Duryea and Morshead
[2006] FMCAfam 422
•15 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DURYEA & MORSHEAD | [2006] FMCAfam 422 |
| FAMILY LAW – Application for telephone contact with children – applicant father imprisoned – extensive criminal history – extensive risk of violence and abuse. |
| Family Law Act 1975, ss.60 B, 60CA, 60CC, 60CG, 61, 65D, 61DA, 64B, 65AA, 65DAA, 65DAC |
| K & K [2006] FamCA 661 |
| Applicant: | MR DURYEA |
| Respondent: | MS MORSHEAD |
| File number: | MLM 6777 of 2001 |
| Judgment of: | Connolly FM |
| Hearing date: | 4 August 2006 |
| Date of last submission: | 4 August 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 15 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | NA |
| Solicitors for the Applicant: | Mr Duryea in person via telephone link |
| Counsel for the Respondent: | Mr R.N. Hoult |
| Solicitors for the Respondent: | Graeme Freeman |
| Counsel for the Independent Children’s Lawyer: | Mr M.L. Pavone |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
The applicant father be permitted to communicate with the children, E (12) and D (11) by forwarding letters and cards to them care of their mother’s solicitor Graeme Freeman at Level 4, 326 William Street, Melbourne, Victoria, 3000 as follows:
(a)letters three times a year
(b)cards at Christmas and on birthdays.
All previous contact orders with respect to the said children be otherwise discharged.
That otherwise all extant applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Duryea & Morshead is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 6777 of 2001
| MR DURYEA |
Applicant
And
| MS MORSHEAD |
Respondent
REASONS FOR JUDGMENT
The proceedings
While the applicant father had filed an amended application on 7 July 2006 which sought inter alia an order that the children visit their father on the first Sunday of each month at L Prison and that they be collected by Ms B at 9.00 am and returned at 5.00 pm, when the matter continued in court he indicated that he did not wish to pursue that part of it. He said he wanted phone and letter contact only.
The Father, in support of his application, relied on his affidavit sworn 29 June 2006 and filed 7 July 2006. That affidavit annexed a number of documents including consent orders made by Phipps FM on 20 June 2003 and a family report prepared by Paul Ban dated 28 February 2003. He also tendered Minutes of Orders by Consent made by Registrar Sikiotis on 25 January 2006 with respect to another child K born in 1998. There was also an affidavit s sworn by Ms R on 28 June 2006.
The mother filed a response seeking a dismissal of the father’s application and it was supported by her affidavit filed on 19 June 2006.
The Independent Children’s Lawyer filed an updated family report with respect to the children prepared by Mr Tony O’Dwyer and dated
20 October 2005.
The background
The father is 37 years of age. He is serving a nine and a half year term of imprisonment currently at P Prison where he anticipates he will be for the next six to twelve months while he undergoes the Interferon program to get rid of Hepatitis C. His evidence is that he has about
4 years of his sentence left to serve if he does the minimum time. Apart from the children the subject of this application, he has two other children J, 14, and K, 6.
The respondent mother is 36 years old. She lives in an undisclosed location with the two children the subject of these proceedings. The parties were in a relationship from some time in 1991 until they separated on 18 August 1996. There are two children of the relationship namely E (12) and D (11).
The parties both admit that during the time they lived together they began to use illicit drugs which included the use of speed. The mother alleges that the relationship was interspersed with lots of violence and she finally left the relationship as a result of assaults by the father.
Mr Duryea in his interview with Mr O’Dwyer denied the allegation. Mr O’Dwyer also recounts Ms Morshead’s claims that she had been almost killed on a number of occasions. She told Mr O’Dwyer that when she was pregnant with D that the applicant father had attempted to inject her with a syringe filled with air. Mr Duryea stated that the mother’s claims were lies and over the top.
In 1999 and 2001 Mr Duryea was imprisoned. During his time in B Prison in 2001 the applicant father had phone contact with the boys but had no visits. On the earlier occasion in 1999 when he was in W there were a number of visits by the boys. On 20 June 2003 orders were made by FM Phipps upon the appearance of Mr Allen for the Child Representative and no appearance by the parties. The orders were made by consent for alternative weekend contact 6.30 pm Friday to 6.00 pm Sunday with changeover to occur at R. There were also provisions for school holiday contact, special days and phone contact each Tuesday and Thursday. There were also various restraining orders. These orders were apparently agreed to following a report by Mr Paul Ban dated 28 February 2003 (which report was annexed to the father’s affidavit and relied upon by him).
The law
The changes in the approach to be adopted by the Court from 1 July 2006 when making parenting orders as affected by the new legislation are conveniently set out by O’Ryan J in the decision of K & K [2006] FamCA 661 delivered on 25 July 2006 in paragraphs [11] to [25] of that judgment:
“Parenting - Relevant Principles
Section 61C(1) in Pt VII of the Family Law Act 1975 (Cth) provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B of the Act. Parental responsibility relates to decision-making, not time to be spent with each parent.
However, by s 61C(3) the joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D of the Act provides, subject to a presumption of equal shared parental responsibility, that I may make such parenting order as I think is proper. Section 64B(1) defines the term ‘parenting order’ and s 64B(2) specifies what a parenting order may deal with and includes, the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) of the Act. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms ‘abuse’ and ‘family violence’ are defined in s 4 of the Act. There are then 13 additional considerations and they include the views of the child and the nature of the relationship of the child with each of the parents.
Section 60CC(4) requires that I also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities.
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
As noted above, when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’ for the child, see 61DA(1). This presumption is concerned solely with the allocation of parental responsibility as defined in s 61B and is not a presumption about the amount of time a child spends with each parent. It also relates only to parents, and has no application to orders for parental responsibility in favour of other people.
The presumption does not apply in certain circumstances. Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I am satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In determining if it would not be in the best interests of the child for the parents to have equal shared parental responsibility I must take into account the considerations in s 60CC and the objects and principles in s 60B.
If the presumption does not apply or is rebutted I must then determine what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.
However, if I am satisfied that the presumption of equal shared parental responsibility applies then by s 65DAA (1) I have to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend equal time with each parent and if both conditions are satisfied then consider making an order for the child to spend equal time with each parent. In determining the first matter namely whether it would be in the best interests of the child to spend equal time with each parent I have to apply s 60CC and s 60B. In determining the second matter namely whether it is reasonably practicable I am required to consider the matters in s 65DAA(5).
If I was satisfied that the presumption of equal shared parental responsibility applied but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each parent and if both conditions are satisfied then consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60CC and s 60B In determining the second matter namely whether it is reasonably practicable I am required to consider the matters in s 65DAA(5). Subsections 65DAA(3)-(4) set out what is meant by substantial and significant time.
Of course it follows that I do not have to consider the matters in s 65DAA if the presumption of equal shared parental responsibility does not apply or is rebutted.
If two or more persons are to share parental responsibility
s 65DAC provides that all decisions about major long-term issues be made jointly by those persons. The term ‘major long-term issues’ is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long- term issues.”
I accepted those paragraphs as an accurate summation of the law and adopt it into my reasons for judgment. Although it is clear in the current matter that the issue to be determined is of very narrow ambit, that is, whether it is in the best interests of the children for them to have phone contact with their father. It is clear in my view that the father has abrogated his joint parental responsibility given the fact that he is imprisoned and has since 2003 had no involvement at all with his children. Further he does not seek to spend any time with them other than by way of phone conversation and by letter and card. He makes no contribution to their financial welfare. In deciding whether to make the orders sought I must regard the best interests of the child as paramount and in determining the best interests I must have regard to
s.60CC. Further, I must have regard to s in making an order that does not expose the wife or the children to an unacceptable risk of family violence.
Findings
The offences for which the applicant was sentenced were not particularised by the applicant. In cross examination by Mr Hoult for the mother he was asked, “You were imprisoned for sexual assault and kidnapping.” He responded, “kidnapping and indecent assault, yes.” He was then further cross-examined about a number of paragraphs in Mr O’Dwyer’s report. Mr O’Dwyer reported at page 8:
“In October 200, Duryea was charged with false imprisonment and assault of a third party which occurred on the 23 June 2003. He was remanded in Custody and subsequently sentenced to nine and a half years imprisonment.
The writer understands from both that this incident included two girls Mr Duryea had living with him as co-offenders.
Ms Morshead understands that he was assisting “a prostitute get off Heroin” and assaulted this girl.
She understands that he and two girls who were living with him “collected a third girl and put her in a dog chain and made her rape herself. He took photos. He made her eat dog food until she escaped.” Mr Duryea suggested that this was roughly what happened.”
In cross-examination the father denied he had told Mr O’Dwyer that it was roughly what happened but he did not seek to cross-examine
Mr O’Dwyer and I accept what Mr O’Dwyer says as the truth.
The father was further cross-examined about exactly what happened and conceded that he pleaded guilty to the offences. He further admitted that the victim had been grabbed by him by the arm and forced into his car and taken back to his place where he says she was made to “put on a bit of a show” which including forcing her to insert a rolling pin into her vagina. She was slapped about the face and kicked in the ribs and was held against her will until she escaped.
The two women involved in these criminal proceedings were Ms R who was sentenced to twenty-one months jail and Ms H. The applicant admitted that these people were both housemates of his and at various times he had a sexual relationship with them. At the time of the commission of the offences Ms R was 16 years of age and was a heroin addict. According to the applicant Ms H was a sex worker. He also admitted to an ongoing sexual relationship at the time with Ms B, another sex worker.
The applicant conceded in cross-examination that he told
Mr Cummins, the psychologist who prepared a report for the criminal proceedings, that “he had been binging on ice for a week before the episode on 23 June 2003. He also told the psychologist that he had been a daily smoker of cannabis until his recent apprehension and that he used speed intravenously on a daily basis. It was pointed out to the applicant that the first contact visit with his sons would have occurred on 20 June 2003 only three days prior to the commission of the offences and at a time he was on an ice binge and using speed intravenously. Once it became apparent what was being suggested to the applicant he was adamant that he did not use drugs while his boys were with him. I did not believe that evidence in light of what he told the psychologist. I drew the conclusion that it was highly likely that from June to October 2003 the father was in an almost constant state of being drug affected.
It was also clear from cross-examination of the applicant that Mr Ban was completely unaware of the applicant’s ongoing criminality and drug usage and accordingly his report is of little value in that it is based on a misconceived and flawed picture of the applicant. Further concerns about the father’s ability to care for his children arise from other disclosures made to Mr Cummins but not shared with Mr Ban. The applicant admitted that he told Mr Cummins that he had suffered from depression, that “I’m a bit fucked in the head and I’m paranoid and psychosed out.” He also said that he was treated with anti-psychotic medication called Neutactil. He told Mr Cummins he had been on that medication for twelve months. He conceded that the reason for that was that his mind never stops ticking and that he hears voices now and then and gets a bit scattered in the head. He also conceded that he told Mr Cummins that he attempted to take his own life on multiple occasions through taking overdoses of prescribed medication. Further, he admitted that he had a criminal history sheet running to some thirty-seven pages.
The applicant was cross-examined about the mother’s fear of him and he refused to acknowledge that there was any basis for it. However, I observed the mother in Court throughout the proceedings and she was constantly sobbing, trembling and shaking. This is also an observation that Mr Ban made about the mother in Mr Duryea’s presence.
I also took note of the fact that the applicant is a big, strong looking individual and the respondent mother was of slight, almost fragile build. I accept her evidence that she would be very distressed if the boys had contact with their father and in this context I am concerned about the recommendation made in Mr Cummins’ report that the father should undergo an anger management course. Despite that recommendation being made in 2003, the father has not undertaken such a course and does not propose to do so until next year
Mr Duryea’s lack of understanding of the stress that his behaviour causes is further illustrated by the fact that the person he ultimately proposed to drive his children to and from visits at the L prison was one of his co-offenders Ms R, who has now been released from jail after serving a twenty-one month term.
When cross-examined about the relationship he had with the boys he replied “well, at the moment I don’t have any relationship with them”. He later said that he wanted the opportunity in effect to tell the boys he was sorry and that he would accept it if the boys told him that they did not want to see him. He did not seem to appreciate that such a meeting might be detrimental to the boys as suggested by Mr O’Dwyer and despite what Mr O’Dwyer says about their wishes. It is clear from
Mr O’Dwyer’s report that D may want to see his father and that E is emphatic that he does not want to see him. Mr O’Dwyer in his report says at page 23: “the writer considers that Mr Duryea is acting out of a yearning to see the boys and satisfy his need.” Mr O’Dwyer’s conclusion is supported by what Mr Duryea said when asked what about the opportunity of telling the boys he was sorry by way of a letter. Mr Duryea replied, “Well, I did that in a Christmas Card but you know I need more than that.”
Mr O’Dwyer from pages 20-25 of his report provides a summary of the conclusions that he has reached with respect to what he considers in the best interests of the children:
“The writer considered that E made his wishes clearly and consistently in interview. It was evident that he was disappointed that his Father had returned to Prison and has elected to stop seeing him because he feels let down. This appeared to be an age appropriate response to the situation.
D wavered in his desire. The writer viewed this in terms of his limited capacity as noted in assessments conducted over the past two years. The writer considered that, due to such assessments, his wishes should carry less weight than those of a 10 year old without such personal issues…
The writer considered that the children are being well cared for by Ms Morshead and she was endeavouring to meet their needs to the best of her ability. It was noted that Mr Duryea was in agreement that Ms Morshead would be doing her best.
It appeared that the boys have a loving relationship with their Maternal Grandmother.
The writer considered that the boys, whilst potentially loving their father, have had a disturbed relationship with their Father. This has been due to unavailability due to imprisonment and potential unavailability due to illicit drug use.
The writer also considered that Mr Duryea presented as self focussed in terms of seeking Contact as he was yearning to have a relationship with the boys. Whilst this s understandable, it did not appear to be reciprocated at this point in time...
The writer considers that introducing Contact at this time would appease Mr Duryea and meet his need. It was not clear to the writer that this was something the boys would actively seek at this stage.
Having said this, the limitation is that he [sic] did not test the children’s reaction to seeing their Father. Should the Court consider that such testing would be in the best interest of the boys the writer could, if Ordered, facilitate such a meeting and report back.
However, the writer considered that an introduction of Contact at this point would emotionally disturb Ms Morshead which in turn may disturb the boys and asks that the Court take this aspect into consideration.
Ms Morshead has indicated that cost is an issue. The writer estimates that she lives less than one hour from L Prison...
The writer understands that Ms Morshead has worked to ensure the needs of the children are being met. There is evidence to suggest that she is also seeking professional assistance in this regard. It is acknowledged that this is in stark contrast to the lifestyle she led whilst with Mr Duryea.
The writer is also mindful that Mr Duryea has possibly introduced many elements of drug “culture” into the boy’s lives at a young and vulnerable age. For example, it is understood that he sought and obtained Orders for Contact approximately one week prior [to] assaulting a third party. The writer considers that the Court will never know exactly what the boys have been exposed to during their Contact with Mr Duryea.
The writer considered that Mr Duryea still displayed limited capacity to understand the needs of the boys or ability to separate out his own needs from theirs…
The writer considered that the boys have had a tumultuous life filled with experiences of family violence, drug abuse, conflict and disappointment.
It is considered that it is now even more important to them that they continue to enjoy a stable period in their lives where they are free from such elements. The writer questions if the current difficulty the boys have academically, socially or otherwise stems from their early childhood experiences.
Clearly the boys need to be sheltered from any further disappointment in either of their parents.
The writer is also aware that E will be beginning Year 7 in 2006 and considered that he needs to have every opportunity to focus on this and be successful in this transition. This will also mark the first year that the boys will be at separate schools. The impact or otherwise of such change on D is unclear to the writer.
Ms Morshead’s life is such that she is actively seeking to support the boys and meet their needs. It appears that her (and their life) is conflict free. Ms Morshead was keen to keep her location hidden so as to maintain such an environment for the boys. The writer saw the merit in this action.
The writer has no issue with children visiting a Prison if the bond between the parent and the child is such that a visit will meet the child’s need.
Having said this, the writer considered that Mr Duryea is acting out of a yearning to see the boys and satisfy his need. It is not clear that this is reciprocated by the boys. Such as, the writer questions if such visits may lead to regression of the boy’s emotional progression…
There is evidence to suggest that Ms Morshead has displayed responsibility while there is much argument to suggest that
Mr Duryea has not…
There is a long pattern and history of violence that has been outlined in this report. There is also evidence to suggest that this has included Ms Morshead as a victim, as well as others, including her parents and other parties known to Mr Duryea and not known to Ms Morshead.
There is also evidence that, despite imprisonment for such activity, Mr Duryea has not changed in his behaviour. The writer considers that, should Mr Duryea be released from Prison, the pattern may well continue. The writer respectfully suggests that Orders should protect the children from any further exposure…
Ms Morshead reported that she has an indefinite intervention order. This was not sighted…
At this point the writer struggles to see the benefit of contact for the boys.
Should the Court consider that some form of contact should occur, this should be monitored in terms of its impact on the boys socially and emotionally.
Should the Court consider that some form of contact should occur, it is respectfully suggested that this be graduated slowly with letters, phone calls and eventually visits. It should be reviewed/ monitored in terms of the children’s capacity to receive and manage such interaction on an ongoing basis.
Mr Duryea had the opportunity to cross-examine Mr O’Dwyer but did not do so. I accept Mr O’Dwyer’s evidence and rely on it. I also accept what was put by the Independent Children’s Lawyer,
Mr Pavone. Mr Pavone relayed what Mr O’Dwyer told him as follows:
“I had a conversation with Mr O’Dwyer and asked Mr O’Dwyer in his view would he support their being telephone contact between the children and their father and he was adamant that he would not support telephone contact between the children and their father but that he would be supportive of letters being sent, and cards – letters and cards being sent…He indicated, your Honour, that he certainly thought that the father ought to be able to send birthday cards and Christmas cards and that he ought to be in a position to write to the children I think two to three times a year, as well as the cards. He indicated that there needed to be some mechanism whereby the wife – or sorry, Ms Morshead, was obliged to pass that correspondence to the children after she had read it and was satisfied that there was nothing inappropriate in the letters or cards.”
Again, Mr Duryea did not ask to challenge that evidence.
Conclusions
In all the circumstances of this matter I am not persuaded that it is in the best interests of these children to have fortnightly phone communication with their father at this stage of their lives. While D displays some desire to see his father it is very clear E had no such desire. I also accept what Mr O’Dwyer says about the weight that should be attributed to D’s wishes.
However, what persuaded me that it would be inappropriate to make an order for telephone contact is what I perceive to be an overwhelming risk to the children’s emotional and psychological well being as follows:
a)Mr O’Dwyer concludes the boys have had a disturbed relationship with their father;
b)Mr O’Dwyer considers the introduction of contact by phone would emotionally disturb the mother which in turn would have a detrimental impact on the boys. Having observed the mother in Court I consider it would have a devastating impact on the mother and the boys;
c)It is not hard to envisage the father losing control of his anger on the phone in the event that the boys do not respond in the way that he hopes. On the last occasion he had phone contact this occurred when he referred to E as a little Cunt. The father has not undertaken the anger management course he was recommended for in the intervening period of time. In my view, the risk of further exposure to abuse and violence is extremely high.
d)While the father in his evidence espoused his transformation from his criminal ways. There is limited evidence to support that and there is a clear lack of understanding of the import of his behaviour on his children and on their mother. The offence for which he is incarcerated is of the most repugnant kind and there is a strong impression from the father that his view is that all of this is irrelevant and it is his right to see his children
e)
It is difficult to imagine a poorer role model than the father.
His drug abuse dates back nearly twenty years and the history of his criminal activity runs to thirty-seven pages and has resulted in three periods of imprisonment. Further it is likely to be 4 years before he is released.
f)The father relies on the recommendations of Mr Ban who prepared a report prior to the commission of the offences which occurred on 23 June 2003. That report as I have already indicated is of little value given the lack of information and the inclusion of false information that it contact. Likewise, the fact that the mother of K has consented to orders is of little persuasive value given that there is no information about the basis of the agreement reached.
g)It does seem to me that the opportunity of the father forwarding letters and cards to the boys as proposed by the mother does provide an appropriate chance for the father to rekindle and repair his relationship with his sons and I propose to order accordingly.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Nadia Morales
Date: 15 August 2006
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