but cannot get his truck license back until 2008. Asked why he has not caught up with his daughters, he could not explain but declared "the last three years has been hard.. .doing my best". He was "ashamed" not to have seen [M] and declared "when this is over" he would get involved in her life again. While acknowledging being distressed, he thought this was because of how important the assessment is and denied being depressed at home, where he attends to his housework and garden and is "usually happy go lucky". He has lived in the same house for nearly three years but does not associate with his neighbours to "protect myself - stay clear"
The father told Dr R that his criminal record arose from him being a “junkie” and there have been no assaults. He said he is “not a violent person”. He said that he had occasionally drunk alcohol to excess, and will now a carton of 24 stubbies over three days about once a month at home. He told her that he organises urine tests to prove that he is drug free.
In her conclusions Dr R stated:
[The father] presented as being in a state of denial about the extent of his antisocial behaviours (as described by [the mother]), although acknowledging his very significant past use of alcohol and illicit substances. His drug use appears to have, at least, been modified, given his history of no recent incarcerations, stability in housing and participation in the PSP programme. It does appear he has been doing his "best". However it is a marked concern [the father] does not currently have any psychosocial supports and appears to be leading an isolated existence as this places him at risk of relapse into drug use or the development of psychiatric disorder, probably depression.
Another significant concern is [the father’s] fixation on [the mother] as his "soul mate" who continues to want a relationship with him. This is his projection onto her (as she adamantly refutes this claim). With his early experience of chronically feeling abandoned by his natural mother giving him up for adoption and then the rejection by his first partner, I hypthosise [the father] now denies the end of his relationship with [the mother] to protect himself from the pain of feeling further loss and abandonment. Perhaps because of the gender of these children, he is more identified with them, wanting them not to feel as he did, rather than with his daughters with whom he continues to replay the experience of abandonment.
Believing that telephone calls are occurring when they are not is delusional and if [the father] is experiencing talking to [the mother] and the boys when he is not, then he is psychotic. If he is not drug affected if he has these experiences, then the diagnosis of schizophrenia or a Bipolar Disorder should be considered. Apart from this particular part of the history, there was no other evidence at this assessment of [the father] being psychotic.
If [the mother] continues to confirm his statements are not real, [the father’s] mental health is of great concern. In the absence of hallucinatory and other psychotic experiences typical of the major psychoses, one must question if he has a Delusional Disorder (a circumscribed fixed false belief). If he is consciously not being truthful, he continues to exhibit the antisocial personality traits which were very much in evidence in the past. Only an accurate history will clarify this diagnostic dilemma.
Contact Considerations: Given
1. the concerns discussed about [the father]
2. [the mother’s] vulnerable mental state
3. the boys' young age and their developmental histories with respect to their time with their father, ie a secure attachment would not have been established
I cannot support these children having time with their father. Should [the father] stay abstinent from alcohol abuse and illicit substance use and become an appropriate role model for the boys, then this issue could be reconsidered in three years time.
It transpired that on the evidence that some of allegations the mother made to Dr R were demonstrated to be false and at about midday on 9 September the mother’s counsel conceded that the evidence did not establish that the father believes that the telephone conversations with the children are occurring when they are not, that the evidence does establish that he has sent letters, cards and gifts to the children, and that the evidence does established that he has tried to see the children since the orders were suspended.
Dr R in oral evidence conceded that because of various facts established in the course of the hearing that were contrary to information she had when she prepared her report, a diagnosis that the mother was continuing to suffer post-traumatic stress disorder was not supported. She considered that the mother’s mental state “might not such a strong factor”. She also said that the diagnosis of possible schizophrenia or bi-polar disorder of the father were both not valid at all because they were based on the mother’s allegations that there had been no telephone contact between the father and the children. She also testified that the mother’s recent telephone calls to the father, including lengthy conversations, contradicts her evidence of not wanting a relationship with the father and could have lead the father to believe that she does. She also said that if the mother had fabricated or exaggerated the nightmares, flash-backs and vigilance that she described, she would move away from any diagnosis of post-traumatic stress disorder.
It was conceded for the wife in the course of Dr R’s evidence that the evidence is insufficient to establish that the father raped anybody.
Dr R said that whether it would be in the children’s interests for the father to have time with them would depend upon him not having returned to drugs and having a better support system. She was concerned in 2007 that he was isolating himself and not developing lifestyle supports for people with a history of drug or alcohol abuse. She said that by that she meant social supports and also peer support groups such as AA or NA.
She was then told about the evidence of the father having relapsed and about the support he has had. That support includes attendance at the MERIT program, attending Family Support program since 4 March 2008, attending a Parenting After Separation course, attending a 10 hour anger management course, support from Pastor Y, who had provided him with support in prison, voluntary work for the Church and evidence from the Family Support worker, Ms H.
Dr R said that those matters established a changed situation from when she last saw the father. She said the only other improvement she could recommend, would be drug counselling or attendance at Narcotics Anonymous or the like. It was put to her that the father has conceded intimidation and aggression and other bad behaviour and she was asked whether she thinks there is an unacceptable risk if the children have unsupervised contact with him. She said she would need to know more. She said that supervised contact in a contact centre would be optimal if it were regular. She said that there needed to be a testing of the father’s ability “to maintain the contact”, and she would suggest a frequency of about every 3 weeks. She said that then after a while if he is still clear of drugs and he maintains his changes, there could be a cautious building of the children’s relationship with him. She said it is still “very early days since his relapse” and it is better to move slowly because of the risk that he may relapse again. She said that if after 6 months things were satisfactory, she would be cautious about increasing the time.
She said in terms of a finding that the father was delusional/psychotic, the main concern was that he was reporting an experience that she had been told by the mother was not happening. But she said that other things still make him “a vulnerable man” without indicating any psychosis. She said assessment of his progress at this stage depends upon whether one accepts he is telling the truth and what predictions are then made about the future. She said one must be cautious and the only absolute evidence is clean urine screens.
Dr R said that if the father’s behaviour is very dysfunctional over many years then that will be a big factor in deciding what to do she considered that sort of dysfunctional behaviour that was being talked about, if it had continued until July 2008, such as by harassment by letters in breach of an Apprehended Violence Order, then that could justify no contact, or contact supervised and very restricted for a period of up to 3 years at least. She said she would more concerned if the father’s dysfunctional behaviour occurs at times when he is not drug affected. Dr R agreed that the father, because of his behaviour problems, is a very poor role model for the boys.
THE PROPOSALS
The concessions made on behalf of the mother by her Counsel on 9 September 2008 included:
1)The evidence does not establish that the father believes that telephone calls between him and the children are occurring when they are not.
2)The father has been sending letters, cards and gifts to the children since the children ceased spending time with him.
3)Throughout that period he has attempted to spend time with the children.
The mother’s proposal is that the children reside with her, that she have sole parental responsibility, and the children spend no time with their father.
The children’s representative proposed the following Orders:
1)That the Children [J] (born […]/8/00) and [B] (born […]/8/02) live with the Mother.
2) That the Mother have sole parental responsibility for the children.
3) That the Father spend time with the children as follows:
3.1) For a period of 6 months from the first available date allocated by the [W] Relationship Centre, for 4 hours maximum each third week, supervised.
3.2) That time pursuant to Order 3.1 herein is dependent on the Father supplying to the Mother's solicitors urine screens not more that 7 days and not less than 4 days prior to each time with the children.
3.3) Should the husband not provide a clear urine screen under Order 3.2 any time is then suspended.
3.4) At the conclusion of the first 6 months of such time, the father shall then spend with the children for a maximum of 6 hours each 2nd week supervised, at the abovementioned Centre.
3.5)That the Father bear the cost of such urine screens and supervised time at the Centre.
4)That the Mother shall deliver the children to and collect the children from the supervision centre at the required times and days.
4A)Each party must comply with any rules of the Centre and all reasonable directions of the staff of the Centre.
5)That the Father shall have communication with the children by way of cards and presents on not more that four occasions per year.
6)The mother and father shall do all things necessary to facilitate the children's surnames to be changed to [Crawford-Dean].
7)That the Mother shall, at the Father's expense, do all things necessary to forward to the Father a copy of the boy's school photographs each year.
The father’s Amended Response was filed on 13 February 2007. In that he proposed that he commence spending time with the boys for 3 hours on each of Saturday and Sunday on every second weekend for a period of 2 months, increased to overnight from 2pm Saturday to noon Sunday every second weekend for a month. The time for those two stages would be implemented at upper Hunter Valley. Then he proposed that the time increase to 6pm Friday to 2pm Sunday on each second weekend in school terms, plus half school holidays, with the change-overs to occur in W. He sought an order for liberal telephone communication, an order for the children to both be known by the surname “Crawford”, orders for the parents to keep each other informed of any serious illness or medical emergency of the children, and orders for the parents to sign any documents to allow the other school information, medical information, school interviews etc.
In his closing submissions, the father’s proposals regarding the time the boys spend with him were modest. He submitted, “I know what it is like to grow up without a father, because it happened to me. It is not a pleasant experience. It probably led me to where I am now.” He said he has been waiting for 4 years to resolve the issues and had seen the boys only twice in that period. He submitted that he has “totally turned my life around. My past is my past”. He submitted that he has a lot to offer the boys.
He said he had “decided not to bag their mother in this hearing – because the boys need a mother. They need a father too.” He told the Court that he considered his relationship with the mother to be “over”, but he wants to be part of their lives to ensure they are “not going the path I went”. He relied on the evidence of his new Housing Commission Home which is well furnished with good facilities. He said he should “have a chance to slowly make a relationship”. He submitted that there should be “supervised visits for a while. I’ll do it because I’ll do it for my boys.” He said he had “done all I can in the last 4 years so I would get time with them”.
He submitted that he may have been “a wild boy”, but, “People do change”. He said that for the children’s sake he wants the Court to “give a little bit of access”. His submission was that his past bad behaviour was because he was “out of control”. He said now he is a “good person” and, “I love my boys”. He said the things he did in the relationships with the mother “was about drugs”.
SURNAMES OF BOYS
B was born in August 2002. Until the parents separated in September 2004, he was known by the father’s surname “Crawford”. It appears it was not until the mother registered his birth in May 2004 that the surname “Dean” was used. She has since enrolled him at school under that surname.
J’s birth is registered under the surname Crawford and he has used that surname exclusively all his life.
Clearly it is a problem for the boys that although they have the same father, J is known by his father’s surname and B is known by his mother’s surname. This is more a problem for them because they attend the same school and are in the same composite class.
The mother registered B’s surname as “Dean” in 2004 because she wanted to change his surname to her surname, and because she did not consult the father about the registration or the use of the surname. She said in evidence that she intended to change J’s surname as well, but she hasn’t and she does not in these proceedings seek any order for that to happen. That is consistent with the fact that J idealises his father.
She conceded in cross-examination that there is friction between the boys over the surname issue and B teases J about it. When asked what she does about that she purported to be powerless. She said, “There is nothing I can do”. When asked what she does to stop him, she said, “I do my best to persuade him. I don’t punish him.”
The evidence is that the children do not know their paternal grandparents. There is no evidence that they know anyone from the father’s family.
The children are, however, close to the maternal grandparents, whose surname is Dean.
There is some issue as to whether proceedings for an injunction in relation to a child’s name are proceedings in relation to a parenting order and therefore subject to the application of Section 60CA (the paramountcy principle) or are injunction proceedings to which Subsection 68B(1) of the Act applies and therefore the test is “appropriate for the welfare of the child” (see Ryan and Burnett [2008] FamCAFC 72). However, it is not necessary for me to decide that in these proceedings as it makes no difference to the outcome.
It is appropriate for the welfare of the children and their interests are best served if there is an injunction so that the mother uses only the surname “Crawford” for both boys.
The reasons for this are:
· J has used the surname “Crawford” for the whole of his life (8 years) and the mother does not seek an order to change it. Because J idealises his father it is likely that he would be strongly opposed to any such change. J is already in his second year at school and has used “Crawford” throughout his schooling.
· B used “Crawford” until sometime after 16 September 2004. At that time when the consent orders were made and prior to that, he had been using the surname “Crawford” exclusively. He is only 6 and has used the surname “Dean” only since after 16 September 2004. He is in Kindergarten at school. It is likely that the surname “Dean” is not so well established as part of his identity as the surname “Crawford” is for J.
· Whilst the mother and the maternal grandparents use the surname “Dean” the father still uses “Crawford”.
· If J’s surname is not to be changed then the only way the boys will share the same surname is if B uses “Crawford”. It is more significant for the boys in view of the present difficulties occurring, but also because of their age, that they share the same surname, than it is that they share the same surname as the mother and her parents. This is also the case because of the risk that the mother may remarry and change her surname.
· Although the father pursuant to the 2004 consent orders was to spend time with the boys every second weekend, that has not happened since early 2005 and since early 2006 when these proceedings were commenced, the parties have been litigating with the father seeking to obtain orders that would lead to frequent and extensive time spent with the boys.
· The father was not aware of the mother changing B’s surname until during these proceedings. One of the reasons was that the mother did not approach him for his consent to the registration of the child under the surname “Dean” and did not include his particulars in the registration of the birth.
· For reasons set out subsequently in this Judgment, the boys are to spend time with their father. Whether that develops into a long term arrangement permitting them to have the benefits of a meaningful relationship with their father remains to be seen. But at this stage it is clear that the father has made strenuous efforts to turn his life around and it may well be that within a few years he is able to justify the boys spending much more time with him. In those circumstances it would be pre-emptive now to permit the mother to continue the use of “Dean” as B’s surname. There should be a restraining order restraining the mother from using any surname other than “Crawford” for either of the boys.
RELEVANT LAW
The objects of the children’s provisions of the Act are set out in Subsection 60B(1) which provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Subsection 60B(2) provides:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Subsection 60B(3) provides:
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
Subsection 60CC provides:
Determining child’s best interests:
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
SUBSECTION 60CC(3) FINDINGS
The findings under subsection 60CC(3) are as follows:
a) Expressed wishes of the child
J has expressed a wish to spend time with this father. Because of his age, immaturity and limited understanding of his father’s problems, his wish does not reflect any careful consideration of the short and long terms implications.
Also, he idealises his father and has no realistic impression of him. For those reasons his wish should be given little weight.
b) The child’s relationships
The only significant relationships the children have are with their mother and their maternal grandparents. The children’s most significant relationship is with the mother on whom they have been dependent for most of their care for all their lives. It is their primary attachment.
They do not have an attachment with the father, but know his identity and that he is their father.
J idealises him. B has limited recollection of him.
c)Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
Subsection 60CC(4) provides:
4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The mother is opposed to the children having a relationship with the father or spending time with him. Her reason is his behaviour problems and the danger he presents to the boys.
d) Likely effect of any changes including any separation
If the boys spend time with the father unsupervised that is likely to cause the mother extreme anxiety and she is unlikely to support such an arrangement. There is a real risk she would refuse to facilitate it.
If it is supervised by a competent professional, she is unlikely to support it, but she is unlikely to refuse to facilitate it and if it succeeds she is likely to overcome negativity about it and perhaps support it.
The father’s claims of being a changed person in relation to his abusive and antisocial behaviour and drug abuse are not supported by evidence of any qualified professional. He was still harassing the mother in July this year in breach of an Apprehended Violence Order and as recent as May this year he was using amphetamines. At this stage in the absence of such expert opinion, and of his recent criminal record, reform in either area would be a dramatic and unlikely change. But if such changes occur, an arrangement that allows the children limited time with the father in the interim would enable them to know him and if he does reform, assist the adjustment to more time and establishment and enjoyment of a relationship with him.
e)Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis
The risks that either of the father’s problem of drug abuse and use of abusive behaviour in dealings with others are continuing or will recur, require that the children’s time with him be supervised by a competent independent supervisor.
On the evidence the nearest such service is at W. That will involve considerable travel for the boys from upper Hunter Valley to W and return.
The father does not make any significant contribution to the children’s financial support. The mother does not have paid work. She and the children are supported by social welfare payments. If there are any charges for the supervision the father should pay them.
f)Capacity of each parent and any other person to provide for the child’s needs
The Court could not be confident that without supervision the father could ensure the children’s safety.
g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child
J has an unrealistic impression of the father and idealises him. There is a danger that a similar situation may arise for B.
If the boys do not have an opportunity to spend time with the father and to make some more informed judgments about him, the idealising is more likely to continue or worsen.
That may, when they are adolescents or older cause them to blame their mother for them not having spent more time with their father and result in damage to both boys’ relationship with the mother.
There is a real risk that the background of the father’s involvement in the boys’ lives if they don’t spend time with him, will result in them perceiving that the father has rejected or abandoned them and that would have serious adverse consequences for their self-esteem. That risk is likely to be avoided if they spend time with him.
Attitude to the child and the responsibilities of parenthood
Subsection 60CC(4) provides:
4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Both parents have a history of drug abuse and other issues whereby they gave scant regard to the responsibilities of parenthood. But for the last 4 years the mother has parented the boys alone and the father’s attitude to the responsibility of parenthood has been token only.
j) Any family violence
The father has over a long period used abuse (including violence) in his dealings with others.
Abusive behaviour is not an attribute of a particular victim or a particular relationship. Abuse is an attribute of the perpetrator. It is a fact that some people use abuse in dealing with others, but most do not. It is not an attribute of alcohol. Most people who use alcohol do not use abuse.
Children who spend time with an adult who uses abuse in his or her dealings with others are at an obvious risk of physical injury. Children, (some would say especially at certain stages such as “the terrible two’s” and adolescence) can test an adult carer’s patience as much as any argumentative or aggressive adult.
Spending time with an abusive adult involves other risks to children. One of those is the risk of psychological harm. Children can as a result of experiencing abuse or witnessing abuse of loved ones, suffer insecurity, apprehension, unhappiness, anxiety, fear, hypervigilence and terror. Generally experiencing or witnessing abuse inhibits a child’s emotional development.
Verbal abuse and put downs can also diminish a child’s self esteem and self confidence, and that can cause long term damage.
The worst danger that an abusive parent or carer presents to a child, however, is as a role model. The child can learn to use abuse in dealings with others, including those they love. It is a social disability that can destroy the most intimate relationships and bring the child into conflict with relatives, friends, other people they socialise with, the police and the law. The role model of an abusive parent or carer puts a child at risk of adopting the role of an abuser when they partner. Either way, it is a long term damaging legacy from the adult.
The boys need to be protected from the father by a competent supervisor for any time they spend with the father. It would be counter-productive and damaging to the boys to make orders for sufficient time with the father to establish a relationship. That can only follow when a Court is satisfied that the father has established he is drug free and has ceased his abusive behaviour and the change is likely to be more than short term. He has not done that yet.
The purpose now of the time with their father would be to know him. That can be done by supervised time once every 3 months.
k)Any family violence order that applies to a child or a member of the child’s family
The Apprehended Violence Order restricting the father’s behaviour for the purpose of protecting the mother does not expire till 15 December 2009. He is restrained from:
· Intimidating the mother or a person in a domestic relationship with her;
· Stalking her;
· Molesting, harassing, threatening or otherwise interfering with her;
· Residing in premises where she resides;
· Going within 100 metres of the mother’s address, or premises where she resides or works; or
· Approaching, contacting, or telephoning her except for the purpose of arranging or exercising access to the boys as agreed in writing or authorised by an order or a registered parenting plan under the Family Law Act.
PRIMARY CONSIDERATIONS
The findings as to primary considerations under Subsection 60CC(2) are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents
The purpose of the boys having time with the father is
· to know him;
· to let them develop more realistic views of him than they will have if they do not spend time with him;
· to avoid the boys perceiving the father has rejected or abandoned them; and
· to prepare them so that if the father does overcome his drug problem and his abuse problem, it will be easier for the boys to spend more time with him, to establish and enjoy a meaningful relationship with him.
b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The children are at risk of physical or psychological harm from the father. They are at risk of being subjected to, or exposed to, abuse, neglect or family violence.
During any time they spend with him they should be protected by the presence of a competent supervisor.
PARENTAL RESPONSIBILITY
There is an issue as to parental responsibility.
Section 61DA of the Act provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The circumstances are such that the children’s interests are best served by the mother having sole parental responsibility for the boys.
The parents cannot cooperate or relate in any reasonable way. Shared parental responsibility or joint responsibility would not work and would be contrary to the boys’ interests.
OTHER CONCLUSIONS
The children’s interests are best served by orders that implement the following arrangements:
· The mother has sole parental responsibility for the boys.
· The children spend time with the father for 2 hours every 3 months.
· The time is supervised by the supervised contact centre at W.
· The father pays any fees. And
· The mother is required to use only the surname “Crawford” for both boys and to cause the Birth Certificate of B and his school records to be amended accordingly.
Given that the contact is to be supervised and is likely to be terminated if the father attends affected by alcohol or other drugs, and given that the husband is not in paid work, the Court does not consider that the interests of the children require that it be a condition of the time spent with the children that he undergo drug testing.
______________________
The Hon Justice Mullane
Date: 25 September 2008
- AGLC
- Dean and Crawford [2008] FamCA 848
- Case
- [2008] FamCA 848
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate orders regarding parental responsibility for the children, the surname to be used by the children, and the extent and nature of any time the children would spend with their father. Additionally, the court needed to address the practical implementation of any surname change and the arrangements for supervised contact.
Justice Mullane ordered that the mother have sole parental responsibility for both sons and be restrained from using any surname other than Crawford for them. The mother was directed to amend the children's birth certificates and school records accordingly, with the father required to provide necessary documentation. Prior orders for the children to spend time with the father were discharged. The court further ordered that, subject to agreement with a supervised contact service, the boys would spend two hours with their father every three months, supervised by the service. Both parties were mandated to attend assessments for suitability for supervised time and comply with the contact centre's rules and directions, with the father to bear the reasonable fees for supervision.
Orders
Orders of the court
1.
The mother has sole parental responsibility for the parties’ sons J CRAWFORD born … August 2000 and B CRAWFORD (also known as B DEAN) born … August 2002.
2.
The mother is restrained from using any surname other than “[CRAWFORD]” for each of the boys.
3.
The mother must cause the Birth Certificate of the child B and his school records to be amended accordingly and the father must sign any documents submitted to him by the mother necessary to implement this order.
4.
Any prior orders for the children to spend time with the father are discharged.
5.
That subject to agreement by the W Family Support Service (or some other supervised contact service in W) (“the contact centre”) the boys are to spend time with their father at W and supervised by the contact centre for 2 hours every 3 months.
6.
Within seven days the independent lawyer for the boys must provide the contact centre with a copy of the Judgment (including these Orders).
7.
Each party must:
7.1 contact the contact centre within 7 days and arrange an appointment for assessment for suitability for supervision of the time the child spends with him or her;
7.2 attend the assessment;
7.3 comply with any appointments made by the contact centre for supervised time;
7.4 comply with all reasonable rules of the contact centre; and,
7.5 comply with all reasonable requests or directions of the staff of the contact centre.
8.
The husband must pay any reasonable fees of the contact centre for each provision of supervision at least 14 days before the supervision is to be provided.
9.
Otherwise any outstanding applications of the parties are dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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