Green & Burnett
[2007] FamCA 1343
•16 November 2007
FAMILY COURT OF AUSTRALIA
| GREEN & BURNETT | [2007] FamCA 1343 |
| FAMILY LAW - CHILDREN – Best interests –parental responsibility – supervised time with children - sunset clause FAMILY LAW - CHILD ABUSE – emotional abuse – physical abuse – sexual abuse – supervised time with children |
| Family Law Act 1975(Cth) |
| C & J (1996) FLC 92-697 Fogarty & May JJ at 83,341-342 |
| APPLICANT: | Ms Green |
| RESPONDENT: | Mr Burnett |
| INDEPENDENT CHILDREN’S LAWYER: | Cathleen Corridon Solicitors |
| FILE NUMBER: | MLF | 1980 | of | 2006 |
| DATE DELIVERED: | 16/11/2007 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Hon Justice Murphy |
| HEARING DATE: | 22 - 24 October 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr De Vries of Counsel |
| SOLICITOR FOR THE APPLICANT: | Kerr & Thomas |
| SOLICITOR FOR THE RESPONDENT: | Mr Burnett appearing on his own behalf |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Phelan of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Cathleen Corridon Solicitors |
ORDERS
All previous parenting orders are hereby discharged.
The applications of the father:
(a) For “compensation of $750,000”; and
(b) For injunction as against the Department of Human Services and Child Protection (referred to as “DHSCP”); and
(c) “To deal with [the mother’s] breach of original court orders”
are each dismissed.
Parental Responsibility
The mother have sole parental responsibility for the children of the marriage, J … born … June 1992; M … born … January 1994; and G … born … December 1995.
Lives With
The children live with the mother.
Spends Time With
The parties shall, as soon as reasonably practicable after the date of these Orders, do all such things, sign all such documents and pay equally all such money as might be required to facilitate the children spending time with their father at such contact centre as might be agreed between them in writing or, failing agreement, the W Contact Centre.
The children spend all such time with the father as might be agreed in writing between the parties, but otherwise in accordance with the following orders.
(A)The First Six Months
For a Period of six (6) months from the first date upon which the contact centre contemplated by these Orders offers time:
(a)The children spend time with their father each alternate Saturday supervised by the contact centre;
(b)Such time be for a period not exceeding eight hours but only for such period as is able to be accommodated by the contact centre;
(c)The mother shall deliver the children at the commencement of such time and collect the children at the end of such time;
In the event that the father spends time with the children on less than two-thirds of the periods scheduled for that to occur within the said period of six months, the father shall, thereafter, spend no face to face time with the children.
(B) The Second Six Months
In the event that the father spends time with the children on two-thirds or more of the periods scheduled for that to occur within the said period of six months previously provided for:
(a) The father and mother shall each request the Director of the contact centre at which time has occurred to prepare, and make available to each of the parties, a Report on the progress of the children’s time with their father and their observations of each of the children, the father and their interaction;
(b) The parties shall do all such things, including but not limited to, arranging for consultations with a Family Dispute Resolution Practitioner and/or Family Consultant at the Family Court of Australia, and shall use their best endeavours to reach agreement as to a suitable person to supervise the contact contemplated by the following provisions of these Orders and shall provide to any such person a copy of the Reasons for Judgment in this matter and the Report, if any, referred to in Order 9(a);
(c) The father spend time with the children for an additional period of six months as follows:
(i)For a period of three months, from 9.00am until 5.00pm each alternate Saturday supervised by the agreed supervisor commencing as soon as the supervisor is able to facilitate same; and
(ii)In the event that the father spends time with the children on two-thirds or more of the periods scheduled for that to occur within the said period of three months, for a further period of three months from 9.00am until 5.00pm Saturday and from 9.00am until 5.00pm Sunday each alternate weekend supervised by the agreed supervisor;
(iii)Changeovers in each case shall take place as might be agreed between the parties and the supervisor and, failing agreement, at the contact centre provided for in Order 5 by the mother dropping off and collecting the children there.
(d) Until such agreed supervisor can commence supervision, or in the event that no supervisor is agreed, the time provided for at Order 7 shall continue for a period not exceeding six months;
(e) In the event of a supervisor being agreed but the father not exercising the specified quantity of contact provided for in Order 9(b) and/or (c), then, subject to further or other order of the Court, the father spend no face to face time with the children.
(C) After 12 Months
In the event that two-thirds or more of the time provided for at Order 9(c), and/or Order 9(d) as the case may be, is availed of by the father, thereafter the father shall spend unsupervised time with the children each third weekend between 9.00am Saturday and 5.00pm Sunday for a period of six months with the father to collect the children from the mother’s residence at the commencement of contact and the mother to collect the children from the father’s residence at the conclusion of contact.
(D)After 18 Months
Consequent upon the expiration of the six-month period provided for in Order 10, the father spend unsupervised time with the children:
(a) From after school Friday until 5.00pm Sunday each alternate weekend;
(b) For one half of all gazetted school holiday periods and on Christmas Day, Father’s Day and the children’s birthdays as agreed between the parties, but in the case of the children’s birthdays not so as to interfere with their attendance at school.
Notification
The father shall give to the mother not less than 72 hours written notice of his inability, or unwillingness, to attend any period of time to be spent with the children in accordance with these Orders, except when he is prevented from doing so by reason of emergency or unforeseen circumstance, in which case he shall:
(a)give to the mother verbal notice of his inability to spend time with the children as soon as reasonably possible; and
(b)as soon as reasonably possible after that, confirm in writing his reason/s for failing to avail himself of time with the children as ordered.
The mother shall give to the father not less than 72 hours written notice of any illness or other such condition preventing any of the children attending any period of time to be spent with the children in accordance with these Orders, except when she is prevented from doing so by reason of emergency or unforeseen circumstance, in which case she shall:
(a)give to the father verbal notice of the nature of the illness or other such condition as soon as reasonably possible; and
(b)as soon as reasonably possible after that, confirm in writing the nature of the illness or other such condition.
Each of the parties shall keep the other appraised of their residential address and a telephone contact number upon which the children can be contacted by the other party.
Other Issues
The Mother and Father are each respectively restrained, and an injunction is issued restraining each of them, from:
(a) abusing, insulting, belittling, rebuking or other denigrating the other within the hearing of any of the children;
(b) discussing these proceedings to, with, or in the hearing of, any of the children;
(c) using abusive language to, with, or in the hearing of, any of the children;
(d) physically disciplining or striking any of the children;
(e) preventing any of the children from having absolute privacy in their telephone calls with the other
or causing or permitting any other person to do so.
The father is restrained, and an injunction is issued restraining the father, from causing or permitting any of the children from having any form of time spent with, dealings with, or being in the presence of, Mr D, or causing or permitting any other person to facilitate or permit any such contact.
The Independent Children's Lawyer shall provide a sealed copy of these Orders (and, if requested to do so, the Reasons for Judgment) to:
(a) the Director of any contact centre at which it is proposed that the Father spend time with the children in accordance with these Orders;
(b) Each supervisor agreed to by the parties in accordance with these Orders;
(c) the Principal of the school that each child attends;
(d) the Department of Human Services;
(e) Dr S.
Each party shall notify the other of any significant psychological or medical issues affecting any of the children from time to time whilst the children are in their care.
The Mother shall:
(a)provide to the father a copy of all school reports, school achievement awards, sporting awards and the like;
(b)provide to the father a copy of any report received in the usual course of treatment by any medical specialist, counsellor, psychologist or other treating professional for the children, as soon as reasonably practicable after receipt of same by her;
(c)keep the father appraised in writing of any issues affecting the children’s education, including but not limited to any recommendations for specialised or remedial courses or work being undertaken by and with the children.
The Independent Children's Lawyer be discharged upon the expiration of any applicable appeal period or the determination of any application for costs, whichever is the later.
IT IS FURTHER ORDERED THAT
There be liberty to apply on the giving of 21 days written notice.
The time for filing of any Notice of Appeal, shall commence to run from a date 21 days from the date of these Orders.
Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
All material produced pursuant to subpoenae issued for the production of documents be returned to their respective providers after the time for appeal has elapsed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Murphy delivered this day will for all publication and reporting purposes be referred to as Green & Burnett
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF1980/2006
| Ms Green |
Applicant
And
| Mr Burnett |
Respondent
REASONS FOR JUDGMENT
Introduction
In the almost five years since the parties to this marriage separated, a number of significant events have occurred in the lives of their three children. Those events are directly relevant to the decision as to what parenting orders are in their best interests.
At separation in January 2003, the eldest son J was aged about 11; the daughter M was aged about 9, and the younger son G was almost 8.
The parties come to this hearing via five orders of the Federal Magistrates Court and additional orders of the Children’s Court. The father has not had face to face time with any of the children for about two years.
Allegations of sexually inappropriate conduct have been made against a Mr D, by two of the parties’ children J and M, as well as by C (a friend of M’s) and Y, a child of Mr D’s former partner. Mr D was a friend of the father’s. He associated with him regularly at the relevant times. It is clear that he spent significant time with the parties’ children[1].
[1]The father’s evidence, which I accept, is that Mr D had moved from the geographic area recently and he now sees little of him.
The father’s past and present attitude toward those allegations is a significant issue.
The Department of Human Services (“DHS”) have had involvement with the family, commencing in 1998. At that time, the involvement concerned a notification about the father allegedly hitting G on top of his head with a stick, together with allegations of what might be called inappropriate physical discipline. Those allegations were unsubstantiated. There was no DHS involvement from that short period in 1998 until the end of 2003[2]. The father’s attitude to what might be termed “physical discipline” is also a significant issue.
[2] Exhibit W2
The father has some health problems, including epilepsy. A seizure in May 2006 prevented the trial, then before the Federal Magistrates Court, being heard and proceedings were transferred to this court. The father says his condition is now under control. The mother continues to see it as a risk factor in his care of the children. That, too, remains an issue.
As a result of early, post-separation orders, J lived with the father and M and G lived with the mother. A number of troubling incidents, to which specific reference will later be made, occurred whilst that situation continued.
Interim Accommodation Orders were made in the Children’s Court. J was returned to his mother’s care in December 2004, pursuant to the latest of those Orders. The DHS withdrew their involvement. Those Orders were, in effect, replaced by orders of the Federal Magistrates Court at Dandenong made on 2 August 2005. Those Orders confirmed the then existing living arrangements for the children. All three have been living together with their mother and her husband, Mr Green, for just short of three years.
The DHS facilitated some supervised time after the 2 August 2005 orders. One intention of the orders was that time spent with the children would then commence at a contact centre. That time at the contact centre never took place.
The father has had telephone communication with the children, but the mother alleges that he has availed himself of the opportunity to do so on less than half the time provided for in the orders. The father alleges that this is as a result of actions within the mother’s household. The mother denies this.
Five broad issues emerge for determination [3]:
1)Should, as the submission of the father asserts, all three children spend the greater majority of their time with him, with each parent having equal shared parental responsibility and with the children spending time with their mother on weekends;
2)Should, as the submissions of the mother and the Independent Children's Lawyer (“ICL”) assert, the mother have sole parental responsibility;
3)Should, as each of the mother and the ICL assert, the children spend, effectively, the whole of their time with the mother;
4)In that event, should, as the Independent Children's Lawyer asserts, there be no face to face time between the father and children; or
5)Should a supervised regime of time spent with the children be put in place at a contact centre with, in effect, a “sunset clause” as the mother asserts.
[3]Details of the orders sought by the father, including, in particular, any order for the children spending time with the mother if they were to live with him, were vague. They emerged primarily through questioning during the hearing. The mother’s proposals are contained in minutes marked Exhibit B. The Independent Children's Lawyer’s proposed orders are contained in minutes marked Exhibit A.
Additional specific orders are sought relating to non-denigration injunctions, completion of parenting courses and the like.
The father also sought orders in these terms:[4]
“A perminant injunction against DHSCP to keep away from me and my 3 children of 500 metres due to their neglect of care.
2. To deal with [the mother’s] breach of original Court orders;
3. All other parties to pay my court costs and compensation.”
[4] Amended Application filed 10 August 2007
In conjunction with an order for “the return of all my 3 children” (which emerged as an application to have the three children spend the great majority of their time with the father), the father also sought an order for “compensation of $750,000”.
I have no jurisdiction to make the Orders sought against the DHS. Nor is it a party or been served with any application. Those parts of the application will be dismissed.
No application for contravention has ever been filed in the mandatory form. I do not know what Order is alleged to have been breached. I do not know the particulars of any alleged breach. In any event, no evidence before me, either on affidavit or emerging in the witness box, persuades me that there has been any breach of any order by the mother. That part of the application will also be dismissed.
The specified (or any) application for costs, properly brought pursuant to s 117 of the Act will, if necessary, be dealt with consequent upon the publication of these Reasons.
PARENTING – RELEVANT PRINCIPLES
Parenting orders, of whatever type, are driven by a determination of the best interests of the particular children who are the subject of the proceedings[5].
[5] Family Law Act 1975 (Cth) (‘the Act’) s 60CA; s 60CB; s 61DA(1) & (4) and s 65AA
The decision as to what parenting orders best accommodate those children’s best interests is, in turn, driven by a decision as to their best interests and the principle that those best interests are paramount.[6]
[6] The Act s 60CA;s 65AA
The issue of best interests is not left at large. The path to a decision about that issue is signposted by a number of mandatory considerations. Some considerations are marked as having primacy[7], whilst others are “additional”[8].
[7] The Act s 60CC(2)
[8] The Act s 60CC(3)
I consider that the “primary considerations” in arriving at decisions about best interests have particular importance but, as the word “additional” implies, they are to be considered in conjunction with the “additional considerations”.
The proper consideration of each represents not an end point in itself, but a pathway (albeit a mandatory pathway) to determining the best interests of children by according appropriate weight to those considerations relevant to the individual children and the particular circumstances in which they find themselves.
Importantly, a consideration of those matters must also be consistent with the overall objectives[9] of the Act. The statutory objectives are given light and shadow by the statutory principles[10] underlying them. Together, they represent a number of obligations cast upon those responsible for the nurturing and care of children and rights enjoyed by those children accordingly.
[9] The Act s 60B(1)
[10] The Act s 60B(2)
Those Objects and Principles, and the consideration of what is or is not in the best interests of the individual children, arrived at by weighing the statutory considerations, are given further statutory specificity by:
a) directing a court to presume (rebuttably[11]) that shared parental responsibility is in a child’s best interests[12]; and
b) requiring, consequentially, a court to consider whether an equal time order is in the best interests of the children[13]; and
c) if not, requiring the court to consider whether a child spending “substantial and significant time”[14] (as defined)[15] with each parent is in the children’s best interests; and
d) requiring a court to consider the extent to which parents have fulfilled their parenting obligations, particularly in the post-separation period[16].
[11] The Act s 61DA(4)
[12] The Act s 61DA(1)
[13] The Act s 65DAA(1)
[14] The Act s 65DAA(2)
[15] The Act s 65DAA(3)
[16] The Act s 60CC(4) & (4A)
The two requirements earlier referred to, relating to the amount of time children spend with their separated parents, are each governed, in turn, by a consideration of not only whether either is in the children’s best interests but, also, whether each is “reasonably practicable”[17].
[17] The Act s 65DAA
The determination of “reasonable practicability” is, also, not left at large but circumscribed by a number of statutory factors, including geographic distance, capacity to implement the relevant arrangements; the capacity of the parents to communicate with each other in the future; the impact on the children and any other matters which the court considers relevant[18].
[18] The Act s 65DAA(5)
However, all of the statutory requirements also exist within a framework where the court is given a broad discretion to fashion orders consistent with the specific children’s best interests and, as earlier described, with those best interests as the driving force.[19]
[19] The Act s 65D(1); s 60CA; s 60CC(3)(m)
The statutory Objects and Principles are unifying aims, but attempts to meet the Objects, and to accord with the Principles, will vary from parent to parent and child to child.
The individual characteristics or idiosyncrasies of parents will invariably mark the parenting relationship. Where parental conflict (particularly significant conflict) intervenes, differences in belief systems, personality, psychopathology, attitude and the like are thrown into sharp focus. The circumstances in which aims – statutory or otherwise – are satisfied, or not, must vary with the individual parents and children and their particular circumstances.
“Best interests” is not the application of a theoretical construct but, rather, the practical application of a number of considerations to the individual needs, desires, health and aspirations of the particular children of this particular parenting relationship.
Courts must bring a consideration of the statutory matters to a practical and enforceable conclusion in the individual circumstances of conflicted parents who, by definition, cannot agree sufficiently to do so themselves.
EVIDENCE AND WITNESSES GENERALLY
The father
The father prepared his own material. He represented himself throughout the trial. I am mindful that may create for him some disadvantages, and I have sought to be particularly careful when assessing his evidence (and submissions) to bear that in mind.[20]
[20]I have, for example, borne in mind what the High Court said in Neil v Nott (1994) 68 ALJR 509 at 510: “…[A] frequent consequence of self-representation obviously is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy.”
That said, self-representation can also bring with it the opportunity for a trial court to see and hear things from a party that otherwise might be shrouded in the expertise of their representation. In his Atkin Lecture in 2002 “The Misnomer of Family Law”[21] Mr Justice Wilson (UK) made the following observations:
“… I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore, one sees him cross-examine the mother. Although the problem must be more acute in prosecutions for sexual offences, family judges have to guard against barbarity which sometimes effects the exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether handovers of the child between them would proceed sensibly, and to study their language including of the body, towards each other in that unenviable situation.”
[21] Published at >
Here, I consider that the father’s self-representation provided a valuable opportunity to “discern the quality” of his capacity to parent, including his insight into the children and their needs.
I am also acutely aware that, in cases such as the present, where each of the mother, and the ICL is represented by counsel, the “spotlight” of the hearing tends to shine brighter on one party rather than the other.
That is all the more so, where, as here, one parent and the ICL can be seen to be advocating for outcomes which are similar and which might be conveniently described as adverse to the self-represented party. Because the spotlight of enquiry shines brighter, as a result, on the non-represented party any flaws are all the more vividly exposed.
Here, there is the additional consideration of the father’s intellectual functioning. Dr S says[22]:
“A Cognitive Evaluation was not undertaken with [the father]. He has had conflicts and neuropsychological problems throughout his life and more recently, has had neurological surgery. Without a full neuropsychological evaluation, it is unlikely that a full cognitive picture of [the father] could be developed from cognitive testing above.”
[22] Report, Dr S, p6, heading “Cognitive Evaluation”
From a purely lay perspective, I thought the father’s verbal expressive capacity was somewhat impaired, and I wondered whether the same was true of his intellectual capacity. In his report[23], Mr N relied on oral advice from the father’s neurologist, Professor K, to note that the father was “in the lower range intellectually”[24].
[23] Exhibit “TCG 1” to the Affidavit of the Evidence in Chief of the Wife
[24]: Report, Mr N p.6, Exhibit “TCG1” of affidavit of wife
With those considerations in mind, on many occasions I put propositions to the father numerous times or asked him to clarify his position more than once, and I was at pains to ensure that he understood what was being put to him. I have also attempted to make allowances for all of the matters just discussed when assessing the evidence and submissions of the father, in reaching conclusions about him and his evidence, and in making findings as a result.
Mr N describes the father’s presentation as “a man with obsessive personality traits”. Dr S [25] describes him presenting as “concrete, overbearing and with a hostile, coercive interpersonal style.” My observations during the trial accord with that description.
[25] Page 6 of his Report.
During the trial, the father was fixated on a number of issues and despite a number of attempts, not least by me, he was unable to be drawn on “the big picture”, but instead remained fixated on small details associated with particular incidents. A major continuing preoccupation for him is the unfairness with which he says he has been treated by the DHS, the ICL and, indeed, the mother and her husband.
Having thought about it carefully, I have come to the conclusion that I am not being unfair when I conclude that this issue of “fairness” and the manner in which he sees himself as being treated, appeared to have been more of a focus and occupied more of the father’s thoughts than the proposed future care arrangements for the children, and in particular, what those proposed arrangements would mean for the emotional health of the children.
In my judgment, the father sees any person who holds a different view to his own as “biased”. I will make further specific reference to that issue shortly. It became clear that this circumstance leads the father, almost inevitably, to the conclusion that the person expressing that contrary view is, also, somehow adversely influenced by others and, in particular, influenced by the mother and her husband.
The father said of Dr S’s report, and Mr N’s and Mr P’s[26] reports, that they contained “lies”. When questioned, it appeared that the “lies” were, in fact, the recording by those men of statements by the children (and others) with which the father did not agree. When questioned further, the father indicated that he believed the mother, her husband, and the respective report writers, consciously conspired together to create a fictionalised account in the reports.
[26] Exhibit H8
Indeed, the father cross-examined Dr S to that effect and, in effect, put just that proposition to him. When I sought to clarify with the father whether that was, in fact, what he was alleging (and I gave him a number of separate opportunities to do so) he made it very clear to me that that was precisely what he was alleging.
I have seen both Dr S and the mother, in the witness box. I listened carefully to their evidence. I accept their evidence. I reject any suggestion of any such “conspiracy”. I further reject any alleged impropriety, or lack of veracity, in the facts reported, or the opinions expressed, by Dr S.
On several separate occasions in the course of the trial, I attempted to carefully obtain from the father his true position with respect to opinions expressed, for example, by Dr S, on matters of considerable importance. For example, M described to Dr S an occasion where Mr D touched inappropriately her friend C and “she [M] also indicated that on one occasion, she was sitting on Mr [D’s] knee and he touched her [M] high up on her leg. She demonstrated that this was close to her crotch. [M] stated that his hand kept moving up her leg and it didn’t feel like a normal touch…”
It is abundantly clear that the father did not, and will not, contemplate the possibility that Mr D may have engaged in inappropriately touching C, his daughter, or any other child. He explains the statement just recorded as M “lying”, and, more specifically, that the mother and her husband, had “brainwashed” her.
Dr S was asked about the possibility of M being “brainwashed” and rejected it. The father’s view was unaffected by Dr S’s evidence.
I found the father to be an unreliable historian. I am extremely reluctant to place any reliance on any factual account given by him. In some specific instances to which I will refer, I reject his evidence completely.
The mother describes the father as being a person who is overbearing and as someone who exerted influence on her. Mr N describes the then school principal Mr F as describing the father as “very belligerent” and, in that respect, contrasting the mother whom he perceived as “caring, gentle and soft”.
I observed the father conducting his case and in the witness box. He is a large man who seeks, when attempting to make a point forcefully, or when agitated, to significantly increase the volume of his voice. I can readily imagine that the mother (and, perhaps, workers within the DHS or teachers and others at a school) would see him as being overbearing or even aggressive.
The mother
I reiterate the observations made earlier with respect to the spotlight shining brighter on the father and highlighting, as a consequence, flaws possessed by him. The corollary is true, in my view, with respect to the mother’s evidence. So, too, cross-examination focussed on the father more than the mother.
I am aware of each of those considerations and have taken them into account.
However, I have no reason to doubt the mother’s veracity. She seemed to me to be a straightforward witness endeavouring to give the best, simple, honest answer that she could to the questions posed of her, including from the father.
I consider that she was a much more reliable historian than the father and where there is direct conflicting evidence with respect to past events within the knowledge of each of them, I have no difficulty in accepting her evidence over the father’s.
Dr S
As the result of an order made by the Federal Magistrates Court at Dandenong on 2 August 2005, Dr S prepared a Family Report dated 13 October 2005. His affidavit and the Report form part of the ICL’s case.
Dr S, who is a clinical and forensic psychologist, interviewed the parties, the children and the mother’s partner on 27 September 2005. He also had reference to a number of documents, including the then affidavit material, a confidential Court Report prepared by Ms L, who is a senior protective worker with the DHS and a Confidential Dispositional Court Report prepared by Mr P who is a child protection worker with the DHS, together with medical reports in respect to the father in relation to his epilepsy and other health conditions. The report was also based on psychological instruments administered by Dr S.
The report of Dr S is now somewhat dated, as are the interviews upon which it was based. Given the ages of the children, and the length of time which has expired since the father has spent face-to-face time with them, it would have been ideal to have had an updated report.
However, litigation affecting these children has been on foot for over four years. Evidence about which I will make findings later in these reasons indicates that their situation is now stable.
I considered ordering an updated report. If I did so, it might provide evidence of assistance to me. But, it would likely involve significant disruption to the children. Given the history of this matter, to which I will refer later in these reasons in more detail, it may, in my judgment, have an adverse impact on them. I accept the evidence of the mother to that effect[27]. These children, I find, clearly need an end to this litigation. I was not prepared to countenance an adjournment or any further delays that might be associated with the requirements necessary to produce an updated report from Dr S (or another reporter writer).
[27] Affidavit evidence in chief par 101.
I have carefully read Dr S’s report. I found it thoughtful, cogent and compelling.
Dr S was called by the ICL as a witness. At the commencement of his evidence he indicated, unprompted, that his report, and any opinions he gave in the witness box should be caveated by each of the considerations I have just referred to.
I listened carefully to Dr S’s evidence, including when he was cross-examined by the father. I thought his evidence and his consideration of the issues was careful and thoughtful. I accept his evidence.
The father asserts that I should reject Dr S’s evidence. The precise bases for that submission are not entirely clear, but I take them to be that: he is biased; that he is not an expert by reason of not being a paediatrician, neurologist or psychiatrist and, because Dr S accepted in the witness box that “one never stops learning”, that he is not an expert at all.
The allegation of bias seems to arise from the fact that Dr S accepted what the wife and children said to him in interview. Insofar as things were said by the children, which, in broad terms, might be construed as being critical of the father, or indicative of lack of appropriate care, he asserts, as I understand him, that in each such case, the only explanation can be that the children have lied because the mother (and the mother’s husband) have brainwashed the children. Because Dr S has apparently accepted those versions, he is “biased”.
Also, of course, the father asserts that Dr S, the mother and her husband, have conspired to tell lies to prevent him from seeing the children.
I reject the father’s criticism of Dr S’s process and his allegations of bias and conspiracy against Dr S.
There is, I find, no substance whatsoever in the father’s other allegations about lack of expertise. Insofar as the first of those is concerned, Dr S readily conceded that he was not a paediatrician, a neurologist or a psychiatrist. He attempted to make it clear to the father that he did not purport to provide expert opinions in respect of those disciplines, but rather to confine his opinions to those within the expertise of a psychologist. I find that Dr S did not at all stray from his area of expertise in expressing the opinions which he did.
The last specific assertion as to a general lack of expertise I also reject as having no foundation.
“Evidence” of the Independent Children's Lawyer
The Case Summary document filed on behalf of the ICL says:
“The Independent Children's Lawyer met with the children in May 2006 and all three children expressed a desire to continue to reside with the wife and a reluctance to spend time with the husband.”
The ICL was not a deponent, nor was she called to give evidence. Accordingly, no opportunity was presented to the father to cross-examine her in respect of that statement. The Case Summary document is, of course, not a sworn document.
The father maintained throughout the trial that the ICL was “biased” and reiterated that position in his address. The basis of that claim appears to be similar to that described above with respect to Dr S; namely the bias was established because of the ICL’s expressed view just described supported, as it were, the evidence of Dr S and because she ultimately sought the orders earlier described.
The true assertion of bias is, I find, simply this: the ICL has expressed views contrary to that held by the father about the children, his relationship and attitude to them and, ipso facto, she is, as he sees it, “biased”.
I find there is no basis whatsoever for the allegation of bias against the ICL.
However, in assessing the evidentiary statement made in the Case Summary document, I am conscious of the allegation made by the father just mentioned.
I am also aware, as I said during the course of the hearing, that the current Guidelines for ICLs speak of those lawyers meeting their children “clients”. In my respectful view, difficulties can arise as a result of that and I consider this case is a good example of how they can do so.
It is perfectly understandable and, in my respectful view desirable, for ICLs to meet the children and to discuss their role in representing the children, and, in doing so, to discuss generally the views of the children. That is particularly so where, as here, the children are aged 15, 13 ½ and 11 ½ .
The difficulty comes when, as here, for valid reason, the statements of an ICL about the children’s wishes or “views” might have importance as evidence about those wishes or views.
The Guidelines for Child Representatives (now the ICL) provide:
“The Child’s Representative does not take instructions from the child but is required to ensure the court is fully informed of the child’s wishes, in an admissible form where possible.” [my emphasis][28]
[28] “Guidelines for the Child Representative” published on the Family Court website
It is not the role of the Child’s Representative to:
“… become a witness in the proceedings”
“… the Child’s Representative is to ensure that any wishes expressed by the child are fully put before the court and so far as possible, are in admissible form. This includes wishes that the Child’s Representative may consider trivial, but the child considers important.” [my emphasis]
The ICL in this case was, as I see it, acting consistently with the Guidelines in seeking to put before the court wishes expressed by mature children to her.
Moreover, those Guidelines appear to contemplate circumstances in which those wishes will not be in admissible form and to contemplate an obligation on the Independent Children's Lawyer to communicate those wishes to the court, despite them not being in an admissible form. But, those same Guidelines indicate that an Independent Children's Lawyer should not be a witness in the proceedings.
Having noted those matters, it is important that, at no stage of the proceedings, did either party challenge the fact that those things were said by the children to the ICL. Indeed, the father’s attack on the ICL was based on the assumption as a fact that statements to that effect were in fact made by the children. He accepted they were said, but promulgated a reason or reasons they were said, that is, bias and conspiracy as discussed, and rejected, above.
I intend to tread cautiously in attaching weight to that statement.
DHS Evidence – Exhibits “W2”; “H8” and “H15”
Three reports emanating from the records of DHS were tendered as exhibits W2, H8 and H15 respectively. Each comprised “confidential reports” prepared by protective workers from within DHS.
The father accepted that each of those documents were part of the usual records kept by DHS for the purposes of its operations. The documents clearly record representations made in the course of the operations of the DHS.
However, proceedings were taken in the Children’s Court and, ultimately, Interim Accommodation Orders were made. Although the position is not perfectly clear, it seems likely that the three reports referred to were “prepared or obtained for the purpose of conducting, or for, or in contemplation of, or in connection with, an Australian… proceeding” within the meaning of s 69(3) of the Evidence Act 1995 (Cth).
Two of those reports – the reports of Mr P (Exhibit H8) and the report of Ms B (Exhibit H15) were tendered by the father. No objection was taken to their tender by either the mother or the ICL.
Further, the coversheet to Exhibit H8, written by the father, makes clear the purpose for which he tendered those documents:
“This is a copy of the report that was written by [Mr P] for who worked for DHSCP Frankston at the time and was handed in at the Honourable Children’s Court Melbourne. From what I found out DHSCP have moved [Mr P] to a Melbourne branch. [Mr P’s] report is SLANDEROUS, DISCRIMINATING AND PREJUIDE.”
In my view, independent of the absence of objection, the report is admissible pursuant of s 60 of the Evidence Act 1995 (Cth).
The report of Ms L dated 6 December 2004[29] was also not objected to by either the father or the ICL. The report was relied upon as a source of information for the expression of expert opinion by Dr S.[30]
[29] Exhibit W2
[30] Listed as item 5, “Sources of Information” Dr S’s report
Thus, it too, had an evidentiary purpose (as a factual basis for expert opinion) other than proof of the facts contained within it. As such, it is, in my judgment, also admissible pursuant to s 60 of the Evidence Act 1995 (Cth).[31]
[31]As to s 60 covering foundations for expert opinions as a “purpose other than proof of the fact”, see generally Odgers Uniform Evidence Law, 7th ed., Thomson, at [1.3.940] and particularly the authorities cited at note 113.
Rendered admissible in that way, the evidence contained in each of those reports is admissible as evidence of the facts contained in the representations within each. Having said that, I intend to apply some circumspection to the wholesale adoption of those facts where the only source of evidence is the representations contained in those documents[32].
[32] See s 135 of the Evidence Act
However, for the most part, the relevant evidence contained in each was, in any event, put in material particular to the father in the witness box and much of the evidence there contained reinforces other evidence including, in particular, my own impressions gained of the father, his demeanour and manner of dealing with issues and the insight he exhibited towards the broad range of issues affecting his children and his appreciation of the issues of direct relevance to these proceedings.
Report Mr N[33]
[33] Exhibit “TCG 1” to the Affidavit of Evidence in Chief of the mother
A report dated 1 December 2003 from Mr N was Exhibit “TCG 1” to the affidavit of the mother.
That report was prepared by Mr N as a “Regulation 8 Reporter” for the purpose of then Federal Magistrates Court proceedings and is admissible pursuant to s 62G(8).
The father alleged that Mr N, too, is “biased”. As I understand his contention it had the same basis as earlier outlined. For similar reasons, to those given earlier, I reject his contention.
Mr N’s report is now, of course, almost four years old. He was not called as a witness and, therefore, was not subject to any cross-examination, including any cross-examination from the father who, as I have said, alleges “bias” against him.
In those circumstances, I also intend to treat the evidence of Mr N with circumspection.
Again, though, I consider the views there expressed to be consistent with the three reports just discussed and my own impression of the father and mother and other evidence to which I will later refer.
SUMMARY OF FINDINGS WITH RESPECT TO BEST INTERESTS
I have, of course, considered the mandatory statutory considerations[34] in reaching my determinations as to the children’s best interests.
[34] The Act s 60CC
I have considered, and given primary attention to, the need for these three children to be protected from, in particular, emotional and psychological harm. I have also given primary attention to the nature of the meaningful relationship that the children might have with each of their parents in the circumstances of this case and the benefit to the children of such relationships with each parent.
I have had particular regard, in the circumstances of this case, to the events that have happened in the more than four years that have passed since the parties separated, and I have placed particular emphasis on the degree to which the parents have exercised, or failed to exercise, the responsibilities of parenthood during that time.
Shortly, I will consider, and make findings about, the evidence relevant to the central findings I have made by reference to the major issues which occupied the trial. In summary, those central findings are:
(a)the father has engaged in physical “disciplining” of J that has caused him pain and fear;
(b)the father has failed to act protectively toward the children and M in particular, by placing a view about the “innocence” of Mr D ahead of steps that a reasonably responsible and cautious parent would have implemented for the protection of their children;
(c)the father has actively involved the children, and J in particular, in the dispute between he and the mother and in disputes or disagreements between him and DHS and school officials;
(d)the father has sought to have M change her account (whether correct or not) of inappropriate activity by Mr D and has done so more than once. In my judgment, this amounts to emotional abuse;
(e)the father has little, if any, capacity to co-operate with the mother in respect of decisions with respect to the children;
(f)the father is highly likely to dismiss the mother’s views, the views of the children, or the views of any expert, that do not accord with his own;
(g)there have been significant improvements in the functioning, stability and happiness of the children, and J in particular, in the almost three years they have been living in the mother’s household;
(h)it is highly likely that any change in that stable situation will be significantly detrimental to J in particular , and the children in general;
(i)the father has little, if any capacity or ability to foster a close and continuing relationship with the mother;
(j)the father has little, if any, capacity to allow the children the freedom to express themselves as individuals and little, if any, capacity to allow them to express their true views and feelings whilst in his care;
(k)there are and have been, I accept, difficulties for the father in exercising time spent with the children at the W contact centre occasioned by geographic distance, lack of transport and health issues concerning his leg. But, notwithstanding those difficulties, it is clear that at least a part – and, I find, probably the greater part – of his reason for not exercising time is a sense of grievance that it is he, rather than the mother, who is experiencing traveling difficulties;
(l)the father’s attitude to time spent with the children is governed more by what is “fair” between the parties rather than what might be best for, or most easily accommodated by, the children.
I find that the children are in need of protection from psychological harm occasioned by the father’s lack of insight, lack of parental capacity and parental irresponsibility.
Whatever be the precise meaning of the undefined “meaningful relationship” from which children benefit[35], there is no doubt in my view that “meaningful” is not merely a function of time spent. It must, in my view, mean “meaningful to the children”.
[35] The Act s 60CC(2)(a)
In looking to the potential benefit, or meaning, offered by a relationship with both parents in the circumstances here, I see little benefit to the children and much potential detriment and the risk of, at least, emotional and psychological harm, in a co-parenting relationship that would see their father playing an active role in their day to day lives.
In my judgment, there are real concerns that the children will suffer emotional and psychological harm if the time spent by the children with their father is unsupervised. In my judgment, that supervision should continue for a significant period of time.
BEST INTERESTS – EVIDENCE AND FINDINGS
Allegations Concerning Mr D and May 2004
(a) The Allegations in Context
Properly, each of the mother’s and the ICL’s counsel concede that, serious though the alleged conduct involving Mr D might be, no findings could be made about whether such conduct occurred.
Of course, again as properly conceded, the proceedings are, in any event, not about that question. Rather, the allegations are important for what they reveal of the considerations relevant to determining the children’s best interests, including, in particular, the father’s parenting capacity and the responsibilities of parenthood exhibited by him in the post-separation period.
Allegations of sexual impropriety were made against Mr D in respect of four separate children, two of whom – J and M – are the subject of these proceedings.
The mother deposes to M having returned from time spent with the father on 15/16 May 2004 and telling her that Mr D had “touched her up”[36]. The mother also deposes to M recounting having witnessed a sexual assault by Mr D upon C:
“[M] says [Mr D] was lying on [C] kissing her and running his hands up under her top to her breasts. [C] was asking him to stop…” [37]
[36] Par 39 Mother’s affidavit of evidence in chief.
[37] Par 44 Mother’s affidavit of evidence in chief.
An allegation had been made against Mr D (it was unclear on the evidence before me by whom) that J had given him “blow jobs”.
The DHS saw J on 11 November 2004. Exhibit W2 records:
“[J] made no disclosure in relation to sexual issues, however [J] initially denied any understanding of sexual issue, his body language appeared guarded whenever sexual issues were mentioned. He later stated that if anyone tried to touch him inappropriately, he would place the bed against his bedroom door. He was holding his head in this hands and began to shield his face whilst telling workers what he would do. [J] stated that he often went out with Mr [D], most often accompanied by his father, or Mr [D’s] friend, Ms [H], however, he often went out alone with Mr [D] and stayed overnight at Mr [D’s] home.”
In referring to his interview with [J], Dr [S] says in his report:
“When asked about unwanted sexual experiences or sexual abuse, [J] was extremely reluctant to discuss sexual contact between himself and Mr [D]. [J] stated that if he said bad things about Mr [D], then his father would get into trouble. Based on his current presentation, it was difficult to determine the nature of previous sexual contact and if it had occurred.”
The father gave evidence that allegations of sexually inappropriate conduct had been made against Mr D by Y, a child, apparently, of Mr D’s then partner. The father did not indicate the nature of the allegations, but made it clear that it was Y who had made them.
The father defends Mr D utterly. He did not, and does not now, contemplate even the possibility that Mr D did, or would, engage in any inappropriate conduct. This view was, in effect, expressed as loyalty as an incident of his friendship with Mr D and his observations of him as a friend.
In terms of parenting, however, the issue, as it seems to me, is the place of loyalty or friendship that is blind to a set of circumstances where allegations by more than one child had been made, where his own daughter had made allegations and where the DHS, the mother and the Federal Magistrates Court had required him to initiate protective behaviour by ensuring that Mr D was not alone with the children.
(b) Chronology of Allegations
The chronology of the allegations against Mr D, in turn and the chronology of when conduct is alleged to have been perpetrated, are each unclear. In particular, it is not entirely clear what allegations were made prior to an incident which occurred on 16 May 2004 which I consider very important and which I will shortly outline in detail.
However, in attempting to establish a chronology, counsel for the ICL took the father to a passage in W2 which is as follows:
“On 25/6/2004 a Departmental worker contacted [the father] to ensure that he would give an undertaking that at no time he would leave the children unattended with Mr [D].”
[The father] advised “he had already signed an Undertaking in relation to this matter with his solicitor. He has never left his children unsupervised with [Mr D]. However this appears to be contradictory to the events of 16/5/2004. [The father] advised “he is always present when he has his children in his care”. During this conversation he further disclosed to the worker that he was aware of another similar allegation pertaining to Mr [D] and some other children. [The father] concluded the conversation with “[Mr D] is kind and good to children”.
The father told counsel for the ICL that he was aware of similar allegations pertaining to Mr D and other children “long before [C]”.
It seems, although it is not entirely clear, that the father suggests that he had been aware of allegations involving Mr D and some children (including Y) before the weekend of 15/16 May 2004 and the DHS involvement which occurred subsequent to that weekend.
If, as seems likely, that is right, then the events of Sunday 16 May, 2004 about to be outlined and the circumstance that Mr D was alone with J and C on that night, indicates, in my view, a staggering degree of parental irresponsibility. Even if the father was unaware of allegations prior to 16 May (which I think is unlikely), the concerns about the events of that evening remain profound.
(c) The Events of 16 May, 2004
An incident which occurred on 16 May 2004 is recorded in Exhibit W2[38] as follows:
“On the night of 16/5/2004, police were called to a local hotel in regards to an altercation that broke out when families became aware of allegations stating that Mr [D] sexually assaulted children. It is reported by […] Police, that on arrival, several adults were drunk, that Mr [D] was present and was drunk. Police found that [J] had been driven to the hotel by Mr [D], and was left in the car in the back of a supermarket carpark, while Mr [D] was at the hotel. It was unclear how long [J] was left in the vehicle. Mr [D] admitted to having had three drinks of alcohol, however it was alleged by police that Mr [D’s] level of intoxication suggests that he had consumed more alcohol than had been advised. Police further reported that during the discussion with [the father], that [the father] had refused to listen to the concerns and had immediately defended Mr [D]. On 23/6/2004 [the father] stated to departmental workers, “If DHS come around again he would throw them out”. [The father] also stated “he has known [Mr D] for eight years and he knows that he would not hurt a soul”.
[38] The report of Ms L.
That incident was put to the father. He said he recalled it. His evidence was that M and G, who were living with their mother but were visiting him on a weekend, had been delivered back to their mother in the early evening. Mr D, J and C[39] were at his home. According to the father, Mr D said that he was going to buy a collar for his dog. This was at about 7.00 or 7.30 pm. It was a Sunday night.
[39]The daughter of a Mr and Mrs A whom the respondent described in evidence as “drunks” and who, herself, was a complainant in an allegation of sexualised conduct by Mr D.
The father did not share my view that this seemed an unusual thing to do at that time on a Sunday night.
The father said that J and C asked to go with Mr D. He had no difficulty in permitting that. J was in his pyjamas. He anticipated they would be gone about half an hour. I asked him, given that it was clear on his account that they had been gone longer than that, whether he became concerned. He said that “after about an hour”, when they had not returned, he became “a bit worried”.
The father confirmed that two police vans came to the house. The police returned J. He was unable to say how long the children had been away. He confirmed that the police had given an account to him and his recall of that account was, he confirmed, similar to the Exhibit W2 account just described. He did not accept that Mr D was drunk. He did accept that Mr D had been drinking.
The father was asked whether he raised with Mr D the fact that he had been drinking in a hotel, when he had, apparently, been going to buy a dog collar. He said he did. He said he was told by Mr D, in effect, that C had “run away into the pub because her parents were in there”.
That neither explained why Mr D was in the vicinity of the pub in the first place nor how it was that, even if there was an explanation for that, he had been drinking when he had the care of two young children and was driving. He said Mr D’s explanation for the latter was “[S] [who, I think, is Mrs A] had asked him for a drink”.
The father appeared to me to be at a loss to understand why he was being asked questions about this incident either by counsel or by me. In my judgment, he clearly saw nothing of concern about the incident.
When asked what he thought about the fact that his pyjama-clad son was left alone in the supermarket car park by Mr D while he was drinking in the pub, he seemed to think it was a positive thing, being a vindication of what he had “always told” his son which, as far as I understood it, meant that he was to remain in the car (rather than, presumably, going into the hotel).
To the extent that the father’s account of the events of 16 May 2004 conflicts with that contained in Exhibit W2, I reject it.
(d) The father’s Attitude post-May 2004
The father utterly rejects any suggestion that Mr D has behaved in a sexually inappropriate manner with any child.
Whilst, in my view, this can be described as being based on loyalty and friendship, the father says it is also based on “the facts”. He says Mr D was “found innocent”. This is a reference to letters received from the police which became Exhibits H12 and H13.
In respect of Y, he says his rejection of any suggestion of impropriety by Mr D is based on three “facts”: One fact was Exhibit H13 (a letter signed by Sergeant …) which says: “I am writing to inform you that the brief of evidence against you regarding the victim [C] was not authorised. This investigation is now finalised.” The second fact was that J had told him that Y was “always making up stories” and the third was that Y’s mother was using Y’s allegations in order to obtain money from Mr D.
As noted earlier in these Reasons, the father also sees the mother and her husband involved in a conspiracy (together with the DHS and report writers) to prevent him from seeing his children. He considers that M’s allegations are “lies”. In fairness, I don’t think he is calling his daughter a liar as such. Rather, he is, I think, saying that her allegations are lies because she has been “brainwashed” by the mother and her husband. In the case of C, the “conspiracy” seems to have been based on the fact that the mother was on speaking terms with her mother.
While the father might legitimately say that he read the police letters as meaning Mr D was “innocent”, it seems extraordinary to me that a parent seeking to act protectively of his own children would not voluntarily put as much distance between the children and Mr D as reasonably possible and to avoid any possibility of the children being alone with him.
The contrary seems to have been the case. The father could not (and can not) see that there is any need for any protection at all because allegations made against Mr D were false; they were “lies” of the children, or involved, “brainwashing” by the mother and her husband.
Whist protection of children is identified as a “primary consideration” it is, I would have thought, also a primary responsibility – if not the primary responsibility – of a parent toward their children. The exercise of that responsibility, and a significant factor in the statutory consideration, involves the capacity to put that consideration ahead of (among other things) blind loyalty or a belief that others are wrong and you are right.
The father provided an Undertaking to the DHS and, through his then solicitor, to the mother’s solicitors, and, subsequently, to a court, that he would not leave the children alone with Mr D[40].
[40]The father disputes that he ever received the undertaking given by his then solicitor. His evidence about this was unclear. Ultimately, he accepted in cross-examination that he provided instructions to his then solicitor to give the Undertaking.
Exhibit W2 reveals that, in a conversation on 11 November 2004 - that is within about six months of the16 May events earlier described and within about seven or eight weeks of an injunction being granted restraining the father from bringing M into contact with Mr D - J informed DHS officers that:
“[J] stated that he often went out with Mr [D], most often accompanied by his father, or Mr [D’s] friend Ms [H], however, he often went out alone with Mr [D] and stayed overnight at Mr [D’s] home. Mr [D] gave him computer games or took him bowling.
[J] reported that Mr [D] was his friend but really could not identify any peers of his own age as a friend. [J] also discussed his attendance at the Melbourne Children’s Court with his father, Mr [D] and Ms [H], in relation to Intervention Orders and Responding Intervention Orders taken out by [the father], Mr [D] and Ms [H] against a number of other families in the […] area, all of whom attend [W] School. [J] had knowledge of the issues surrounding these Intervention Orders and stated “he had to go to court to give evidence for [Mr D] so the orders could be taken off”. [J] also informed workers that [Mr D] had to “come in the back way over the fence and stay all day because of the order”. [41]
[41] Unnumbered sixth page, final paragraph; first paragraph following page.
I am reluctant to make a finding – which I would regard as serious – that the father, in breach of any of the undertakings given, was complicit in allowing Mr D to be, surreptitiously, alone with J (or any other children) on the basis of the evidence in Exhibit W2.
What is clear, though, is the father’s lack of acceptance of, and lack of insight into, the need for the undertakings and their role in protecting the children.
This is illustrated, for example, by his response to questioning about his alleged breaching of them. When it was put to him that, in breach of the undertaking to the court, M had been allowed to be alone with Mr D, he sought to deny it by saying that the undertaking spoke of being left “alone” whereas on the specified occasion, M had been with Mr D and another child.
If the children were to spend the vast majority of their time with the father, I have grave reservations about his capacity to put their needs and emotional and physical safety ahead of other considerations less important or to accept the views of others if they conflicted with his own.
I am similarly concerned, for similar reasons, about any time spent by him with the children being unsupervised.
I have also grave reservations that he would comply with the letter, or spirit of any undertaking given by him designed to ensure safety or minimise risk and, in the context of this case, that is a highly relevant consideration.
Parental Environments for the Children
As earlier recorded, in the post-separation period, J lived for a time with his father.
Observations and assessments of J when in his father’s care are, in my view, important. The evidence allows a comparison of how J was progressing when in his father’s sole full-time care and how he has been progressing since coming into the care of the mother and her husband at the end of 2004.
In simple terms, there is good evidence of a very significant improvement in J’s wellbeing and psychological and emotional health since coming into the care of his mother.
The evidence in respect of that comes from a number of sources. First, but by no means least, it is deposed to by the mother, and I accept her evidence.
Secondly, since the children have gone into her care, the mother has worked with the Integrated Family Services Program run by Anglicare Victoria and, in particular, Ms V. Ms V had worked with the family for almost two years prior to preparing a report on 31 May 2006[42]. she says specifically with respect to the issue under discussion:
“Writer is confident that [the mother] has done much work to repair broken ties with her children, especially her eldest son, [J], who was not in her care for a significant amount of time after his parents’ separation. Although there were some minor settling problems at the beginning, writer has observed that the whole family is now doing well and have been able to join together to make a happy and settled family unit.[43]”
[42]Exhibit TCG7 to the affidavit of the mother, not objected to by the father nor challenged in substance by any questions asked by him of the mother.
[43] Report, page 2
Mr P prepared a report[44] which was tendered by the father. It was prepared for the Melbourne Children’s Court on 21 April, 2005 which lead to the DHS ultimately withdrawing their involvement with the family once all three children commenced residing with the mother and her husband. Mr P said:
“It appears that [J’s] day to day needs are being met and [J] is thriving in the placement with his mother.”
[44] “Confidential Court Report”, Mr P, Exhibit H8
He goes on to say:
“During the time that the current order has been in place, DHS monitored [J’s] placement and assessed it as appropriate to his developmental wellbeing and safety. [J] appears to have a close emotional bond with his mother and thrives in her care. [The mother] and her husband have devotedly attended to [J’s] needs and have at all times ensured his safety and wellbeing.[45]”
[45] Report Mr P, page 3, para 2
The contrast between the evidence just outlined and the evidence as to J’s progress when he was in the father’s full-time care is stark.
Of that period, Exhibit W2 records in respect of J that he:
·Had exhibited “a marked change in his behaviour”
·“used to be a happy kid” however, since being in the care of his father, departmental officers have observed him to be depressed, withdrawn and “he has begun to regress”;
·“has been observed to assume the foetal position, and to go into ‘shut down mode’ and will not communicate”;
·had experienced a “deteriorate[ion] in his personal hygiene … since he has been in the care of his father”;
·appears “not to be able to do anything for himself”.”[46]
[46]An example was given by the DHS. They were of the view that such was the level of control by his father, was that J was to go on school camp a few weeks ago and the father had been saying to J he would not cope on school camp by himself, and seemed to reinforce this to the point where J arrived at the school and was unable to unpack his belongings. As a result of this J was sent home from the school camp. The father, in effect, accepts these descriptions (although not necessary, in terms) in describing in evidence where, to use his words, J “lost the plot”. Some of these incidents are discussed below.
I find that the children are stable, happy and doing well in their mother’s care.
That situation has developed in circumstances where the father has spent no face to face time with the children for about two-thirds of that time and for about the last two years.
Protection from Emotional or Psychological Harm
The improvement in J’s wellbeing, referred to earlier, also occurs against a background where J’s behaviour in his father’s care, was, in my view, indicative of him suffering significantly psychologically and emotionally whilst there.
Exhibit 2 records:
“… On the 10/11/04, school staff reported that [the father] had come to the school that morning and advised that [J] had been locked out of the house, and had run away, and was advising that he does not want to go to school for the rest of the year. The school social worker attempted to speak with [J] over the telephone, however she could not hear [J], just [the father] saying “[J] is shaking his head, he does not want to go to school.” During this telephone call, it was alleged that another adult male’s voice could be heard in the background.”
The father himself refers in evidence to when J, to use the father’s words, “lost the plot” on a number of occasions. The father takes issue with the DHS accounts given of some such incidents by picking on one or two facts, which on any objective view, can only be seen as minor in the broad picture of incidents which are profoundly troubling in the context of caring for a child and which, in broad descriptions, he otherwise appears to accept.
A good, probably the best, example of that is provided by an incident which occurred in November 2004. Exhibit W2 records it as follows:
“22/11/2004 Department of Human Services were contacted by the Principal of [W] School, Mr [F], who detailed a call:
·that earlier the school had received a phone call from [the father], who stated that they must get to his house because [J] was extremely disturbed;
·Mr [F] further advised that two Integration Aides, the Assistant Principal and himself had attended the family home to find [J] presenting with concerning behaviours;
·that [J] had locked himself in his bedroom with a knife;
·[J’s] father, [the father] eventually removed the knife;
·that [J] had also threatened to self-mutilate with a wire coat hanger on two occasions, on that date;
·that when the school staff had attended, [J] was under his bed wrapped in his doona, rocking in a foetal position back and forth, [J] was muttering to himself incoherently and drawing on the walls.
Mr [F] reported that, in his opinion, [J’s] behaviour was extremely concerning and felt that his behaviour required urgent attention. Mr [F] stated that similar behaviours have happened in relation to [J] three times in the last two weeks.
…
Mr [F] made contact with Child and Adolescent Mental Health Services, requesting an outreach to [J]. Mr [F] reported that after some interaction between the school staff and [J], [J] had shown some slight improvement and had left the bedroom and sat at his computer. He was fixed at the computer screen.”
The father was adamant that J did not have a knife. He took issue with the description of J wrapping himself in the doona. However, the rest of the incident, which he accepts, is used by the father not to consider his parenting or any deficiencies in it, but rather to attack the DHS for not giving him sufficient assistance and for failing in their “duty of care”.
Within three days of the incident just described, another incident had occurred that resulted in the father advising the DHS that “[J’s] gone off the wall”. The DHS account of that incident is:
“[J] could be heard yelling in the background. [The father] advised that he had told him to shower. [The father] further advised that [J] had not showered for three days. [The father] advised that [J] was refusing to shower, get dressed and/or attend school. [The father] advised that he has not physically disciplined [J] today, nor is he likely too, but that [J] had been physically aggressive towards him. A further telephone call was received from Mr [F], Principal of [W] School, stating that [the father], who lives opposite the primary school had flagged down Mr [F] this morning, as [J] had locked his father out of the house. Mr [F] then assisted [the father] to regain entry to the house. Mr [F] and some of his staff had calmed [J] down.”
Another incident is recorded as having occurred a week later:
“On the 1st December 2004, [the father] again contacted Department of Human Services, to inform them that [J] had again refused to attend school. A voice could be heard in the background which [the father] stated was [J]. The voice was making increasing screeching noises, which [the father] stated was [J] attempting to sneeze, however these sounds increased in volume and level during the writer’s discussion with [the father]. Contact continued to occur with [the father] to ensure that [J] had eventually calmed down.”
After this incident, the Department spoke with the paternal grandmother. She sat in court for the first two days of the hearing. She was not a deponent, nor did she give evidence.
Exhibit W2 records a lengthy conversation with the grandmother. Some relevant details include the grandmother saying:
“… when [J] arrived [at her place on 25/11/2004] he was “filthy and stunk”. She and [the father] had attempted to get [J] to take a bath, but he became like a wild animal, teeth bared, lashing out with his hands in clawing motions, he placed his hands around his own neck and then around his father’s neck, scratching and clawing. When left alone [J’s] behaviour abated.”
“A further episode occurred when [J] had again wanted to go home he had thrown himself on the floor stating: ‘I am a pig, I am a pig’ and was making snorting noises. ‘I am a dog, I am a dog’, and was making barking noises.
During this time he was inclined [sic?] on all fours walking around the room kicking out at objects and clawing the ground. [J] was reported to have further stated: ‘I am a hobo, I am a hobo’; ‘I live in a box, I live in a box’; ‘I am a bum, I am a bum’. ‘I am an arse. ….”
…
[The grandmother] stated that [J] had then become extremely violent to the point that both she and his father had to physically restrain him to prevent him from attacking her.
…
They [the grandmother and her daughter] do not believe that [the father] has the skills to parent [J] even with their assistance, particularly whilst he is living in [H] …They [also] do not believe that [the mother] has the ability to care for [J]…”
There is no doubt on the evidence that J has various intellectual and behavioural issues. Equally, I have no doubt that his behaviour became worse in the aftermath of separation of his parents and separation from his siblings. The father sought to explain virtually all of J’s conduct by reference to the last of those matters. I do not accept that.
Whilst acknowledging the impact of those matters, the examples of behaviour to which I have referred, although extreme, are not isolated. They have occurred and, on the evidence, clearly seem to have escalated, while J was in his father’s care. It seems clear, on any view of the evidence, that the father has been unable to contain, ameliorate or change those behaviours.
Importantly, that failing occurs in the context of other, very serious, concerns I have about the father’s capacity for insight into his children’s needs, his capacity to parent in general and the responsibilities of parenthood exercised by him.
The mother swears, and I believe her, that no incidents of the type just described have occurred in the more than three years that J has been living with her and his siblings. I find that J’s behaviour has generally undergone a significant and positive change for the better since coming into the care of the mother and her husband.
I find that the family unit constituted by the mother, her husband, J and his siblings is now stable and happy. I am profoundly concerned, in terms of the welfare of these children, to upset or change that situation as little as possible.
Protection from Physical Harm
The father was critical of DHS worker (and report writer), Mr P. The father said in evidence that Mr P had said to him that he shouldn’t be so hard on J. He gave as an example, Mr P telling him that “he [the father] should not clip him [J] across the ear”.
The father objected to this because Mr P “tried to tell him how to raise children when he had none of his own and his degree came from a Weetbix packet”.
When I explored the issue of the father “clipping [J] across the ear”, it appeared from what the father said, and the actions which accompanied it, that he was speaking literally as well as figuratively. The father was at pains to point out that he “didn’t hit him very hard”.
The nature and degree of physical discipline outlined by the father in the witness box is at odds with other evidence.
Exhibit W2 reports J making “disclosures in relation to his father physically abusing him at home”. Examples given by J included:
“… dragging him from his bed and restraining him while [the father] discussed Family Court matters pertaining to the previous relationship between [the father] and [the mother]. [J] further stated that his father often dragged him to school because he would not go. His father had previously hit him on occasions and that this had sometimes left bruising. [J] stated that he did not want to attend school because ‘he just wanted everybody to go away’”[47].
[47] Entry in Exhibit 2 for 11/11/2004.
On that same day, he told Departmental officers that he “wanted his father to stop verbally harassing him and to stop hitting him”[48].
[48] Exhibit W2 following page same date.
Of his interview with J, Dr S reported as follows[49]:
“[J] spoke about being hurt by his father when he lived with him. He stated that his father would smack him on the ears, arms and legs, on the head or around the face if he was naughty. [J] described how his father would smack him with an open hand, but demonstrated that his father would hit really hard. He estimated that this would happen about once a month. [J] also indicated that he did not worry about this. He stated that his father’s epilepsy was not a problem. [J] stated that he does not receive physical punishment from his mother or [her husband].”
[49] Report, Dr S, page 17
On 25 November 2004 J was assessed by Ms R, a psychiatrist at the Child and Adolescent Mental Health Service. She advised Departmental Officers that:
“… [J] presents as a scared child, who’s way of managing is to roll in a ball and self-harm to stopped [sic] the fighting and his father being angry at him. Ms [R] is aware that [J] has been exposed to a number of traumatic incidents, and his response is indicative of the child being exposed to trauma, and constant drama within his dysfunctional family that is further being compounded by his intellectual disability and lack of ability to process. Ms [R] is of the view that [the father] does not have the knowledge to manage [J] given his intellectual disability and that it will become more difficult to manage without intensive support…”
I find that the father has minimised his “physical punishment” of J. I find that J has been at risk of physical harm from his father in the past.
I consider, given what I have found to be his lack of insight, and attitude to parental responsibility, that there is some risk of physical harm occurring in the future.
Involvement in Proceedings
The father accepts that he asked J (then aged about 11) to attend the Children’s Court in order to assist in the lifting of the restriction that had been placed upon his coming into contact with Mr D.
Exhibit H3 tendered by the father, lists 13 separate individuals, including the then Premier and Attorney General of Victoria to whom the father has written detailing complaints about the DHS. There is no doubt in my mind that the father is preoccupied with a sense of grievance against that body (and others) and that he has a perception that he is being treated poorly, or even, he alleges, corruptly, by DHS, and, perhaps, other organs of government. That same sense of unfairness, seems to me, pervades his attitude to spending time with his children: he has done nothing wrong; a conspiracy and lies have forced the children away from him and, thus, it is only fair that he should stay in H and have the children brought to him.
The father’s sister gave evidence in the father’s case. She spoke of a number of sporting and similar activities engaged in by her children on Saturday. But, when it was put directly to her that the father could stay at her place in order to exercise spending time with the children even if she wasn’t home, she indicated that she would do anything reasonably possible to assist her brother.
Counsel for the ICL asked the father’s sister specifically if an order was made to the effect that the only way that the father could see the children was at W Contact Centre, whether she would allow the father to stay there. She said he could. She also indicated that she might be available to assist in bringing him from H to W, subject, of course, to the requirements of her own children.
Both during his cross-examination and in his submissions, the father gave me the strong impression, and I find, that the father was much more focussed on what was “fair” (at least as he perceived it to be) rather than what might cause the children the least amount of inconvenience and be best for them.
I accept that it would be very difficult using three forms of public transport for the father to travel from H to the W Contact Centre. I also accept that he has had health difficulties involving his leg (specifics of which I am not entirely clear about) and that this may have prevented – or at least impaired – his capacity to see the children at the contact centre as ordered.
However, I do not accept that this is the sole explanation for the fact that no face to face time whatsoever has occurred at that contact centre in more than two years. It is altogether too trite to say that “where there is a will there is a way”, but where the end is attempting to see one’s children, then I consider that I should have had evidence from the father of at least some means exercised by him in pursuit of that end. I had none.
Jones v Dunkel
Mr D was not called as a witness by the father. No affidavit has ever been received from him. The same is true of the paternal grandmother.
The father was asked why that was. He indicated that Mr D was “innocent” and there should be no reason why he should have to come to court and say that he was innocent.
I was, in effect, asked to draw a Jones v Dunkel inference against the father in respect of his failure to call Mr D as a witness.
The father gave evidence that Mr D had moved from the H area, and that he hadn’t seen him for a month or so. I strongly suspect that the father could make contact with him should he so choose.
However, I decline to draw the inference against the father who is an unrepresented party.
In a similar vein, the mother’s husband was not a deponent and counsel for the mother frankly - and properly, in my respectful view - conceded that he ought to have been and that he had no explanation why the mother’s husband had not been put on oath.
It would certainly have been preferable for the mother’s husband to have been a deponent, given the central role he has apparently played in the children’s lives over the last few years and about the events that are the subject of the proceedings.
However, I do not intend to draw any inference adverse to the mother in respect of his failure to give evidence.
I have already referred to other evidence, independent of the parties, to the effect that the children are “thriving” in the household constituted by the mother’s husband and the mother.
Further, cross-examination of the mother by the father and the general thrust of his submissions and evidence to the effect that the mother’s husband and the mother had conspired together with various report writers and others to give fictional accounts of what the children had said, convinces me that no useful probative purpose would have been achieved by the mother’s husband giving evidence.
PARENTAL RESPONSIBILITY
I have concluded that the mother should have sole parental responsibility for the children.
I have done so having concluded that the statutory presumption is rebutted in this case because it would not be in the best interests of the children that both parents have equal shared parental responsibility.
In this context, I reiterate the summary of findings in respect of best interests made earlier in these reasons and the evidence just discussed.
The antithesis of parental responsibility, is, in my view, parental irresponsibility. I have found many examples of the father’s parental irresponsibility.
I cannot see that it is possible for the parents here to exercise equal shared parental responsibility when, on any view, there is little communication between them, there is, in my judgment unlikely to be in the future and when account is taken of what I have found to be the father’s personality style.
PREDOMINANT TIME
I have concluded in this case that the children should spend, effectively, the whole of their time with their mother and that they should spend limited face to face time with their father.
Again, I repeat in this context, the findings summarized earlier and the evidence discussed above.
Protection from harm – using that expression widely – is uppermost in my mind in arriving at that decision.
So, too, I am particularly persuaded that the children are doing very well in the full-time care of their mother and her husband in circumstances where the post-separation period was tumultuous, marked by conflict not only between parents but also between the father and the welfare authorities and the children’s school.
I am also satisfied that the post-separation parenting period, was marked by significant deficiencies in the parenting role undertaken by the father.
I consider that there is significant potential for the good progress made by the children in the last three years or so to be largely undone if the children were to live predominantly with the father.
There are, even on the father’s case, significant practical difficulties, and some expense, in facilitating the children spending time with their father.
SUPERVISED TIME OR NO TIME
Counsel for the ICL submits that I should order that there be no face to face time spent by the children with their father.
A consideration of the findings made by me with respect of the children’s best interests indicates that such an ultimate conclusion is open to me.
I have found that the children need protection from harm and are likely to suffer emotionally and psychologically if significant time with their father was to be ordered.
So, too, if any face to face time with the children was to be ordered but then cease because of an inability or unwillingness of the father to exercise that time, I consider there is some prospect of harm to the children.
Counsel for the mother argues that I should order some time between the father and children, but that it be supervised. It is argued that there is benefit for the children in developing a relationship with their father in a safe environment.
It is also agreed that it is necessary to bring these proceedings to an end, to the extent it is possible, by making final orders and, in particular, by imposing a “sunset clause” in the orders.
The evidence of Dr S indicates that he was alive to the dilemma exposed by the competing positions just described.
Dr S gave evidence that, when he completed his report and recommended supervision in 2005, he did not have in mind time at a contact centre. He saw that as an interim step and that the supervised time – which he considered necessary in the children’s best interests - should ideally have occurred with an agreed person outside the restricted environment within a contact centre.
Dr S said that his major concerns in 2005 were the father’s lack of acceptance of the risk associated with Mr D and the father’s lack of insight into the effect his own behaviours were having on the children. He considered the father had an overbearing personality style and strong indications of impulsivity and harsh discipline.
As an example of the father’s lack of insight, he cited the issue relating to Mr D, but he said there was also a broader issue, namely the interaction with J with respect to intervention by outside agencies and the like. Dr S said in evidence that the father “has difficulty getting outside his own point of view and seeing the views of the children”. My observations accord with that view.
In his evidence before me, Dr S encapsulated the issue neatly. If there was an order which provided for no face to face time between the children and their father, the children may feel relief. Their lives would be, potentially, far less complicated.
However, such an order, according to Dr S, also possessed the potential for significant detriment. Despite all of the problems to which reference has been made, and the issues for the children identified by Dr S, he was of a view that the children clearly still had a relationship with their father and that failure to see him might bring its own problems.
Those problems might include an impairment in the children’s sense of their selves; impairment in their own development and their sense of identity, and a failure to see their father as having an important role in their lives.
Dr S conceded that, if orders were to provide that the children spend time with their father and that did not occur, the children would feel extremely hurt and that it would affect their long-term relationship with their father. Counsel for the mother put a number of propositions to Dr S emanating from the evidence before me. Whilst acknowledging the difficulties for the children just mentioned, he was of a view that this “tends to be a risk that is inevitable” in any event.
Dr S is of the view that “[the mother] presents as understanding the need for a relationship between the children and their father”[57]. I agree. In his report, Dr S said:
“The quality of the interaction between [the father] and the children is quite poor, despite the children’s affection and relationship with [the father] and vice versa. [The father’s] interpersonal style is likely to be, at times, both dominating and has the potential to be coercive. He lacks insight into the fact that at times his behaviour is inappropriate. In my opinion, this may be partially related to his personality style, however, it is more likely to be a function of his neurological status. Irrespective, in my opinion, there are inherent risks associated with unsupervised contact between the children and their father.
… As such, in my opinion, it is appropriate that the family structure continue, as it is at present, with the children primarily in residence with [the mother] and having weekly contact with their father.
I see no problem with extending the number of hours in which the children have contact with [the father] on a weekly basis, as long as the contact is supervised by a responsible and independent supervisor who will remain vigilant and protective in relation to the children.”
[57] Report of Dr S, page 27.
Dr S said in the witness box that, at the time of preparing his report, he had in mind that time spent with the children would preferably occur outside of a contact centre because of the limitations inherent in those facilities. However, he was of the opinion that, whilst the contact centre might “be the more conservative option”, it may “be more appropriate in the circumstances now”.
I am satisfied that it is in the best interests of the children that they should spend some time with their father.
However, I am of the view that this time should be supervised. I consider that the complete absence of the father from the children’s lives is likely to cause difficulties for them. I consider they should be afforded the opportunity to have a relationship with him if they can be safe and receive parenting and nurturing from him that is monitored – albeit, perhaps, imperfectly - at a contact centre.
In reaching that conclusion, I reiterate (again) the findings earlier made and the evidence earlier discussed.
It is necessary for me to consider whether I should impose a “sunset clause”, which would see a failure to take up the ordered time by the father, bring the time spent with the children order to an end within a specified period of time.
Alternatively, it is necessary for me to consider whether if the father avails himself of the ordered time with the children, whether that time should become unsupervised within the contemplation of current orders.
In respect of the supervision which I contemplate and the desirability of a sunset clause, I bear in mind what the Full Court said in C & J.[58] In particular:
“We do not consider that His Honour is correct in saying that supervised access is “never an appropriate measure in relation to final access orders”. It is unduly restrictive of his discretion in relation to children to approach the matter in that way.
The Court is given a wide range of powers in relation to children both under the previous legislation and the Reform Act. Ultimately, the determinant is the best interest of the child. That discretion should not be circumscribed by absolute rules which appear to exclude one of the otherwise available possibilities. In addition, access orders are never “final”. No doubt His Honour was fully aware of that and intended by that comment to indicate that there must be a practical end to litigation and that was determining the matter at that point for the foreseeable future. But access orders need to be moulded to the particular circumstances of the case and it may be unavoidable in a particular case to make orders for a limited period of time for orders which provide a graduated process and the potential for review depending on developments. This is especially so in the case of this sort.
…
The Court has the widest discretion to make whatever orders are appropriate in the best interests of the child by way of access or contact. Supervision is one option.”
[58] (1996) FLC 92-697 Fogarty & May JJ at 83,341-342; 20 Fam LR 930 at 948
The Full Court has also held that “… the open-ended nature of the supervision order was somewhat unsatisfactory.[59]”
[59] H v K [2001] FamCA 687
In W v W, [60] Dessau J ordered supervised time but inserted a review mechanism, rather than order that supervised time occur indefinitely. Similarly, in RG v JR[61] the Full Court emphasised the value of inserting a review mechanism or “sunset clause” in orders:
“We accept that in many cases the effect on children of indefinite, long-term, supervised contact, particularly if such contact is to continuously occur in the children’s contact centre, may not be in a child’s best interests.[62]”
[60] [2004] FamCA 1167
[61] [2006] FamCA 293
[62] Ibid [107]
Despite the changes to the Act since those decisions were handed down, I consider that, provided supervision is in the best interests of the children as determined by reference to the statutory provisions, the statements of the Full Court remain the law.
In saying that, I do not suggest that the requirements to consider, for example, “a meaningful relationship” or the requirement to consider the willingness and ability to promote a “close and continuing relationship between the child and the other parent” or “direct contact on a regular basis” do not impact upon the consideration of whether supervised time is appropriate and, if so, for how long and in what circumstances. Obviously those considerations are relevant.
The supervision of any time that the children spend with a parent is less than ideal. But, the circumstances here are less than ideal.
Equally, there is a risk for the children here by reason of my finding that there is some prospect that the father will not avail himself of ordered time and that the children, having been prepared for seeing him, will, at the least, be hurt and disappointed if that does not continue to happen.
Nevertheless, on balance, in my judgment these children and the father should be given the opportunity to rebuild their relationship by spending time with each other.
Unfortunately, as a result of the findings earlier made, I am clearly of the view that such time should, at least into the foreseeable near future, take place at a contact centre with all of the attendant problems associated with that, including the practical difficulties for the father associated with that occurring.
CONCLUSIONS AS TO TIME
I propose to make orders that time between the father and the children take place in a contact centre and that it be supervised at a contact centre.
I am conscious of the evidence of the father’s sister that it might be possible, subject to the commitments to her own family, for her to assist in facilitating time with the children by doing the driving once a month. Thus, if I order the father to spend time with the children each fortnight, there is at least a reasonable possibility that the father would need to find his own way to the contact centre about once per month rather than each fortnight.
It is, in my judgment, desirable that I give the father the opportunity to have time with the children that frequently.
I intend to provide for a “sunset clause” which takes account of “optimistic” and “pessimistic” eventualities: the latter being that the father will not avail himself of that time with the regularity required for the children’s best interests and the former that he does so.
In the event of the pessimistic scenario, the mother argues that failure by the father to avail himself of 80% of ordered time with the children, should see that time cease.
I agree that ordered time with the children should cease if the father does not – for whatever reason – avail himself of that ordered time. I have already found that such a circumstance is likely to cause hurt, and possibly harm, to the children.
Within the initial period of six months provided for in my Orders, there is the opportunity for the father to have approximately 12 periods of time with the children. The mother would have contact cease if the father did not avail himself of 10 of those occasions[63].
[63] Eighty per cent being 9.6 occasions
I have found that there are some practical difficulties in the father exercising contact. But, there is the reasonable possibility of his sister assisting with transport arrangements for about six of those 12 occasions (her evidence being that she may be able to do so once per month).
If I order that time with the children cease in the event that the father does not avail himself of eight occasions out of those 12 (that is, two-thirds of the proposed occasions), it seems to me to strike an appropriate balance.
In attempting to otherwise fix the term of that “sunset clause”, I have taken into account the ages of the children and, in particular M, who is approaching 14.
In a little more than twelve months or so into the future, M will be 15, J will be more than 16, and G will be 14. G does not suffer from the same intellectual and other difficulties suffered by J; indeed his IQ is in the “high average” range and he is assessed to have some “specific verbal and non-verbal strengths”[64].
[64] Report, Dr S, page 26
By that time, if the orders are complied with, the father will have been exercising supervised time with the children for the bulk of that twelve month period. The children will, at those ages, with those capacities and in those circumstances, have, in my judgment, a significantly greater capacity to protect themselves from the risk of harm found by me.
Bearing all of those considerations in mind, I have made a structured set of orders which, in my judgment, best accommodates those issues and the findings.
In essence, those Orders incorporate my findings as to the need for supervision, the practical difficulties and expense of the father spending supervised time with the children and the concerns about potential harm of the children if the father does not, for whatever reason, avail himself of the time provided for in the Orders.
In order to balance those matters, the Orders are set in the context of an 18 month time frame. They embrace a requirement for a minimum number of times upon which the father should spend time with the children, a failure in which will bring an end to face to face time spent with the children.
In respect of the initial period of six months earlier referred to, when time is spent at a contact centre, I have provided for up to eight hours time. I realise that any contact centre’s requirements may mean that only significantly less than that time can be accommodated. I want, though, to give the opportunity for more time if the agreed contact centre can offer it.
After that initial six month period, my orders contemplate a further six months, divided into two three month periods. Again, a two-thirds compliance regime is built in, with gradually increasing time and the consequence of no face to face time if that time is not availed of.
However, in the event that the father avails himself of the time afforded by the Orders, I consider it is in the children’s best interests for supervised time to be more extensive.
In my judgment, the Orders sought by the mother had me delegating what is a judicial function to another person. The best I can do, in my view, is to have the parties seek the sort of help now contemplated by the Act. Accordingly, I have ordered that the parties attend upon a Family Dispute Resolution practitioner, and/or a Family Consultant with a view to using best endeavours to agree upon a supervisor, so that the supervised time spent with the children can be more extensive than that offered by a contact centre.
The “fall-back position” is a continuation of the time spent at the contact centre if the compliance regime is met. Again, face to face time ceases if that compliance regime is not met.
After that initial twelve month period, if the father has, again, availed himself of two-thirds of the time provided for in the previous six months, I consider it in the children’s best interests that he should move to unsupervised time each third weekend for a further period of six months. Changeovers should move from the contact centre to the parties’ residences. I have chosen each third weekend given the travel and expense difficulties revealed in the evidence and to give, as per her evidence, the father’s sister the opportunity to assist the father if her family responsibilities allow her to do so.
No two-thirds requirement or default provision is provided for from this point on in the orders. Time spent with the children will only be proceeding at this time if the father has been exercising time with the children for the previous twelve months or so, in somewhat difficult circumstances. I consider that, given the ages of the children and the commitment evidenced by the father’s compliance with the two-thirds requirements in the previous orders, the orders should not, at this point, provide for a “no time” default if a two-thirds requirement is not met.
Thereafter (that is, approximately 18 months or more from the date of Order) the Orders provide for alternate weekend, half holidays and special days unsupervised. No two-thirds requirement precedes this for the reasons just given.
However, time is provided on an “alternate weekend, half-holidays” basis because, for the reasons earlier given, I consider that it is in the children’s best interests that they should receive the great bulk of their day-to-day care, and spend the great bulk of their time, in the mother’s household.
COMMUNICATION
The mother alleges that the father has availed himself of telephone communication with the children on less than half of the occasions provided for in the orders (she has calculated it as 42 per cent of the time).
The father says this is because the telephone is engaged (he alleges intentionally) at times when has rung. He alleges a deliberate attempt to frustrate telephone contact.
I don’t accept that there has been a deliberate attempt by the mother or her household to frustrate telephone communication.
I consider it important that the father have the capacity to contact the children regularly by telephone. In saying that, I have in mind that there may be occasions where, even if the father is generally willing to exercise face to face time with the children, practicalities may prevent that.
If the father is unable or unwilling to have face to face time with the children as ordered, I consider that the “lines of communication” between father and children be kept open as much as practically possible, by telephone calls, the sending of school reports and the like.
Each of the mother and the ICL have submitted for telephone communication orders. In argument, Wednesday between 7.00pm and 8.00pm seemed agreeable to all.
OTHER ORDERS
In addition to “time” and “communication” orders, each of Exhibits A and B seek additional orders dealing with the provision of school reports and the like to the father, liberty to release the orders to the children’s schools and the notification of significant health and other issues affecting the children.
It will, I think, be plain from the Reasons outlined that I consider it in the children’s best interests that I make those Orders. Certainly, I did not hear the father to complain about any such orders.
The mother also seeks mutual injunctions. Again, for the reasons earlier given, I am persuaded that I should make those orders.
The mother also seeks an order pursuant to s 65L of the Act. I am not persuaded that I should make that Order.
The mother has been involved significantly with an organisation which, on the evidence, has worked closely with her over a significant period of time. I have found her to be a responsible parent and, in my view, should the need arise, she will avail herself and the children of whatever assistance might be required, including with respect to parenting orders.
I consider it preferable that no new person – even a highly trained and experienced family consultant - should be added to the children’s lives as s 65L contemplates is sometimes helpful.
ORDERS
I make the Orders set out at the commencement of these Reasons.
I certify that the preceding three hundred and forty-six 346 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 16/11/2007
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Breach
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Remedies
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Appeal
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Costs
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Procedural Fairness
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