Hayward and Hayward
[2008] FMCAfam 1203
•5 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAYWARD & HAYWARD | [2008] FMCAfam 1203 |
| FAMILY LAW – Parenting – whether a 10 year old child should spend time with her father – serious family violence – child not seeing father between ages of 3 and 8 – mother very fearful of father – interim consent orders to introduce father and child, moving from supervised time to unsupervised time after 18 months – child refusing further time with father at last supervised session – father seeking final supervised time order. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAB |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112 Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224 P & P, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340 |
| Applicant: | MS HAYWARD |
| Respondent: | MR HAYWARD |
| File number: | SYM 943 of 2004 |
| Judgment of: | Halligan FM |
| Hearing dates: | 3 June, 7 July, & 20 October 2008 |
| Date of last submission: | 20 October 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 5 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Harris |
| Solicitors for the Applicant: | Harman and Company |
| Counsel for the Respondent: | Mr McCallum |
| Solicitors for the Respondent: | R & M Legal |
| Independent Children’s Lawyer | Ms Druitt, Legal Aid Commission |
ORDERS
All prior parenting orders in relation to the child [G] born in 1998 are discharged.
The child shall live with the mother, who shall have sole parental responsibility for the child.
The father shall communicate with the child-
(a)By telephone on the child’s birthday, the father's birthday, Father's Day and Christmas Day, between 7 am and 7.30 am if a school day and otherwise between 9.30 am and 10.30 am, the mother to ensure the child is available to receive the father's calls and to ensure the child has privacy during such calls;
(b)By letter and gifts, the mother to hand such communications to the child unopened.
The mother shall keep the father informed of-
(a)Any medical problems or illnesses suffered by the child while in the mother's care;
(b)Any medication that has been prescribed for the child;
(c)The residential address of the mother;
(d)The telephone contact number for the mother; and
(e)Any other matter relevant to the child’s welfare.
The father shall ensure the mother is kept informed of-
(a)The residential address of the father; and
(b)The telephone contact number of the father.
That for the purposes of communicating information between the parties the mother and father shall-
(a)Communicate by telephone matters of an urgent nature; and
(b)Otherwise communicate by writing or email as to matters relating to parental responsibility.
Each party shall refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and each party shall do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
Each party shall keep the other party advised of any changes to address or telephone contact numbers within seven days of the change occurring.
Within 14 days of the making of these orders and within 14 days of the child’s subsequent enrolment at any school, the mother shall do all acts and things and give all irrevocable authorities necessary to ensure that the school the child attends from time to time forwards directly to the father copies of all the child’s school reports and merit cards, and any written material pertaining to the child’s academic and extra-curricular activities.
The mother shall furnish to the father within seven days of receipt of them copies of all order forms for school photographs of the child.
IT IS NOTED that publication of this judgment under the pseudonym Hayward & Hayward is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
SYM 943 of 2004
| MS HAYWARD |
Applicant
And
| MR HAYWARD |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings under the Family Law Act 1975 (Cth).
At the end of the hearing both parents agreed with the proposals of the Independent Children's Lawyer that the parties’ 10 year old daughter live with the mother, that the father communicate with the child by telephone on the child’s and the father's birthdays, Father's day and Christmas Day, and in writing by letters and gifts which the mother shall hand to the child unopened. It was also agreed that the mother be ordered to keep the father informed of specified matters about the child’s welfare, that each parent keep the other informed of their address and telephone number, and that there be a mutual non-denigration order. The mother sought slightly different times for the father's telephone communication with the child than the Independent Children's Lawyer proposed.
The Independent Children's Lawyer further proposed that the mother have sole parental responsibility for the child. The mother supported this while the father opposed it.
The father ultimately sought orders that he spend supervised time with the child once a month for two hours at a specified contact centre. The mother and the Independent Children's Lawyer opposed this.
Thus the issues ultimately to be resolved so far as the orders sought are concerned are whether the mother is to have sole parental responsibility or the parents are to have equal shared parental responsibility for the child, the times of the father's telephone communication with the child, and, most significantly, whether the father is to spend time with the child.
Background
The mother was born in 1966 and is aged 42. The father is 36, being born in 1972.
The parties married in May 1997 and separated under the same roof on 21 October 1998. The father left the matrimonial home in about May 1999. He returned to live in the matrimonial home with the mother's concurrence in early 2000. The parties did not resume cohabitation. The father left the matrimonial home finally when he was removed by the police on 21 April 2001 following a serious assault on the mother for which he was subsequently sentenced to a term of imprisonment. The parties were divorced in early 2005.
The parties’ daughter, [G], was born in 1998 and is now aged 10. The mother has three children of prior relationships, [V] and [W] who are both over 18, and [X] who is 16. The father has two children of a prior relationship, [Y] aged 17 and [Z] aged 15.
The mother commenced the present proceedings on 12 October 2005. After the appointment of an Independent Children's Lawyer, the matter was listed for hearing and a Family Report ordered.
On the hearing date, 11 September 2006, consent interim orders were made and the matter adjourned for nine months. Those orders provided that the father was to spend supervised time with the child at the Campbelltown Contact Centre once a month for eight sessions, then once a fortnight for eight sessions. The father was ordered to undertake urinalysis once a month, and in the event of a positive or abnormal drug screening report, his time with the child was to be immediately suspended. These orders were consistent with some of the recommendations in the Family Report.
The matter was ultimately listed for hearing again on 3 June 2008 and a further Family Report ordered. The hearing could not proceed on the second day through no fault of the parties and was adjourned to
7 July 2008. The hearing did not finish and the matter was listed for further hearing on 20 October 2008, with further consent interim orders being made.
The further interim orders of 7 July 2008 were consistent with recommendations in the second, supplementary, Family Report. They provided for the child to live with the mother, who was to have sole parental responsibility for the child, and the child was to spend time with the father on two occasions a fortnight apart supervised at the Campbelltown Children’s Contact Service, then unsupervised from
10 am to 4 pm on the first Sunday of each month commencing on
3 August 2008, with changeovers to occur at the Centacare Contact Service Wollongong or, if that Service was closed, in the foyer of a specified club in Wollongong. The interim orders also required the introduction of a communication book, and contained other ancillary provisions.
The interim orders of 7 July 2008 broke down after one visit, the child refusing to go with the father and the contact centre staff being unable to overcome her resistance.
The evidence
The extent of the father's involvement with the child during the parties’ cohabitation and after separation up to 21 April 2001, and whether he was neglectful of the child on occasions he was left to care for the child during cohabitation, are matters in issue between the parties. It is unnecessary for me to resolve these factual disputes. It is clear on any view of the evidence that the mother was the child’s primary carer.
The mother alleged various incidents of family violence and an incident of threatened physical abuse of the father's son [Y] during cohabitation. She gave no evidence of abuse of her own children during cohabitation, although she seemed to allege they were abused by the father in her interview with the author of the second Family Report. The father denied ever abusing any of the children. I accept the mother's evidence of family violence during cohabitation and find it occurred as she alleged. I am unable to resolve the issue of whether the father threatened [Y] physically, and am satisfied that it is unnecessary to do so to determine this matter.
On 21 April 2001, the father, significantly affected by alcohol and drugs, rang the mother and told her he was coming home to kill her and to kill her lover. The mother was caring for her youngest two children, [X] and [G], and the two daughters of a friend, [L], and her husband, [E], while they went out. The mother believed the father’s reference to her lover was a reference to [E]. She denied any intimate friendship with him, and I accept her evidence. The mother rang [L] and she and [E] returned to the mother's home.
The mother then received a series of text messages and phone calls from the father saying he was coming to kill her, and indicating where he was as he travelled towards the mother's home. The mother hoped that the father would fall asleep and sleep off what she believed was his intoxication, but in due course there came loud banging on her door and she rang the police. She rang the police several times during the following events.
The father then gained entry to the mother's home by smashing the lounge room window. He approached the mother and [E] stood between them. The father then went to the kitchen, took a knife with a 30cm blade, and said he was first going to kill the mother and then he was going to kill [E]. The mother ran to escape through the front door but tripped and fell. [L] made good her escape from the house.
The father stood over the mother with the knife where she fell and said he was going to kill her. [E] approached the father from behind and pushed him out the front door. The mother ran back inside the house to make yet another phone call to the police and the father rushed at her holding the knife. [E] grabbed the father and a struggle ensued, during which the mother escaped through the kitchen window. She went to her mother's house next door.
The mother, realising that the children were still in her house, went back to her house. She saw [E] and her brother [N], who had come from her mother's home, standing near the father, who was on the ground. The father then got up and started to fight with [E] and [N]. The mother went inside her home to check on the children. A short time later the police arrived, arrested the father and took him from the scene.
This was a particularly terrifying incident for the mother. She remains significantly affected by it. This is entirely understandable. It continues to significantly colour her attitude towards the father. This too is entirely understandable. The mother remains very fearful and deeply distrustful of the father, and is not convinced he has in fact reformed as he claims.
This was an instance of serious family violence involving not only the mother, but the parties’ child [G], one of the mother's other children, her two friends and their children, and her brother. It continues to have significant repercussions, not only in the mother's attitude towards the father, but also at law in these proceedings. The finding of family violence means that the rebuttable presumption that it would be in [G]’s best interests for the parents to have equal shared parental responsibility for her does not apply (s.61DA(2)). It has further repercussions now in raising as a significant issue in this case the father's attitude to his daughter and his responsibilities as a parent, and his ability to meet his daughter’s needs, including her emotional needs.
The father has expressed remorse for his treatment of the mother during their cohabitation, and particularly for the incident of
21 April 2001. However, as was observed in one of the Family Reports, some of the father's statements about his actions and his remorse seem a little glib, and the depth of his insight into his actions is not what it might be.
Nonetheless, the father has since remarried, has permanent employment, and professes to have been drug and alcohol free since the incident of 21 April 2001. His son [Y] now lives with him, having passed from his mother's care to the father's care following intervention by the Victorian Department of Human Services. The authors of the Family Reports both were of the opinion the father had made genuine efforts to reform his life, and there is no evidence to contradict the father's evidence of having been drug and alcohol free since 21 April 2001.
The father was convicted of criminal charges arising from the incident of 21 April 2001, and was sentenced to three years’ imprisonment with an 18 month non-parole period. He commenced his sentence in
August 2002 and was released on parole in February 2004. On
10 February 2004, a two year Apprehended Violence Order was made against the father for the protection of the mother and the child [G]. It restrained the father, inter alia, from going within 200 metres of the residence or work place of the mother or [G], and from approaching, contacting or telephoning the mother or [G] except for the purpose of arranging or exercising contact with a child as agreed in writing or as otherwise authorised by an order or registered parenting plan under the Family Law Act.
The father relied on a report dated 21 May 2002 from Ms B, a psychologist, apparently prepared in connection with the criminal charges he faced after the incident on 21 April 2001.
Ms B said in her report-
a)the father's profile on the Carlson Psychology Survey, to assess clinically relevant psychological traits, “closely parallels those who are described by the test constructors as having a disturbed personality”;
b)the father's scores on the Substance Abuse Subtle Screening Inventory to identify individuals with Substance Dependence Disorder demonstrated “a very high probability that he would be diagnosed with Substance Dependence Disorder”;
c)“his profile most closely parallels those who may be diagnosed with a personality disorder”;
d)while the father denied symptoms usually associated with mental illness such as schizophrenia and there were no clinical indications at her meeting with the father of thought disorder, the father's general practitioner had placed him on antipsychotic medication about 15 months previously after the father complained of unusual body sensations, and he reported being placed on a disability support pension with a diagnosis of schizophrenia;
e)the father abused alcohol from his early teens;
f)the father had been a regular marijuana and amphetamine user from his teenage years, injecting amphetamines between the ages of 17 and 21, and using marijuana daily and “snorting” amphetamines at the time of the incident on 21 April 2001;
g)the father had also abused prescription medicines such as Valium and Serepax when amphetamines were not available to him;
h)treatment to assist the father to remain drug free will need to be ongoing;
i)the father has underlying problems of anger and hostility that need addressing in professional counselling, with programs while in custody such as anger management being appropriate as would individual sessions with a psychologist;
j)the father had made many positive changes since the incident on 21 April 2001, and impressed as committed to continue his efforts during any custodial sentence and following his release.
The evidence shows the father while in gaol completed nine sessions of “Healing Addictions”, described as “a nine weeks personal development course for people recovering from all addictions”, sessions 1 to 12 of Alcohol and Other Drugs Support Group, sessions
1 to 12 of Alcohol (sic) Anonymous 12 Steps Programme, a 12 week psychology course in Anger Management, and the Enough is Enough Anti-violence Movement Inc “R” Program.
The evidence also shows that since leaving gaol, and apparently while on parole, the father completed nine out of ten sessions of a course in Domestic Abuse at Community Offender Services.
There is no evidence the father has undertaken any individual sessions with a psychologist such as suggested by Ms B. Nor is there any evidence that the father has had any ongoing treatment to assist the father to remain drug free as suggested by Ms B.
The father in his evidence in chief denied he suffered schizophrenia. He put into evidence a report from a general practitioner, Dr W confirming that he was not now, nor had he previously been, prescribed any medication for schizophrenia. The father said Dr W had been his “treating physician” since approximately 1991. Dr W’s surgery is in Nowra. The father lived in the western suburbs of Sydney, not in Nowra, during his cohabitation with the mother.
In fact, between March 1997 and May 2001, the father had consulted a doctor at St Marys who indicated the father was diagnosed with major depression, and later with depression and schizophrenia. This doctor prescribed antipsychotic medication for the father, and reported in March 2003 that while the father showed some improvement, “compliance remained a problem”, the inference being that this was a reference to the father not being compliant with his recommended medication.
The first Family Report
Ms Schwarz, the author of the first Family Report, interviewed the parties, the child and others relevant to the Report in August 2006. She reported the mother as giving the impression of continued fear of the father. She became distressed at times when discussing her past relationship with the father and the current proposals for contact between the father and [G]. Ms Schwarz was of the opinion that the mother impressed as possibly suffering some residual trauma from the time the parties were together. The mother reported attending counselling on several occasions after the incident of 21 April 2001. The mother told the author of the second Family Report that she found the counselling she had been of no assistance.
The mother objected to [G] spending even supervised time with the father. She was anxious about the level of security and protection that could be afforded to [G] to protect her from the father, and believed that supervised time would almost inevitably lead to unsupervised time, to which she seemed strongly opposed.
The mother was extremely anxious about [G] being interviewed by the Family Consultant as she had never before been seen by a stranger without the mother present. She was also very unwilling for the child to meet the father for the purpose of the assessment for the Family Report. Ultimately, this did not occur, the Family Consultant deciding it would not be in the child’s interests to do so.
Despite the mother's anxiety, [G] separated easily from the mother to see the Family Consultant alone. She told the Family Consultant she did not know who her father was but had been told he went away when she was three because he had “done something”. She said it was not fair her brothers had a Dad, and when the topic was broached with her, was supportive of the idea of meeting her father. She said she thought her mother would be fine with this. This reflects considerable credit on the mother, who clearly had shielded the child up to this point from her understandably strongly negative views about the father and his behaviour.
Perhaps significantly, however, both the mother's sons when seen by the Family Consultant supported their mother's position at that time that all contact between [G] and the father be restricted. They of course were rather older than [G] at the parties’ separation, and would have had memories of the father that [G] would not.
Ms Schwarz expressed the opinion that the mother's views were possibly influenced by ongoing stress, she giving the impression of limited coping ability. She was of the opinion that it may be helpful to the mother to have professional therapeutic intervention. The mother did not subsequently seek professional assistance. As mentioned, she told the author of the second Family Report that she had not found the counselling she did have helpful.
Ms Schwarz expressed the opinion that while the mother's concerns were valid to a large extent, they did not justify completely depriving [G] of any opportunity to know her father and possibly build a relationship with him.
Ms Schwarz also lent some credence to the mother's scepticism about the father having completely reformed himself, referring to the previous cyclical pattern of his substance abuse indicating he has difficulty maintaining control of his impulsivity.
Finally, Ms Schwarz noted that [G] is a more vulnerable child than most, having some developmental and learning delays apparently attributed to her being born prematurely at 30 weeks gestation.
Ms Schwarz was of the opinion that while introduction of a significant figure (the father) into [G]’s life may have an initially unsettling effect, this would not be expected to be extreme or ongoing, once a predictable and enjoyable routine had been established.
Ms Schwarz recommended that [G] spend time with the father at a supervised contact centre, that progression to unsupervised time with supervised changeovers “may later be considered”, that there be periodic checks on the father’s behaviour, that the mother consider seeking professional support, and that the father consider ongoing support, preferably on an individual basis. She did not recommend any overnight time.
Ms Schwarz was not cross-examined and I accept her evidence.
The interim orders of 11 September 2006
As mentioned, the interim orders made on 11 September 2006 following release of the first Family Report provided that the father was to spend supervised time with the child at the Campbelltown Contact Centre once a month for eight sessions, then once a fortnight for eight sessions. The father was ordered to undertake urinalysis once a month in accordance with Australian/New Zealand Standard 4308:2001, and in the event of a positive or abnormal drug screening report, his time with the child was to be immediately suspended.
There is no evidence whether the father had the urinalysis tests required by these orders. There is no direst evidence whether either party sought the professional assistance Ms Schwarz recommended, although statements made by the mother referred to in the second Family Report strongly suggest the mother did not seek professional assistance. I infer from the evidence overall that neither did the father.
Father's time under September 2006 interim orders
The first occasion of contact under the September 2006 orders occurred on 9 December 2006. That was the first time [G] had seen the father since 21 April 2001. The obvious purpose of the father's supervised time under these orders was to provide an opportunity for [G] to become acquainted with her father, and to start to develop a worthwhile and meaningful relationship with him in an environment that would assure the child’s safety and thus reassure the mother that the child would be safe.
The mother said that from the first visit, [G] expressed a wish not to go and see the father. By the third visit, the mother said [G] was becoming angry with her for making her go. By the fifth visit, she said [G] was refusing to get dressed to go. The following visit she would not put on the clothes the mother put out for her but got dressed in old clothes. The visit after that, in May 2007, the mother acceded to a request from [G] to go to another child’s birthday party instead of seeing the father and advised the Contact Centre on the day of the visit that she would not be coming.
On 25 August 2007, the mother said [G] refused to go and the child rang the Contact Centre and said “I don’t want to go any more”.
In September 2007, [G]’s time moved to fortnightly. Despite the litany of objections and behaviours the mother said accompanied her attempts to get [G] to the Contact Centre up to that time, she said “[G]’s time with the father appeared to be going well during the time that it was once per month”. The only way to make sense of that statement in juxtaposition with the evidence immediately preceding it is that although [G] objected to going to the Contact Centre, once at the Contact Centre her time with the father went well.
On 6 October 2007, when the mother was due to leave for the Contact Centre, [G] barricaded herself in her room. The mother did not take her to the Contact Centre on this occasion as she said [G] was too distressed. On subsequent occasions [G] resisted going but the mother was able to take her to the Contact Centre.
On 8 March 2008, the mother said [G] was particularly reluctant to leave her at the Contact Centre. When she successfully separated from the child and was leaving, she said a Centre worked told her the visit would be cut short one hour as the child wanted to go to a friend’s place. The mother said she did not know that the child had made these arrangements.
By May 2008, the father asserted he had developed “a close relationship” with [G]. By then [G] had not met the father's wife or children, and had not seen either of the father's other two children since 21 April 2001.
The second Family Report
Ms McMahon, the author of the second Family Report, interviewed the parents and [G] in May 2008. The mother did not bring her sons to this interview.
The mother acknowledged to Ms McMahon that she wanted [G] to have “as little as possible” to do with the father, and was totally opposed to [G] spending any overnight time with him, while saying she believed it was inevitable it would occur as she believed the Court would make an order for overnight time.
The mother told the Family Consultant that she tried not to say anything negative about the father to [G], but had no control over her sons, who she said had personal experience of his abusive behaviour and were still affected by his past actions.
The mother gave no evidence during the hearing of any direct abuse of her children by the father, but there clearly were several instances of family violence, including direct physical violence, by the father on the mother during the parties’ cohabitation, and these children were members of the parties’ household. I am thus satisfied that they were exposed to family violence and the father's violent and abusive behaviour towards their mother.
Ms McMahon reported the father as accepting without rancour or recrimination that the mother will never change her mind about him or forgive him for his acknowledged extremely violent and abusive behaviour towards her. He was reported as saying he understood that unless the mother is able to support his relationship with [G], it will be difficult for him to form a good relationship with her, but he believed it was possible. He was also reported as saying he did not think it practical to continue to spend time with [G] at a Contact Centre or for his time with her to continue to be supervised on an ongoing basis. Yet that ultimately is exactly the order the father sought.
The father reported to Ms McMahon that during his time with [G], she was often a “bit standoffish and quiet” and was sometimes rude to him, and on one occasion told him she did not want to be with him as she wanted to be at her friend’s house. She did not kiss him or cuddle him. Nonetheless, he perceived that he and [G] interacted well together.
Ms McMahon reported that [G] said she wanted to be at home because of her friends, that the mother organises people to come over on contact day and they have to go home so she can go to see the father. While she clearly stated she wanted to stay home to be with her friends, she did not say she did not want to see her father or spend time with him.
In contrast to the benign explanation [G] gave Ms Schwarz for her father's absence, she told Ms McMahon that the father tried to kill the mother and her brother, and that “My Mum is missing one of her knives because the police took it”.
[G] was seen with her father for the second Family Report.
Ms McMahon observed [G] to play comfortably with the father and make frequent eye contact with him, laughing in a relaxed manner, but she made no response when the father tickled her back, and at the end of the observation session [G] left with little acknowledgment of the father even though he said goodbye to her.
Ms McMahon expressed the view that [G] has a warm and close relationship with the mother. While [G] appeared comfortable with the father and enjoy interactions with him, she did not yet appear to have developed a significant relationship with him. In cross-examination, Ms McMahon said that considering the time the father had spent with the child up to that point and that the time was spent at the Contact Centre, it would have been very difficult but not impossible to establish a real relationship between father and daughter. She assessed the relationship between father and daughter at the time of her report to be at a very early stage.
In relation to the possible impact on the mother of an order moving to unsupervised time between the father and [G], Ms McMahon said:
“It is very likely that the prospect of [G] spending unsupervised time with her father may reactivate feelings in her, which are associated with (the father’s) assault on her. If this is indeed the case, then it will be very difficult for (the mother) to be supportive of [G] spending unsupervised time with her father.”
Ms McMahon was of the opinion that despite the mother not finding prior counselling helpful she should be encouraged to consider the possibility of engaging in counselling “if only to assist her to adjust to any orders which the Court might make and with which she may not agree”. There is no evidence the mother participated in any such counselling. While I note that the subsequent interim orders providing for a move to unsupervised time between [G] and the father were made with the mother's consent, that in my view did not render irrelevant the recommendations made by both Family Consultants about the mother seeking professional help to deal with the understandably significant ongoing impact of the father's violence towards her.
Ms McMahon was of the opinion that there appeared to be no evidence suggesting [G] would be at risk of harm unsupervised with the father. She was not shaken in this opinion in cross-examination. Having considered the evidence about the father's history of substance abuse, past issues about his constancy in maintaining a reformed lifestyle, what I consider to be his disingenuous and obfuscatory evidence about his mental health history, and the lifestyle he has maintained since his release from gaol, I accept that the risk of harm to [G] from the father from spending unsupervised time with him is low, and far outweighed by the potential benefit to the child of developing and maintaining a meaningful relationship with him, other things in relation to her best interests being equal. Unfortunately, those other things are not now equal, as I will explain.
Perhaps prophetically, Ms McMahon said:
“If [G] is to develop a significant and meaningful relationship with her father she would need to spend regular and unsupervised time with him. However, as it is likely that (the mother) will have difficulty being supportive of [G] spending unsupervised time with her father this may well raise her anxiety and will most probably impact on [G].”
Ms McMahon recommended that the parents have equal shared parental responsibility for [G], that [G] live with the mother, and that [G] spend time with the father once every four weeks for six hours on a Saturday or Sunday, to commence after a period of six months during which time the Contact Centre facilitates a change from supervised to unsupervised time. This facilitation process was explained to involve Contact Centre staff accompanying the father and [G] when they first spend time away from the Contact Centre on at least two occasions.
The interim orders of 7 July 2008
As mentioned, the interim orders of 7 July 2008 provided for the child to live with the mother, who was to have sole parental responsibility for the child, and the child was to spend time with the father on two occasions a fortnight apart supervised at the Campbelltown Children’s Contact Service, then unsupervised from 10 am to 4 pm on the first Sunday of each month commencing on 3 August 2008, with changeovers to occur at the Centacare Contact Service Wollongong or, if that Service was closed, in the foyer of a specified club in Wollongong.
Father's time under July 2008 interim orders
The father's evidence is that he was advised by the Contact Centre staff not to come on the first occasion he was due to spend time with [G] under the July 2008 orders, namely Sunday 13 July 2008, as the mother had come on the Saturday and refused to return the following day. It was arranged for the father to see [G] the following Saturday,
19 July, to make up for the first occasion.
On 19 July 2008, the father spent time with the child. Some of that time was spent away from the Contact Centre but in the presence of a supervisor from the Centre. The father said the time went well, better than his time previously spent at the Centre because of the greater range of activities available, even while remaining in Campbelltown.
On the next occasion, 27 July 2008, a worker at the Campbelltown Contact Centre advised the father that although the child had been delivered to the Centre, she was refusing to go with him and that despite talking to her, Centre staff had been unable to overcome her resistance. The father did not see her. The same thing happened on the next two visits, on 3 August and 6 September 2008, at the Wollongong Contact Centre.
On the following visit, on 4 October 2008, again the child was delivered to the Wollongong Contact Centre to see the father and the mother left the Centre, but the child refused to pass into the room where the father was and could not be persuaded to do so. On this occasion the Centre staff invited the father into the room where the child was, and despite the father's best endeavours to engage with the child, the child ignored the father, going into a corner, covering her face and refusing to speak.
The father suggested that in his view, through his supervised time with [G] from late 2006 to mid 2008, he felt he had been making progress towards developing a significant and meaningful relationship with [G]. While that is not entirely consistent with the opinion of
Ms McMahon, the father tellingly said that under the orders of September 2006, although there had been a number of occasions on which [G] had been unsettled at the commencement of his time, she usually settled fairly quickly.
Clearly that pattern has been broken, and this child is now totally rejecting any interaction with the father at all. The exact reason for that is arguably somewhat academic, if it cannot be overcome. The fact is that the recommendations of both Family Consultants for providing an opportunity for father and daughter to develop a positive and meaningful relationship have been implemented, no meaningful relationship has become evident, and the child is now totally rejecting any further direct involvement with the father.
The applicable law
The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders.
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about this child, so s.65DAB is not relevant.
Section 60B sets out the objects and principles of Part VII in the following terms:
“60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
In deciding what parenting order to make, the child’s best interests are the paramount consideration (s.60CA). Section 60CC indicates how the court determines the child's best interests. It is as follows:
“60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) 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 child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, decided after the amendments effected by the Family Law Amendment (Shared Parental Responsibility) Act 2006, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
If the court is to make an equal shared parental responsibility order, the court must consider the child spending equal time with each parent, and if such an order is not to be made, must consider the child spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, the court must consider whether such an arrangement would be in the child's best interests (s.65DAA(1)(a) and (2)(c)) and is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5)). If so satisfied, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)). As to the court’s power to consider options other than those presented by the parties, and the need to afford procedural fairness if doing so, see U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224, P & P, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340.
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
There would be undoubted benefit to [G] if she could develop a meaningful relationship with the father. She benefits from her meaningful relationship with her mother. Unfortunately, for reasons I will set out, there appears to be no viable option at present for further facilitating the development of such a relationship with the father without causing the child considerable distress and more likely than not removing any prospect of such a relationship in the future.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
While the father has perpetrated family violence on the mother, I am not satisfied that there are at present any significant protective concerns for the child with the father on an unsupervised basis.
Assessment of additional considerations (s.60CC(3))
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
Since the attempt to introduce unsupervised time with the father under the July 2008 orders, the child has changed from somewhat reluctantly seeing the father to totally rejecting any involvement with him at all. There is no evidence to suggest a means by which an attempt may be made to reduce that resistance.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
While the child has a close relationship with the mother, she has no significant positive relationship with the father at all. While she had become acquainted with the father as her father under the
September 2006 orders, by mid 2008 no significant relationship had formed. Since then, whatever relationship there was seems to have changed to a strongly negative one.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
and
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I note the relevance of s.60CC(4) and (4A) to a consideration of these related matters.
By his actions on 21 April 2001, the father ensured he could not be involved in the child’s life for some time thereafter. He showed an appalling attitude to the child and his responsibilities as a parent. I am satisfied the father has made genuine attempts to reform his life. I am not satisfied the mother is able to positively foster and encourage the father's involvement in the child’s life, because of the ongoing impact on her of the father's actions. That is largely driven by her strongly held belief that the child still needs protection from the father.
While in an ideal world it may be said that the mother should obtain counselling to help her deal with her experience of the father, and put the child’s interests first by promoting and facilitating the father's involvement in the child’s life and the development of a meaningful relationship between them, the reality is that this mother, who was assessed as having limited coping ability, is still traumatised by the father's violence, remains quite fearful of him, and is most anxious about [G]’s safety in the father's presence.
The mother shielded [G] from negativity about the father up to the time of the interviews for the first report. Since then, [G] has been given rather more information about the father's past behaviour, particularly in relation to the incident of 21 April 2001. The evidence does not enable me to say from whom she gained that information. The mother seemed to suggest to Ms McMahon that any such information would not have come from her and may have come from her sons, and indeed it may have.
However, I am also satisfied that the depth of the mother's anxiety about the father is such that it is unlikely the mother could have completely shielded [G] from it. Until the first Family Report, there was no contact between [G] and the father. From the interim orders of September 2006, there was. [G]’s attitude about the father went from one based on no recollection of him, positive or negative, and no real information about why he was absent from her life, to one by mid 2008 marked by some ambivalence about spending time with him and negative, albeit accurate, information about her father's past behaviour. Then, when the move to unsupervised time was to occur, within one visit [G] came to totally reject all time with the father.
Ms McMahon may have been prophetic when she said in the second Family Report:
“It is very likely that the prospect of [G] spending unsupervised time with her father may reactivate feelings in her, which are associated with (the father’s) assault on her. If this is indeed the case, then it will be very difficult for (the mother) to be supportive of [G] spending unsupervised time with her father.”
She also said-
“If [G] is to develop a significant and meaningful relationship with her father she would need to spend regular and unsupervised time with him. However, as it is likely that (the mother) will have difficulty being supportive of [G] spending unsupervised time with her father this may well raise her anxiety and will most probably impact on [G].”
The father acknowledged that it was unlikely the mother would support unsupervised time with [G] and that in those circumstances it would be very difficult to establish a meaningful relationship with her.
In all of this, in my view care must be taken not to regard the mother as culpable for the current state of affairs. To do so would be to blame the victim of the father's violence rather than the perpetrator. While the father is to be commended for his apparently thus far successful efforts at rehabilitation, and for having put his past behind him, as I alluded to earlier in these reasons, at least one of the victims of his past behaviour, the mother, will have its effects with her for life.
In any event, I note that despite her fear of the father and her recorded deep anxiety about [G] spending time with the father, the mother did twice consent to orders designed to implement the recommendations contained in the Family Reports, she did with few exceptions bring [G] at some inconvenience to herself to the designated venues for contact, and contact for some time did occur. I am satisfied the mother did what she herself was capable of doing, bearing in mind her life experience and her understandable fear of and antipathy towards the father, to give the father and [G] an opportunity to form a relationship.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
To attempt to force [G] to spend time now with the father, even supervised time, will I am satisfied expose the child to considerable emotional turmoil and trauma, and will more likely than not remove any hope that in the future [G] may seek out a relationship of some sort with her father. To require the mother to attempt to force [G] to see her father may so impact on the mother as to diminish her emotional availability to [G] and may harm the close relationship between mother and daughter, the only parental bond [G] has.
On the other hand, [G] may suffer life-long adverse effects of not having a meaningful relationship with her father. But forcing the issue of [G] seeing her father now appears more likely to have that effect than giving both the mother and [G] some time, in the hope that in time [G] herself, aware of her father and his interest in her, may seek him out.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
While this is in theory a relevant issue, the mother living in western Sydney and the father on the South Coast of New South Wales, in light of the other issues in this case it is ultimately irrelevant to the decision I must make.
(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Ultimately, [G]’s rejection of spending any further time with the father has rendered this consideration in my view irrelevant.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I note [G]’s chronological age, and the evidence suggesting some relatively significant developmental delays. Nonetheless, the apparent vehemence and resoluteness of the child’s rejection of the father suggests the view thus evinced should be given significant weight.
(j) Any family violence involving the child or a member of the child’s family
I have already dealt at length with family violence in this case.
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
There is no current family violence order in place.
(l) 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 child
I am not satisfied any option is less likely than another in this case to lead to further litigation.
The remaining considerations under s.60CC(3) are not relevant.
Assessment of competing proposals and other options
The history of family violence, the long period the father has not been involved in decision making about the child, the mother's abiding fear of the father and her limited coping ability to deal with the stress having to deal with the father engenders in her, indicate in my view that an equal shared parental responsibility order is not in the child’s best interests. To require the mother to consult with the father about the child’s upbringing would be to perpetuate the abuse the mother experienced at the father's hands, with potential adverse impacts on both the mother's parenting capacity and her relationship with [G]. In my view an order for the mother to have sole parental responsibility is in [G]’s best interests.
The proposal of the Independent Children's Lawyer, supported by the mother with minor exceptions, would deny [G] any opportunity for the foreseeable future to develop a meaningful relationship with the father. However, there is no apparent option available that in my view is likely to lead to the establishment of such a relationship in the foreseeable future.
Despite the father acknowledging to Ms McMahon the impracticality of in effect permanent or indefinite supervised time, this is what he sought. He himself contended that supervised time with [G] had gone on long enough. He highlighted the problems inherent in such relatively short periods of time together in such a limiting environment, including boredom for the child and the difficulty of taking a developing relationship further.
There has already been supervised time, for about 18 months, and the attempt to move to unsupervised time resulted in the embryonic relationship between the father and [G] breaking down at the last supervised visit. There is no evidence to suggest [G] would now be any less resistant to a return to ongoing supervised time than she was to going with the father under the orders of July 2008. It is significant in my view that the occasion [G] first refused to spend time with the father was to be supervised by Campbelltown Contact Centre staff, albeit the time was not to be limited to the Contact Centre.
Decision
This unfortunately is one of the relatively rare cases where it is not in the child’s best interests for there to be any order for the child to spend time with the father. By not pressing the issue of the child spending time with the father in face of her strong opposition to doing so, but by providing for telephone and written communication between them to mark significant events such as birthdays, Father's Day and Christmas Day, and by ensuring the mother keeps the father informed about the child’s academic progress and any significant health issues, there remains the possibility that when [G] is older, she may seek to initiate direct contact with her father, and may in time develop some relationship with him. I am satisfied that to seek to force the issue of face to face time now would in all probability engender a deep and lasting resistance in the child to having any involvement with the father at all including telephone or written communication.
As to the time for the father's telephone communication, I am satisfied that the times suggested by the mother, which set different times depending on whether the day is a school day or not, are more appropriate.
I am not satisfied it would be in the child’s best interests to place a requirement on the mother to keep the father informed of others living in the home with her and [G], such as the Independent Children's Lawyer sought and the father supported. It would I am satisfied place the mother under unnecessary stress with no identifiable benefit for the child. There is no evidence the mother has had inappropriate persons living in the home with her and [G], and she may be trusted to continue the good job she has been doing of raising the parties’ daughter and meeting her special needs, despite the deep anxiety created by her fear of the father and the uncertainty created by the continuation of these proceedings for the last three years.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 5 November 2008
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