FONT & BANTON

[2010] FamCA 9

FAMILY COURT OF AUSTRALIA

FONT & BANTON

[2010] FamCA 9

FAMILY LAW – CHILDREN – Final parenting orders – Where the Father suffers from a psychiatric illness – Where the experts recommend supervised time – Where the child wishes for time to be supervised – Supervised time ordered – Provision for the child to initiate time if he wishes

FAMILY LAW – COSTS – Child representative – Submissions to be made in relation to ICL’s costs

APPLICANT:

Ms Font

RESPONDENT: Mr Banton

FILE NUMBER: PAF 4439 of 1997

DATE DELIVERED: 11 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Barry J

HEARING DATE: 15 and 16 July 2009

REPRESENTATION

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

SOLICITORS FOR THE APPLICANT: Bowring Macaulay & Barrett

SOLICITOR FOR THE RESPONDENT:

Mr Friend, Solicitor of Friend & Co Lawyers appeared for the Respondent Father

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mr Maurice of Counsel appeared for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER

Abrams Turner Whelan Family Lawyers

Orders

1. The child, T born … June 1995 to live with the Mother.

2. The Mother to have sole parental responsibility for the child.

3. The child is to spend time with the Father:

   (a)       at all times and subject to such conditions as may be agreed between the         Mother and Father;

   (b)       at any time the child indicates he wishes to see the Father whether       supervised or unsupervised, at the child’s election.

4. In the event the child is not otherwise seeing the Father pursuant to the terms of paragraph (3) hereof, the child is to spend time with the Father for a period of two (2) hours every seven (7) weeks, such time to be supervised at the N Contact Centre.

5. Should the child at any time express a wish to speak to the Father by telephone, the Mother shall encourage and facilitate such communication between the child and the Father.

6. Should the child at any time wish to email, text or send a letter to the Father, the Mother shall ensure that the child is able to engage in such communication.

7. The Father is at liberty to write to the child and send gifts to him at all reasonable times.

8. The Mother and Father are at liberty to agree in writing for another venue at which the child may spend supervised time with the Father.

9. That to the extent necessary the Mother authorise the child’s treating health professionals to speak to the Father about the child’s treatment and progress.

10. The Mother’s amended application in form 1 filed 12 April 2007 and the Father’s amended response filed 25 May 2007 be otherwise dismissed.

11. Within fourteen (14) days of the date hereof the Independent Children’s Lawyer is to file and serve written submissions as to why the parties should pay costs of the Independent Children’s Lawyer. Within fourteen (14) days thereafter the parties are to file and serve a response to such submissions.

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

NOTATION:

The Family Consultant Ms F is requested to meet with the child and explain to him the orders made and the reasons for same with particular emphasis on the fact that at his age the child is at liberty to communicate with his father and see him in such circumstances and subject to such conditions as he may wish.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: PAF 4439 of 1997

MS FONT

Applicant

And

MR BANTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to this litigation are the parents of the child, T, born in June 1995.

2. The Father was born in 1945 and the Mother in 1962.

3. The parties were in a relationship for a period of about 12 months in the

   
   

   mid-1990s.  They did not reside together.  Since the relationship terminated the child has resided with his Mother.

Orders Sought

Applicant Mother

1. The Mother seeks orders that the child live with her, that she have sole parental responsibility and the child spend supervised time with the Father at the N Children’s Contact Service every seven weeks for a period of two hours.  She seeks a further order that the Father be restrained from making any further applications in respect to the time that he spends with the child without the leave of the Court.

Respondent Father

1. In his amended response the Father concedes the child should live with the Mother but he seeks an order he spend time with him on every third weekend from 9.00 am Saturday until 5.00 pm Sunday together with one week of each school holiday period.  There were various other orders sought by the Father which are not pertinent to the primary determination I am asked to make.

2. The Independent Children’s Lawyer sought orders that the child live with the Mother and that the child spend time and communicate with the Father for a period of two hours every seven weeks supervised at the N Children’s Contact Centre.  A further order was sought that the Father be at liberty to write to and send gifts to the child at his home address and to the extent necessary the Mother authorise the child’s treating health professionals to speak to the Father about the child’s treatment and progress.

3. The Independent Children’s Lawyer sought a further order that should the child at any time express a wish to telephone or speak to his father the Mother shall encourage and facilitate such telephone contact between the child and the Father.

4. At the commencement of the hearing on 15 July 2009 I was informed that the Father was actually seeking to spend time with his son from 9.00 am Saturday until 5.00 pm Sunday every second weekend.  The difficulty was the Father works as a security guard.  I was initially informed he only has every seventh weekend off.  Subsequently I was informed that he has every third weekend off.

Psychiatric Reports

1. The Father’s current wife, Mrs Banton gave evidence that she would assist in caring for the child.  The child has not had any previous relationship with Mrs Banton.

2. One of the concerns of the Mother and the Independent Children’s Lawyer relates to the psychiatric status of the Father.

3. In a report dated 17 February 2006 Dr A, a forensic psychiatrist expressed the following opinion (page 13):

   “[The father] has a major mental illness.  He was diagnosed with chronic schizophrenia when he was treated at […] Hospital in 1996.  At the time he displayed bizarre behaviour, thought disorder and he was complaining of hallucinations.  He was treated with anti-psychotic medication (Stelazine).  Subsequent correspondence (for instance letter dated 6 November 2004) also suggested the presence of thought disorder and grandiose delusions.  I observed the presence of mental illness during the interview.  [The father] had grandiose and paranoid delusions.  He believed himself to have extraordinary abilities, being able to function as a doctor, a lawyer, a teacher, an electrician, landscaper and plasterer.  He considered himself to be a gifted “jack of all trades and master of them”.  He was also paranoid, believing that DOCs and the government were acting against him, to make money for lawyers.  He believed himself to be a healer.  He said that he treated [the child’s] diarrhoea by “tickling his tummy” and “massaging his bum”.  This behaviour appeared to be related to [the father’s] grandiose delusions.”

   I note the allegations concerning [the father] threatening or chasing [the child] with a knife.  [The father] denied the truth of these allegations.  Nevertheless I am concerned about [the child’s] safety if left in [the father’s] care.  I note that [the father] is affected by a major mental illness which at present remains untreated.  Untreated mental illness may result in unpredictable and harmful behaviour.  In view of this I recommend that [the father’s] contact with [the child] remain supervised.

   [The father’s] mental illness may respond to psychiatric treatment.  He would require treatment with anti-psychotic and possibly mood stabilising medications.  There are features of psychosis (paranoid delusions, thought disorder) and mood disorder (grandiosity, irritability) suggesting a diagnosis of schizo-affective disorder.  This would require regular psychiatric treatment monitoring and follow up.  The suitability of [the father] caring for [the child] would require re-assessment once he engages in a process of psychiatric care and his psychiatric symptoms respond to treatment.  Subsequent contact with [the child] would be contingent upon him remaining in psychiatric care long term.

   [The child] indicated he would like to continue seeing his father every second weekend if his father was to stop touching him and threatening him with a knife.  He wanted to keep living with his mother.  I formed the view that [the child] understood the meaning and consequences of his wish.”

4. The doctor in his report adverted to the fact that the child has mild intellectual delay.  His relationship with his mother is characterised by oppositional and defiant behaviour.  His relationship with the father is characterised by fear arising out of allegations about inappropriate touching and threats involving a knife.  He further expresses the view that the father is unable to care for the child in view of his untreated mental illness.  In relation to the child he notes (page 14, paragraph e):

   “[The child] has a mild intellectual impairment.  He also has a pattern of oppositional defiant behaviour which is diagnosed as an oppositional defiant disorder.  He may also have features of attention deficit disorder, in view of the reported difficulty with attention and concentration which may respond to psycho-stimulant medication.”

5. In a report dated 23 August 2007 Dr K a forensic psychiatrist noted under the heading “Opinion” (page 8 of the report):

   “[The father] from the information provided to me and from the history and mental state examination obtained at interview clearly has a history of significant psychiatric disorder.  Nevertheless his presentation is complex.

   It is important, firstly, to note that he has a clear history of psychosis, judging from the documents reviewed by Dr [A] with respect to his admissions to […] and […] Hospitals in 1996.  The nature of prior psychiatric admissions to other hospitals is uncertain as I have not reviewed any relevant documentation and [the father] was unable to clarify the nature of his admissions.

   On presentation, it was apparent that [the father] held odd, unusual and bizarre beliefs, as noted in the body of my report.  These were either delusion-like (over-valued ideas) or frankly delusional.  He displayed features of a form of thought disorder.  This was no clear disturbance of mood or affect.

   There was no evidence of overt cognitive impairment and he appeared to be of average intelligence.  There was no clear evidence of the negative (residual) features of a chronic schizophrenic illness such as personality deterioration, affect of blunting/flatness or cognitive impairment.

   Most likely diagnosis are that [the father] suffers from intermittent psychotic episodes, which could be diagnosed as brief psychotic episodes or schizophreniform episodes.  These are probably on the background of a schizoaffective disorder and/or a personality disorder, probably schizotypal in nature. 

   I might emphasise that [the father] was very co-operative throughout the interview and in no way irritable or aggressive.  He was at times pleasant and clearly concerned about his current lack of access to his son, about whom he expressed affection.

   Given the longstanding nature of his psychiatric problems, the current lack of monitoring and treatment by mental professionals and his lack of insight, his prognosis is uncertain.  It is, however, obviously a chronic stress for him not being able to spend time with his son.  On the basis of one interview it is difficult to comprehensively assess [the father’s] capacity to spend time with and care for his son on an unsupervised basis but given his unusual beliefs, lack of insight and diminished judgment and without in anyway wanting to pre-empt the decision of the Court, continuing supervised access would be wise.” (Underlining not in original text).

6. The psychiatrists were not required for cross examination on the contents of their reports and accordingly their reports are before me on an unchallenged basis.  Nothing in the evidence would persuade me to question the professional opinions of the two psychiatrists.

Existing Orders

1. On the 5 November 2007 orders issued by consent providing for the child to live with the Mother and for the Father to spend time and communicate with the child for a period of two hours supervised every eight weeks at the C Contact Service.  There were various other orders providing for the Father to be at liberty to write and send gifts to the child at his home address and for the child to be able to have telephone communication with his father.

2. By paragraph 5 of those orders there was provision:

   “5.The Father’s time with [the child] is conditioned upon the Father forthwith attending upon a psychiatrist of his choice and for such consultations and accepting treatment for such period of time as that doctor considers necessary.

   6.The Father shall within seven days of his first consultation with a psychiatrist notify in writing to the Mother’s solicitor and the Independent Children’s Lawyer of the name of his psychiatrist and the address of his practice.

   6(a)The Father is to authorise his psychiatrist to advise the Independent Children’s Lawyer and the Mother’s solicitors of all dates of appointments and dates of attendances on the psychiatrist.”

3. By further consent orders made on the 8 May 2009 the time the Father spent with his son was altered to every seven weeks supervised at the N Children’s Contact Centre for a period of two hours.

4. As I understand it the Father has had contact on most occasions in accordance with the terms of those orders but not without difficulty at times.  The Mother says on one occasion in particular she had another commitment and offered the Father make-up time.  Because of the Father’s weekend work requirements make-up time is difficult to organise.

Affidavit Evidence

1. The affidavit evidence in the application in a case consisted of an affidavit of the Mother filed 8 July 2009.   For the Respondent there were affidavits by the Father filed on 3 July 2007 and 18 June 2009 and an affidavit of his wife, Mrs Banton of 18 June 2009.

2. Annexed to the Mother’s affidavit are birth certificates for the child and a letter from the New South Wales Registry of Births Deaths & Marriages of

   
   

   2 February 2005.  It would seem from the contents of that letter that annexure C purporting to be a birth certificate issued on 30 October 2002 for the child under the surname Banton, has been falsified.  No recent birth certificate was produced but I rely on the contents of the letter of 2 February 2005 by the Compliance Officer to confirm that the birth registration remains in the name of T Font.

3. If this be correct, and I am prepared to find that it is, it is a serious matter indeed for a person performing duties as a security officer to have engaged in the falsification of such an important document as a birth certificate.

4. Also annexed to the Mother’s affidavit are letters forwarded by the Father to the Mother dated the 26 April 2004 and 6 November 2004.  The letters are only relevant insofar as they tend to confirm the diagnosis made by the psychiatrists, in particular, Dr A.

5. I do not propose to consider the contents of the letters in any detail but I found the Father’s explanation in the course of cross examination for the contents of part of the letters to be disingenuous.  In paragraph 6 of page 2 of the April letter he says:

   “In 1945 I came into this world and I stopped the war.”

6. In the course of his evidence the Father said all he intended by this was similar to statements people make when visiting Sydney from say Melbourne and they comment, “I brought the rain with me”.

7. Whilst that explanation may justify that one sentence there are too many other statements throughout the documents in question to be sustained by such a tenuous explanation.

8. In his affidavit material the Father annexes to the July 2007 affidavit the decision of the New South Wales District Court which appears to have been handed down in June 2006.  It was an appeal against the imposition of an apprehended violence order largely stemming from the events of the 6 August 2005 – the knife incident.  I accept the force of the reasons for judgment of the District Court.  I do not know what to make of the knife incident.  I have analysed the evidence in detail but find myself unable to make findings as to the nature or extent of the incident.  It happened almost five years ago.  There is no history of violent behaviour similar to this incident by the Father.  If there was any such incident it appears to have been exaggerated and far more weight placed on it by the event constantly being brought to the young lad’s mind.  I would not be prepared to make a finding that there was an unacceptable risk to the child solely as a result of the so called knife incident.

9. The Mother annexes to her trial affidavit a report from Dr S of the Infant Child & Adolescent Mental Health Service of 29 November 2006 and a further letter by Ms M a clinical psychologist of the 23 January 2007 from the same Mental Health Service.

10. These letters/reports are confirmatory of the Mother’s view that the child is troubled by the pressure brought to bear upon him by his father.  I expect the pressure on the child is largely as a result of the Father denigrating the Mother in the child’s presence and/or openly discussing Court proceedings with him.

11. Exhibit 1 in the proceedings is a Confidential School Counsellor Report dated 31 May 2008 from the counsellor at the High School which the child attends.  There was argument as to the admissibility of a confidential report of this nature but in the end I ruled the Court would be assisted by its inclusion and it was otherwise admissible. 

12. In this report under the heading “Background” on page 1 it is recorded:

    “During primary school, [the child’s] family was subject to extreme domestic violence that resulted in legal action taken against his father.”

13. I note that the Mother has obtained apprehended violence orders on occasions but there is no evidence before me confirmatory of this statement of the child being subjected to extreme domestic violence.  I place no weight on this claim.  I accept the reality of the concerns of the Mother about the Father’s behaviour both by his strange views expressed on a wide range of subjects and the fact that his presentation on occasions can be loud, as noted by Dr A.

14. The Court would normally be reluctant to order a child who turns 15 this year to attend for supervised time at a Contact Centre.  However having regard to the assessment of the child’s intellectual and personality profile as set out in the School Counsellor’s Report it is a matter where I would be prepared to make an order that the Father’s time be supervised at a Contact Centre if it is what the child wants.

15. The opinion of all of the experts clearly indicates that any time the Father spends with the child should be supervised.

Report of Family Consultant, Ms F

1. Ms F is one of the most experienced Family Consultants in the Family Court.  She prepared an assessment report of 3 December 2008.  In that report (paragraph 3) she observed:

   “3.When asked whether he wants to continue seeing his father [the child] at first said that he has “not decided”.  He thought that, if the time were unsupervised, it would be at his father’s place at [K] which he said he had visited before.  He added that his father’s new wife and her son, both of whom he has never met would probably be there to.

   4.[The child] did not know whether he would want to stay overnight if he did see his father “unsupervised”.  He said that he used to do so from Saturday to Sunday and that it had been “okay until the knife bit”.  He would not want an incident like that to happen again.  He nodded in assent when asked whether that incident had frightened him.

   5.I invited [the child’s] mother in at the end of my talk with him to tell her I would be letting the Court know that [the child] had not decided what he wanted in relation to seeing his father but while she was there he said, “I do want to see him, supervised”.”

1. The conclusion I would draw from this is that the Mother herself has been discussing issues with the child.  The litigation has been ongoing for many years.  It is obvious the child has knowledge of the distinction between supervised and unsupervised time with a parent.  There is an inference that could be drawn and I am prepared to draw such inference that the Mother has influenced the views that the child expresses. It is possible the child uses the knife incident as an easy explanation for his other concerns about his father.

2. The notes from the Contact Centre (exhibit 3) reveal that the Father engages the child in an active learning program, teaching him about computers and other information technology gadgetry.  This can only add to the child’s self esteem and be of benefit to him.  On the evidence it appears the Mother for whatever reason does not have Internet access at her home.

3. I note in passing the records of the Contact Centre which are very detailed record the Father being late on a number of occasions.

Father’s Current Psychiatric Status

1. Exhibit 2 is a letter from Dr I of the 18 September 2007.  In that letter the medical practitioner notes:

   “-- Since i know [the father] iam not a ware of him having any psychological or psychiatric

   disease and he was on any psychiatric medication in the best of my knowledge.

   In my opinion [the father] is an honest person and of good character and he is fit and

   able to look after his son.” (Reproduced as written).

2. These particular sentences have typographical, grammatical and spelling errors not evidenced in the remainder of the report.  However having made that observation I note no challenge was made to the accuracy of this report.  I simply observe that I prefer the evidence of the specialist psychiatrists rather than the assessment of a general practitioner on the issue of the Father’s psychiatric status.

3. Exhibit 4 consists of documents from the Area Health Service.  On the 5 August 2008 the Mental Health Clinical Information Officer wrote to the Father’s solicitors confirming that he was seen on four occasions on the 6 November 2007, the 21 November 2007 and the 19 December 2009 by a mental health clinician.  On the 22 November 2007 he was seen by a mental health psychiatrist.  The letter continues:

   “He was advised by our Service that he had no mental health issues and he needed to go to a private psychiatrist for his Court report.  He was also advised that he can access the records held by our Services by filling in the appropriate paperwork.”

4. The Father has been able to hold down a job as a security officer for about the past ten years.  There is no record of any recent psychiatric episodes.  He has, seemingly, been given a clean bill of health by his general practitioner and the Area Mental Health Service. Balanced against that there is compelling evidence the Father is largely in denial as to his past history of psychiatric illness.  He is also insightless as to the impact his behaviour has on others.  Evidence of this is to be seen in the letters written in 2004 and the contents of Dr A’s report.

5. Under the heading “Conclusion” in her report, Ms F noted:

   “6.[The mother] indicated that [the child] can be a “handful” and it was clear that his level of energy, coupled with his intellectual delay could make him a difficult young man to manage.  He told me himself that he has trouble at school being bullied, mostly being called names.  Because of his delay, it was difficult to assess, in such a short period of time, [the child’s] level of maturity but in any case his ambivalence and obvious fear and anxiety in relation to some aspects of his father’s prior behaviour suggest that it may be more appropriate for the Court to make a decision for him after weighing up all of the factors involved.  These would include the long term availability of a Contact Centre and the purpose of continuing supervised contact indefinitely if unsupervised time is not an eventual goal or whether, if unsupervised time is appropriate, what mechanisms could be put in place to ensure that [the child] is safe and comfortable in his father’s care.”

Affidavit of Respondent’s Wife

1. The affidavit of Mrs Banton does not take the matter any further other than that she is available to support the Father and speaks well of his relationship with her seven year old son.  Mrs Banton is of Filipino background and is small of stature.  There appears to be a significant age difference between her and the Father.  I would not have any confidence that she would be able to supervise time between the Father and his son in an appropriate objective fashion.  She would not have the strength of personality to stand up to the Father’s somewhat forceful personality.

2. Ms F in her oral evidence urged caution when the issue of supervised/ unsupervised time was being considered.

3. A helpful case summary document was prepared by Counsel for the Independent Children’s Lawyer.  I accept the accuracy of the submissions set out in that document dated the 14 July 2009.  At paragraph 7 on page 2 note is made of the Family Consultant’s reference to the availability of a Contact Centre in the long term.  As I understand the position this does present as a problem.  There is no suggestion the N Contact Centre would not be available for whatever time period is deemed necessary.

4. The child will turn 15 in June of this year.  There is no evidence as to how long he will continue to attend high school but sooner rather than later he will be old enough to exercise his own judgment as to whether he wishes to have contact with his father.  To that end I propose to put in place orders empowering the child to make decisions about his future such as giving him the right to telephone the Father or communicate with him by email, mail or other means.

5. I propose to make a recommendation that the Family Consultant in this matter meet with the child for the purpose of explaining to him the orders of the Court and the reasons for same with particular emphasis on the fact that at his age the child is at liberty to communicate with his father and see him in such circumstances and subject to such conditions as he may wish.

Factors to be Considered Pursuant to the Terms of Section 60CC

“- - Primary considerations

1. 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. --”

1. The Mother in the course of cross examination conceded the child appeared to enjoy seeing his father at the Contact Centre.  She accepts that the child does want to spend time with his father but on occasions it is difficult to persuade him to go.  I accept from the Contact Centre’s records that the father and son engage civilly.  The child is at times quite excited to see his father on such visits.  It was not challenged that the Father should spend time with his son providing it was supervised.

2. I accept both parents love the child and I accept that the child would benefit from a relationship with both his parents.

3. The main concerns about unsupervised time are:

   ·    The Father has a serious psychiatric condition for which he does not take medication and does not seek ongoing treatment.

   ·    The Father is largely in denial as to the extent of his mental illness.

   ·    The Father is a poor historian and I find little reliance can be placed on the accuracy of his account of events.

   ·    It is likely the Father has denigrated the Mother and made threats generally in the presence of the child.

4. I found the Mother to be a reliable witness.  At paragraph 26 of her affidavit she records the child saying to her in the period around September/October 2005:

   “My dad wants to know everything that you do and if I don’t tell him he threatens me.  He says he is going to get Ivan Millat (sic) out of jail to kill me and he’s going to get Bin Ladin (sic) to blow me up.”

5. It is likely that the Father has made such statements to the child.  The Father may not have been serious in making such threats – they may even have been made in a jocular teasing fashion but the Father has little insight into the effect such statements could have on a child with the vulnerable personality that the child has. 

6. It is likely the Father has discussed legal proceedings with the child.  At paragraph 19 of the Mother’s affidavit the child is reported as saying to the Mother:

   “It’s 9 days to go to Court.  Dad talks about Court all the time.  I hate it when he talks about it.”

7. Again, I find it likely the child has accurately reported to his mother what his father told him on this occasion.

“-- Additional considerations

1. 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; - -”

1. The child has expressed the wish to see his father but also expressed the view that such time should be supervised.  I allow for the fact that he may have made this statement in the presence of his mother because he was aware it was what she wanted to hear.  It could also be the fact that he had overlooked telling that to the Family Consultant and was reminded of it by his mother coming into the room.  The reality is the Father can be a loose cannon at times making wild outlandish statements with little insight into the consequences such comments have.  The child may genuinely want the protection supervised time offers because of his past experience with the father making comments of this nature.

“- -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);”

1. The child’s relationship with the Mother is not in question.  She has always been his primary carer.  The child’s relationship with his father is somewhat ambivalent.  Reports from the Contact Centre indicate the Father goes to some trouble to involve the child with his extended family and to keep him entertained.  It is to the Father’s great credit that he has persisted in his attempts to see his son.  He has paid for his own legal representation.  It is clear from the record of the Area Mental Health Service that the Father has been upset over a long period of time at not being able to see his son on an unsupervised basis.  He has persisted with efforts to see his son at every opportunity and readily avails himself of this limited time available pursuant to the present orders.  Given his strong desire to see his son I find it puzzling why he has been significantly late on some occasions.

“- - 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;- -”

1. The Mother is concerned about the child being adequately protected.  She has experienced the strange behaviour of the Father at first hand as evidenced by his letters to her annexed to her affidavit.  She has taken the child to a police station and to a clinical psychologist as detailed in the reports annexed to her affidavit.

“--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;-- ”

1. The orders I am about to put in place reflect the current arrangements.  Whilst they are not ideal from the Father’s perspective they have been working.  The N Contact Centre is available.  It is likely that the supervision would only be necessary for a limited further period of time before the child is old enough to make his own decisions.  I propose to put in place orders that will empower him to do so. 

Parental Responsibility

1. The Mother seeks an order that she have sole parental responsibility.  There were no submissions on my recollection on this aspect.  In view of the fact that the Mother has been the primary carer for the whole of the child’s life and the Father’s involvement with the child will be extremely limited it is appropriate that an order for sole parental responsibility be made. 

2. On behalf of the Independent Children’s Lawyer an order was sought that the Father be informed of the child’s health status.  There were no submissions against an order being made in these terms.  Accordingly I propose to insert an order in accordance with paragraph 5 of the minute of orders put forward by the Independent Children’s Lawyer namely:

   “That to the extent necessary the Mother authorise [the child’s] treating health professionals to speak to the father about [the child’s] treatment and progress.”

3. I propose to accede to the Mother’s application that the Father’s time be supervised and limited to a visit each seven weeks at the Contact Centre.  I do so for the following reasons:

   ·    It accords with the recommendations of all of the experts in this matter namely, Dr A, Dr K and the Family Consultant, Ms F.

   ·    It accords with the recommendations in the reports from Ms M the clinical psychologist and Dr S the child psychiatrist. 

   ·    It accords with the recommendations of the experienced Independent Children’s Lawyer.

   ·    It reflects the child’s wishes.  I acknowledge the child has a mild learning disability and possibly has ADHD.  Notwithstanding that he turns 15 later this year.  His views should be respected.  As noted earlier I propose to put in place an order that the child is at liberty to contact his father at any time he wishes but in the event he does not communicate with him then the time to be spent is to be supervised at the N Contact Centre for two hours every seven weeks which accords with the current regime.

4. No submissions were made in relation to paragraph 5 of the Mother’s application namely that the Father be enjoined from instituting further proceedings.

5. The Mother is the Applicant in the current proceedings.  I do not propose to make an order in such terms.  I will however make an order that the Mother’s application and the Father’s amended response be otherwise dismissed apart from the orders made on this date.

Other Issues

1. There is an outstanding application for contravention filed by the Father on 12 April 2007. 

2. The Father through his solicitors should indicate whether he proposes to discontinue the contravention or else re-apply to a Registrar for the matter to be listed for hearing.  For my own part having regard to the reasons for judgment published on this day and the orders that will issue, the most appropriate course would be for such contravention application to be withdrawn as it could only exacerbate tensions between the households if the Father wishes to persist with the litigation.  However, it is a matter for him.

Costs

1. A letter has been forwarded by the Independent Children’s Lawyer to the parties seeking an order that each party pay one half of the Independent Children’s Lawyer’s costs.

2. Unless the parties can otherwise agree, I will make an additional order that within fourteen days of the date of these orders the Independent Children’s Lawyer is to lodge written submissions on the issue of costs.  The parties are given fourteen days thereafter to respond to those submissions.  I do not require an application for costs to be filed.  A decision will be given after the submissions have been received.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  11 January 2010