HEINZ & CADY
[2011] FMCAfam 1189
•25 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HEINZ & CADY | [2011] FMCAfam 1189 |
| FAMILY LAW – Parenting – child aged almost 11 – father currently spending limited time with the child supervised at a contact centre – whether the orders should be varied. |
| Family Law Act 1975, ss.60B, 60CC |
| Hall & Hall (1979) FLC 90-713 Heinz & Cady [2009] FMCAfam 1372 Mazorski & Albright (2007) 37 FamLR 518 |
| Applicant: | MR HEINZ |
| Respondent: | MS CADY |
| File Number: | WOC 1242 of 2007 |
| Judgment of: | Terry FM |
| Hearing date: | 20 October 2011 |
| Date of Last Submission: | 20 October 2011 |
| Delivered at: | Newcastle |
| Delivered on: | 25 October 2011 |
REPRESENTATION
| The Applicant: | Self-represented |
| Solicitor Advocate for the Respondent: | Mr Evans |
| Solicitors for the Respondent: | Mark Evans Solicitor |
ORDERS
Order 4 of the orders made on 23 December 2009 is discharged.
Until the end of 2013 the child [X] born [in] 2000 shall spend time with the father for two hours on four occasions each year with such time to occur on the weekend in December immediately preceding her birthday, the weekend in March or April immediately preceding the Easter weekend, the weekend in June/July immediately preceding the commencement of the Term 2 school holidays and the Father’s Day weekend in September.
The father’s time with the child pursuant to order 2 shall be supervised by Ms W or if she is unavailable a person affiliated with the Salvation Army.
The hours between which the time occurs on the weekends referred to in Order 2 shall be as nominated by the supervisor.
The mother and father shall each comply with all requirements of the supervisor as to pick up and drop off arrangements (including the time for arrival and departure for each parent from the venue at which the time is to occur) and as to conduct before, during and immediately after the time.
The father shall pay the costs of the supervision.
In 2014 and 2015 the father shall spend time with the child for two hours on each of the nominated weekends at [G] Shopping Centre or such other shopping centre or public venue as the parties may agree in writing prior to the commencement of each period of time.
The time at [G] Shopping Centre or other agreed shopping centre or public venue shall be between 11.00am and 1.00pm unless otherwise agreed between the parties in writing.
The father shall not leave the [G] Shopping Centre or other agreed shopping centre or public venue with the child during his time with her pursuant to Order 8.
Following the child turning 15 the child shall spend time with the father as agreed between the child and the father.
All outstanding applications are otherwise dismissed.
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 |
WOC 1242 of 2007
| MR HEINZ |
Applicant
And
| MS CADY |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
[X], who is almost 11, is the only child of Mr Heinz and Ms Cady.
On 23 December 2009 I made final orders that [X] live with her mother and that the mother have sole parental responsibility for her, and an interim order that [X] spend time with the father for two hours once each month supervised at a contact centre.
I must now determine on a final basis the time [X] should spend with her father.
The father proposed that [X] spend time with him each alternate weekend and for half of the school holidays, unsupervised. This was the regime which was in place for many years prior to 2009.
The mother adopted the recommendations of Ms T, the Family Report Writer and proposed that [X] spend supervised time with the father for two hours once each three months until she turned 13, then spend unsupervised time with him for two hours once each three months at a shopping centre until she turned 15, and thereafter spend time with him in accordance with her wishes.
Background
In my 23 December 2009 judgment I set out in some detail the background to this matter and I do not intend to repeat all that information again, but I will summarise it so that this judgment reads logically as a stand-alone judgment.
The mother and father separated in 2003 when [X] was 2, and [X] has lived with the mother ever since.
Between 2003 and January 2009 the father spent regular time with the [X], and from October 2004 onwards that time was from Friday to Sunday each alternate weekend during school terms and for half of the school holidays.
It is the father’s case that there was some non-compliance by the mother but it is fair to say that this time mostly occurred, and it occurred against a background of a poor relationship between the parties. In my 2009 judgment I said as follows:
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. [1]
[1] Paragraph 29, Heinz & Cady [2009] FMCAfam 1392
The current court proceedings commenced on 13 October 2007. Leading up to this date there was a running disagreement between the parties about the changeover location, and on 12 October 2007 the father withheld [X] at the end of a weekend visit. The next day he filed an application seeking an order that [X] live with him.
[X] was returned to the mother by court order a few days later, but the parties’ competing applications for residence continued in the court system and in due course a family report was prepared by Dr S. The matter did not resolve following the release of this report. A second family report was subsequently ordered and was prepared by Ms T.
Pending the matter reaching a final hearing in this Court [X] continued to spend time with the father on alternate weekends and for half of the school holidays. She went to the father on 7 January 2009 for the second half of the 2008/9 Christmas school holidays but on
11 January 2009 police and workers from the then Department of Community Services (DOCS) removed [X] from the father’s home after receiving a call from a concerned person (not the mother) alleging that [X] was at home alone. [X] was returned to the mother and thereafter ceased spending time with the father in accordance with the previous arrangement.
In May 2009 an order was made for [X] to commence spending supervised time with the father at [R] Contact Centre in [omitted] but when the final hearing commenced on 17 August 2009 the parties were still on a waiting list for a place at this centre.
At the final hearing the father sought an order that [X] live with him and spend time with the mother on alternate weekends and during school holidays. The mother sought an order that [X] live with her and spend supervised time with the father.
The parties were also in dispute about parental responsibility, with the father seeking equal shared parental responsibility and the mother seeking sole parental responsibility.
One of the matters of concern at the hearing was the state of the father’s mental health. In my judgment I said as follows:
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.[2]
[2] Heinz & Cady (supra) paragraph
The father put into evidence a letter sent by his psychiatrist to his general practitioner in which the psychiatrist said as follows:
Diagnostically, the father 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.
The father took considerable exception to the fact that Ms T, who has a nursing background, expressed the view that greatest weight should be given to the primary diagnosis of personality disorder rather than to the secondary diagnosis of depressed mood. He was most insistent that he was suffering only from ‘reactive depression 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.’
Other matters of concern were that it became apparent, and I made a finding about this in my judgment, that the incident on 11 January 2009 of the father leaving [X] at home alone was not an isolated incident; that [X] did not want to spend time with her father at his home but was happy to spend time with him at a contact centre; and that [X] did not have a particularly good relationship with the father.
In that latter regard, Ms T said as follows:
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.
On 23 December 2009 I delivered my decision. I made final orders that [X] live with the mother and that the mother have sole parental responsibility for her. I ordered that [X] spend supervised time with the father for two hours on one weekend each month but I decided to make that order on an interim basis only. I said as follows:
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 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 T 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’ […] which the father might attempt to reactivate […] 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.[3]
[3] Heinz & Cady [2009] supra paragraphs 164-169
Events after 23 December 2009
The father had commenced spending supervised time with [X] at [R] in about November 2009 and he continued to spend time with her there after the judgment was handed down.
In late 2010 the matter was mentioned before me and it was apparent that the parties were in dispute about what should happen in the longer term. Each party was therefore ordered to file an amended application and/or response and an affidavit in support.
The father filed an amended application on 17 January 2011. He sought orders that [X] live with him and spend time with the mother.
The mother filed an amended response on 31 January 2011. She sought a continuation of supervised time. There are some drafting deficiencies in her amended response but that is no longer really important given that the mother is now seeking different orders.
On 4 February 2011 I ordered that an updated family report be prepared by Ms T and this occurred.
The father declined to attend the report interviews, and he subsequently filed an application in a case seeking among other things to have a different family consultant prepare a report. I dismissed that application.
The parties competing applications were listed for hearing on
20 October 2011. Neither party filed a further amended application or response or any updating affidavit material for the hearing.
The father informed me at the commencement of the hearing that the orders he was now seeking were that [X] spend time with him each alternate weekend during school terms and for half of the school holidays.
The mother’s solicitor informed me at the commencement of the hearing that the mother was seeking orders consistent with Ms T’s recommendations.
The father relied on his affidavits filed on 17 January 2011 and
12 April 2011.
The father’s 17 January 2011 affidavit primarily contains criticism of the mother and Ms T, and most of the material in it is not helpful. The father did provide one helpful piece of information and that was a letter from his psychologist Ms O concerning his mental health.
The father’s 12 April 2011 affidavit was filed in support of his application in a case. It primarily criticises other people, particularly Ms T, and it also was not helpful to me considering the issues which were in dispute on 20 October 2011.
The mother relied on her affidavit filed on 31 January 2011. It is quite slender but it does contain some information about [X] and about her reaction to supervised time.
The Family Report prepared by Ms T pursuant to the orders made on 4 February 2011 was also in evidence.
The father, mother and Ms T were cross-examined.
The current circumstances of the parties
The father still lives in Wollongong at the same address as before.
He gave some updating evidence about his employment in the witness box. He said that he was employed part-time as a [omitted] and was required to work on site, sometimes as far away as the Victorian border but often closer to home in places such as Sydney.
The father’s self-report that he was working was not challenged.
The father said that he was not required to work on weekends and that there was, therefore, no risk of him leaving [X] alone on weekends. He said, presumably thinking ahead to school holiday time, that if necessary he would arrange for a student to live in his house to provide supervision for [X] if he had to go to work.
The father said that [X]’s golden retriever was still at his home and that he still kept pet rats, a hobby which [X] had enjoyed sharing with him when she previously spent time at his home.
The letter from the father’s psychologist Ms O which was annexed to his 17 January 2011 affidavit said as follows:
Review of Mr Heinz’s file indicates that he was first assessed by the Wollongong Community Mental Health Team on 30 June 2007. Mr Heinz was assessed as meeting criteria for Narcissistic Personality Disorder, Major Depressive Disorder, Dysthymic Disorder and Generalised Anxiety Disorder, and was referred to see a clinical psychologist at WCMHT and placed on our waiting list.
He was first assessed by the author on 21 July 2009. He has been seen on a regular basis since and no evidence of Major Depressive Disorder, Dysthymic Disorder and Generalised Anxiety Disorder are currently evident.
During cross-examination the father said that he had Borderline Personality Disorder, which he referred to as BPO, rather than the Narcissistic Personality Disorder referred to by Ms O.
The father denied that he was currently suffering from anxiety and depression but during cross-examination gave some answers which suggested that he might have identified himself as suffering from these conditions during 2011.
The father made some admissions about that and about seeking treatment, although no treatment seems to have occurred, and the mother’s solicitor tendered a document in which reference was made to the father suffering from these conditions.
I cannot draw any conclusions from the father’s answers and from what is in the document. The evidence in my view was confusing and inconclusive.
There was nothing to cast doubt on the father’s claim that he had not had any emergency hospitalisations, which appear in the past to have been connected with his anxiety and depression, since the matter was last before the Court.
The father said that he was not taking any medication at present and that Borderline Personality Disorder was not treatable.
The mother and [X] still live in [omitted] at the same address as before. The mother described herself as a student, as she did during the 2009 proceedings.
The mother and father continue to be involved in an acrimonious child support dispute. The mother was very keen for me to know that the father owed $15,900.00 in child support arrears. The father complained bitterly that the mother continued to tell the Child Support Agency that he had a significant income earning capacity which he was failing to exercise, which he maintained was not only untrue but was an outrageous thing for the mother to do considering that she herself had been a student for about nine years and had somehow never got around to entering the workforce.
I am not sure that either party emerges covered in glory in relation to the long standing child support dispute. For the parties’ sake I hope that it can be resolved. Child support assessments based on income earning capacity, which appears to have been the genesis of the dispute between these parties which has been going on almost since separation, can become monsters, but I cannot get to the bottom of this issue and at some point the Child Support Agency will have to sort it out.
[X]’s best interests
I now turn to consider [X]’s best interests, because any orders I make about [X] must be orders determined by treating her best interests as the paramount consideration.
Ss.60CC (2) and (3) of the Family Law Act 1975 set out the matters to which I must have regard in order to determine [X]’s best interests.
The primary considerations are contained in s.60CC(2) and are 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.
There can be no doubt that [X] will not have a meaningful relationship with her father if she only sees him once every three months, supervised for two hours.
The father will not be able to do a range of activities with her or do any caring tasks for her, and [X] will not be able to interact with the pets in the father’s home.
The father also pointed out that [X] would be deprived of the assistance he could give her because of his maths skills and would be left with a parent who was in his words “a TAFE course collector”.
It does not follow however that if the father and [X] spend more time together that they will necessarily have a meaningful relationship, in other words a relationship which is “important, significant and valuable to the child.”[4] If the father’s capacity to care for [X] is deficient – if he has no insight into his own mental health issues and is unable to prioritise her needs over his own, then if [X] spends more time with the father her relationship with him is likely to be worse than if she spends supervised time with him, rather than better.
[4] Mazorski & Albright (2007) 37 FamLR 518
I will consider later in the judgment the issue of whether the father’s capacity to provide for [X]’s needs is deficient.
The second primary consideration is the need to protect the child from physical or psychological harm from being exposed to or subjected abuse, neglect or family violence.
I found in my 23 December 2009 judgment that the father regularly leaving [X] home alone amounted to neglect, and I am not entirely convinced that if [X] spends unsupervised time with the father in the future that she will never be left at home alone again.
At the hearing on 20 October 2011 the father continued to make excuses about and minimise the seriousness of [X] having been left at home in January 2009 for a period which he stated was from 4.30 am to 11.00 am.
He said that he was “quite sure that type of behaviour occurred in families which were still together, and it didn’t come to the attention of the Court because the families were still together.” He also said that he “could understand that [X] didn’t like being left alone and it would have been boring for her” but that he “needed to work to pay the fraudulent child support debt”.
The father’s evidence on this topic suggests that he has great difficulty putting [X]’s needs ahead of his own. This together with his unwillingness to really accept responsibility for what occurred in January 2009 raises a question in my mind about whether it could happen again, and it is not just a question of [X] being bored if she is left at home alone. She is not quite 11 years old and could not be expected to exercise mature judgement about who to let into the house or to deal with an emergency such as a fire.
I must also take into account the additional considerations in s.60CC(3), and the first of these is any views expressed by the child and any factors such as her level of understanding that the court thinks are relevant to the weight to be given to those views.
Ms T spoke to [X] and said as follows:
[X] was asked if an order were made that she spend time with the father every two weeks as she used to if she would like this she said “not really it’d be a bit boring.” When asked if an order were made that she spend time with the father less often if she would like this she said “yes that would be alright.” When asked if an order were made that she not spend time with the father at all if she would like this she said “I’d be alright ‘cause I’ve still got Mum.” When asked if she would miss the father if she did not spend time with him at all she said “a little bit.”
[X] was asked if she understood why she spent time with the father at the contact centre and not at his home she said “’cause he left me alone when I was younger.”
[X] was asked if she would prefer to spend time in future with the father in his home in Wollongong or at the contact centre she said “at the contact centre.”[5]
[5] Ms T’s February 2011 report paragraphs 33-35
Ms T is an experienced family consultant and I have no reason to doubt that she was accurately recorded what [X] said and carefully elicited it from [X].
I pause to note here that one of the father’s complaints in the application in a case he filed earlier this year was that [X] had been denied her own voice in these proceedings because no Independent Children’s Lawyer had been appointed. However [X]’s voice has been heard by means of the Family Report.
I am satisfied that [X] has a view in favour of a continuation of supervised time and a view against spending time with her father in his home, and that weight should be given to those views.
I must consider the nature of the relationship of [X] with each of her parents.
[X]’s relationship with her mother was not an issue in these proceedings, because the focus was on the father’s time with [X].
In earlier family reports – those prepared by Dr S and Ms T – concerns were expressed about the father’s relationship with [X] and his manner of interacting with her.
Dr S described the father as a
a rather self-centred man who had limited insights into the impacts of his attitudes and behaviour on [X].
Ms T made the comment previously referred to about the father’s “dictatorial and critical manner” and during the course of the first hearing I was particularly concerned about the description by Ms T of the father’s interaction with [X] at the report interviews.
I was deprived of an opportunity to receive objective evidence about the current state of the father’s relationship with [X] because the father refused to attend the family report interviews.
The father tendered records produced on subpoena by [R] Contact Centre and he relied on them. Notes are made at [R] about what happens at each supervised session, and the father was of the view that the notes cast his relationship with [X] in a positive light.
There are certainly some references in the notes that are positive. There are references to [X] hugging the father, to the father and [X] playing games and to the father and [X] chatting. It is easy to find references which are positive, but there are also numerous entries which cause me concern, and I will give some examples.
On 14 November 2009 it was noted that the father spoke loudly and insistently and asked for hugs and kisses and acknowledgement, and that [X] kept withdrawing. As the visit ended the father began to speak hurriedly, loudly requesting “hugs now” which resulted in decreased eye contact by [X] and the giving a very brief cuddle.
On 29 November 2009 [X] objected to the father calling her “Boo”.
An example of the father putting his needs ahead of [X]’s was when he asked [X] “What did you get me for my birthday? Did you get me a card?” [X] said, “No.” The father said, “Can you get me one next birthday?”
On 12 December 2009 the father became angry with [X] because she kept chanting, “Old man, old man,” and he told her that there would be no Santa next year. On 20 December 2009 there was the incident with a ball. The notes record that [X] accidentally hit a ball into the father with a tennis racquet and that he reacted by stating “Is that how you want to play?” and proceeded to hit the ball very hard while playing. The father said during the hearing there was an explanation for that and that he always hit the ball – or they both hit the ball very hard during games.
In April 2010 there were difficulties between [X] and the father, with [X] laughing loudly and giggling without cause for about 40 minutes. In September 2010 there are references to the father asking [X] to write him a letter telling him what she wanted him to cook instead of cupcakes – apparently there had been an issue over the cupcakes. There is nothing inherently wrong with that, but it carries on in later interactions because on 18 December 2010 the father asked about the letter, and on 15 January 2011 he asked again about a letter and told [X] he was upset that she had not written.
The point I want to make is that there are numerous entries in the [R] notes which cause me a concern as to the quality of the relationship between the father and [X] and as to the father’s capacity to put [X]’s needs first.
I acknowledge that I do not know who wrote the notes and that the notes could have been written by a number of different people and that I have no idea about those people’s backgrounds or whether they have any qualifications. Nobody was cross-examined as to the accuracy of the notes and no evidence was available which might have placed individual entries into context. Sometimes a single line can look alarming but when the context is elicited it ceases to be alarming.
The difficulty for the father however is that serious concerns were raised during the first proceedings about the nature of his relationship with [X] and his capacity to provide for her emotional needs.
He refused to attend the Family Report interviews in February 2011 and thus deprived me of the opportunity to obtain some objective evidence about the state of his relationship with [X] currently, and I therefore have nothing but the notes from [R] to turn to.
I do not consider that the notes cast the father’s relationship with [X] in the completely positive light that the father wanted me to find that they did, and in addition the notes raise a concern in my mind, because some of the information in them resonates with the concerns previously expressed about the father’s relationship with [X] and his capacity to provide for her emotional needs.
I am left in a situation where I had concerns about the nature of [X]’s relationship with the father after the end of the first hearing, and I do not have any evidence before me in this hearing to allay those concerns.
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.
I need to make some findings about the mother here because if she lacked that willingness and ability, it might incline me to give the father more rather than less time with [X], all other things being equal.
It is absolutely clear that the mother does not like the father, indeed the parents do not like each other, but the mother has complied with the court orders concerning [X] spending time with the father since the orders for supervised time were made, and there was nothing to suggest that the nature of the father’s relationship with [X] was due to any undermining behaviour by the mother.
There was indeed evidence of the mother being more than willing to facilitate [X]’s relationship with the father if she thought that it was right for [X].
Ms T referred in her report to the mother claiming that she had given the father one makeup session when he had missed some time at [R] and two telephone calls in lieu of occasions the father was not able to spend time with [X],[6] and the mother said in her affidavit that she had ensured that [X] telephoned the father on the father’s birthday. There are no orders requiring the mother to do any of those things and the fact that she did them reflects positively on the mother.
[6] Ms T’s February 2011 report paragraph 21
I am not satisfied that the father has, to any great degree, a willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the mother. In my 23 December 2009 judgment I referred to the concerns expressed by Ms T about the father denigrating the mother, and it was very clear from seeing the father on 20 October 2011 and hearing what he had to say that his extremely negative view of the mother remains unchanged.
However in the context of this case I am not necessarily convinced that those findings greatly assist me to determine the matter one way or the other.
I must consider the likely effect of any change in the child’s circumstances.
If [X] begins spending unsupervised time with the father on alternate weekends and during school holidays this will be a change, as she has not done this for three years.
The father submitted that it would be beneficial change, because [X] could re-engage with her pets in the father’s home, and it is clear from the [R]’s notes that she remembers her pets. She would rather like the dog to come and live with her, and she is not averse to the idea of having a pet rat, although the mother is apparently quite opposed to it.
If [X] spent time with the father in his home he could do a normal range of parenting activities with her, although I note that one of [X]’s complaints to both Dr S and Ms T was that the father did not do a lot with her when she visited his home.
So benefits could flow from making an order for unsupervised time which the father could exercise in his home but there also are many reasons to be concerned that the change may be detrimental for [X].
It would be contrary to her wishes; I have reservations about whether the father can be trusted not to leave her at home alone; I have concerns about his relationship with [X]; and for reasons I will give in a little while, I have concerns about his parenting capacity.
The mother’s proposal would also represent a change for [X] in that the father’s time with her would go from once a month to once every three months.
It is difficult to be sure about what the effect of this change would be. It might further weaken the bond between [X] and the father, but if there are difficulties in the father-daughter relationship, less frequent time may in fact mean that what is good in the relationship is preserved and the risk of the relationship being damaged is limited.
I must consider the practical difficulty and the expense of [X] spending time with and communicating with the father and whether that difficulty or expense will substantially affect her right to maintain personal relationships and direct contact with both parents on a regular basis.
There is a practical difficulty in the expense in the father spending time with [X] because he lives in Wollongong and the mother lives in Newcastle. But that difficulty will exist no matter what order I make.
The father is presently having to incur the cost of travelling up to Newcastle to spend the supervised time. If time occurred in Wollongong with changeover in Sydney he would not have to travel as far but he would have to do it twice as often, so there would be no great cost saving for him if the time was on alternate weekends and that issue does not really help me to determine the matter one way or the other.
I must consider [X]’s maturity, sex, age and background.
[X]’s maturity and age have some relevance. She is 10, almost 11 years of age. Ms T considered that when she was a little older and more mature, 13, it would be appropriate for the father to spend short unsupervised periods of time with her, because by that age [X] would be able to seek assistance if something went wrong while she was with the father. It was certainly Ms T’s view by implication that at her current age unsupervised time was undesirable.
I must consider the capacity of each parent and any other relevant party to provide for the needs of the child, including her emotional and intellectual needs.
On 23 December 2009 I made final orders that [X] live with the mother, and the mother’s capacity to provide for [X]’s needs was not the focus of the proceedings on 20 October 2011. The focus was on the father’s capacity.
Earlier in this judgment I dealt with the issue of the father leaving [X] at home alone and noted that I had a concern that this might happen again, and that is a relevant concern about the father’s parenting capacity. My biggest concern, though is about whether the father has any capacity to prioritise [X]’s needs over his own and provide for her emotional needs.
This was flagged as a concern in both of the earlier family reports and in my 23 December 2009 judgment, and as I indicated earlier when discussing the nature of the relationship between the father and [X] the [R] notes suggest that there may still be reason to be concerned about the father’s capacity to provide for [X]’s emotional needs, and I have no counterbalancing evidence to alleviate those concerns.
In the report she prepared for the current proceedings Ms T, relying on the evidence provided by the father that he had been assessed as suffering from Narcissistic Personality Disorder, said as follows:
A concern identified by the Family Consultant is the father’s ability in future to psychologically parent and nurture a child in adolescence. It is developmentally appropriate and expected for an adolescent to begin to stand apart from their parent/s and be critical of them in an attempt to psychologically individuate and thus become their own person separate from their parent/s.
The father’s psychologist, Ms. Ms O (Wollongong Mental Health Service) notes in her correspondence dated 17/12/10 and attached to the father’s affidavit that the father “meets the criteria of Narcissistic Personality Disorder.” Sufferers of this disorder stereotypically have great difficulty having empathy for others if the other’s needs and wishes conflict with the sufferers. They stereotypically have significant difficulty dealing with real or perceived criticisms of them and have difficulty accepting that others can have a differing opinion to them.
A parent with this disorder can often behave in a highly critical fashion and can be quite rejecting of the child/adolescent. These behaviours can have significant negative effects on a child/adolescent’s sense of self and self worth.
A parent with this disorder can make poor parenting decisions regarding supervision of a child/adolescent as they have difficulty imagining the child/adolescent’s experience of being left unsupervised or in an inappropriate situation. The parent’s wishes/needs are often prioritised over the child/adolescent’s needs.[7]
[7]February 2011 Family Report paragraphs 10-13
Ms T has a nursing background, and I consider that she is qualified to give that evidence and I accept it. Of course the father in oral evidence said that he was suffering from Borderline Personality Disorder, not Narcissistic Personality Disorder. He described that disorder as untreatable and, in my view, demonstrated no insight into how this or any other personality disorder might affect his parenting.
The concerns I had about the father’s parenting capacity in 2009 are as strong now as they were then.
I must consider the attitude of each parent to the child and to the responsibilities of parenthood.
The father has shown a good attitude to the child and to the responsibilities of parenthood by faithfully attending at the [R] sessions. The mother has shown a good attitude by complying with the orders and bringing [X] to the sessions.
The mother was highly critical of the father for failing to provide sufficient child support for [X], but I am not convinced that the mother’s expectations in this regard are realistic or truly take account of the difficulties under which the father labours, although he is the last person to admit that he labours under any difficulties.
I must consider the issue of family violence. I made some findings about that in my 2009 decision, but those findings did not assist me to resolve the matter then, and re-visiting them will not assist me to resolve the matter now.
There have been family violence orders between these parties in the past. I was not informed that there were any at present.
I have to consider whether it is preferable to make the order least likely to lead to further proceedings.
The order least likely to lead to further proceedings is the order sought by the mother, that supervised time continue until [X] is 13. There can then be a little bit of unsupervised time; and later on, when [X] is in her mid teens and is wanting to strike out on her own anyway, that the time will be as agreed with her father.
That is the order least likely to lead to further proceedings, because it is then least likely that any issues to do with the care of [X], such as those which occurred in January 2009 and which might bring this matter back to Court, will occur, is an order for supervised time.
Reducing the frequency of the time, too, could ensure that it keeps happening without incident. It will not become too onerous and boring for [X].
I must have regard to any other relevant matter, and I take into account here the fact that [R] will not continue to offer a service to the parties for very much longer because the 12 months which [R] allows to any one family will be up. However there are private supervisors available and Ms T referred to them in her report, so the fact that [R] will cease to be available should not, of itself, deter me from making an order for supervised time.
Another relevant matter is that, leaving aside any dispute about child support, the reality of the situation is that the father, on the mother’s unchallenged evidence, as at January 2011 was paying $80 per month child support, and it follows from that that the mother is primarily financially supporting [X]. That will be relevant when I come to consider who should pay for the provision of supervision, if in fact I order that supervision continue.
The Family Report writer’s recommendations
Ms T said as follows:
It is recommended that [X] live with the mother and spend time with the father for two hours each three months supervised by Ms. Ms W or The Salvation Army. It is suggested that three of these occasions occur close to Christmas/ [X]’s birthday in [omitted], on Father’s Day weekend in September and close to Easter.
Once [X] reaches thirteen years of age it is recommended that the supervision cease and [X] spend two hours each three months with the father within [G] Shopping Centre precinct, Newcastle. It is suggested that the mother provide [X] with a mobile telephone so that she can access the mother’s assistance if necessary and it is recommended that an order be made restricting the father from taking [X] outside [G] Shopping Centre precinct.
Once [X] reaches fifteen years of age it is recommended that [X] spend time with the father as per her wishes.[8]
[8] Family Report February 2011 paragraphs 44, 45, 46
Ms T also made a recommendation about parental responsibility, but I made a final order about that on the last occasion, and it was not something that was the subject of inquiry on 20 October 2011, nor ought it to have been.
Ms T’s recommendations deserve to be given some weight. She is an experienced family consultant. She has prepared many family reports. The father had the opportunity to cross-examine her, and Ms T convincingly answered the father’s questions. I do not accept that
Ms T is biased against the father or biased against men.
In Hall & Hall however the Full Court said as follows:
There is no magic in a family report. A judge is not bound to accept it, and there should never be any suggestion that the counsellor is usurping the role of the Court or that the judge is abdicating his responsibilities.
Family reports are meant to be – and almost invariably are – valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the Court, it is not because they have been accepted automatically, but because the judge has found them consistent with the rest of the body of the evidence before him.[9]
[9] Hall & Hall (1979) FLC 90-713
Conclusion
The father’s case was that I should make orders which would effectively reinstate what had been happening for [X] up to January 2009.
Arguments which could be made in favour of that position would be these.
The Family Law Act 1975 emphasises the importance of children having a meaningful relationship with each of their parents, and it is self evident that [X] will not have a meaningful relationship with her father if she sees him only once every three months in a supervised setting. [X] and the father will only be acquaintances in those circumstances.
If [X] visited the father’s home on the other hand, she would be able to interact with him in the course of a range of caring and other activities and have something approaching a normal father-daughter relationship with him, all other things being equal. [X] is familiar with the father’s home and it is clear from the [R]’ notes that she misses her dog and remembers the pet rats.
The father has not had any emergency hospital admissions in relation to his mental health since 2009. There was no evidence produced on subpoena to cast doubt on that claim.
The father admitted that he suffered from a personality disorder, but he maintained that this did not have any impact on his parenting capacity, and that any suggestion to the contrary by Ms T should be disregarded because she was, in his words, “a raging misandrist” and biased against him.
The father said he had a plan in mind to ensure that [X] was supervised if he was required to work when she was with him, although it was his case that this was not likely to be needed on weekends.
In summary it was the father’s case that [X] would be safe and happy in his care for alternate weekends and half of the school holidays, and there are certainly some arguments which could be made as to why orders of that nature would be preferable.
I take into account all of the things that can be said in favour of the father’s case but in my view Ms T’s recommendations do provide the best scheme for the father to spend time with [X], a scheme which would be in [X]’s best interests.
Orders in accordance with Ms T’s recommendation would be in accordance with [X]’s own views. I am satisfied that she has no wish to spend time with the father outside the contact centre at present, and that the lure of reconnecting with the golden retriever would be unlikely to alter her level of comfort with that arrangement.
The concerns which I had at the end of the 2009 hearing about the father’s parenting capacity remain as strong as they were then. The father showed no recognition at the hearing on 20 October 2011 of [X]’s own needs or her existence as an individual. He showed no recognition of that in his filed material, and the [R] Centre notes, which are the only independent evidence of any sort that I have about the father’s current relationship with [X], while they contain some positive comments also contain some comments that cause me concern because they resonate with concerns expressed by Ms T and Dr S in the first two family reports about the father and his relationship with [X].
Although the father will not have a meaningful relationship with [X] if he spends only supervised time with her at three monthly intervals, a relationship of sorts will be preserved with limited risk to [X]’s own self-esteem.
Making an order for more extensive unsupervised time, as the father proposed, would not only place [X] at risk of emotional harm, because she would be exposed to all of the difficulties in her relationship with her father and the deficiencies in his parenting capacity, but it might also put a complete end to their relationship, whereas having less frequent supervised time might at least preserve a relationship of sorts.
Extending the time between the visits as Ms T suggested has the benefit of guarding against [X] becoming bored or resistant to attending the supervised visits.
There is merit in Ms T’s proposal that once [X] is a little older, say 13, that the time should be unsupervised at somewhere like a shopping centre. This also will guard against [X] becoming bored and resistant to spending time with the father, and there is merit in Ms T’s suggestion that at 13, [X] will be more mature and able to look after her own interests a little better, and that balancing everything, that particular proposal, once [X] is 13, would be in her best interests.
The suggestion by Ms T that the time should be in accordance with [X]’s wishes once she turns 15 also has merit. By that age [X]’s peer group is likely to be more important than either of her parents, and children of that age often have boyfriends or part-time jobs and social commitments of their own which make them very resistant to spending regular time with parents. Letting a child of that age choose the timing of her own interaction with a parent creates the best chance of a good relationship continuing.
So I am satisfied that there is merit in the regime proposed by Ms T and adopted by the mother, and that making orders in those terms would be in [X]’s best interests.
I must consider who is to pay for the supervision. In my view the father should meet the costs. I consider that appropriate because he is working part-time; he can afford to contribute a small amount and it should not be an excessive amount if it is only four times a year; and he is not paying a large amount of child support and paying for this supervised time is a contribution he can make to the care of [X]. So I am going to make an order that the father pay the costs of the supervision.
I have no doubt that the father will consider the outcome wrong and unfair.
I am sure that he will not accept a decision which happens to coincide with the recommendations of Ms T. The father does not acknowledge any serious defects in his parenting capacity, and it was apparent to me at the hearing on 20 October 2011 that he is convinced that if only the court could be persuaded for a moment to focus on the mother’s shortcomings for a moment, then his shortcomings, if any, would be placed into perspective and the result would be an outcome which would not deprive him of a meaningful relationship with his only child.
Nothing I can say or do will alter the father’s view. I can only emphasise that it is not my job to make parents happy. I have to do what I consider best for a child. Section 60B of the Family Law Act 1975, which sets out the objects and principles of the parenting section of the Family Law Act 1975, refers to the rights of children, not the rights of parents, and I am satisfied that the orders I propose to make are the orders which are in [X]’s best interests.
Before making the formal orders I want to deal with a few little bits and pieces. In his amended initiating application filed on 17 January 2011 the father sought some specific orders about non-denigration, discussing court proceedings with the child or making the child a conduit for communications between the parties. There was no evidence at the hearing which suggested that such orders were necessary, and I am not going to make them.
The father also sought orders about behaviour at handovers, but I intend to order that each parent abide by the requirements of the supervisor in that regard.
The father sought an order for telephone communication and specifically proposed that it occur four times a week, or perhaps alternatively, that [X] be given a mobile and be permitted unrestricted communication with her non-resident parent via this phone.
In 2009 I declined to make an order for telephone communication but given that I intend to order that the father see [X] only four times a year this issue requires reconsideration.
Regular telephone communication would provide an additional opportunity for [X] to interact with her father and an enhanced opportunity, if time alone was sufficient to ensure this, for the relationship between the father and [X] to be as meaningful as possible.
However the reasons I gave for declining to make an order for telephone communication in 2009 remain valid. In addition at the hearing I had an opportunity to observe the father. When given the chance to speak he spoke rapidly and at length and was very difficult to interrupt. All of the evidence suggests that he is not a person who is open to having a conversation in which ideas and views are exchanged and the other person’s opinion considered.
In my view telephone communication has the potential to be very difficult for [X] and making an order that it occur could damage her relationship with her father rather than enhance it.
I also note that on the odd occasion - and the mother is to be commended for this – on the odd occasion, such as the father’s birthday, the mother does facilitate [X] telephoning the father even in the absence of a court order.
I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of Terry FM.
Date: 9 November 2011
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