Granger and Clinton
[2009] FMCAfam 544
•8 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRANGER & CLINTON | [2009] FMCAfam 544 |
| FAMILY LAW – Parenting – father in gaol – best interests of the children to not visit father in gaol – sole parental responsibility to the mother. |
| Family Law Act 1975, ss.60B, 60CC |
| Re R (1995) FLC 92-564 S and R (2007) FMCAfam 395 LAB v CGB (1983) 9 FamLR 1113 Carle and Carle & Ors (No. 3) [2006] FamCA 771 |
| Applicant: | MR GRANGER |
| Respondent: | MS CLLINTON |
| File Number: | DUC 355 of 2008 |
| Judgment of: | Dunkley FM |
| Hearing date: | 8 May 2009 |
| Date of Last Submission: | 8 May 2009 |
| Delivered at: | Orange |
| Delivered on: | 8 May 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Longman Hill |
| Counsel for the Respondent: | Mr Dalzell |
| Solicitors for the Respondent: | Mason Mia & Associates |
ORDERS
All previous parenting orders are discharged.
The Respondent have sole parental responsibility for the children [X] born in 1998, [Y] born in 2005 and [Z] born in 2005.
The children live with the Respondent.
The Respondent cause to be forwarded to the Applicant not less frequently than each 6 months, current photographs, school photos and a copy of any childcare and/or school reports issued by the school or childcare centre that the respective child attends.
That the Respondent obtain within 14 days a post office box address at any location suitable to her.
That within 21 days, the Respondent cause such post office box address to be provided to the Applicant’s solicitors.
The Applicant is permitted to send letters ands gifts to the children addressed to them care of that post office box address.
The Respondent shall ensure that those letters and gifts are delivered to and if necessary read to the children if she considers the letters and gifts to be age appropriate and content appropriate.
IT IS NOTED that publication of this judgment under the pseudonym Granger & Clinton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ORANGE |
DUC 355 of 2008
| MR GRANGER |
Applicant
And
| MS CLLINTON |
Respondent
REASONS FOR JUDGMENT
These are proceedings pursuant to Part VII of Family Law Act 1975 relating to the children [X] born in 1998, [Y] born in 2005 and [Z] born in 2005.
The father seeks orders as set out in his Amended Application filed in Court today. I have read his affidavits sworn 6 April 2008, 5 October 2008 and 7 May 2009.
The mother seeks orders as set out in her Amended Response filed in Court today. I have read in support of that Response, her affidavits sworn 27 August 2008, 26 November 2008 and 28 April 2009.
The father is presently imprisoned with a release date of November 2012. He consents to these proceedings occurring on a final basis on the papers on his absence and without cross-examination as does the mother.
Issues to be determined
Should there be shared parental responsibility between the parents involving education, religion and long term health relating to the children?
Should the mother have a sole parental responsibility order?
Are the children required to spend time with the father in a program conducted for visits of children at the gaol in which he is current housed, that is Bathurst or will the children spend no face to face time with him?
Also at issue is the provision of photographs and school reports, that issue relates to the frequency of the provision. The father seeks that those documents be given to him each three months, the mother proposes that they be given twice per year.
The mother also seeks restraining orders that would restrain the father from having contact with her by letter, SMS or telephone. The father wishes to be able to pursue a shared parental responsibility order, which would mean that he would need some contact with her to enable that to occur.
Background
The father was born in 1967 and the mother was born in 1981. They commenced cohabitation some time in 1996.
[X] was born in 1998.
In 2000, the father was imprisoned for a fulltime period of three years. He was released some time in 2003. During that period of imprisonment the mother took [X] to visit him in prison.
In January 2005, the twins [Y] and [Z] were born.
The parties separated on either the 25th of 26 August 2005, the evidence is not clear, but nothing turns on that. Since that time of separation the father has largely been in custody except for a brief period. He has had no contact with any of the children, apart from a brief visit with [X] about 10 weeks after separation. As such, at the time of separation the twins were approximately 7 months old and the father has had no time with them since that time.
Since November of 2005, he seems to have been in prison continuously for a variety of charges. Whilst he was in prison orders were made on 22 December 2005 in the Federal Magistrates Court.
On 24 April 2009, the father was sentenced by the Orange District Court and received a period of imprisonment which has a release date of 7 November 2012.
The father, in his material, concedes that he has not bonded at all with the twins.
The father further concedes that he has dealt in heroin. He alleges that the mother was complicit in these dealings, although she denies it. He seems to have an addiction both to heroin and to alcohol.
The mother has, in the past, sent photographs of the children to the father when he has been in prison. The father seeks involvement with the children through a program known as the Shine Program. There are attached to his most recent affidavit brochures that deal with that program. The program brochures warn the children and parents that they will be subject to body searches and sniffer dogs, albeit that information is contained in a more friendly and non threatening term. The father says that [X] has already experienced this, and given that she has been visiting him in prison, that is undoubtedly true. The twins however have had no exposure to that.
There is nothing in any of the material that would indicate the professional qualifications of any of the coordinators or volunteers within the program. There is nothing to indicate that they have any training in psychology, psychiatry, social work or other helpful social science background.
The mother says that she is scared and anxious about any communication with the father.
As a result of the father's imprisonment, the ability for him to communicate with her will be limited to, at best, letters and at most, very few phone calls. It would seem impossible given this limited means of communication that any effective communication could take place that would enable the parties to have an equal shared parental responsibility order.
There is nothing in the evidence as to whether religion is an important issue for either of these parties. I know nothing about their religious backgrounds or observances, yet that is one of the issues that the father says that he wishes to discuss with the mother.
Overlaying those concerns is the undoubted, at least domestic verbal violence that the father has participated in with respect to both the mother and the children and other domestic violence relating to threatening behaviour. He has received a sentence of some lengthy community service for verbal threats whilst holding a knife. The mother says that his domestic violence is of more significance than that. Be that as it may, the verbal violence and the incidents that have occurred of that nature are sufficient to cause me concern as to the ability of the parents to have an equal shared parental responsibility order. The existence of that verbal violence would mean that such order would not be made.
I am comfortably satisfied that the father has threatened and intimidated the mother and seeks to continue to do so should he be given the opportunity. He has not, it would appear, participated in any anger management courses whilst he has been in prison. No evidence has been put to me that he has and that would have been so important in this case that I can only assume that he has not.
He has brought a number of civil proceedings against the mother that could only be concluded by their terms to be intended to be intimidatory. Nevertheless, I cannot restrain him from bringing those civil proceedings. I lack the power to do so.
Given his incarceration, his limited access to telephonic communication and there being no evidence that he has in the past engaged in communication with the mother by telephone or text message that would be considered to be threatening or harassing, I will not be making an order restraining telephonic communication. It is unlikely that any will be able to occur in the foreseeable future.
It is however, appropriate for the father to be able to write to the children. The mother will need to have access to those letters to ensure that they are appropriate. Some of the material that he has written to the children in the past professing his continued love for the mother would seem inappropriate given his actions, and should she determine that the contents of the letter were inappropriate, then she would not be required to make those letters available to the children. I would expect that if there was material that was threatening to her in those letters that she would bring them to the attention of the appropriate authorities and they would either revoke the father's privileges for letters or simply reclassify him or charge him, depending on the level and nature of the threats.
In support of her application for restraining orders I am referred to a decision of a case called Re R (1995) FLC 92-564 where a number of significant restraining orders were made. In that case the wife had been shot and wounded by her husband. There is nothing in this case of such significance. There has been no wounding or injury of a physical nature occasioned to the mother. The father's violence towards the mother has been of a more intimidatory and verbal nature and whilst it is unacceptable, inappropriate and not in her interests, nor in the interests of the children, it has not got to the unspeakably offensive behaviour level that the Judge in the first instance refers to in the decision of
Re R. The limited communication that I will facilitate for him with the children will mean that there will be adequate safeguards built in.
I have also been referred to a decision of Halligan FM, S and R (2007) FMCAfam 395. In that case his Honour ordered prison visits for a
5 year old on the basis that the father had a close and warm relationship with that child. That type of relationship does not exist in this case. The father concedes that he has no relationship with the twins, and that he has not spent any time with [X] since mid to late 2005, nearly four years ago. So there is no comfort to him in that decision that would cause me to make an order that the children would visit him in prison.
The father's relationship with [X] is, by this time, at best tenuous. As I have indicated there is nothing in the brochures attached to his affidavit that relate to the Shine Program that would indicate that the people who conduct that program and work in that program have the requisite skills or professional competency to facilitate visits between children who are strangers to their fathers.
To enable the establishment of a relationship between children who are strangers to their father will need to be slowly and painstakingly conducted, and professionally implemented for such a program to be of any benefit to the children. If the reintroduction to their father were conducted in any other way, it would have the potential to be damaging and destructive to the children.
Psychological damage to the children is likely to be the case if, in the circumstances of the twins, they are introduced to him and in the circumstances of [X], reintroduced to him and the conduct of that is conducted by people other than professionals. Accordingly, participation of the children in the Shine Program cannot, at this time, be in their best interests given the lack of professional competencies of the people who conduct that program.
Until at least 2012, the children will not be able to know or have the benefit of a relationship with their father as envisaged by the objects of the Act as set out in s.60B. Nevertheless, I have balanced those objects with the potential of psychological damage to the children and concluded that that potential risk is real and is of more importance to their best interests than the other objects as set out in s.60B.
I have been referred to the decisions of LAB v CGB (1983) 9 FamLR 1113 and Carle and Carle & Ors (No. 3) [2006] FamCA 771, neither of which are informative of the decision in this case. Their factual circumstances are so disparate from this case that the general principles and application of the best interest of the children as determined having regards to s.60CC give me no help.
A visit to gaol for these children is not going to enable them to have a meaningful relationship with their father.
The Hon. John Fogarty AM, in an article in Volume 20 Number 2 of the Australian Family Lawyer which I have been referred to by the mother’s Counsel, on pages 1 and 2 of that article sets out 9 helpful points in guiding decisions about children’s visits to gaols. The points are as follows:
1.The crime; and in particular whether it involved violence or abuse towards members of the family.
2.Whether the relationship had already broken down or has done so as a consequence of the criminal process, and whether the family has formed a new network.
3.The length of the sentence.
4.The particular prison and its environment and policies.
5.The views of the children – a complex issue.
6.The attitude of the other parent.
7.Whether it is the mother or the father who is in prison, and the nature of their prior relationship with the child.
8.The distance and costs and other arrangements which may involve prison visits. The motivations of the prisoner.
Most of the above have been considered.
In evaluating the above points, I have had regard to the father’s police records as exhibited, in particular the father’s criminal history, which is 39 pages long and dates from September 1980 when the father was
13 years of age. I have also had regard to the at least verbal violence and intimidation and threats he has made to the mother. The father has a long history of anti-social behaviour. He appears to be a career criminal. His conduct offers no beneficial example to the children.
The records from the Department of Community Services were also exhibited. The concerns as to family violence raised by the case workers, and the effect this has had on the children, is of itself sufficient to dismiss the father’s application for an equal shared parental responsibility order.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Dunkley FM
Associate: D. Neligan
Date: 2 June 209
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