Harcourt and Walton - [2008] FMCAfam 1006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARCOURT & WALTON

[2008] FMCAfam 1006

FAMILY LAW – Parenting orders – need for permanent supervision.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DAC

Applicant:

MS HARCOURT

Respondent:

MR WALTON

File Number:

MLC 4833 of 2007

Judgment of:

Phipps FM

Hearing dates:

28 & 29 July 2008

Date of Last Submission:

29 July 2008

Delivered at:

Melbourne

Delivered on:

29 July 2008

REPRESENTATION

Counsel for the Applicant:

Ms M. Baczynski

Solicitors for the Applicant:

David Stagg Tonkin & Co.

The Respondent:

In person

Counsel for the Independent Children Lawyer:

Mr R. Hoult

Solicitors for the Independent Children Lawyer:

Marshalls & Dent

ORDERS

THAT all previous orders are discharged.
THAT the mother have sole parental responsibility for the children [X] born in 2003 and [Y] born in 2001.
THAT the children live with the mother.
THAT the children spend time with the father as follows:
(a)Each alternate weekend from 10:30am Saturday to 3.30pm Sunday commencing 9 August 2008;
(b)On Christmas Day 2008 and alternate years thereafter from 11.00am until 3.00pm;
(c)On Christmas Day 2009 and alternate years thereafter from 4.00pm until 8.00pm;
(d)On Father’s Day in a non time with weekend from 10.30am until 3.30pm;
THAT all of the father’s time with the children is to be supervised by either the paternal grandmother Mrs W and or the paternal grandfather Mr W.
That the father’s time with the children, other than for normal outings and excursions is to take place at the paternal grandparents residence.
THAT unless otherwise agreed changeover of the children is to take place at [omitted] Contact Centre, and the children are to be collected and delivered by the paternal grandmother and or the paternal grandfather.
THAT if the [omitted] Contact Centre is not available change over is to take place at [omitted] Police Station.
THAT the father’s time with the children will be suspended:
(a)For the first “time with” weekend which occurs in each school term holidays and replaced by the weekend prior to school holidays which is not a scheduled “time with” weekend;
(b)For the first “time with” weekend after 1^st January each year;
(c)If Mother’s Day occurs on a “time with” weekend for that for that weekend.
THAT the father is restrained from consuming any illicit substances or alcohol 24 hours prior to and during all time spent with the children.
THAT the mother and the father, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
THAT the order appointing the Independent Children’s Lawyer is discharged.

AND THE COURT NOTES:

THAT pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 4833 of 2007

MS HARCOURT

Applicant

And

MR WALTON

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Ms Harcourt and Mr Walton have two children, [Y], born in 2001, who is six and three‑quarters, and [X], born in 2003, aged five. The children live with their mother. The parents disagree on the circumstances in which they should be seeing their father.
The principle issue in the case is whether Mr Walton's time with the children should be supervised and if it is to be supervised, whether that should be at a contact centre or whether the supervisors can be his parents. There is also an issue about whether his time with the children should be conditional upon him attending a drug and rehabilitation program or otherwise showing that he is free of the use of illicit drugs.
The parties lived together from October 1989 and separated on 30 October 2003. Ms Harcourt is 36 and Mr Walton is aged 37. Significant in the case is that Mr Walton was badly injured in a motor vehicle accident in 1992. He has been involved in another motor vehicle accident as well. Those factors and other matters have affected his mental capacities, a significant issue in the case.
The mother's proposal is contained in her application which was filed on 13 July 2007. She proposes that she have sole parental responsibility for the children, that the children live with her and that Mr Walton spend time with the children in accordance with the recommendations of Dr Alan Jager, contained in his report filed on 24 April 2007, that is, that such time be supervised and only take place upon successful completion of a drug education and rehabilitation program, after a negative alcohol breath analysis and negative random witnessed drug screen taken within one week of time spent.
Mr Walton's proposal is that there be equal shared parental responsibility and the children live with their mother. He has specific proposals concerning consultations about education, health, sport, travel and similar matters. He proposes that the children spend time with him each alternate weekend from 10.00am Saturday until 5.00pm Sunday and that be unsupervised. He proposes that changeover occur at the [omitted] contact centre located at [omitted]. He also has proposals for telephone communication, birthdays, Mother's Day, Father's Day, and proposes that he be restrained from consuming any illicit substance 24 hours prior to and during all the time spent with the children and some other specific matters. He proposes a non-denigration restriction and proposes that each keep the other informed of current address and contact telephone numbers.
The Independent Children's Lawyer's recommendation is that the children should live with their mother, that Mr Walton's time be alternate weekends, 10.30am to 3.30pm, that that be supervised by his parents and that it take place at his parents' house; the changeovers continue to be at the contact centre and that the pick-up and drop-off be done by one or other of Mr Walton's parents; that is, one or other of the paternal grandparents. He proposes four days in each of the school term holidays and four-day blocks during Christmas holidays and some time at Christmas.
There is a long history of proceedings. There were proceedings commenced in the Family Court of Australia on 21 October 2004. They were concluded some time in, 2007 upon the operation of a default order made by Mushin J concerning filing of material. These proceedings were commenced in this court, the Federal Magistrates Court, in July 2007. There have been a number of affidavits filed. There have been several contravention applications brought by Mr Walton.
As far as professional reports are concerned, Dr Jager, a psychiatrist, saw both parties and prepared reports in 2006. His professional qualifications are not in dispute. He is a senior psychiatrist, having held many senior appointments. In December 2006, a family report was prepared by one of the Family Court consultants and then recently another family report has been prepared by Ms Owen. The family report in 2006 was prepared by Ms Keating.
What Ms Harcourt says is that following the motor accident in 1992, the father's personality changed. She then alleges a long history of abuse and violence. She has an intervention order. The last one was made by the Magistrates Court of Victoria in November 2006 and it continues until November 2011. She says that there have been findings of 102 breaches of intervention orders by Mr Walton. She alleges inappropriate and disturbing behaviour over a long period of time by Mr Walton. He denies all of those allegations. The case proceeded on the basis that there was little point in exploring the truth or otherwise of those allegations.
If I turn first to Dr Jager's report. He saw both parties. There is no issue about Ms Harcourt, but as far as Mr Walton is concerned, he says this:
There is no formal history of psychiatric illness. His history of criminal offending dates back to the age of 15. He has spent two years in a juvenile justice centre and eight months in prison for property offences. He currently faces assault charges against two women in a carpark. He denies ever being a heavy drinker but has regularly used marijuana and amphetamines since late teens and has not undergone drug education and rehabilitation.
I add there that Mr Walton denies ever using amphetamines, he acknowledges marijuana use. He says it is now once a fortnight, but it is clear from Dr Jager's report that he told Dr Jager of the marijuana and amphetamine use. I accept Dr Jager's report. It in fact has not been seriously disputed. Dr Jager goes on:
In 1992 he was hit by a car and sustained a fractured skull and fractured right tibia and fibula. His de facto witnessed him running at a car before coming to a stop, but the car, driven by a friend of his, accelerated, hit him and then took off. He was unconscious for seven days. When he awoke, his character had changed. He was very dominating, easily angered and would explode, according to his ex de facto. Collateral information from the independent children's lawyer indicates disinhibition, anger and aggression. At interview, he was disinhibited, gestulating and agitated at times and fairly angry with his current circumstances. Formal cognitive testing revealed severely impaired short‑term memory, long‑term memory and impaired concentration and impaired higher mental functioning.
The summary is spelt out in more detail in the various parts of Dr Jager's report. Dr Jager then says:
He has personality change secondary to brain trauma, disturbed conduct of adolescence and adulthood, including criminal offending, suggested an additional diagnosis of antisocial personality disorder. The longstanding abuse of cannabis and amphetamines indicates additional diagnoses of cannabis dependence and amphetamine dependence.
He then describes antisocial personality disorder, personality change secondary to brain trauma, cannabis dependence and amphetamine dependence. Dr Jager says:
Without a high level of motivation, to cease using those substances, further abuse of those substances is likely.
So far as the antisocial personality disorder, Dr Jager says:
It is a descriptive term, not amenable to treatment; personality change secondary to brain trauma.
He says:
14 years after the injury, further improvement is unlikely. It is not amenable to treatment.
He then describes the risk factors:
An elevated risk of harm to others, including male gender single status, past violence, personality disorder, intellectual disability, substance abuse, relationship instability, specific person threatened and impulsivity. The presence of those multiple risk factors indicates a moderate risk of harm to others.
He says these factors are significant barriers to successful parenting and Contact should be supervised and should only take place upon successful completion of a drug education and rehabilitation program. Contact visits should proceed only after a negative alcohol breath analysis and negative random witnessed drug screen taken within one week of the visit.
Ms Keating's report, which found a strong relationship between Mr Walton and the children, back in December 2006, recommended that Mr Walton be spending time with the children and makes no mention of supervision. Ms Keating gave some evidence. Her report specifically refers to the fact that both parties had seen Dr Jager for the purpose of psychiatric evaluation but the report was not available at the time she wrote her report. It seems there were some problems with payment for the report. She specifically notes, and she stated the obvious in her oral evidence, that if she had Dr Jager's report, her conclusions and recommendations may well have been different.
In those circumstances, Ms Keating's report is of little assistance, other than this. It shows that towards the end of 2006, in what might be described as a supervised and controlled environment, the children were happy with their father, supervised and controlled in the sense that when they were with their father, it was for the purpose of the observation session with Ms Keating present. That is the useful information which can be taken from Ms Keating's report.
Ms Owen's report, which is May of this year, repeats the attitude of the parents to each other. She concluded that the history suggests a lifelong predilection to impulsive and illegal behaviour and says:
It would appear that his impulsivity has been exacerbated by injuries sustained in two successive car accidents and illegal drug use. Most recently, it would appear that the focus of his attention has been directed towards Ms Harcourt and extended family members.
She refers to Dr Jager's report. She saw the children and observed them with each of their parents. She says of [Y] that he was observed in the presence of Mr Walton.
He appeared initially reluctant to engage and required prompting by Mr Walton to give him a hug. Given documented reports by external agencies of positive contact between them, this response was most probably due to the strange surroundings and presence of the observer rather than any particular apprehension about the relationship. It is noted, however, that he is reported to be more secure in Mr Walton's presence when other adults are present. He has reported that when access occurs beyond a supervised place that he often vomits and appears anxious prior to meeting Mr Walton. [X] was observed in the presence of Mr Walton and like [Y], appeared somewhat reticent to engage with him, requiring coaxing from Mr Walton to approach him and engage with him.
In recent times, since January of this year, the time the children have been spending with their father has been partly supervised. Orders of 10 January 2008 provide for alternate weekends. In the orders it was 10.00am Saturday to 4.00pm Sunday but because the contact centre had to be used for changeover, it has been 10.30am Saturday to 3.30pm. Changeover is at the contact centre. The time from 4.00pm on Saturday afternoon to 10.00am on Sunday morning was to be in the substantial presence of the paternal grandparents. That time took place up until June this year. When Ms Harcourt received Ms Owen's report with the strong recommendation that all time should be supervised, she ceased the time.
Going back to Ms Owen's report, that is the context in which she made it. The recommendation by Ms Owen is for supervised time. She proposes an accredited supervision centre so that Mr Walton's interactions with [Y] and [X] is observed at all times. She then says:
As improved psychological functioning is unlikely, it would appear that contact should remain supervised until such time that Mr Walton is able to demonstrate that he has ceased illegal drug use; that Mr Walton is able to demonstrate improved impulse control and social behaviour evidenced by cessation of harassment of Ms Harcourt and her family; that [Y] and [X] are of sufficient age to make an informed judgment about their desire to spend unsupervised time.
She says Mr Walton should be required to undertake and complete an accredited drug and rehabilitation program. She proposes that the parties be restrained from criticising each other.
In an affidavit sworn on 25 July 2008, Ms Harcourt, amongst other things, details what has occurred since January 2003, since the orders were made. Both children, she says, have told her that they don't want to spend time with their father. She said that [X] said that the father had told them both "not to love me, not to go near me" and that they would both be living with him soon. The father denies this. She says on many occasions the children would disclose their activities. She alleges that [Y] says that the father let him drive his car. She describes how [Y] has vomited on the way to the changeover centre on the Saturday morning. She says that recently she has been receiving a call from the school on the Fridays before the father's weekends to say that [Y] was sick. She would have to go to school and bring him home. When asked, he would say that he was sick but he could not really explain what it was that happened.
She says [X] has said that their father lets them drink beer. She alleges that the father has been to the primary school, that there have been prank calls. She says that on 28 March 2008 she was leaving her parents' home and when she got to the top of the road, the father was there. She says he looked at her, threatened her and intimidated her by saying, "Things will only get worse." Mr Walton acknowledges he was there. His employment is as a window cleaner and he said that he has a contract for the police station in that area and that is why he was there; he had been at the police station. She describes other incidents of the children being reluctant to go and spend time with their father.
Mr Walton's parents have both given evidence and their evidence is that they, for most of the times since January, both of them have been present. For the last two or it might have been three, Mr Walton was present only with the paternal grandfather. They speak in positive and glowing terms of the children's relationship with their father.
What I take from the evidence is this: Dr Jager's report, is quite clear, about Mr Walton's mental condition. I accept what Ms Harcourt says about his behaviour and particularly the behaviour which has occurred recently. It is quite possible that Mr Walton does not recall much of this behaviour and does not appreciate how it might affect the children. He has a strong dislike for Ms Harcourt, the dislike is mutual.
Part of the material before the court is a report from [omitted] Contact Services, reporting contact visits that took place in 2006, commencing on 10 June 2006 and going through until August 2006. It reports in detail. Under the heading Significant Observations and Comments at the conclusion of the report:
The depth of Mr Walton's love for his children, albeit frustrated by contact being supervised, has been obvious throughout contact at this service. The children have responded to Mr Walton's warmth and care with affection and eagerness to see their father.
They then point out that this is the second occasion the service has been used and offer suggestions about other options that may be available. Ms Owen has reported that after some hesitation, the children did respond to their father.
So far as the need for supervision is concerned, Ms Owen summed it up by saying that Mr Walton has problems with impulse control and decision‑making. Inappropriate impulsive behaviour and wrong decision‑making concerning care of the children would be very harmful for them. She says, it is clear that constant and close supervision of his time with the children is necessary.
The grandparents, although obviously sharing their son's attitude towards Ms Harcourt, I consider are sincere in what they said about their son's relationship with their grandchildren. Ms Walton, that is, the paternal grandmother, said that she thought Ms Harcourt would do whatever she could to stop her son seeing his children. She does not consider that they need supervision. But the evidence of the grandparents that everything goes well when they are there is consistent with what is contained in the contact service report which Ms Owen remarks on, that when other adults are present, the children feel secure in their father's presence and respond accordingly. But I accept what Ms Harcourt says about the children telling her about inappropriate comments and inappropriate behaviour. There are inappropriate statements and inappropriate behaviour by Mr Walton brought about by his problems with impulse control and decision‑making which are not there when other adults are present. The presence of adults brings about two things: It is a control mechanism for Mr Walton's behaviour and it gives the children a feeling of security that they can enjoy their father's presence, enjoy their time with their father, without being worried about what he might do, because it will be controlled by the adults.

In those circumstances, I have to apply the relevant provisions of the Family Law Act 1975 (Cth). Section 61DA says the court must apply the presumption that it is in the best interests of the children to have equal shared parental responsibility. If an order is made, s.61DAC puts this obligation on the parents: if the exercise of the shared parental responsibility involves making a decision about a major long‑term issue in relation to the children, the order requires a decision to be made jointly by those persons and it requires those persons to consult the other person in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.
Mr Walton and Ms Harcourt have no ability to do what is required by that section. If there is an order for shared parental responsibility, it would not be in the children's best interests to place upon the parents an obligation that they cannot meet. Insofar as s.60CC considerations are concerned, this comes under the capacity of each of the child's parents to provide for the children's needs, the attitude to the child and responsibilities of parenthood and family violence involving the children and members of the children's family. The only possible order in the best interests of the children in this case is that the mother have sole parental responsibility.
Section 60CA provides that, the best interests of the children is the paramount consideration. The objects of the act are contained in s.60B and the primary and additional considerations are contained in s.60CC.
The two primary considerations are the benefit to the children of having a meaningful relationship with both of the child's parents and the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. The second of those, the need for protection, is very significant in this case. The views of the children are a relevant factor. I accept that the children have been showing a reluctance to spend time with their father in the circumstances in which they have been seeing him in the earlier part of this year.
The willingness and ability of each of the parents to facilitate the relationship is relevant. The capacity of each of the child's parents to provide for the needs of the children is relevant, and so is the attitude to the child, responsibilities of parenthood and family violence which has been involved.
The professional evidence, shows that to protect the children from psychological harm, supervision is needed and continual supervision for the immediate, if not medium‑term future until the children are old enough to be able to protect themselves from any impulsive behaviour or bad decision‑making by their father.
The evidence, particularly the professional evidence from Ms Owen and the evidence from the contact centre, shows that the children need to have a relationship with their father. It needs to be in circumstances where it can be meaningful. For them to have that meaningful relationship with their father, the time needs to be supervised because they do not feel secure if they do not have other adults around.
So far as they expressed views to their mother, it is consistent with what I have just said. As far as the nature of the relationship of the child with each of the child's parents are concerned and other persons - grandparents here are relevant, the mother is their primary carer. Her peace of mind is significantly affected by Mr Walton's behaviour.

It must be having an effect on her ability to parent the children and care for them on a day‑to‑day basis. Her feeling of comfort with the arrangements for the children to see their father is a relevant consideration because it may affect her ability to care for them.
So far as a willingness of each of the child's parents to encourage a relationship, contrary to what Mr Walton believes, I accept that

Ms Harcourt wants the children to have a relationship with the father and she wants that to be in safe and secure circumstances. So far as the capacity of each of the child's parents and the grandparents to provide for the needs of the children, Mr Walton does not have the ability to provide for their needs unsupervised.
I need to deal separately with the ability of the grandparents to supervise and so provide for the needs of the children to see their father in a safe and secure environment. As far as the attitude to the children and the responsibilities of parenthood is concerned, Mr Walton's behaviour may well be involuntary, in the sense that it is caused by the conditions that Dr Jager has described, but his impulsive behaviour, inappropriate statements to the children, and poor decision‑making, showed that his attitude to parenthood needs to be controlled by supervision. Family violence must be taken into account, but it is a consequence of the same factors which lead to a need for supervision.
The balance of all those factors, particularly the need to protect the children from harm, means that there is a need for all the children's time with their father to be supervised.
That leaves the issue of who the supervisor should be and where that supervision should take place. I have described Ms Owen's recommendation that it should be at a contact centre until certain conditions are satisfied. Dr Jager proposes supervision but does not go into the specifics of how that should take place.
The difficulty with a contact centre is that time is necessarily limited. At best, it will be two hours a fortnight. Mr Hoult, for the Independent Children's Lawyer, has referred to the understanding that most contact centres will provide supervised time for a period of 12 months but no longer. That is because of the demands on their services, amongst other things. There was also a problem with one contact centre which refused to continue with the service because of Mr Walton's behaviour towards the staff.
The grandparents, that is, Mr Walton's parents, do not believe supervision is necessary. That is a significant matter in considering whether they are appropriate supervisors or not. The grandmother,

Ms Walton, was recalled to give evidence this morning and that aspect of it was dealt with specifically. She did not believe that the supervision was necessary. But both she and Mr Walton, the paternal grandfather, have said that if supervision is ordered, they will provide it. They want their grandchildren to see their father. They believe it is important. They recognise it will be a burden but they will do it.
Ms Owen made the point that if the need for supervision is because of impulse control and poor decision‑making, then the supervisor should recognise that that is the problem so that they are aware of what they are looking for.
I have to balance all the various considerations in this case. The children will benefit from a meaningful relationship with their father. When the circumstances are controlled and they feel safe and secure, they do have a very good relationship with their father. A supervised contact centre on a long‑term or medium-term basis will not provide sufficient time for that meaningful relationship to develop and be promoted. The overnight time every second weekend does provide that time, as long as it is appropriately supervised.
I consider that while there are some risks associated with the grandparents supervising in circumstances where they do not acknowledge the problem, I accept that they do understand the obligations on them if they are required to supervised and I accept that they will do it. The balance of best interests' considerations which I have described come down in favour of having the grandparents as supervisors.
[Omitted] contact centre is the agreed changeover place. Mr Hoult for the Independent Children's Lawyer has proposed that the order require the grandparents to collect the children. That, I consider, is an additional protective matter for the children. If they know that they are being collected by a grandparent and not by their father, that will lessen any apprehension that they might feel, knowing that they will be going with a person with whom they are comfortable, and stay with a person with whom they are comfortable.
So far as the drug-taking is concerned, the options available are to require Mr Walton to attend a recognised rehabilitation program. He gives evidence that he did attend a program. It seems he went to a program for only an hour or two. Dr Jager's report says that would require a high level of motivation. It is plain that Mr Walton, in the condition he is in, lacks that motivation. That is one consideration in determining whether I should order that he attend a drug rehabilitation program. There would be little point in making the order without having some consequence if he did not, such as the suspension of the time.
Another additional option is to make the time dependent on Mr Walton providing clear supervised drug screen tests. There have been orders made for those in the course of these proceedings. Only a number of tests have been provided but they all raise the question of whether

Mr Walton has flushed out his system so as to dilute the effects of any cannabis, in particular, left in his body. There is only one satisfactory drug screen test provided but not one which would give any confidence that it shows that he is not using drugs.
Again, I have to balance the best interests' consideration. Relevant here is the consideration of an order which is least likely to lead to further litigation between the parents. If I made an order requiring

Mr Walton to attend a drug rehabilitation program and he claimed that he had and Ms Harcourt claimed that he had not, there would be further litigation. That would not be in the best interests of the children. If I made the time conditional upon provision of drug screens, they were not provided or they were inconclusive, again that could lead to further litigation.
Much of Ms Harcourt's anxiety must be caused by having court proceedings on foot constantly for nearly five years. I consider that a significant consideration in determining the drug issue is an order which is least likely to lead to further proceedings in court. If it was possible to put in place a process which might lead to some guarantee that Mr Walton was no longer using marijuana or any other drugs, it should be done, but balanced against that is that the most likely result of such an order is further litigation. That would not be in the interests of the children, particularly because of the effect that would have on their mother She would have that continued layer on her levels of anxiety. That affects her parenting of the children.
Insofar as the exact times are concerned, Mr Hoult, the Independent Children's Lawyer, has proposed holiday times. I think the balance of protective concerns against promoting the children's relationship with their father is against any additional time. The burden of supervision on the grandparents will be considerable. They will undertake it of course but the concentration and the effort needed for the overnight time each fortnight is less than that which would be needed for a holiday period of four days. The balance of protective concerns are against there being holiday time.

I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of Phipps FM

Deputy Associate: Paul Moss

Date: 11 September 2008