Heinz and Cady
[2009] FMCAfam 1392
•23 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HEINZ & CADY | [2009] FMCAfam 1392 |
| FAMILY LAW – Parenting – child aged nine – child has resided primarily with mother since separation in 2003 – father presently only permitted to spend supervised time with the child – application by father for the child to live with him or alternatively for his time on alternate weekends and during school holidays to be restored – mother proposing a continuation of supervised time – nature of father’s relationship with the child – whether the father has any mental health issues. |
| Family Law Act 1975, ss.60CC, 61DA |
| Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MR HEINZ |
| Respondent: | MS CADY |
| File Number: | WOC1242 of 2007 |
| Judgment of: | Terry FM |
| Hearing dates: | 17 & 18 August 2009 |
| Date of Last Submission: | 18 August 2009 |
| Delivered at: | Darwin |
| Delivered on: | 23 December 2009 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor Advocate for the Respondent: | Mr Evans |
| Solicitor for the Respondent: | Mark Evans Solicitor |
ORDERS
That all previous parenting orders concerning [X] born [in] 2000 are discharged.
That the mother have sole parental responsibility for the child.
That the child live with the mother.
That until further order the child spend time with the father at [omitted] Children’s Contact Centre at [suburb omitted] for two (2) hours on one (1) weekend day each month at a time to be agreed between the father and the contact centre.
That the matter be listed on a date to be fixed in twelve months time, or at an earlier time on the application of the parties if any critical event occurs prior to that time, for a review of order (4).
IT IS NOTED that publication of this judgment under the pseudonym Heinz & Cady is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
WOC1242 of 2007
| MR HEINZ |
Applicant
And
| MS CADY |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] will be 9 years old later this month. Her parents separated in March 2003 when she was only 2.
[X] has lived with her mother since separation. The post-separation relationship between her parents has been marked by conflict, but until January 2009 [X] spent time with her father regularly, usually on alternate weekends and during school holidays.
In January 2009 after [X] had been with the father for only four days of a planned three week visit, a concerned adult (not the mother) rang the police and informed them that [X] was at home alone. The police notified the Department of Community Services who removed [X] from the father’s home and returned her to the mother.
[X] has gone on no further visits to the father since that time, and between 11 January 2009 and the hearing in August 2009 saw him only once, when interviews were conducted in June 2009 for the preparation of a second family report.
The father does not accept that the incident in January 2009 is significant in the overall scheme of things. He blames the mother entirely for the fact that he is not spending time with [X] at present. It was his case that she had serious deficits as a parent, had threatened to kill him and [X] in the past, was frequently difficult and obstructive about him spending time with [X] and hounded him about child support. The father said that he did not have any concerning mental heath problems but was suffering from reactive depression as a result the mother’s behaviour concerning his time with [X] and child support.
It was the father’s case that “the experiment of [X] living with the mother for the last few years [had] failed.” He sought orders that [X] live with him and spend time with the mother on alternate weekends and during school holidays.
The father’s alternative proposal was that [X] re-commence spending time with him on alternate weekends and during school holidays.
The father sought an order for equal shared parental responsibility.
The mother said that she was a capable parent who was doing a good job of raising [X]. She said that she had gone to considerable lengths over the years to ensure that [X] spent time with the father despite the fact that the father was frequently intimidating and difficult to deal with. She said that the father had mental health problems and that he had a very poor relationship with [X]. It was her case that [X] no longer wished to visit the father’s home.
The mother sought orders that [X] live with her and spend supervised time only with the father.
The mother sought an order for sole parental responsibility
The evidence
The father relied on the following documents:
i)his amended application filed on 16 October 2008;
ii)his affidavits filed on 13 November 2007, 11 January 2008, 16 October 2008, 1 May 2009 and 14 August 2009;
iii)the affidavits of Mr H, who lives near the mother, filed on 16 October 2008 and 14 August 2009;
iv)the affidavit of Dr K, his GP, filed on 1 May 2009.
The mother relied on her affidavits filed on 15 November 2007,
20 March 2008, 11 September 2008, 1 May 2009 and 5 August 2009.
The orders sought by the mother were contained in her outline of case document filed on 13 August 2009.
Two family reports were prepared, one by Dr Janina Szyndler in July 2008 and second by Dinah Taylor in June 2009.
It was the father’s case that little weight should be placed on the family reports. He said that Dr Szyndler was biased against him and had failed to report allegations he had made while reporting those the mother had made. He said that Ms Taylor had come to a conclusion before he even saw her, based on having read Dr Szyndler’s report, and moreover had told him that the Federal Magistrate would do what the Family Report Writer said.
The father was particularly critical of Ms Taylor for sitting behind him to observe him while he interacted with [X]. He said that as a result she failed to see his expressions, and misread his body language and misinterpreted the interaction. He also said that Ms Taylor had shown bias in selecting material for inclusion in her report.
I do not accept that either Dr Szyndler or Ms Taylor deliberately omitted relevant information from their reports or displayed any pre-judgment of the matter. The father cross-examined both Dr Szyndler and Ms Taylor. Both were patient and responsive during cross-examination and gave plausible reasons for their decisions concerning inclusion of material in their reports.
Ms Taylor explained her reasons for positioning herself behind the father during her observation of the father with [X] and I do not accept that Ms Taylor used a defective technique or that her evidence about the interaction between the father and [X] should be disregarded.
General history
The father and mother met in 1997 when they were both 38. They formed a bond over a shared interest in motor cycles and cars and they commenced living together in Wollongong in May 1997. The father was then enrolled in an [omitted] degree at [omitted] University and the mother was in the [omitted] service and was working in Sydney.
The father and mother were both in their forties when their only child [X] was born in 2000. Neither has any other children.
Prior to meeting the father, the mother had purchased a home in [B], a suburb of Newcastle, and in 2001 the parties left Wollongong and moved into this home.
It was the mother’s case that she was a victim of violence at the father’s hands on a number of occasions during the relationship, a claim the father vehemently denied. I will examine this issue later in the judgment.
The parties separated in 2003. After separation the mother and [X] continued to live in [B], and the father returned to Wollongong.
In July 2003 consent orders were made which provided for [X] to live with the mother and have contact with the father.
The order concerning the father’s contact was somewhat vague and in the first year after separation the arrangements for the father’s contact and the changeover location varied. It was the father’s case that in the first year he sometimes had [X] in his care for up to six days a week. The mother disputed that the father spent such extensive time with [X]. I cannot resolve this dispute on the state of the evidence but in my view nothing now turns on it.
In October 2004 the mother proposed that arrangements be regularised and that the father spend time with [X] each alternate weekend during school terms from 4.30pm Friday until 4.30pm Sunday and for half of each school holiday period. She proposed that changeover take place at [W] McDonalds Restaurant.
For the next three years [X] spent time with her father more or less in accordance with this proposal, although the orders were never formally changed and the father continued to maintain at the hearing that the terms had been imposed on him.
The post-separation relationship between the parents was never particularly good. There was a long running acrimonious dispute about child support, with the mother complaining that the father was failing to exercise his income earning capacity and the father complaining that the mother was restricting his time with [X] to maximise her child support. The father also made many complaints about missing time with [X] because the mother did not comply with orders.
Toward the end of 2007 the parties became engaged in a dispute about the changeover location.
The parents both travelled by train to Sydney to effect changeover and the father had been agitating for some time for changeover to take place at Central Railway Station rather than [W] McDonalds. He considered that this was fairer to him in terms of travelling time and fairer to [X], as it would allow him to get back to Wollongong with her on Friday with a minimum of waiting between connections.
The mother objected to travelling to Central and for some reason which remains obscure began to insist that changeover take place at [H] rather than [W].
On Friday 10 October 2007 the mother brought [X] to [H] Railway Station and the father (because he had no choice) travelled there to collect her. The mother insisted that the father sign a note agreeing to return [X] to [H] on the Sunday. The father signed the note but made it clear that he was signing under duress.
On Sunday 12 October 2007 the father did not bring [X] back to [H] Railway Station. The mother travelled to Wollongong and demanded that the father return [X] to her. The father refused and both parties called the police.
The police attended but were powerless to do anything more than check on [X]’s welfare. The parties each gave conflicting evidence about what they were told by the police on that occasion, but despite the importance the parties placed on this issue in my view nothing now turns on what the police said to the parties in October 2007.
On Monday 13 October 2007 the father filed an application in the Federal Magistrates Court at Wollongong seeking an order that [X] live with him. The matter came before Federal Magistrate Altobelli on
16 October 2007. He ordered that [X] be returned to the mother. He made interim orders that the father spend time with [X] each alternate weekend and for half of the school holidays and he ordered that changeover take place at [W] McDonalds.
The proceedings were transferred to the Federal Magistrates Court at Newcastle.
Relations between the parties after this were particularly poor.
The father filed a contravention application against the mother in December 2007, alleging that she had failed to bring [X] to [W] McDonald’s on 14 December 2007. The mother had a receipt from [W] McDonald’s confirming that she had made a purchase there on
14 December.
The father failed to appear at court on the day the contravention application was listed for hearing and it was dismissed and the father was ordered to pay the mother’s costs of $1,250.00.
The mother refused to take telephone calls from [X] while [X] was with the father for the first half of the 2007/08 Christmas school holidays, seeing the calls as a ruse for the father to get her on the phone and harass her. The orders provided for the mother to spend half of Christmas Day with [X] and the father took [X] to [W] Railway Station but they waited in vain for the mother. The mother would not speak to the father to confirm the day that [X] was due to be returned to her in January 2008 and [X] and the father made a futile trip to [W] before [X] was returned the following day.
The competing applications for final orders were listed for hearing on 17 September 2008. In July 2008 the parties and [X] attended on
Dr Janina Szyndler for the purposes of preparation of a Family Report.
The report when released was not especially favourable to the father. The father did not file any affidavits for the final hearing and he failed to appear at court on 17 September 2008. It was his case that he was too ill to attend court.
The hearing date was vacated and the father was ordered to file material by 16 October 2008. The final hearing was adjourned to a date in May 2009, with this date to be vacated and an undefended hearing conducted in December 2008 if the father failed to file his documents. The order concerning the father spending time with [X] was varied on an interim basis to provide that changeover take place at [H] Police Station.
The father did file his documents by the deadline. [X] continued to spend time with the father in accordance with the orders of 16 October 2007 as varied on 17 September 2008.
[X] was due to spend the second half of the 2008/09 Christmas school holidays with the father and she went to Wollongong on 7 January 2009. On 11 January 2009 the police received a call from a concerned person alleging that [X] was at home alone. The police notified the Department of Community Services (DOCS) and two workers accompanied the police to the father’s home. They found [X] at home alone. They reported that the home was filthy and that there was an offensive odour in the home.
[X] was taken back to the police station and the father later came to the station. After speaking to the father and [X] and making inquiries with other persons the DOCS workers told the father that they were removing [X] from his care. They reported the father as saying to [X] “This will be the last time I say goodbye to you, don’t cry be brave.” “Don’t you love me, say you love me or I’ll cry” and “She was the one thing keeping me alive.” [1]
[1] DOCS report annexure A to mother’s affidavit filed on 5 May 2009
The DOCS workers informed the father that his statements to [X] were inappropriate. They contacted the After Hours Community Mental Health Team and asked them to assess the father’s mental health status in the light of his statements as he had told the workers that he had depression. [X] was returned to her mother’s care.
[X] spent no further time with the father after 11 January 2009 and the mother filed an application to suspend the existing orders. On 12 May 2009 after a contested interim hearing it was ordered that in place of the preceding arrangement the father have telephone communication with [X] once each week on Wednesday and that he spend time with her supervised at a children’s contact centre.
An updated Family report was ordered. It was prepared by Dinah Taylor in June 2009.
When the hearing commenced in August 2009 the father was yet to spend any supervised time with [X].
The father’s current circumstances
The father lives in a home in Wollongong. He tendered photographs of his home at the hearing to demonstrate that it was in a clean and tidy condition.
The father is the only occupant of the home.
The father was not employed at the time of the hearing. He said that he was intending to re-enrol at university to complete the [omitted] degree which he had started 11 years ago.
The father’s mental health
The father was not an accurate historian as to his mental health. I accept Dr Szyndler’s evidence that when she interviewed the father in July 2008 he “denied any previous history of anxiety or depression.”[2] The father admitted to Ms Taylor however that he had suffered from depression since 2007 although he denied that he suffered from a mental illness.
[2] Family Report J Syndlar 22 July 2008.
The father maintained that between 1997 and 2007 he did not have any mental health issues. However the mother said and I accept that she became concerned about the father’s mental health during the relationship. She said that in 2002 the father brought home a twin barrel shot gun and that he later threatened to shoot himself with it on at least two occasions.
The father had contact with mental health authorities in July 2007 as a result of concern that he might commit suicide. He had contact with mental health authorities in 2008 and again on 11 January 2009 after [X] was removed from his care. In March 2009 further contact occurred after Dr K became concerned about the father’s mood and called the police.
The father was placed on anti-depressants this year by Dr K but insisted it was because of “feelings of agoraphobia [he] was starting to develop.”[3] He made contradictory claims about when he ceased taking this medication.
[3] Father’s affidavit filed 14 August 2009 paragraph 1
The father insisted at the hearing that his only problem was reactive depression which was caused by the mother’s actions in obstructing his time with [X] and in trying to “gouge money from him” via the child support process. However the father annexed to his August 2009 affidavit a letter from a psychiatrist, Dr Diana to his GP Dr K, dated
4 May 2009. Dr Diana saw the father in 2007 and again in January 2009. His letter said in part as follows:
“Diagnostically he has symptoms of a personality disorder centred on poor sense of self, poor self esteem, impulsivity and manipulative self harm threats.
There is a secondary depressed mood.”[4]
[4] Annexure B, Father’s affidavit filed 14 August 2009
Dr Diana ended by saying among other things that:
“While he is not suicidal, there is concern about his impulsive behaviours.
He continues on Cymbalta 30mg daily.
I have made no arrangements to see him again. You may consider referring him to a psychologist for supportive psychotherapy, and you should refer him to the Northern Community Mental Health Team for ongoing assessment.”
The father said at the hearing in August 2009 that he was better now, and had commenced an exercise regime and had applied to complete his degree. He said that he was having some counselling, after having had to wait some time for an appointment.
However although the father conceded in cross-examination that he needed counselling, in an answer to a question about when he realised this he said that it was “following the second deceitful and dishonest child support application by [the mother] in February March 2007.”
The father has had a long history of involvement with mental health services and he has been ‘sectioned’ on three occasions as a result of attempting or threatening to attempt suicide. His description of his own mental health was at odds with the letter he provided from Dr Diana.
Although the father had commenced some counselling prior to the hearing in August 2009, it is impossible to be confident, given the father’s unrealistic view of the state of his own mental health, that anything in this regard is likely to change in the future.
The mother’s current circumstances
The mother lives in the home in [B] which she owned prior to cohabitation with the father. The mother and [X] are the only occupants of the home.
The home is within walking distance of [B] Primary School which [X] attends.
The mother is not currently employed. She described herself as a full time student and said that she was studying an advanced diploma of [omitted] at [omitted] TAFE, and that she intended to continue her studies at [omitted] University after completion of her diploma.
The mother’s mental health
The father said that while he was living with the mother she was treated for depression.
The mother admitted that this was so but said that she had taken medication for a very short period twelve years ago and had not taken any medication for depression since the father introduced her to motorbikes. There was no evidence that the mother was currently suffering from depression or any other mental health issues. There was nothing in the mother’s presentation when interviewed by Dr Szyndler or Ms Taylor which aroused in them a concern about the mother’s mental health.
I accept the mother’s evidence that she only briefly took medication for depression twelve years ago and is not currently suffering from depression.
[X]’s best interests
Any orders I make about [X] must be the orders which treat her best interests as the paramount consideration.
Section 60CC(2) & (3) of the Family Law Act set out the considerations to which I must have regard in order to determine [X]’s best interests.
The primary considerations in s.60CC(2) is as follows:
“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.”
It would be of benefit to [X] if she could have a meaningful relationship with both her parents.
An order that [X] spend supervised time only with her father will provide little opportunity for her to maintain a relationship with him which is “important significant and valuable [to her].”[5]
[5] Mazorski & Albright (2007) 37 Fam LR 518
It does not automatically follow however that if [X] lives with the father or spends regular unsupervised time with him that she will have a meaningful relationship with him. If the father as a result of has mental health problems cannot provide adequate care for [X] or if his personality makes it difficult for him to empathise and interact appropriately with [X], then [X] spending lengthy unsupervised time with her father could in fact put an end to any hope of a meaningful relationship between [X] and the father.
If it is determined that the father has deficits but that they are temporary and likely to abate, an order that [X] spend supervised time with the father may be of value to [X]. It will enable her to maintain a connection of sorts with the father and have some interaction with him in a safe environment, so that if a time arrives when unsupervised time can be considered there is an existing connection to build on.
I must consider whether [X] is likely to be at risk of physical or psychological harm from being exposed to abuse neglect or family violence in the care of either of her parents.
[X] was exposed to neglect in the father’s home on 11 January 2009. He went to work and left her alone from 5.30am.
The father maintained that he had arranged a babysitter for that day, and that just as he was about to leave for work the sitter called him to say that she was running late and would be there shortly. He said that [X] telephoned him at 11.00am asking where the sitter was and that this was the first he knew of the sitter not turning up.
The father was not a reliable witness and gave contradictory accounts about why there was no one at home with [X] on 11 January 2009. I do not accept the father’s evidence about this incident as contained in his affidavit filed on 1 May 2009. I am satisfied that the father did not make any effort to obtain a baby sitter for [X] and I am satisfied that he left [X] at home alone not just on 11 January 2009 but on several earlier days.
It is likely that that father also left [X] alone on occasions prior to these holidays. Ms Taylor interviewed [X] in June 2009 and said as follows:
“[X] reported the father historically leaves her alone if he needs to go out and she does not want to go out or when he is required to work. She reported the father left her alone when he has gone to work “a few times” and at other times a babysitter, [name omitted], whom [X] likes has looked after her.”
The father informed Ms Taylor that [X] had only been left alone for “a couple of hours at the most” and argued that he was powerless to change this as “I have to find work because of the child support debt” He admitted that he often left [X] alone when he needed to go to the shops which were a 10-20 minute walk.[6]
[6] Family Report Dinah Taylor paragraph 23, 24
There is ample evidence that the father has left [X] home alone in the past on many occasions for varying periods, putting her at risk. I am satisfied that [X] has been neglected by the father in the past.
The father refused to concede that he had acted neglectfully. He showed a marked tendency to minimise the seriousness of his actions and a tendency to bend the truth when caught out. I consider that there is a risk of [X] being exposed to neglect in the father’s care in the future if she spends unsupervised time with him.
I am not satisfied that [X] has in the past been, or is likely in the future to be, exposed to neglect abuse or family violence in the mother’s care.
I must consider any views expressed by the child, and any factors (such as the child’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
Dr Szyndler found [X] to be a “delightful child” and said that she found it easy to establish a rapport with her. Dr Szyndler went on to say as follows:
“[X] told me that she wants to live with her mother.”
[X]’s view was unchanged when she was interviewed by Ms Taylor in June 2009. Ms Taylor said as follows.
“[X] was able to state her clear views regarding future parenting arrangements. She stated that she wanted to continue to live with the mother and not spend time with the father at his home, as she did not trust he would not leave her alone again. Her views of supervised time were canvassed and [X] stated she would be happy to spend time with the father at a Contact Centre.”[7]
[7] Family Report of Dinah Taylor paragraph 55
[X]’s view about preferring to live with her mother was clear in July 2008 and in June 2009. Her view was consistent over a period of twelve months and in reports by two different report writers. Ms Taylor was of the opinion that:
“[[X]’s expressed views] should be given sufficient weight due to [X]’s direct experiences, the father’s lack of insight resulting in child protection concerns, the father’s manner in relating to [X] and the resultant damage to her sense of self. These views were assessed as genuinely [X]’s and not influenced by the mother or any other adult.”[8]
[8] Ms Taylor’s report paragraph 64
Ms Taylor prepared a thorough and insightful report and I place weight on her opinion.
I must consider the nature of the relationship of the child with:
a)each of the child’s parents; and
b)other persons (including grandparents or other relatives of the child).
It was the father’s case that he had a good relationship with [X]. In support of this contention he relied on the evidence of Dr K, who said that on the “two or three plus” occasions she had seen [X] with the father when she came with him to Dr K’s surgery in Wollongong [X] and the father appeared to have a good relationship.
Dr Szyndler did not observe [X] and the father together because she could not organise a time and place for the interview which was suitable to herself, the father and the mother.[9]
[9] See Family Report J Szyndler page 2-3
Dr Szyndler spoke to [X] about her relationships however and said as follows:
“[[X]] reported that she has a much more positive relationship with her mother than with her father. She was able to describe a range of activities she undertook with her mother. She stated that when she goes to stay with her father they usually do not do anything and she spends the whole weekend at home playing with the father’s pets. She says that she currently does not have a bed at her father’s house but sleeps in bed with him. She reports that she has been getting cold as he takes all the covers off her when he is asleep.”[10]
[10] Ms Szyndler’s report paragraph 22
Ms Taylor observed the father with [X] in June 2009. Ms Taylor did not observe a good relationship between [X] and her father. She stated that:
“[X] presented as an outgoing child and appeared to present developmentally within normal parameters when in the company of her mother or this writer but presented with regressed developmental ability during the one-hour observation with the father. For example she giggled in a high and ingenuous fashion continually, used ‘baby talk’ and pushed the boundaries of behaviour with the father. This behaviour annoyed, frustrated and angered the father. [X] reported after the observation that she giggled in this way because she felt ‘nervous in the tummy.’[11]
[11] Family Report Dinah Taylor paragraph 51
Ms Taylor was most concerned about the father’s interaction with [X], reporting that he “appeared to prioritise his needs rather than [X]’s throughout the session.”[12]Ms Taylor shared Dr Szyndler’s view that the father ‘presents as a rather self-centred man who has limited insights into the impacts of his attitudes and behaviours on [X].”[13]
[12] Ms Taylor’s report paragraph 33
[13] Ms Taylor’s report paragraph 60
By the time the observation by Ms Taylor occurred in June 2009 [X] had not seen her father for five months. Ms Taylor agreed that it might have been expected that [X] would take time to warm up to the father given that she had not seen him for five months. However Ms Taylor’s view was that if the relationship between [X] and the father had been strong prior to incident on 11 January 2009, [X] would have warmed up to the father after a little time. This did not occur.
Dr K has had very limited opportunities to observe the father and [X] whereas Ms Taylor conducted an extensive observation. In my view the evidence establishes that [X] has a poor relationship with her father.
Ms Taylor did not make a great deal of comment on [X]’s relationship with the mother save to say that [X] “presented within normal parameters when in the company of the mother….” It is reasonable to suppose that Ms Taylor observed nothing of concern about [X]’s relationship with the mother.
I must consider 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.
It was the father’s case that the mother lacked the willingness and ability to facilitate and encourage a close and continuing relationship between himself and [X]. He claimed that over the years the mother had frequently been difficult and restrictive about him spending time with [X]. He said that he had often been required to go cap in hand to the mother in order to be able to spend time with [X], and that she had used any excuse to prevent him spending time with his daughter.
I do not accept this. In my view a proper consideration of the evidence supports a finding that the mother has in fact gone to considerable trouble since separation to ensure that [X] has spent time with the father. For several years the mother was required to make two lengthy return trips on alternate weekends for the purposes of the father spending time with [X], travel which was required because the father moved away from the place where the parties were living when they separated.
I am satisfied that the only reason the mother has opposed [X] spending time with the father since 11 January 2009 is because of the seriousness of what occurred at that time and the events which occurred afterwards, including the father having two short admissions to hospital because of concerns that he might attempt suicide.
I have considerable doubt about whether the father is willing and able to facilitate and encourage a close and continuing relationship between [X] and the mother. Ms Taylor recorded that the father “continually spoke of the mother in derogatory terms throughout the interview and referred to her as “the power freak” on one occasion”
I must consider the likely effect of any change in the children’s circumstances, including the likely effect of separation of the child from:
a)either of her parents; or
b)any other child, or other person (including any grandparent or other relative of the children) with whom the child have been living.
The father applied for an order that [X] live with him. If this occurred it would result in a considerable change for [X], who has lived with her mother since her parents separated six years ago. [X] would be required to leave her mother, leave her friends and move to a different school in a different part of NSW.
The evidence strongly points to a finding that such a change would be detrimental for [X]. It would be against [X]’s wishes, observation of [X] and her father revealed that their relationship was poor and the state of the father’s mental health appears to be fragile.
In the alternative the father applied for an order that he resume spending time with [X] each alternate weekend and for half of the school holidays.
In my view such a change would also be detrimental for [X]. There is clear evidence that [X] did not particularly enjoy her time with her father prior to January 2009 and was frequently lonely and bored. An order that time of this kind resumed would be contrary to [X]’s wishes, and the observation of [X] and her father revealed not only that their relationship was poor but that the father’s method of interacting with [X] was likely to damage her self esteem.
The mother proposed that an order be made for supervised time. This would be a considerable change from the arrangements which have been in place for much of [X]’s life.
If the only time [X] is able to spend with her father in the future is supervised time [X]’s relationship with her father is unlikely to be a meaningful one. However the positive effect of such an order is that it would allow [X] to spend time with her father under conditions which protected her safety and protected her from neglect and (because a supervisor could step in if the father was speaking inappropriately) protect her from behaviour by the father which might damage her self esteem..
I must consider the practical difficulty and expense of the 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 a parent on a regular basis.
The father lives in Wollongong and mother lives in [B], a suburb of Newcastle. The parties live four hours apart by rail, their preferred method of transport.
If [X] lives with one of her parents and spends weekend time and holiday time with the other parent, the parents will have to deal with the same travel that has been a feature of their lives since separation. They can manage this travel.
If I order that [X] lives with the mother and spends time with the father at regular intervals for one to two hours at a contact centre, the father will be required to do all the travelling. He did not suggest that he could not afford the travel, but it will be a long trip for him for the purpose of spending one or two hours with [X]. I can only speculate about whether this might result in his time with [X] dropping away.
I must consider the capacity of each of the parents to provide for the needs of the child, including their emotional and intellectual needs.
Ms Taylor observed that [X] was a healthy child who was achieving normal development milestones. The recent school report provided by the mother suggests that [X] is making reasonable progress at school. Certainly the father did not suggest otherwise.
The mother’s affidavit confirmed that [X] is enrolled at a school close to the mother’s home and is taking part in extra-curricular activities. [X] has a good relationship with her mother.
All this suggests that the mother has the capacity to provide for [X]’s needs.
I am not satisfied that the father has the capacity to provide for [X]’s needs, including her intellectual and emotional needs. The father showed no ability to make satisfactory day to day arrangements for [X] during the January 2009 Christmas school holidays. I have no great confidence that he could meet [X]’s needs on a day to day basis in the future.
The father’s apparently fragile mental health in the last few years and his repeated contacts with mental health services as result of concerns that he might attempt suicide raises considerable concerns about the father’s capacity to provide for [X]’s needs.
Dr Diana was of the view that the father had a personality disorder.
Dr Szyndler’s assessment was that the father presented as “a rather self-centred man who appears to have limited insight into the impact of his own behaviour on the situation.” [14][14]Dr Szyndler’s report paragraph 24
Ms Taylor’s observation suggested that the father was unable to accept [X] as a person in her own right and was unable to refrain from criticising her.
Ms Taylor expressed the opinion that:
“[The father’s] dictatorial and critical manner in which he relates to [X] and his lack of insight into her chronological age abilities and likes and dislikes is highly likely to be damaging to [X]’s emerging self-esteem.”[15]
[15] Ms Taylor’s report paragraph 60
The father rejected any suggestion that his interaction with [X] on the day of the interviews with Ms Taylor was inappropriate, making it likely that he will continue to behave in this damaging way in the future.
Supervised time would protect [X] from some of the inadequacies of the father’s parenting capacity but it would not protect [X] from this kind of behaviour by the father, save that if the father behaved in this way the supervisor might terminate the session or [X] might refuse to continue to see the father on a supervised basis.
I must consider 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 is relevant.
In the context of this case it will not be helpful to consider this separately.
I must consider the attitude of each parent to the duties and responsibilities of parenthood.
In my view the mother has shown a generally good attitude to the duties and responsibilities of parenthood. I am satisfied that she has made a considerable effort over the years to comply with orders about [X] spending time with the father. The mother ceased sending [X] to the father only after the incident in January 2009 which saw [X] removed from the father’s care by DOCS.
The mother and father have been involved in a long running dispute about child support since separation. The father was initially assessed to pay a minimum amount. The mother successfully applied for a change of assessment. This resulted in the assessment being increased, but did not result in the father actually paying child support.
The Child Support Registrar varied the father’s child support assessment by order made on 5 March 2007. The father filed an objection to the decision on 21 February 2008. The objection was out of time and he was refused an extension of time. He lodged an appeal against this decision with the Social Security Appeals Tribunal (SSAT). The Tribunal allowed the extension of time. On 21 November 2008 an objections officer partly allowed the father’s objection. The father appealed against this decision to the SSAT. The father did not attend at the directions hearing on 20 February 2009.
At the hearing on 10 March 2009 the father appeared by telephone and applied for an adjournment of the hearing. The Tribunal declined to adjourn the hearing and disallowed the objection.
As at 26 March 2009 the father owed $10,292.45 arrears of child support.
At the time of the hearing the father was assessed to pay $40.95 per fortnight from his Newstart allowance.
I am not convinced that the father’s failure to pay a higher level of child support is evidence that he has a poor attitude to the duties and responsibilities of parenthood. If the father is mentally ill and has no insight into his own condition he may genuinely have difficulties getting and maintaining employment.
I must consider any family violence involving the child or a member of the children’s family.
It was the mother’s case that the father was violent to her during the relationship. She detailed an incident in December 1999 when she said that the father pushed her to the floor, pinned her down with his knee and put his hands around her throat. She gave evidence that the father slapped her face about once a month during the relationship and also punched her in the face. She detailed an incident where the father pinned her to the ground and attempted to strangle her when she was pregnant with [X].
The mother’s evidence was reasonably detailed and the mother was a reasonably reliable historian. I am satisfied on the balance of probabilities that the father did commit some acts of family violence during the relationship.
I must consider any family violence orders involving the child or a member of the child’s family
The parties each applied for an Apprehended Family Violence Orders (AVO) against the other in April 2003. These orders were withdrawn five days later, but not before the father was charged with breaching the AVO, a charge in respect of which he was subsequently convicted and fined.
On 12 February 2007 an AVO was made against the father for the protection of the mother. This AVO prohibited the father from engaging in conduct which intimidated the mother and also from stalking the mother. This AVO expired on 12 February 2009.
As a result of the mother attending at his home on 12 October 2007, the father filed an application for an AVO in Wollongong Local Court. An interim order was made against the mother on 13 October 2007.
In mid-June 2008 the mother was served with another application by the father for an AVO. The application was filed in the Wollongong Local Court and the mother travelled to Wollongong for the hearing. The father applied for an adjournment which was refused and then sought to withdraw his application. He was ordered to pay $1500.00 costs to the Legal Aid Commission who represented the wife.
The father filed an appeal against the costs order. On the day the matter was listed to be heard in the District Court the father failed to appear at court and he was ordered to pay a further $1500.00 costs.
I must consider whether it is preferable to make the order least likely to lead to the institution of further proceedings.
Orders that [X] live with the father or orders that the regime prior to January 2009 be resumed are the orders most likely to lead to further proceedings. I have serious concerns about the father’s mental health and parenting capacity and am unconvinced that [X] would be safe and properly cared for in the father’s care unsupervised. [X] does not want to resume that kind of time with her father, and that time would be likely to break down very quickly.
An order for supervised time is the order least likely to lead to the institution of further proceedings in the short term. However in the longer term it could lead to further proceedings. [X] may become tired of the supervised time as she grows older and refuse to keep attending. Alternatively the father may bring the matter back to court in an attempt to demonstrate that circumstances had changed and that unsupervised time should be considered.
Parental Responsibility
Pursuant to section 61DA of the Family Law Act, I am required to apply a presumption that it is in [X]’s best interests that her parents have equal shared parental responsibility for her, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the child or family violence. The presumption may be rebutted by evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
There are no reasonable grounds to believe that either parent has abused [X], but there are reasonable grounds to believe that family violence occurred during the relationship.
It is still open to me to make a finding that the parties should have equal shared parental responsibility for [X] if I consider that to be in her best interests.
The parents have no ability to communicate and productively resolve disputes, as evidenced by the end result in 2007 of their dispute about the place for changeover. The mother now refuses to speak to the father.
Ms Taylor’s opinion was that the parents should not have equal shared parental responsibility because of the father’s “historically impaired judgment possibly caused by a mental illness and due to his assessed self-focussed rather than child focussed attitudes.”[16]
[16] Ms Taylor’s report paragraph 65
The evidence given at the hearing amply confirmed that Ms Taylor’s opinion was soundly based. In my view it would not be in [X]’s best interests for her parents to have equal shared parental responsibility for her, and I intend to make the order that the mother have sole parental responsibility.
Conclusion
I am sure that the mother is not perfect, and some of her actions, such as refusing to speak to the father on the telephone over the Christmas 2008 period about the date for [X]’s return and attempting to alter the changeover venue over the father’s protests in 2007, have resulted in inconvenience not only for the father but for [X].
However the mother is doing a reasonable job of raising [X], as evidenced by the positive comments made about [X] by both
Dr Szyndler and Ms Taylor. I do not accept the more bizarre parts of the father’s evidence for example that the mother has made serious threats to kill him, sought to purchase a silencer or threatened to kill [X]. I am satisfied that the mother has the capacity to provide for [X]’s needs.
I am not satisfied that the father has that capacity. Not only is it impossible to consider an order that [X] live with the father, the observations of Ms Taylor about interaction between [X] and the father suggest that it would not be in [X]’s best interests to order that she spend unsupervised time with the father.
[X] was clear in her views that she wished to continue living with her mother and that she did not wish to spend time with the father at his home.
In my view considerable weight should be given to [X]’s views. Her experience with her father in the January 2009 school holidays was entirely negative, and Ms Taylor’s observations of the father and [X] suggest that they have a poor relationship and that [X] is likely to suffer psychological harm if she spends extended unsupervised periods of time with the father.
[X] told Ms Taylor that she would be willing to see the father if the time was supervised.
I have reservations about the value of making an order for supervised time. The father was unable to establish a rapport with [X] in June 2009 and his interaction with her was inappropriate. If that is all the interaction that the father and [X] are capable of, it is difficult to see the value to [X] of spending time with the father on a fortnightly basis at a children’s contact centre as recommended by Ms Taylor.
However if I refuse to make an order for supervised time, I will immediately put to an end all prospect of [X] having a relationship with her father. Ms Taylor’s opinion was that supervised time would have some value because it would maintain a relationship of sorts between [X] and the father which could be built on if the father’s mental health improved. On balance therefore I consider that it would be in [X]’s best interests that I make an order for supervised time. However I propose to order that it occurs monthly rather than fortnightly.
A great difficulty in this matter is that it is impossible to foresee a time when [X] might again be able to spend unsupervised time with the father.
The father’s suicide ideation and the possibility that he may be suffering from a personality disorder are of great concern. It may well be that the father’s insensitivity to [X] and inability to provide for her needs is part and parcel of his mental health condition.
It is impossible to order that the father spend unsupervised time with [X] while these concerns remain and there was absolutely nothing to suggest that the fragility of the father’s mental health was temporary.
The father showed no insight into his own condition, maintaining even in the face of evidence he provided from his own treating psychiatrist that his problem was reactive depression. He showed no insight into the way in his which his own behaviour had contributed to the current state of his relationship with the mother and [X], instead entirely blaming the mother for the situation. He showed no insight into the true nature of his relationship with [X], maintaining that it was good and strong and accusing the two report writers of bias and lack of professionalism.
However there does need to be a mechanism to review an order for supervised time because for a variety of reasons the time could break down. Ms Taylor conceded that [X] might become resistant to attending at the contact centre. The father might behave in a verbally destructive manner at the centre meaning that the time ought to cease. Finally, the father might simply not come to the centre from Wollongong, resulting in an order hanging over the parties’ and which the father might attempt to reactivate it at an inconvenient point in the future after not having seen [X] for some time.
These parties have had more than their fair share of involvement with the legal system, but I feel constrained to make only interim orders, and to provide for the order for supervised time to be reviewed in twelve months, or at earlier time if some critical event occurs.
The mother proposed that an order be made for telephone communication. Ms Taylor recommended that telephone communication not occur due to the father’s “lack of insight into his unhelpful way of relating to [X].”[17] In my view this opinion is soundly based. Ms Taylor’s observations of the father’s interaction with [X] showed him repeatedly overriding her views and wishes and making critical comments and also demands on [X]. DOCS workers on
11 January 2009 were concerned about the emotional pressure the father placed on [X] on that occasion.
[17] Ms Taylor’s report paragraph 69
In my view it is not appropriate to make an order for telephone communication. There is of course nothing to prevent the mother initiating or assisting [X] to initiate telephone communication with the father on an ad hoc basis if the mother judges this to be appropriate.
For all of the above reasons the orders shall be as set out at the beginning of this judgment.
I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Barbara Cameron
Date: 23 December 2009
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