H and F
[2002] FMCAfam 184
•22 March 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & F | [2002] FMCAfam 184 |
| CHILDREN – Contact – mental health issues – Apprehended Violence Order – Family Report. |
Family Law Act 1975, ss.60B; 60B(2)(b); 65E; 68F(2); 68F(2)(a); 68F(2)(f); 69F(2)(a); 69F(2)(c), (i), (j)
H v W (1995) FLC 92598
Joannu v Joannu (1985) FLC 91642
R v R (2000) FLC 93-000
Jaeger & Jaeger (1994) FLC 92492
JG v BG (1994) FLC 92515
Patsalou v Patsalou (1995) 92580
M v M (2000) FLC 93-006
Blanch v Blanch & CrawF (1999) FLC 928377
B & B Family Law Reform Act (1995)
| Applicant: | W M H |
| Respondent: | J J F |
| File No: | PAM 1092 of 2001 |
| Delivered on: | 22 March 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 22 March 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr O’Donnell Breens Solicitors DX 5024 LIVERPOOL |
| Counsel for the Respondent: | Ms Devere Lachlan Macquarie Chamber |
| The Children’s Representative | Mr Mansour Legal Aid Commission of NSW DX 8293 PARRAMATTA |
ORDERS
the orders made by the Family Court of Australia at Parramatta are vacated and the respondent father is to have contact with the two children of the marriage, K E H, born 19 December 1986 and D M H, born 17 November 1989 as follows:
(a)commencing on Sunday, 7 April 2002 and continuing for a period of three months from 9 am to 5 pm on Sunday, being the first Sunday of each month;
(b)commencing on Saturday, 6 July 2002 and continuing for a period of three months from 9 am to 5 pm on the Saturday, 9 am to 5 pm on the Sunday, being the first weekend of each month;
(c)commencing on Saturday, 5 October 2002 and continuing for a period of five months from 9 am on Saturday to 5 pm Sunday, being the first weekend of each month;
(d)commencing on Friday, 7 March 2003 from 5 pm on Friday to 5 pm on Sunday, being the weekend commencing on the first Friday of each month during school term time;
(e)commencing with the school holidays commencing at the conclusion of the second term 2002, for the first week of such school holiday period from 9 am to 5 pm each day;
(f)commencing with the school holidays commencing at the conclusion of third term 2002, for one half of each of the New South Wales gazetted school holiday period vacation period being the first half of each such school holiday period commencing at 9 am on the day immediately after the conclusion of the first, second and third terms of each school year. Contact in the holidays commencing at the conclusion of the fourth term should alternate between the first and second half, with the father to have contact in the first half of the school holidays commencing in December 2002 and each alternate year thereafter, then the second half of the school holidays commencing in December 2003 and each alternate year thereafter;
for the purposes of calculating one half of any school holiday vacation period, days shall be calculated in 24 hour periods and the holiday period shall be deemed to commence at 9 am on the day immediately after the last day of each school term and conclude at 5 pm on the day prior to the commencement of the following school term. In the event that such calculation results in an uneven number of days, then the parent with whom the children are in the first half shall have the benefit of the extra day. Contact shall commence at 9 am on the day after the last school day of the school term and conclude at 5 pm on the day calculated to be one half of such school holiday vacation period if contact occurs in the first half. Contact shall commence at 9 am on the day calculated to be one half of such school holiday vacation period and conclude at 5 pm on the day prior to the resumption of the following school term. If contact occurs in the second half provided that a pupil-free day at the commencement of any school term shall be deemed to be part of the school holiday period;
for the purposes of all contact pursuant to order 1:
(a)the mother shall deliver the children to the father at the commencement of contact and collect the children from the father at the conclusion of contact for 1(a) to (d) inclusive at the E Street entrance of Westfield L and 1(e) and (f) at the entrance to the L Caravan Park, Lansvale in the State of New South Wales or such other place in the Sydney metropolitan area as nominated by the father within a 10 kilometre radius of C N;
(b)in the event that the father's contact pursuant to 1(c) and (d) occurs on a long weekend, including a public holiday, then the contact shall conclude at 5 pm on the Monday instead of 5 pm on the Sunday;
the father shall advise the mother of the address where he proposes staying with the children for any contact period;
for all periods of contact occurring pursuant to these orders until 1 October 2003, the father:
(a)shall not bring the children into contact with any woman with whom he is or has been in a relationship;
(b)shall ensure that contact takes place within the Sydney metropolitan area unless the children request to their mother otherwise and the mother gives her written consent for contact to occur outside the Sydney metropolitan area;
the father shall continue to attend upon Dr S for such period as recommended by Dr S and shall accept such treatment as recommended by him;
the parties are to have all the powers, duty, authority and responsibility jointly for the long term care, welfare and development of the said children;
each of the parties is to have the powers, duty, authority and responsibility for the day to day care, welfare and development of the said children whilst in their care pursuant to these orders;
the father shall take all steps necessary to have Dr S or his treating doctor provide to the mother a report as to his mental state, current treatment and the father's compliance with such treatment within one month of the date of the orders and thereafter at three monthly intervals;
the father shall not convey the children in any motor vehicle which he is driving unless he is the holder of a current driver's license for that class of vehicle;
the father shall not consume any alcohol during any contact period;
the parties are hereby restrained from denigrating the other party or any member of their household in the sight, presence or hearing of the children or either of them or from permitting any other person to do so;
the father is hereby restrained from behaving in a violent manner towards any person whilst either or both of the said children are in his company;
the parties are hereby restrained from discussing any of the allegations raised in these proceedings with either or both of the children;
the father is entitled to telephone and speak to both of the said children each Wednesday evening between the hours of 8 and 9 pm;
all other outstanding applications are dismissed;
all documents produced on subpoena other than exhibits are to be returned forthwith;
all exhibits are to be returned at the expiry of one month from the date of these orders;
the matter is removed from the pending cases list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1092 of 2001
| W M H |
Applicant
And
| J J F |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application by the mother of the two children, K now aged 15 and D now aged 12 for orders seeking the following:
Discharging the contact orders made by consent in the Family Court of Australia at Parramatta on 28 April 2000.
Ordering the husband or the respondent shall not have any contact with the children.
Ordering that in the alternative, the husband should have contact with the children on the following conditions:
a)that any such contact be supervised by an appropriate adult person chosen by the wife, that contact occur only in daylight hours and contact not occur in the sight or presence of any female friend of the husband.
The father's amended response sought that the application be dismissed and sought contact orders in the alternative every one weekend every month, half of all school holiday periods, telephone contact and that the parties have joint responsibility for making decisions about the care, welfare and development of the children. Now, the background to this matter is that the mother was born on 30 April 1958. She is 44 years of age. The father was born on the 13th of June, 43 years of age. Parties commenced to cohabit in 1985. They married in 1987 in June.
They separated on 22 April 1992. A decree nisi for the dissolution of marriage was pronounced by the Family Court and that decree has become absolute. The two children of the marriage are K E H born 19 December 1986, thus she is aged 15 and D M H, born on 17 November 1989. So he is now aged 12. The history of the parties' marriage was a volatile one and there were episodes of domestic violence. In August 1992, the mother obtained an Apprehended Violence Order.
That Apprehended Violence Order has been renewed. Indeed, it was renewed on 30 March 1999 and it is in force for a period of five years from that day. There were consent orders for contact made in November 1992, June 1999, October 1999, January 2000 and the orders which I'm being asked to discharge are those made in April of that year. The father has moved to an address near C H. He had formed a further relationship with a woman which was also marked with episodes of violence.
As a result of one such episode in which the father was accused of driving his car into another vehicle, the applicant mother unilaterally made the decision to deny contact and indeed it is common ground that apart from meetings for the purpose of the family report, more of this later, the father has had no face to face contact with either child since that time, for a period now for 12 months. It transpires, however, that the father and the child, K, have spoken on the telephone and it now appears that it was K who initiated those – that regime of telephone contact.
The application – an application was made to this Court and an interim order was made on 8 June 2001, suspending the contact orders. A family report was ordered. The matter was listed for hearing. There was a need to adjourn the hearing due to admissions – admission by the father as a psychiatric in-patient at C H Hospital in July 2001. The father has commenced anger management courses. He has continued to have care as an out-patient and, in fact, has submitted himself to the supervision of a Dr S, a psychiatrist and he has consulted clinical psychologists, B P and G C.
What are the issues in this case? The principal issues are the issue of domestic violence, allegations of violence by the father against women with whom he has been in a relationship and the mother's fears of violence in so far as the children are concerned. Another issue, which is also an issue of some strength, is the wishes of the children themselves and the parties' views as to how those wishes should be dealt with. This was an order in which it was considered appropriate for a family report to be ordered and indeed such a report was completed on the 19th of March.
One J LeMare, a Family Court counsellor, prepared the report. In the course of preparation of this report, Mr LeMare interviewed both parents and interviewed both children and indeed he observed the children in the presence of the parents. It should be noted at this stage the father has elected to adopt the surname of F and he is referred to in the - throughout the family report by that particular surname. The parties, when the matter came to Court yesterday, undertook a considerable amount of discussions with a view to resolving the matter.
A variety of proposals were discussed and indeed during the course of the morning, with the assistance of the children's representative, the parties reached an agreement on a number of areas which resulted in the narrowing of the issues substantially and as a result of that, a variety of proposals were submitted to the Court by way of Minutes of Orders. They involved Minutes of Orders to which the parties said they agreed, although there was some variation to that and two separate documents setting out the positions of the mother and the father in respect of the areas which were still in contention.
As a result of the significant progress made by the parties, which certainly involved concessions by each party, it is clear that as I said the issues were significantly narrowed. Certain evidentiary material was put before the Court and certain matters on affidavit were objected to, sometimes successfully, sometimes not. The Court had the benefit of submissions from the children's representative and from the legal advisers for both parties. Now, it is no secret that in the family report, the child K expressed a strong view that she wished to have substantial contact with her father.
The counsellor reports her as not being reticent or guarded in her response. K, who is now 15 years of age, was aware of her mother's opposition to contact or at least to substantial contact and her mother's concerns regarding her father's behaviour. She, however, made it quite clear that she wanted to see him and she had indicated that she had initiated telephone contact. She was aware of the history of violence, indicated that she did not have a fear of the father. She also made it plain to the counsellor that she didn't want to see her father at a contact centre or under supervision.
What she wanted was face to face contact. The child, D, was somewhat ambivalent about contact. He also was aware of his mother's feelings about the matter. He also raised the concern about violence using words: he is always violent when he gets into a fight with his girlfriend. His ambivalence was expressed by saying: I sort of do and sort of don't want to see the father and he took the view that if the father wasn't with a girlfriend in the situation where anger would be aroused, he would want to see him.
He confessed that there were times when he missed his father. He could remember happy times with the father and happy outings together, being taken to lunch, taken to dinner, motor bike riding, going to the races. Both parents were observed with the children. The counsellor noted a positive interaction between both children and the father and indeed, when it was put to the children that they could have a few minutes with their father at the conclusion of the observed session, they each indicated they wanted to spend some more time with him.
In fairness to the mother, Mr LeMare reports the children related to her positively, normal family relationships were observed. The mother, in her report to the counsellor, was certainly concerned about the violence of which she had been a victim and her ongoing fear of the father. Her assertions – and this is very much central to the mother's case, is that he has had a history of violent relationships with women: he is fine with the kids until a Woman comes on the scene.
She was somewhat sceptical of the father's response to treatment to anger management and believed that his problems relating to violence were deep seated and that a short course, say a six hour anger management course, would be unlikely to change the pattern of a lifetime. Her view was that D was terrified of the father and didn't want contact. She was certainly aware that K wanted to see her father but said that K made excuses for her father and was somewhat cautious in endorsing the proposal that there should be the same degree of contact between K and the father, as K reported.
The father indicated that he had consulted the psychiatrist. He has attended anger management and life skills courses. He took the view that his violence was reactive behaviour. I will quote directly from the paragraphs of the report, paragraph 9 and 10 on page 6. The counsellor said:
Mr F believes that his violence was a reaction to a difficult separation from Ms H, to business problems, motor vehicle accidents, panic attacks and depression. He indicated that he reached crisis point when he began to take his feelings out on his second wife, Ms Thompson, soon after they married. He then decided to seek treatment. While he does not reside with Ms Thompson, he sees her regularly.
The counsellor went on to say:
Mr F said that he is not a threat to the children and has never harmed them. Now that he is able to control his anger, he contends that there is no reason why contact shouldn't occur.
He believes that K wants to see him. He describes how they talk on the phone regularly. He made certain proposals about contact. The counsellor quite properly made it quite clear that the children responded positively to their father but indicated that his assessment couldn't evaluate the father's level of violence, which was more a topic for the Court to examine and expressed the view that it was up to the Court to determine the degree of risk to the children as far as violence is concerned. He certainly was of the view that the father would need to continue with therapeutic intervention aimed at re-enforcing non-violent responses.
He would need to work towards re-stabilising the children's trust by a regular and violence free contact program. Quite properly he left the issue of determination of risk to the Court. What are the principles that the Court should consider? Section 60B of the Family Law Act sets out the objects of the Act and a number of principles which a Court must take into consideration, except when the application of any of them is or would be contrary to the child's best interest. Subsection 60B(2)(b) refers to children's right of contact on a regular basis with both their parents and other people significant to their care, welfare and development.
The Full Court of the Family Court has looked at that - at those principles in a decision of B and B: Family Law Reform Act (1995) which is a 1997 decision and took the view briefly that overall the best interests of the child remained the paramount consideration and indeed that is what section 65E of the Family Law Act says. The section lays down that the Court must regard the best interests of the child as the paramount consideration and the objects therefore under the - and principles in section 60B do not override that. How does a Court determine what is in a child's best interest?
Section 68F(2) of the Act sets out a number of matters that a Court must consider. There are 12 of them, from subsection 68F(2)(a) through to (l) inclusive. Not all of them will be relevant in every case but all of them must be considered as the Court has done in this matter. The matters that I see as the principal issues are the wishes of the children which are covered in section 68F(2)(a) and issues relating to violence which, in fact, occur in a number of subsections.
Section 9F(2)(a) requires the Court to consider any wishes expressed by the child and any factors such as the child's maturity and level of understanding that M be considered to be relevant to the weight the Court should give those expressed wishes. It is noteworthy that the child's maturity as well as the child's sex and background are also to be considered under subsection 68F(2)(f). In this case, for the father it is pressed on the Court the Court should give very strong weight to the wishes of the children, particularly the strong views expressed by K.
For the mother, a more cautious view is pressed and the child's representative, Mr Hammond who appeared yesterday, took a line that urged some caution on the Court but did not seek to persuade the Court the same degree of caution, as the mother's rather conservative proposals would take. Clearly the child's representative took the view that the children's wishes were matters that the Court must give some weight to. Now, the weight of children's wishes has been considered in some depth by the Full Court of the Family Court of Australia.
In H v W, also reported as Harrison v Woollard 1995 FLC 92598, Fogarty and Kay JJ held that:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. As a matter of practical day to day experience, the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background, the Court will attach varying degrees of weight to a child's stated wishes, depending on, among other factors, the strength and duration of the wishes, their basis and the maturity of the child, including the degree of appreciation by the child or the factors involved in the issues before the Court and their longer term implications. Ultimately the overall welfare of the child is the determinant.
In that same case, Baker J, held that:
A child's wishes must not only be considered but must be shown to have been considered in the reasons for judgment of the trial judge. Furthermore, if the trial judge decides to reject the wishes of the child, then clear and cogent reasons for such a rejection must be given, particularly if the separate representative submits that the Court should give effect to such wishes. The wishes of children shouldn't be discounted simply because they are expressed by children. The weight to be given to the wishes of the child depends upon the individual child and an assessment. The validity of the wishes must be made by the trial judge in an individual case.
Baker J went on to express an opinion that the wishes of children down to the age of 7 could be given a considerable degree of weight and it should be noted that the Full Court has held that the wishes of children as young as 8 years down to 4 years would not be irrelevant. It is a decision of Joannu v Joannu (1985) FLC 91642. In this case, of course, I would comment that I not only have the benefit of a comprehensive family report, the children themselves have been represented and the children's representative has made pertinent submissions and helpful submissions in this case.
The wishes of the children have also been considered by the Full Court of the Family Court in R v R, Children's Wishes, reported in 2000 FLC 93-000. The Court held that:
Whilst proper weight should be given to the children's wishes, this didn't mean that those wishes should not be departed from. Appropriate and careful consideration must be given to those wishes. They shouldn't be simply treated as a factor in the determination of the child's best interest without giving them further significance when validly held wishes are departed from the trial judge, good reasons should be shown for doing so.
I am of the view that the weight this Court should give to the children's wishes is quite substantial. I base this on the age and state of maturity of the two children. K, indeed, is 15 years of age. She has expressed a clear view and a clear view of her wish to restore the relationship, notwithstanding allegations of violence and indeed the history of violence. She stated this notwithstanding her knowledge of the reservations, to say the least, of her mother.
K is certainly a normal teenager and I am of a view that she is of an age where the Court should listen very carefully to her wishes. I see no evidence which would persuade the Court that her wishes should be discounted or violently contravened. D is younger but he is still 12 years of age. He also appears to be a normal teenager. It is not surprising that he was somewhat ambivalent about contact. He is certainly aware of his mother's views and it appears on the evidence before the Court that he is giving proper weight and respect to those views.
It also appears that the concerns that he has expressed about violence when the father has been engaged in a relationship with another woman is a view that is not only sincerely held but a view which he has a reasonable basis for holding. Certainly he was observed to react positively with his father, albeit in the situation where he was in a safe environment and it is clear that the desire of D is to be - is to have a relationship with his father in an environment where he has some guarantee as to his personal safety and presumably the safety of his sister.
I am of the view therefore that D's wishes should be given a considerable degree of weight and I do not propose to go against those wishes. Whilst the Court M adopt a cautious approach, it is certainly quite clear that there should be a proper contact regime which will give effect to the children's wishes. Now, there are a number of other considerations. The nature of the relationship of the child with each of the child's parents. It is quite clear that the children have a good relationship with their mother, a positive, normal family relationship.
Indeed, the fact that the children are aware of their mother's wishes in respect of the father and pay reasonable respect to those wishes is a sign of the strength of the mother/child relationship. The relationship between D and the father is somewhat cautious but nevertheless it is a positive relationship. Subsection 69F(2)(c) requires the Court to consider the likely effect of any changes in the child's circumstances. This is a consideration usually more relevant in residence cases than in this particular matter.
There is no major change proposed except for the fact that whereas there has not been face to face contact for the last 12 months, it is now proposed that face to face contact, under varying conditions, should take place. The practical difficulty and expense of a child having contact for the parent is a matter for consideration but that is subject to the principle of the best interests of the child and remains the paramount consideration. The Full Court of the Family Court raised that particular issue in B and B Family Law Reform Act.
Now, there is the difficulty that the father resides in the C H area and the mother and the children reside in the Sydney area. So there is some distance between the parties. Telephone contact is an easy way of maintaining that contact but for there to be face to face contact, there is some travel involved which is an issue of time and expense. The Court must consider the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs.
I am not of the view that there are any serious issues as far as this particular matter is concerned. It is usually more relevant to residence issues. To some extent I've already considered the children's level of maturity as required by subsection 68F(2)(f). It is a significant fact that the child, K, is of course female and the mother not surprisingly has expressed some concern relating to the capacity of the father to be involved in dealings with people of the opposite sex. The mother has some concern that there needs to be some caution in this regard.
She herself has complained of violence in the past and the last thing she wants is for the father to so forget himself and to slip into violence, that there should be violence or a threat of violence to K. It is not unreasonable, based on the mother's history, that she should hold this view. The Court must take into account the need to protect the child from physical or psychological harm, either by being directly subjected or exposed to abuse, ill-treatment, violence or other behaviour or by seeing or hearing another person being subjected or exposed to such ill-treatment.
This subject matter is also considered under subsection 69F(2)(i) and (j). Certainly the father said that he has not harmed the children nor would he do so. The concern which is perhaps greater is of the father, if he is in a relationship with another woman, involving himself in threats or violence towards this other woman in the presence of the children and indeed the mother, in her affidavit, refers to an earlier incident where K had reported seeing such an outburst and I will refer specifically to the text in the mother's affidavit sworn on 19 July 2001, paragraph 29. The mother says and I quote:
Shortly after March the 3rd 2001 after contact had occurred between the children and the respondent husband, the child K returned home and said to me words of or to the effect: "daddy threatened Jan with a crowbar, then he threw a clothes drier across the room."
I am of the view that a child viewing such behaviour would normally be frightened and such behaviour taking place in the presence of children would have the effect of psychological harm, causing psychological harm to a child which is a matter that the Court must guard against. The Court must take into account the attitude to the child and to the responsibilities of parenthood displayed by each parent. Now, in this - the mother is clearly seeking to protect her children which tends to explain what the father would see as an overly cautious and restrictive view.
The father has quite clearly taken steps as far as anger management is concerned, life skills and consulting a psychiatrist to make efforts to resolve his violent behaviour, as well he should. Certainly the Courts of the State of New South Wales take a particularly dim view towards acts of violence, particularly acts of violence towards women and the Local Court of New South Wales has made it particularly clear that assaults on women will not be tolerated. In many cases, that has been - repeated assaulted on women has been a guarantee that a defendant will end up serving a prison sentence.
So family violence is a real issue. The occurrence of family violence and whether or not there is a family violence order, which is referred to in New South Wales as an Apprehended Violence Order or AVO, are matters to be considered by a Court exercising jurisdiction under the Act. The question of domestic violence has been given a greater deal of consideration by Courts exercising jurisdiction under the Family Law Act in recent years. Jaeger and Jaeger (1994) FLC 92492, Full Court of the Family Court held that evidence of the possibility of violence in the household of one of the parties was relevant and admissible in custody proceedings.
The theme was developed by Chisholm J in the Family Court in JG v BG (1994) FLC 92515 where his Honour held that, amongst other things:
In proceedings relating to custody, guardianship and access, evidence of family violence is relevant in so far as it assists the Court in determining what orders would best promote the welfare of the children. The Court will have regard to the fact that family violence M be directly or indirectly relevant to children's welfare in a variety of ways and M be relevant even where it is not directed at or witnessed by the children and so far as the evidence allows, the Court will attempt to understand the nature of any family violence that has occurred and its potential effect on the children.
Later in the case of Patsalou v Patsalou (1995) FLC 92580, the Full Court held that:
The making of derogatory or denigrating remarks by one party to another and the inflicting of physical violence by one party on the other are relevant matters to be taken into account in custody and access cases and any person who indulges in such behaviour presents a very poor role model. Certainly that person's suitability as a custodial parent must be very much in doubt.
This question of a violent and abusive parent being a poor role model and posing a risk that children might learn from abusive behaviour and ultimately treat it as acceptable was one issue covered by Mullane J in his most comprehensive judgment in the recent case of M v M (2000) FLC 93-006. Certainly the approach of single judges of the Family Court in JG v BG and Patsalou v Patsalou as being specifically approved by the Full Court in Blanch v Blanch and CrawF (1999) FLC 928377.
The mother has fears based on her experience of violence, not so much, it is fair to say, directed towards the children but taking place in the presence of children if the father is in a relationship with another woman and wishes to spare her children that. There is an ongoing Apprehended Violence Order. The father has submitted himself to the treatment of clinical psychologists and the psychiatrist and has attended anger management courses and in fairness to him, has indicated his preparedness to accept a considerable number of restrictions on his contact with the children, so long as face to face contact can resume.
All of these are matters which I will give - to which I will give significant weight. The only other issues that section 68F(2) requires the Court to consider is whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. There have been a number of contact proceedings over the years. If these are the last proceedings, well and good but to a large extent, it is going to depend upon the parties.
If there are further issues of violence which impinge on the children, well then this Court would have - would no doubt be entertaining further applications to restrict or suspend contact. There are no relevant facts or circumstances in this matter that the Court need to consider. What are the proposals made by the parties? There has been a substantial degree of agreement about the need for graduated reintroduction of contact. There has been no face to face contact, other than the meetings for the purpose of the family report for 12 months.
Each party puts, and the children's representative supports, a program of graduated contact. The mother's concerns specifically are that there should be no over night contact for 12 months. The father agrees to this principle but only for a much shorter period and it is perhaps fair to say that the father's concessions at all are directed more towards allaying the fears of the mother as far as contact taking place. The mother is of the view that eventually that there will have to be a reintroduction of over night contact.
She is also of the view that there will have to be in due course school holiday contact. She is particularly strong on the fact that for the first 12 months there should be a restriction that contact should take place in the Sydney metropolitan area. She is also of the view that the children should not be brought into contact with any woman with whom the father is or has been in a relationship because of her view with some justification that when the father is in a relationship with another woman, if there are problems, there is then violence directed towards that woman.
The period of time that those restrictions are to be enforced is a subject of contention. The father is prepared to agree for a period of 12 months. The mother says that it should be ongoing. Now, of course, there was talk yesterday in the submissions of such restrictions being forever. Of course, it is not going to be forever and now that K is 15 years of age, it is not going to be - it is only going to be within a few years that she is in a position where contact orders won't apply to her in any event. D, of course, is younger.
Mr Hammond, the children's representative, was not of the view that a lengthy restriction on over night contact was going to have a significant effect on the welfare of the children especially if there is in force a condition which must be followed that the father does not consume any alcohol during contact and that the father does not bring the children into contact with any woman with whom he is in relationship for a period of time. The children's representative was not of the view that the lengthy restrictions proposed by the mother were necessary and was of the view that over night contact could be introduced much earlier than the mother proposed.
It is certainly quite clear that the father needs to continue his treatment with Dr S and, in fact, it has been proposed that the doctor should provide a report as to the father's condition, treatment and compliance with that treatment within a month and then at three month intervals thereafter. I see that actually as one ongoing means of reassurance in that if the father continues to undergo this treatment and continues to respond to treatment, this would provide some assurance that there is unlikely to be an outbreak of violence in the future.
It is not - certainly it is not my view that the father's confident statements to the counsellor that he has now mastered the problem of anger and violence should be completely accepted unconditionally. Mr Hammond, the children's representative, referred me to a report dated 12 December 2001 from B P, a clinical psychologist and neuro-psychologist. The first page of that report in the two final paragraphs on that page go as follows:
Mr F claimed that, in retrospect, he should have contested the AVOs that were taken out against him. Moreover he claimed that on all occasions, he has pushed the various female partners back after being pushed first by them. He claimed that he has never struck any of them, not even after one female partner allegedly split his head open. Furthermore, Mr F claimed that he has never been violent or physically abusive to his children or even animals. He confidentially asserted that his children would both attest to that fact.
Now, the confidence expressed by the father is not the same degree of confidence that the Court would hold. I am of the view that face to face contact should be reintroduced and that it should commence soon. I am of the view that in due course there should be - that contact should extend first from one day to two days and then, as things settle down and people's confidence builds up, there should, in fact, be over night contact. I'm certainly not persuaded that there has been shown any need for no over night contact to take place for a period of 12 months.
I am of the view that school holiday contact should commence and in due course that should involve over night contact. I'm certainly of the view that restrictions placed on the father to avoid alcohol would be a very wise precaution and I'm certainly of the view that the requirement for the father to continue to attend upon Dr S as long - and undergo such treatment recommended by the doctor should continue until the doctor considers that no longer necessary. I'm certainly of the view that the provision of the report by a doctor relating to the issues I've previously discussed, by the doctor, in fact, is a useful provision and would have to be in the children's interest.
If nothing else, it M well go towards allaying the mother's fears. As to the restrictions on the father not bringing the children into contact with any woman with whom he is in a relationship and making sure that contact takes place within the Sydney metropolitan area, I'm certainly not of the view that those restrictions should continue indefinitely. There has to be a stage where the children can, as long as things go well, go away with their father and if the father has, in fact, resolved his problems of anger management and of violence towards women, then he too should be in a position where he should be involved in a – he can be involved in a relationship with a woman friend or lover.
If this person is important to him, then in due course the children should meet her. To continue those restrictions or those proscriptions indefinitely until the children become adults is, to my mind, unnecessarily restrictive. I am of the view that those restrictions should stay in place until the 1st of October next year but that provided contact has gone well in the meantime – in the meantime that from the 1st of October, those restrictions should go. It is for the reasons that I have given and my reasons for judgment which will be reduced to writing and edited, which will form my reasons, that I make the following orders, which are fairly lengthy:
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S Polley
Date: 1 July 2002
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