DPW & KTB

Case •

[2006] FMCAfam 262

•

5 June 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DPW & KTB [2006] FMCAfam 262
FAMILY LAW – Children – contact – where young child has not had contact for two years – where father has nearly two decades of drug and abuse – parenting capacity – father’s capacity for change – assessment of risk of harm – order for no contact.
Family Law Act 1975, ss.60B, 65E, 68f(2)

B and B Family Law Reform Act (1997) FLC 92-755

JG and BG (1994) FLC 92-515
Patsalou and Patsalou (1995) FLC 92-580
Applicant: DPW
Respondent: KTB
File Number: SYM962 of 2005
Judgment of: Ryan FM
Hearing dates: 21 February & 30 March 2006
Delivered at: Parramatta
Delivered on: 5 June 2006

REPRESENTATION

Counsel for the Applicant: Mr D. Alexander
Solicitors for the Applicant: Verekers
Counsel for the Respondent: Mr I. Moss
Solicitors for the Respondent: DGB Lawyers
Counsel for the Child’s Representative: Ms D. Black
Solicitors for the Respondent: Maguire & McInerney

ORDERS

  1. All prior parenting orders are discharged.

  2. The child Sebastian (not his real name) born in 2000 resides with the mother.

  3. The father shall not have contact with the child.

  4. The mother has sole responsibility for the child’s day to day and long term care, welfare, and development.

  5. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

  6. All exhibits tendered in these proceedings shall be returned at the expiration of one (1) calendar month unless an appeal is lodged.

  7. The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.

  8. All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

SYM962 of 2005

DPW

Applicant

And

KTB

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is a contact application by DPW (“the father”) concerning the parties’ only child Sebastian (not his real name) born in 2000.  Sebastian and the father last saw each other during supervised contact on 17 October 2004.  During this contact, which the mother was supervising, the parties argued about future contact.  A physical altercation developed, during which the father attempted to prevent the mother from ending contact by physically pulling Sebastian out of her arms.  Able to free the child, the mother fled.  Notwithstanding that existing orders provided for continuing contact, she refused.

  2. KTB (“the mother”) opposes the father’s contact application.  It is the mother’s case that because of chronic alcohol and cannabis abuse over nearly two decades, the father is an unsuitable role model for their son and is unable to provide for their son’s physical and emotional needs during contact.  Simply put, the mother says she facilitated contact until it became clear to her the father was unable to exercise safe, reliable and appropriate contact.  It is the mother’s case that the father’s lifestyle is inconsistent with his capacity to provide Sebastian with contact which the child can enjoy and which will promote his wellbeing. 

  3. Aware of the mother’s concerns about his substance abuse, violence and anti-social behaviour, the father presented his case on the basis that  these past issues have resolved and that there is nothing standing in his way of regular contact with his son.  Although acknowledging past difficulties with drugs and alcohol, the father claimed that since about October 2004 alcohol no longer caused him any difficulties and he had all but ended years of cannabis abuse.  Although Sebastian told the family reporter that he does not wish to see his father, the father claimed that Sebastian’s views concerning contact are either inaccurately reported or result from pressure against contact from his mother and stepfather.  The father claims the mother has systematically undermined Sebastian’s relationship with him.  During cross-examination by the counsel for the children’s representative, the father indicated agreement that if the court considered it desirable, he would commence contact using a supervised contact facility and cooperate with recommendations for counselling and any other form of therapeutic intervention.

Relevant law

  1. Contact orders are parenting orders conducted under Part VII of the Family Law Act 1975.  Section 60B sets out the objects of Part VII and the principles which underline those objects.  They are subject to s.65E in that in determining the outcome the best interests of the child is the paramount consideration.  That is the overriding principle. Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive.  Section 60B(2)(b) has particular relevance in these proceedings.  It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis.  Fundamentally, it emphasises the desirability of contact.  Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.

  2. In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2).  Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.  Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act.

  3. Violence and the risk of exposure to other anti-social behaviour is a significant issue in these proceedings.  In addition to it’s inclusion as a relevant factor in s.68F(2)(g)(h) and (j), s.68K emphasises that consistently with the child’s best interests being the paramount consideration, and a parenting order should be consistent with a family violence order.  A parenting order must not expose a person to an unacceptable risk of family violence and can include protective safeguards.  A contact order that is inconsistent with a family violence order will prevail over the family violence order. Section 68R contains provisions about making an order for contact that is inconsistent with a family violence order.  The manner in which the court must examine family violence in proceedings for a parenting order is identified in JG and BG (1994) FLC 92-515 and Patsalou and Patsalou (1995) FLC 92-580.Evidence of family violence is relevant insofar as it assists the court in determining what orders will best promote the interests of the children.  The court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children.  So far as the evidence allows, the court will attempt to understand the nature of any violence that has occurred and its potential effects on children. Exposure by a child to violent family relationships can be harmful to a child’s emotional development.  Even if the issue is not addressed in submissions, the court has a responsibility to consider the effect on a child of a violent parental role model. 

  4. The findings made in the assessment of risk address part of the court’s responsibility.  Whilst the resolution of the risk issue may be the central issue in proceedings, the court’s role is broader in that it must determine the best interest of the child having regard to the relevant s 68F (2) factors in the context of the matters contained in s 60B.

Determining the child’s best interests

The father’s circumstances

  1. The father lives in a three bedroom home at Keiraville.  Presently, the father is unemployed and lives alone.  He pays $190 per week rent which leaves him $40 per week from his unemployment benefits from which he meets his day to day living expenses. At least since a serious motorbike accident when he was 21, the father has been predominantly unemployed, last working for approximately three months in 2005.  Even when working, the father has not paid child support. 

  2. The father has a complicated personal history and by his late teens was abusing drugs and alcohol.  Such was the magnitude of his drug and alcohol abuse the father regularly had difficulty with others and developed an extensive criminal history.  His criminal convictions give some insight into the magnitude of his drug and alcohol abuse and the effect this has on his behaviour towards other people. 

  3. The father’s court history convictions[1] show his criminal history which is set out below:

    [1] Exhibit B

Date Offence Result
20/10/1987 Wollongong Children’s Court (WCC)– Stealing Admonished and discharged
20/10/1987 WCC – Illegal use of conveyance Admonished and discharged
11/02/1988 WCC – PCA Fined $300 disqualified from driving for 12 months
11/02/1988 WCC – Drive unlicensed Fined $100
11/06/1988 WCC – Offensive Behaviour (fighting) Fined $200
17/11/1988 WCC – unlawful entry Fined $100
12/04/1989 Wollongong Local Court (WLC) – Malicious Damage Fined $500 and ordered to pay witness expenses and compensation
17/12/1991 Wollongong District Court (WDC) – Malicious damage 3 year good behaviour bond and $2,000 compensation
24/05/1995 Port Kembla Local Court – Common assault 2 year good behaviour bond
29/02/1996 WLC – Stealing 50 hours community service order
29/02/1996 WLC – Assault 50 hours community service order
29/02/1996 WLC – FTA 2 year recognizance
29/02/1996 WLC – Malicious damage 2 year good behaviour bond $800 compensation
29/02/1996 WLC – Break Enter and Steal 50 hours community service - $200 compensation-
16/07/1996 WLC – Mid-range PCA $600 fine DC $50 – disqualified driving 12 months
22/12/1998 WLC – High range PCA 6 months periodic detention – disqualified driving 3 years
22/12/1998 WLC – Drive whilst licence cancelled $700 fine, $52 court costs and licence disqualified for 3 years
02/02/1999 WLC – Appeal against high range PCA conviction Conviction confirmed in Wollongong District Court (WDC)
07/04/1999 Possess prohibited drug Fined $400 and $52 court costs
11/08/1999 WLC - Drive while disqualified 100 hours community service, $52 court costs and 12 months disqualification commencing 12/12/2001 – declared habitual offender
11/08/1999 Exceed speed limit $100 fine, court costs $52
8/06/1999 WLC – Maliciously destroy or damage property with a value greater than $2,000, less than $5,000 75 hours community service and $1,011 compensation.
08/06/1999 WLC – Behave in an offensive manner $100 fine - $62 court costs
08/06/1999 WLC – Custody of an offensive implement in a public place 12 month recognizance with probation service supervision
06/09/1999 WLC – Possess prohibit drug and attempt self administer prohibited drug Warrant to issue
28/10/1999 WLC – administer drug (relating to offences on 6/9/1999) and possess prohibited drug 100 hours community service
21/06/2000 WLC - Drive whilst disqualified 12 months periodic detention – disqualified from driving until 21 December 2006
29/11/2000 WLC - High range PCA and drive while disqualified 12 months home detention and two years disqualification from driving completed 21 December 2010
02/11/2000 WDC On appeal  conviction and sentence imposed on 21 June 2000 confirmed
29/11/2000 Contravene apprehended domestic violence order 12 months bond
19/04/2001 New South Wales Parole Board Court – Cancel home detention order Imprisonment 7 weeks
30/07/2001 WLC – High range PCA and drive whilst disqualified 16 months imprisonment commencing 31 July 2001 with 12 months non-parole – disqualified driving 2 years commencing 21/12/2001
20/02/2003 Possess prohibited drug $200 fine, $59 court costs
13/05/2003 WLC – contravene apprehended domestic violence order 12 months bond - $59 court costs
13/05/2003 WLC – contravene apprehended domestic violence order Fined $400
17/02/2004 Maliciously destroy or damage property valued at less than $2,000 12 months bond – supervision probation and parole and $61 court costs

  1. Questioned about his alcohol abuse, in the context of his criminal antecedents, the father claimed that while previously alcohol abuse had been a difficulty for him, he denied it was still a problem.  Indeed, initially the father resisted answering questions concerning his behaviour because, in his view, his drug and alcohol abuse and their effect upon him are irrelevant insofar as contact is concerned.  With respect to him, he repeatedly demonstrated a breathtaking lack of insight into the effect of his behaviour upon others.

  2. The father’s cross-examination was revealing and proved as a manifest understatement his claim that his drinking problems resolved during 2004.  He did not disclose, for example, that on New Years Eve 2006, he was involved in an altercation with PL at Abbey’s Nightclub.  For reasons never made clear PL kicked the father in the groin, or as the father said, “kicked me in the balls”.  When police collected him from Abbey’s, the father was too drunk to be interviewed.  He was incapable of making his own way home and was driven home by police who asked him to attend the police station the following morning.  After dealing with this evidence, the father declared that he could not recall any other occasion where he had been inebriated in the recent past. 

  3. However, he was then cross-examined about an incident on


    3 December 2005.  The father agreed that when he arrived at PL’s naming ceremony, the father was already intoxicated and that he continued to drink alcohol after he arrived.  At about 10 pm the group went to a nightclub, where because of his intoxication the father was refused admission.  At some stage PL left the group and went home.  Later that evening, the father telephoned PL to complain about PL’s girlfriend’s behaviour.  The father said, “I wanted him to tell his girlfriend to shut her mouth”.  From some inexplicable reason the father then went to PL’s home to pursue his complaint about PL’s girlfriend.  When refused entry to PL’s home, the father pressed the issue.  Eventually PL opened his front door holding a pick handle, in response to which the father said, “You want to play them games step outside”.  PL told the father to, “Get fucked” and closed the door.  Enraged, the father kicked the door in then left. 

  4. On 28 August 2005, the father was drinking at a nightclub known as “Rustys” with his girlfriend JP.  JP is younger than the father.  Whilst they were at the nightclub comments were made by other patrons about their ten year age gap.  The father was drunk and when he and JP arrived home they argued.  The father cannot explain why he behaved as he did, however admitted that he punched a hole in the shower wall.  He said he probably did this to release anger as he was, “pissed off”. 

  5. On 14 August 2005 the father was drinking at a hotel, Dicey Rileys, and “Abbeys” nightclub.  At some time during the early hours of the morning, when he was drunk, someone stole his gold necklace. He says he probably got drunk “through the stress of not seeing me son.”  During this cross examination the father basically grunted his responses, looking bored and disinterested in the proceedings.  Such behaviour he demonstrated repeatedly. 

  6. On 7 November 2004 the father visited the Harbour Foreshore Motel with a lady friend.  During the evening the father was drinking alcohol and became intoxicated.  At some stage during the evening, the father was involved in an altercation with an unnamed male and, “had words” with his lady friend.  When they returned to the motel, the father argued with his lady friend and threw an ashtray at a mirror, smashing it. 

  7. On 9 February 2004 the father and his then girlfriend TD went out.  During the course of the evening both drank alcohol and became drunk.  The father returned home without TD.  Later in the evening she arrived and when he refused her entry, she smashed his glass balcony doors.  The father called the police and TD was removed.  As with numerous other events, this incident raises questions about the father’s social milieu and the type of environment contact is likely to involve.

  8. On 14 November 2003, the father returned to his mother’s house at Figtree where he was then living.  He arrived in the early hours of the morning drunk.  On his arrival his mother said to him, “I want you out of the house, I have had enough and if you don’t go I am going to call the police”.  The father left his mother’s home and returned at about 1.20 am.  Again, his mother refused him entry and told him she was going to call the police.  The father pulled the front door off its hinges, grabbed the telephone from his mother and replaced the receiver.  The father says he then gave his mother a hug and said, “Mum I would never call the police on my son”.  Concerning his mother, the father said that he believed she was, “a little bit” upset by his behaviour that evening, however was predominantly upset about his difficulties with contact.  This is another example of the father demonstrating a total lack of insight into the effect of his behaviour on others. 

  9. The father was questioned about an incident on 6 September 2003 involving his former girlfriend FM.  Although cross-examination proceeded at a deliberately slow pace, the father repeatedly said, “I cannot recall”.  Given time to consider the questions, the father explained, “I have a bad memory”.  He was able to recall an incident involving FM on 18 April 2003 when he was arrested and handcuffed at her home.  Unable to recall why, he postulated that it probably had something to do with breaching a domestic violence order.  Probably because the father’s, “I do not recall” responses had become a mantra, the mother’s counsel questioned him about his cannabis use.  The father explained that years of smoking cannabis affects your memory, a proposition I have no difficulty accepting.  However, he explained his inability to recall significant events thus, “I don’t choose to remember bad things.  I have better things to remember than AVOs and arguments with ex-girlfriends in 2002.”

  10. Concerning his cannabis use, the father explained that he started using cannabis when he was 17 years old, from which time until December 2005 he smoked cannabis a few times a day, every day.  He describes heavy cannabis use continuously between 1987 and 2001.  During the same period he agrees he abused alcohol to excess.  Since December 2005 the father says he has given up using hydroponically grown cannabis in favour of cannabis leaf.  Apparently the former is much stronger.  The father said at its worst he habitually spent about $100 per week on cannabis.  The father rejected any criticism that he elected to spend money on cannabis whilst failing to pay child support.  As the father was generally living in hotels and shared accommodation, I do not accept that he had sufficient Centrelink income to support his drug and alcohol use.  It seems likely that he supported his drug habit through small time drug dealing. 

  11. Although living in hotels and share accommodation with other active addicts, the father complains bitterly about the mother’s refusal to facilitate unsupervised overnight contact.  In 2003, for example, he rented shared accommodation with a person known as “V”.  V was a heroin addict who, whilst they were sharing accommodation, starting using Ice.  The father said he moved in with V to help his friend out because V was suicidal and, “going to hang himself”.  On one occasion, whilst exercising telephone contact with Sebastian, V attacked the father and chased him out of the room.  Sebastian overheard his father being attacked and was upset by it.  The father’s response to this incident was, “it’s not my fault”.  Notwithstanding the father was living with a person who appears to have been a violent drug addict, the father’s stance is that the mother’s decision to refuse him overnight contact at this time was unreasonable.  With respect to the father, this demonstrates his fundamental lack of parental responsibility.  Involving Sebastian in contact with a person such as V exposed Sebastian to a high risk of violence and drug use.  In this instance, the father demonstrates a lack of regard for his son’s developmental needs, the impact of the father’s social milieu on the child and ignores his obligation to keep his son safe.  Nor did he recognise the risks inherent in a person addicted to drugs and alcohol (himself) living in a hotel.  By contrast, the mother’s decision to refuse overnight contact was plainly in the child’s best interests.

  1. One of the issues in this case concerns the father’s capacity to change by leaving behind his anti-social behaviour and substance abuse.  As he has no experience in child rearing, the father’s capacity to embrace assistance offered by those with greater experience is important.  It was interesting, therefore, that when questioned about the family report the father explained that he stopped reading it because he found the contents annoying.  The father did not recognise that the family reporter was ideally placed to provide him with useful information and guidance concerning his relationship with Sebastian.  Although for many years he has had a demonstrable need for counselling and probably psychotherapy, other than when in gaol, the father has never accepted professional assistance.  Given that his standard response during cross-examination was to the effect that his bad behaviour was always someone else’s responsibility, this is not surprising.  However, to the extent that the family reporter’s recommendation for contact is predicated upon the father’s ability to respond positively to therapeutic assistance, her recommendation is seriously compromised.  With respect to the father, his demeanour during his cross-examination was surprising.  He yawned repeatedly, grunted and demonstrated his disinterest.  If the father was genuinely interested in his son’s welfare, I would have expected him to demonstrate some interest in the proceedings, including the family report.  It seems to me the father showed interest only when he perceived the evidence coincided with his view of the situation.  This augurs poorly for the father’s capacity to change his attitudes and behaviour.

  2. The father’s mother, SO, supports his contact application.  SO lives in a home she rents from the Department of Housing at Figtree.  SO has three children, R aged 37 who lives in England, the father, and P aged 31 who lives in Queensland.  SO is 59 years old and in good health.  She says she is happy to assist the father with contact and for him to use her home as a place where contact can occur.  Her house is a two bedroom home with a large backyard. 

  3. The paternal grandmother describes a poor relationship with the mother.  In all, she has seen Sebastian on about four occasions during the first year of his birth and as is seen from her correspondence, stopped contact with her grandson.  The paternal grandmother wrote to the maternal grandmother concerning the mother and her grandson.  Her letter[2] demonstrates her antipathy towards the mother and disinterest in Sebastian.  Her sentiments are probably contained in these sentences, “I just wish she (the mother) waved her fanny at some other poor bastard”.  “I won’t bother you again.  Nothing will make me more happy than to not lay eyes on you or her again”.  ‘She’s a scatterbrained twit that got DPW into more trouble than he needed.  Good mother, a little too fussy!  Trying to make up for the lack of a father.”  ‘How can you condone a child of yours raping someone else’s child and his seed then giving someone else’s name that’s not even related to them.  After only knowing him for two months.  That’s all.  Couldn’t find a man that wanted her maybe or live up to her rules.”  When I read exhibit C, I was surprised that the paternal grandmother was unabashed by its contents.  Notwithstanding her son’s drug and alcohol abuse and lawless behaviour started long before he met the mother, using contorted logic SO wrongly blames his anti-social behaviour on the mother.  Whilst So’s devotion to her son is commendable, in failing to recognise that he alone is the common denominator in his poor behaviour and solely responsible for it, I was left with grave concerns that, where there is any conflict between her sons and Sebastian’s interests, her loyalty favours her son. 

    [2] Exhibit C

  4. During the hearing the father conceded he would be prepared to contemplate supervised contact and nominated his mother as a putative supervisor.  Apart from the fact the paternal grandmother is a stranger to the child, something the father dismissed as irrelevant, I am not persuaded she would intervene on Sebastian’s behalf if doing so meant opposing her son.  I have no doubt the paternal grandmother would attempt to diminish any risk issues during contact.  The prospect she would terminate contact, if necessary, and inform the mother of her reasons for doing so is remote and in my view disqualifies her as a potential contact supervisor.

  5. This is not an issue of competency but rather loyalty overriding an obligation to promote the child’s best interests. 

The mothers circumstances

  1. The mother was born at Woonona Heights in 1976.  The mother resides with CB, their baby born in 2005 and Sebastian.  The mother, Sebastian and CB have lived together since October 2004.  CB is self employed and runs his own air conditioning company.  After the mother and CB married, Sebastian asked whether he could call CB “dad”.  The adults agreed and since then Sebastian refers to CB as “dad” and his father as “bad daddy”.  CB accepts financial responsibility for his family.  He was an impressive witness who is a sound role model for Sebastian. 

  2. When the parties met, the mother was employed as a bar attendant at a hotel.  They met in August 1999 at which time the mother lived with her parents at Russell Vale.  The parties’ relationship was brief and volatile.  They have never lived together.  I accept the mother’s evidence concerning the father’s drug and alcohol abuse, as well as his driving whilst disqualified and violent and abusive behaviour towards her.  For example, on one occasion[3] the father arrived at her home drunk at about 3.00 am.  He screamed at her, “you’re cheating on me”.  The mother fled the house and locked herself in her car before trying to reverse away.  The father locked the gate preventing her from leaving.  He threatened to kill her and dragged her from the car back into the house.  During the incident, which lasted about four or five hours, he threw the mother onto the bed, “Jumped on the bed and kept getting on top of me.  He held me down with one hand and swinging hard and fast punches at me stopping short of my face.”  After this incident the mother persuaded the father to see a counsellor and attended counselling with him at Authentic Counselling in Mt Pleasant.  The father did not continue counselling.  Over the ensuing weeks further incidents occurred.  Having decided to end their brief relationship, the mother then discovered she was pregnant with Sebastian.  The mother explained to the father she wanted to end their relationship and planned to keep the baby.  The father refused to accept their relationship was ended and continued to approach her at her work place.  Unable to persuade him to leave her alone, the mother gave up bartending at the hotel.  This resulted in the father harassing her by telephone.

    [3] Paragraph 8 mother’s affidavit

  3. On one occasion the parties ran into each other at the local surf club.  On this occasion the mother repeated her earlier advice that their relationship was over.  The father responded, “That baby will be going if you leave me now, you fucking idiot”.  When the mother tried to leave, the father grabbed the car door forcing it open.  He tried to take the ignition keys, which the mother retrieved before running back into the surf club and waiting with a lifeguard until the father left.  On her way home, the father drove his car straight at her, causing her to swerve and brake.  When she stopped, the father stopped, came over to her and said, “I’m going to get you”.  By this stage the mother was frightened of what the father may do to her and contacted police.

  4. Curiously, when she was about eight and a half months pregnant, the mother responded favourably to the father’s telephone request that she attend court with him on a drink driving charge.  When the mother arrived at his home the next morning the father was selling marijuana to another user.  It appears that he had forgotten his request that the mother accompany him to court and called her, “A fucking idiot”. 

  5. The mother was inclined to include the father in Sebastian’s birth.  However, her family opposed this course and basically said, if the father was present they would not be.  The mother decided against including the father and called him not long after Sebastian’s birth to inform him of his son’s arrival. Whilst the mother was in hospital the father visited Sebastian on a couple of occasions.  He also telephoned abusing her for not enabling him to attend Sebastian’s birth.

  6. Following Sebastian’s birth, the mother moved into her own flat at Tarrawanna.  Thereafter, she facilitated supervised contact for between half an hour to two hours approximately three times a fortnight.  Not long after Sebastian’s birth, the father challenged paternity and the parties underwent DNA parentage testing with Silbase Scientific Services.  The test results[4] prove the father is Sebastian’s parent.  Not long after Sebastian’s birth, the father was sentenced to home detention for twelve months. 

    [4] annexure B to the mother’s affidavit

  7. During this period the mother visited the father in gaol and took Sebastian to see him.  Before doing so, she sought legal advice as a result of which believed she had little choice other than facilitating contact.  Upon the father’s release from gaol, the mother facilitated supervised contact in her home.  Contact occurred for a maximum of two hours and once or twice each week.  Between November 2002 and February 2003 contact reduced significantly, basically because the father was unreliable in making and keeping arrangements. 

  8. On 8 February 2003 during contact, the father threatened the mother and whilst he was screaming at her the child yelled out, “Get out of my house.  Stop yelling at my mum”.  The father ignored Sebastian and continued yelling at the mother until friends of hers arrived.  He then left.  Upset and exasperated by the father’s behaviour, the mother sought legal advice and commenced parenting proceedings in the Local Court at Wollongong.  The parties were ordered to attend mediation, which occurred on 16 December 2003.  The parties reached an agreement and interim orders were made on 19 January 2004.  These orders provided:

    ·That Sebastian resides with the mother.

    ·The father has supervised contact from 11 am until 3 pm each alternate Sunday for three months.

    ·

    Thereafter, the father has unsupervised contact from 10 am until


    5 pm each alternate Sunday.

    ·Upon the father obtaining appropriate accommodation, unsupervised contact from 10 am Saturday until 5 pm Sunday.

    ·The parties agreed that at all times Sebastian is to be in a drug free environment.

  9. Far from supporting a contention that the mother has undermined the child’s relationship with the father, these orders demonstrate that the mother was willing to put aside her misgivings about contact so as to advance the child’s relationship with the father.  In my view, the mother’s decision to personally supervise contact and her agreement to unsupervised contact, although well motivated, was a serious lack of judgment.  However, her agreement afforded the father and child another opportunity to develop their relationship.  It also had the advantage of giving the father a prolonged opportunity to increase his parenting skills and improve his personal circumstances.  As to the latter, by this I mean obtain appropriate accommodation, as well as address his drug and alcohol addiction and anti-social behaviours. 

  10. Contact visits commenced 25 January 2004 and continued as ordered until 20 March 2004.  On 20 March 2004 the father telephoned the mother, cancelling contact.  During this conversation, the mother told him about her relationship with CB.  The father responded with abuse, concluding the conversation with the threat, “I’ll kill you and CB.  If I can’t be with you, nobody will”.  During the conversation, as well as threatening the mother and her partner, the father threatened suicide.  Alarmed by his threats, the mother refused contact for the next few weeks.  When it appeared the father had calmed down, at least insofar as threats to kill the mother, her partner and take his own life, supervised contact resumed.  During contact the father divided his time between playing with Sebastian and trying to persuade the mother to reconcile.  Her persistent refusals to contemplate reconciliation generally resulted in the father becoming enraged and abusing her.  All of these conversations took place in front of Sebastian who usually cried when his father became angry.  On several contact occasions, the father had been drinking heavily and smelt of alcohol. 

  11. The last contact occasion was Sunday, 17 October 2004 by which time the father was entitled to unsupervised contact.  The mother cavilled with his counsel’s proposition that she deliberately breached orders by insisting supervision continue.  Despite her protestations to the contrary, I have no doubt the mother knew she was breaching the orders.  Whilst one cannot condone her decision to do so, plainly unsupervised contact was a highly risky proposition.  However, rather than take the situation into her own hands, the mother should have sought variation of the interim orders.  During this contact, the father tried to forcibly remove Sebastian from the mother.  The father was aggressive and yelling at the mother.  She clung to Sebastian and called out for help.  Two young men came to her assistance, followed by other people and eventually police.

  12. Concerning Sebastian’s reaction, the mother says,

    “Sebastian was shocked, he would not speak, he looked dazed and he was hanging onto me.  He would not let go of me.  For some time after that Sebastian was bedwetting and having nightmares, waking up and screaming.  He became very clingy towards me during the daytime.  He would not leave me alone even in the house.  When I was doing housework he would hang onto me.  This continued for about two or three weeks until Sebastian came to me and he said, “Mum, I’m scared of DPW.  I don’t want to see him again”.  I said, “it’s okay”.  He then said, “Do I have to see him again?”  I said, “No, not if you’re scared of him”.  After that conversation Sebastian became more relaxed and like his old self”. 

Sebastian’s wishes and circumstances

  1. During 2005 Sebastian attended pre-school and commenced school this year.  By all accounts he enjoys school.

  2. Kerry O’Donohue, child and family counsellor, interviewed Sebastian, his mother, father, CB and SO on 2 November 2005.  Concerning Sebastian, Ms O’Donohue reported,

    “Sebastian presented as a serious and polite 5 year old.  He was described by his mother as an intelligent and caring child who likes to make his family happy.  Sebastian stated that he was aware of the reason for interview, in that he was at the court to discuss, “DPW”.  When speaking of DPW he said; “He’s naughty, DPW said to my mother, he’d kill my mother”.  Throughout the interview Sebastian was consistently negative when discussing DPW and resistant to having any contact with him.

    Sebastian spoke openly during the interview about his mother and CB whom he referred to as “Dad”.  He appeared enthusiastic when discussing his family and spoke of a happy and settled home life.  Sebastian expressed his excitement of the pending birth of his baby sister and activities he engages in, punching the air and smiling when speaking of riding his bike without training wheels and speaking of playing with his parents “all day”.  Sebastian appeared to have an affinity with CB, asking if the counsellor had spoken with “Dad” and describing him as the person he most looks like.

    Sebastian approached discussions of DPW seriously and spoke of the events leading up to the current situation of no contact.  When asked what DPW was like, Sebastian replied, “He’s a bad man … he’s not my dad any more (he) used to be my dad.  I don’t like him”   Sebastian appeared to have some positive memories of spending time with DPW in the past however, and when prompted, he recalled visiting his father’s house, having snacks and playing cricket.  The turning point in Sebastian’s mind, was the incident at the park.

    Sebastian referred to the incident in October 2004, “A bad time”, when DPW was “naughty” and “called my mother names”.  Sebastian spoke of climbing on a ladder in the park, being grabbed by his mother and his father getting, “mad”.  He stated he would prefer not to see DPW again and would be “very happy” if the court decided he did not have to have contact.’

    When questioned as to what his mother and CB though of his father, Sebastian replied, they both think he is “naughty” and that Sebastian should not speak of him.  Asked how he knew this, Sebastian replied that he and his mother could read each other’s minds.

    Both in discussions and projective play, Sebastian raised his anger and concern about having contact with his father.  He expressed strong resistance to an observation taking place with DPW, saying he would be “very scared” and that DPW might “try to cuddle me”.  He became quite vigilant and wary, asking counsel if the door was locked and requiring reassurance. 

    Due to Sebastian’s apprehension and the lengthy period without contact, it was decided not to undertake observations.  This decision was also influenced by the counsellor’s awareness that the parties are currently engaged with Unifam who are in the process of planning a therapeutic reintroduction”

  3. I agree with the counsellor’s opinion that Sebastian, “Has a close connection and affinity with his mother and step-father and is attuned to their feelings”.  I also accept that CB and KTB do not favour Sebastian continuing contact with his father and that it is likely Sebastian is aware of their concerns about contact. 

  4. An issue the court must consider is the extent to which Sebastian’s opposition to contact has been influenced by the mother and CB.  The evidence strongly suggests Sebastian’s wishes have formed through a combination of his own experiences of contact, his mother and CB’s belief that contact is risky and inappropriate, and the child’s contentment with his mother and step-father.  There was a time during contact when Sebastian viewed his father as a fun figure and was able to enjoy contact.  These occasions occurred when his father was sober, contact was enriched by his mother’s supervision and the father refrained from verbally abusing the mother.  However, as Sebastian became more aware of his father’s abusive outbursts towards his mother, it is likely Sebastian’s enjoyment of contact lessened.  In the months leading up to the cessation of contact, Sebastian probably experienced his father as erratic, aggressive, fun and confusing.  I have no difficulty accepting the mother’s description of Sebastian’s reaction to the park incident in October 2004 and it is unsurprising that this incident has, “Taken on a larger than life dimension”.  The counsellor explains, “It seems that Sebastian has reformed his schema of his father to incorporate this event and now has a very concrete view of his father being all “bad and dangerous”. 

  5. Because the father says the October 2004 incident has been blown out of all proportion, he argues this is evidence Sebastian has been, “brainwashed” against him.  Whilst the mother and CB have done nothing to put this incident into a context more favourable to the father, Sebastian’s opinions of his father are primarily driven by his own experiences with him.  With CB’s presence in his life, Sebastian has probably made comparisons between his father and step-father, the result of which is unfavourable to his father.  By comparison to his father, CB is sober, reliable, hard working, loving and in all respects a healthy male role model to the child.  Second only to the child’s experiences with his father, this unfavourable contrast with CB is likely to be the next most significant factor influencing this child’s opposition to contact with his father. 

  1. Whilst I accept the mother and CB have subtly, yet unintentionally, negatively influenced Sebastian’s views of his father, of all the influences these have been the least significant.

Conclusion

  1. The counsellor opined, “Although CB and KTB have stressed that Sebastian does not want to have contact with his father, at 5 years old he lacks the maturity and long term view of the consequences of this decision”.  With this comment I agree.  The counsellor continues, “To completely cease all contact with a parent is a major undertaking”.  This court is unashamedly pro-contact and with this comment I agree.  The counsellor continues, “Sebastian having no contact with his father and continuing to have such a negative perception of him would be likely to impact on his own sense of identity and self.  It is possible that as he develops, Sebastian would struggle with this, question his ideas about his father and their relationship and perhaps experience a sense of loss and confusion”.  With this in mind the counsellor recommended, “A therapeutic reintroduction appears to be the most suitable option with the greatest likelihood of success”.  The counsellor recommended the parties work with Unifam and that, “Sebastian be involved and receive support and appropriate intervention.  It may also be helpful for DPW to engage in a parenting program”.

  2. The family report was released on 18 November 2005.  Although the father is unemployed and thus has ample time, in five months he had made no attempts to start any parenting program.  Basically he has done nothing positive in response to the counsellors recommendations. It is true that, in compliance with orders made 12 July 2005 that the parties attend Unifam, the father started whereas the mother did not.  The point I am making relates to the father addressing his own situation, and not the issue of therapeutic intervention which involves the mother and child.  The former is an essential prerequisite for anything useful to come from the later.

  3. The counsellor explained that there is already evidence that Sebastian is confused by his very negative view of his father.  Concerned about his father, he recently said he would kick him “in the googlies”.  He refers to his father as, “bad daddy”.  Recently on the school playground, Sebastian hit three girls to which he reacted by saying, “I am like my father”.  The counsellor’s concern from this is that because Sebastian has such a negative view of his father, Sebastian may wonder if he shares his father’s negative characteristics.  Thus, she postulates that contact which shows his father in a good light may benefit Sebastian’s self esteem and sense of identity. 

  4. During her oral testimony, the counsellor emphasised that contact would only be beneficial to Sebastian if his father behaved in a child focussed and healthy manner.  If contact involved abusive behaviour, either physical or verbal, denigration of the mother or her partner, drug or alcohol abuse, then contact has little, if anything, to offer Sebastian.  Supervised contact is recommended so that Sebastian is safe during contact and the father guided towards appropriate parental responsibility.  The counsellor revealed during cross-examination she was unaware the father had nearly two decades of chronic drug and alcohol abuse.  When taken through his evidence, she was dismayed that his description to her was completely different.  The father left her with the impression that his drug and alcohol issues coincided with the period of these parties’ relationship.  He fundamentally misled the counsellor and her reliance on his statements to her, seriously qualifies her opinion.  In making this statement, I am in no fashion critical of the counsellor.  It is only because the court had the benefit of source documents and prolonged cross-examination that the true picture of the father’s drug and alcohol abuse and his anti-social behaviour was revealed.  The counsellor was not afforded the same opportunity to explore the father’s antecedents and thus was deprived of the opportunity to accurately assess the magnitude of the risks to Sebastian and his capacity for change. 

  5. I strongly consider re-introducing contact at this time will traumatise this child.  If I considered contact in the long term would succeed, in the sense of enabling Sebastian to enjoy a healthy and happy relationship with his father, the trauma would be a necessary price to pay.  However, I have little confidence in the father’s capacity to change for the better and believe reintroducing contact involves prolonged trauma to the child.  The father is not a healthy and appropriate role model for this boy.  Whilst the father has made some gains, he has a long way to go before one could confidently order contact.  Contact will almost certainly involve denigration of the mother and her husband, seeing his father hung over and probably conflict with any supervisor seeking to impose conditions with which the father disagrees.  Looking to the future it is difficult to see how unsupervised contact could succeed.  Unsupervised contact involves an unacceptably high risk that the father will drive with Sebastian whilst under the influence of drugs or alcohol, and also unlicensed.  Unsupervised contact will almost certainly expose this child to drug taking, dealing and alcohol abuse. The father’s social milieu is unsavoury, and is highly likely to involve this child in violence and other anti-social behaviour.  The sad reality of this case is that for the foreseeable future the father presents an unhealthy role model to his son.  At his age Sebastian is impressionable and there is a high risk he may absorb his father’s influence.  Such an outcome is likely to be emotionally, socially and psychologically damaging to the child in both the short and long term.

  6. Sebastian is young and the opportunity for a relationship with his father is not lost forever.  Although this means there is a prospect of future litigation, the time may come when the father is in a position to gradually establish an appropriate relationship with his son.  However, before the father contemplates further litigation, he needs to ensure that he can demonstrate he has made major changes in his life.  These will include, a prolonged period where he can prove that he is not using drugs or alcohol, that he has engaged in prolonged therapy which addresses his attitudes towards the mother, his propensity towards violence and his other anti-social behaviours.  The father will need to demonstrate that he has real insight into the effect his behaviour has had on others, most particularly upon Sebastian and the mother.  Ideally, he will return to paid employment, establish settled accommodation and perhaps contribute towards Sebastian’s care. 

  7. An order for no contact weighs heavily on the court.  However, in this case, I do not believe re-establishing contact is in the child’s best interests.  The mother and her husband seemed attuned to the gravamen of the counsellor’s evidence and in my opinion, between them are able to address Sebastian’s identity issues concerning his failure to have a relationship with his father.  While not a complete answer, Sebastian enjoys a happy and healthy relationship with his paternal grandfather.  As Sebastian will see from his grandfather that positive male role models exist in his paternal lineage, this relationship is likely to partly address the counsellor’s identity concerns.

  8. Although the parties share long term responsibility for Sebastian’s welfare, the reality is that since his birth the mother has made all parenting decisions without the father’s input.  When the children’s representative questioned him about potential involvement in Sebastian’s education, the fathers answers showed he had virtually no idea what Sebastian’s educational needs might be or how, if included, he might contribute to Sebastian’s schooling.  Involving the father in Sebastian’s education is potentially highly risky.  There is a likelihood the father will arrive at school drunk.  It is also likely he will come upon information which reveals the mother and child’s address.  This in turn increases the probability the father will again harass the mother.  Although it weighs heavily upon the court, I believe this is one of those rare cases in which one parent must have exclusive long term parental responsibility for the child.  An order for joint responsibility is likely to place Sebastian in a difficult position.  I doubt the father is capable of making decisions which reliably promote Sebastian’s rather than his own interests.  The prospect of the mother trying, in an emergency, to secure the father’s consent if the father is drunk or affected by drugs is real and inconsistent with Sebastian’s interests.  He cannot be held ransom in effect to his father’s substance abuse.

  9. For these reasons I make the orders identified at the beginning of this judgment.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:  S. Mashman

Date:  5 June 2006


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