JAMES and GENTRY
[2015] FCWA 99
•18 NOVEMBER 2015
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: JAMES and GENTRY [2015] FCWA 99
CORAM: CRISFORD J
HEARD: 1 OCTOBER 2015
DELIVERED : 18 NOVEMBER 2015
FILE NO/S: PTW 5232 of 2008
BETWEEN: MS JAMES
Applicant
AND
MR GENTRY
Respondent
Catchwords:
CHILDREN’S ISSUES – Where the father failed to comply with directions for the filing of trial material and the mother was given leave to proceed undefended – where the father was convicted of aggravated sexual penetration of the mother without her consent and received a four year term of imprisonment – where the father seeks an order for equal shared parental responsibility – where the mother seeks an order for sole parental responsibility – where the Court found the mother should have sole parental responsibility for the child – where the Court found the child should spend time with the father on six occasions every 12 months whilst the father is incarcerated – where the Court found the child should spend supervised time with the father on six occasions, every six months, for two hours on each occasion, upon the father’s release.
PRACTICE AND PROCEDURE – Where the father attached a copy of the mother’s offer to settle the proceedings to correspondence sent to the Court – where counsel for the mother objected to the father referring to, and the Court viewing, the offer – where s 240 of the Family Court Act 1997 (WA) (“the Act”) does not apply to proceedings under Pt 5, Div 6 of the Act – where any terms of an offer to settle can be disclosed to, and considered by, the Court if it is in the best interest of the child to do so.
Legislation:
Family Court Act 1997 (WA), s 66A, s 66C, s 68, s 70A, s 86, s 240
Family Law Rules 2004 (Cth)
Category: Reportable
Representation:
Counsel:
Applicant: Ms C Smith
Respondent: Self Represented Litigant
Independent Children's Lawyer : Mr R Saharan
Solicitors:
Applicant: Reader Lawyers & Mediators
Respondent: Self Represented Litigant
Independent Children's Lawyer : Rajesh Saharan Barrister & Solicitor
Case(s) referred to in judgment(s):
McCall & Clark (2009) FLC 93-405
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Mr Gentry] (“the father”), aged 29 years, met [Ms James] (“the mother”), aged 28 years, when they were about 10 years old. They started a relationship a few years later. The mother became pregnant when she was 15 years old and their son, [T], was born [in] November 2003. He is 12 years old.
2The parties lived together between early 2004 and November 2007.
3On 24 October 2008 the mother filed an application for final orders. On 5 November 2008 interim orders were made that the parties have equal shared parental responsibility for the child and that he live, predominantly, with the mother, but there was provision for him to live with the father at other times. Neither party took steps to progress the matter and the proceedings were dismissed on 22 January 2009.
4After an incident [in] June 2013, at a social gathering, the father was charged with aggravated sexual penetration of the mother without her consent. He pleaded not guilty. A criminal trial took place in the District Court of Western Australia [in] September 2014. The father was found guilty. He was refused bail and was sentenced in October 2014. He received a four year term of imprisonment from September 2014 with a non-parole period of two years. The mother was granted a lifetime violence restraining order (“VRO”) protecting her from the father.
5The mother filed a further application initiating proceedings on 16 April 2014. She filed a Notice of Child Abuse or Family Violence on the same day. She sought an order for sole parental responsibility and that the child live with her. Although she amended this application on 21 November 2014 to seek relocation to [Victoria], this has not been pursued.
6On 19 May 2014, an order appointing an Independent Children’s Lawyer (“ICL”) was made.
7The father filed a response on 26 August 2014. He sought equal shared parental responsibility. He sought other orders to accommodate various proposals all of which reflected him being very involved in the child’s life.
8The matter proceeded and orders were made for the filing of trial documents on 8 December 2014. By this time the father was in prison. He has not been able to engage fully in the proceedings since that time.
9The parties have attended two Case Assessment Conferences with a Family Consultant, of the court’s counselling service, in relation to issues the subject of the court proceedings. The first conference was on 14 July 2014 and the second was on 8 October 2014. No agreement was reached in relation to any issues.
10The Department for Child Protection and Family Support (“DCPFS”) reported on the Notice of Child Abuse or Family Violence on 14 November 2014. The DCPFS found the concerns unsubstantiated and mostly historic.
11The father failed to comply with directions for the filing of trial material. The father filed a response to an application in a case on 22 June 2015 setting out orders he was seeking whilst incarcerated, but failed to comply with directions for the filing of trial material.
12The mother filed an application seeking leave to proceed undefended on 16 June 2015. This was adjourned on a number of occasions and the time within which the father had to file his documents was extended. At the beginning of the trial, no documents having been received from the father, orders were made dismissing the father’s response of 26 August 2014 and granting the mother leave to proceed undefended. However, the Court arranged for the father to attend the trial from the prison by electronic means. The father was present by way of a telephone link-up throughout the whole day of trial. He did not participate in any cross-examination. The father made his submissions after the evidence and the submissions of the ICL and the mother had been completed.
13After the trial had concluded the Court received documentation, by post, from the father ostensibly in relation to the mother’s trial material. The father read a considerable amount from this material in his closing submissions.
14The mother’s counsel objected to the Court viewing any offer to settle included in these documents, I will address this issue later in my judgment.
15Prior to the publication of this judgment the Court read all the documents that had been provided, throughout the entirety of the proceedings, by the father. This included the documents received late on 1 October 2015. However, the use to be made of these documents is another matter.
Orders sought at trial
16The mother continues to seek sole parental responsibility for the child and that he live with her. The ICL also seeks the mother have sole parental responsibility.
17She proposes that the father spend time with the child in prison at or about the time of the child’s birthday; the father’s birthday; Father’s Day; and the Christmas period. These visits are to be facilitated by the paternal grandfather and the paternal step-grandmother (“the grandparents”).
18She proposes that on the father’s release from prison there be supervised time on a monthly basis for a minimum of two hours on each occasion. She also proposes that telephone communication take place between the father and child each Wednesday, between 7:30pm and 8:00pm, with the father to initiate the calls to the child’s mobile telephone. These calls are to be subject to the child’s wishes. There is also liberty for the father to communicate with the child by way of cards, letters and gifts with this communication to occur via the grandparents.
19The father made his position clear. He wishes to have equal shared parental responsibility for the child. He is presently seeking that the child visit him on a regular basis [in] Prison. He wants the grandparents to facilitate these visits. He would like to have an equal living arrangement on his release from custody. However, he accepts that supervised time would be an appropriate starting point. He seeks weekly phone calls with the child. He proposes that once he is released from prison then these arrangements would be reviewed and adjusted.
20The ICL generally supports the father’s proposals in relation to the spending of time with the child.
Applicable Law
21These proceedings were conducted pursuant to Pt 5 of the Family Court Act 1997 (WA) (“the Act”) which makes the best interests of the child the paramount consideration.
22The legislation is strongly in favour of both parents being included in their children’s lives.
23Section 66A makes clear that I must treat the child’s best interests as the paramount consideration. In doing so, I will be guided by the relevant objects of the legislation and the principles underlying them. The stated objects aim to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning care, welfare and development of their children.
24Section 70A(1) of the Act provides that when making a parenting order the court must apply a presumption that it is in the best interests of the child for parents to have equal shared parental responsibility. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 68. It is not a presumption about the amount of time a child spends with each parent.
25The Act makes provision that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. Family violence is defined as violent, threatening or any other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. The Act gives examples of behaviour that may constitute family violence. Most relevantly here, the Act cites sexual assault, or other sexually abusive behaviour, as examples.
26The mother has consistently made claims of family violence. She says this behaviour started whilst the parties cohabited between 2004 and 2007. Her allegations include physical assaults; threats to kill; sexual assault; and stalking. A number of these allegations are consistent with contemporaneous reports to various authorities. She has applied for, and been granted, three separate VROs. The first was in 2008 and she now has one in place for life. The father’s conviction for aggravated sexual penetration of the mother, without her consent, [in] September 2014 brings this matter fairly and squarely within the definition of family violence provided for in the Act. On that basis I am satisfied the presumption does not apply.
27The father has sought an order that he have equal shared parental responsibility for the child. He generally denies the mother’s allegations. I do not consider it to be appropriate in this case that there be an order for equal shared parental responsibility. Not only is there a long history of family violence and disharmony, but the father is presently incarcerated and will be so until at least September 2016. The mother has, of necessity, at least in recent times, made all the major decisions for the child.
28There is a lifetime VRO in place against the father but, even without this in place, there is little ability in the parties to communicate, negotiate or compromise.
29I find that it is in the child’s best interests for the mother to have sole parental responsibility for him. Although the father describes this as a “taking away of his parental rights”, I consider it in the best interests of the child for one parent to be solely responsible for this aspect of his life. In doing so I have also taken into account matters I refer to later in my judgment.
30Section 66C of the Act sets out how to determine what is in a child’s best interests. Section 66C(1) provides that in determining what is in a child’s best interests the court must consider the matters set out in s 66C(2) being the primary considerations and also the matters set out in s 66C(3) being the additional considerations. Section 66C(3A) provides that, when applying the primary considerations, the court is to give greater weight to the second noted primary consideration contained in s 66C(2)(b). To a certain extent a number of the considerations overlap and there may be a need for dual consideration of some issues.
31The considerations set out in s 66C of the Act are crucial when considering all the matters a court must decide, not only in relation to the child’s best interests, but also in relation to whether it is reasonably practicable for a child to spend either equal or substantial and significant time with each parent. It is necessary to remember that the legislation contemplates individual justice.
Applying the law to the facts
32I will firstly turn to the primary considerations in determining what will be most likely to promote the best interests of the child.
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
33It is now accepted that meaningful in this context is synonymous with significant. It represents a relationship that is valuable and worthwhile. Thus, to have a meaningful relationship is to have an important relationship or one of some consequence. The Full Court in McCall & Clark (2009) FLC 93-405 outlined what the court considered to be the three possible interpretations of s 60CC(2)(a) of the Family Law Act 1975 (Cth), the corresponding provision to 66C(2)(a) of the Act:
118. …
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
34The court concluded that the preferred interpretation of benefit to a child of a meaningful relationship is the prospective approach. However, it was also accepted that depending upon the circumstances of the case, the present relationship approach may also be relevant. The court went on to say:
119… If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
35Given the father is presently incarcerated it is most helpful to consider a prospective approach.
36At the time of the father’s arrest and throughout the trial process, he denied commission of the sexual offence against the mother and alleged she had made a false allegation against him. A Harm and Supervision Assessment conducted for sentencing purposes in 2014 reported that the father displayed no victim empathy or insight into his offending. He engaged in significant blaming and adamantly denied the offence.
37A reading of the current prison file shows a, relatively recent, change in attitude with the father now accepting responsibility for his offending. This came after the completion of a treatment assessment, but prior to actually undergoing any personal management plan.
38During the course of the trial the father expressed remorse for his behaviour in what appeared to be an appropriate fashion. The prison file generally indicates that the father has acted in a polite and courteous manner throughout his incarceration and he is not considered a management problem.
39However, the father’s documents received by the Court, after the trial had finished, included a response to the mother’s trial affidavit, affirmed 7 April 2015. The father made blanket denials about almost all of the allegations, made by the mother, relating to his antisocial behaviour. This is not consistent with independent documents; the evidence of the mother and her family; and indeed, the father’s own words to the Court by way of his correspondence of 1 October 2015. Although the father has apparently accepted his offending behaviour, he takes issue with many other aspects of the mother’s concerns about his behaviour.
40On his transfer to the minimum security [prison], it was recommended that the father undergo a Pathways Program which would give him the opportunity to learn to identify situations that are high risk for him; a Think First Program which would address his impulsive behaviour; and also a medium-intensity sexual offending program.
41In his correspondence to the Court the father says that he is using the period of incarceration to better himself. He says he is currently the chairman of [a program]; has completed an emotional intelligence program; and a life skills program. He says he is booked into an alternative to violence program; a sex offender treatment program; a Think First program; and a drug and alcohol treatment program.
42The father is to be re-assessed in relation to his progress approximately ten weeks prior to, 3 September 2016, his earliest release date.
43As will become apparent during the course of my judgment, I find the father’s previous behaviour generally, and towards the mother in particular, to have been lamentable. It appears his previous lifestyle was unlikely to produce a worthwhile or meaningful relationship with the child. However, recent indications, albeit in a somewhat artificial environment, are that in the future if he makes and maintains real changes to his lifestyle this will result in benefits to the child.
44There is potential for this, but whether it eventuates remains to be seen. Life within the broader community is very different from life within a prison environment. Whether this change in attitude is genuine, or is born of an attempt to enhance the obtaining of parole, will unfold on the father’s release.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
45It has already been noted that the father professes to have regrets for his past behaviour. The extent of those regrets have not been fully explored and there is little to be gained in that respect until he resumes his life within the community. However, there have been behaviours in the past that need to be canvassed. The child should be protected from any behaviours which are likely to expose him to harm, abuse or neglect of any sort.
46Despite the father’s denial of what can only be described as inappropriate behaviour, I accept that, from a relatively young age, he was affected by alcohol or drugs such that his actions were often antisocial. This included following the mother and spying on her to the extent it could be described as stalking. I find it likely their relationship was punctuated by violent and obsessive conduct.
47A general example of the father’s difficulty with illicit substances, and his attitude to changing his behaviour, comes after being charged with an offence which took place [in] April 2012. The father was charged with assaulting a public officer. This related to an assault on a transit guard. In early May 2012 the father attended Cyrenian House ostensibly to get a written report for consideration by the sentencing judicial officer. The notes reflect the father’s concern about receiving a mandatory prison sentence due to his previous offending in a like manner. He identified the intravenous use of amphetamines and his consumption of alcohol as being a problem. He said he commenced injecting amphetamines after December 2011. The father engaged sporadically with Cyrenian House and his last contact was on 17 July 2012. He was sentenced on 20 July 2012 and received a six month suspended imprisonment order. He did not continue to engage with Cyrenian House.
48The father did not change his drug and alcohol habits. Of interest is an attendance at Sir Charles Gairdner Hospital on 30 April 2013, the day upon which the mother was sexually abused by the father. The Patient Care Record notes that the father was depressed and feeling suicidal, although, he had not actually tried to commit suicide. He was upset over his former girlfriend having miscarried approximately a year beforehand and her current threats to tell the police he had broken a VRO she had taken out against him. It is noted the grandparents, who accompanied the father to the hospital, said he went into a rage, hitting his head against the wall, screaming and crying. The father reported recreational drug use including intravenous use of amphetamines. He also said he regularly consumed alcohol. It was assessed as being a situational crisis and the father was released in the evening.
49I find, at least up until the time of the father’s incarceration, he drank heavily and used drugs, including methamphetamine. I also accept the mother’s evidence that when the father was drinking or on drugs he could become violent, erratic and unpredictable.
50I accept that a lot of the information the mother has set out in her trial affidavit about the father’s drug use and general lifestyle difficulties comes from the father himself. In his own response to the mother’s trial affidavit he denies that the mother was able to ascertain for herself that he was on drugs by asserting that it was he who gave her that information.
51One of the consequences of the father’s lifestyle was that he did not always spend time with the child when arrangements had been made for him to do so.
52In particular, the maternal grandmother deposed:
19.[The mother] got [the child] ready and [the child] would sit in my lounge room watching television and waiting for [the father] to arrive. [The child] sat on the lounge in a position that he could also see the driveway to the house and was able to look out of the front window for [the father] to arrive. On some occasions [the father] would ring around or after the time arranged to say he wasn’t coming and sometimes he just wouldn’t show up at all.
20.… When [the child] realised that [the father] wasn’t coming or [the mother] told him that [the father] had called to say he wasn’t able to come, [the child] became angry and stormed into his room and shut the door.
21.I observed that [the mother] then had to try and calm [the child] down.
53The mother also deposed, in her trial affidavit, to the father taking the child to parties and other people’s homes during the time he had him. In particular:
97.I recall that in 2008 and 2009 I found photos on Facebook of [the child] drinking beer. This photo was put on Facebook by [the father’s] partner at the time. As a result of my concern that [the father] was providing alcohol to [the child] who was around 5 years old at the time, I made a report to DCP however nothing eventuated.
54In his response to this particular paragraph the father said “this is a lie, he pretended to drink that is all”. This is concerning in itself.
55I am aware that the mother had her own set of problems during the time the parties were together. However, at least in recent times she has had to care solely for the child in often difficult circumstances. There is no evidence to suggest that she is, or has ever been, a threat to his wellbeing.
56The mother was admitted to the mental health unit at Sir Charles Gairdner Hospital on 15 April 2013. She was discharged 12 days later. The mother attended the hospital of her own volition. She had suicidal ideation and an unstable mood for a period of approximately six weeks. She reported difficulty with her sleeping; weight loss; an increase in risk-taking behaviour; and utilising increasing amounts of alcohol and cannabis in the two weeks prior to her presentation. She reported that her decline in function occurred in the context of the separation from her then husband (having married in November 2012).
57She was again admitted to the same hospital for six days in early 2014. The diagnosis was Emotional Dysregulation Disorder. It was also noted that she was dependant on marijuana and abused benzodiazepine. The admission was reported to be a result of the father recently pleading “not guilty” to the sexual assault upon her. This had caused her to have difficulty sleeping and she had experienced one week of increasing suicidal ideation.
58The mother said, at trial, her last admission had been in September 2014 after the criminal trial. She had been required to give evidence given the father’s plea. I accept she required some assistance to cope with reliving the offending behaviour in a court context.
59At trial the mother reported no further episodes and said she was currently well.
60It can be seen from the hospital admissions that the mother has her own vulnerabilities. She accepted at trial that she continued to smoke marijuana. She explained that it helped her to relax and also to sleep. She also presently takes prescribed medication to help her sleep. This is monitored by her general practitioner.
61I will now turn to the relevant additional considerations. These are additional considerations and not secondary considerations. They are to be read in conjunction with the primary considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
62The child was 11 years old at the time of the hearing and is now 12. The mother said that he loves the father very much and that from time-to-time he has asked to see the father. When this happens she makes arrangements for him to have contact with the grandparents and occasionally he is taken by them to see the father in prison.
63The ICL spoke to the child just prior to the hearing. He said the child is desirous of seeing more of the father in prison and in fact wants it to be a regular fortnightly arrangement. He also said that the child had expressed a wish to see more of the grandparents and also the father’s mother.
64I do not doubt that the child’s wishes are genuinely held. However, they are not entirely practical given the mother’s attitude to the father and the fact a VRO is in place. The grandparents are of enormous assistance in facilitating contact, but they are involved in a fly-in fly-out work arrangement which is not conducive to regular fortnightly commitments to visit a prison.
(b)the nature of the relationship of the child with –
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)
65There can be no doubt that the child loves the father dearly. I find the father has not played a consistent role in the child’s life but has, nonetheless, been present for various periods of time over the years. The evidence suggests the child would have liked to have developed a better relationship with the father. Despite his disappointment at not always being able to see the father, he has maintained a very loyal stance towards him.
66The child was interviewed by a representative of the DCPFS in relation to the Notice of Child Abuse or Family Violence, filed by the mother, on 16 April 2014. The report made it clear that the child did not want to discuss any negative behaviour of the father and concluded this may well have been out of loyalty.
67She reported that during his interview the child disclosed that the father yelled at him and this made him feel sad. However, despite this, he appeared to have a strong attachment to the father and was very upset that the father was currently in prison. He lamented he had not had the opportunity to see him.
68The report also noted that the father appeared to have a very strong attachment with the child. It was noted he minimised his history of violence and denied that the child was ever exposed to any of his violent behaviour. Although he was critical of the mother, it was reported he was not able to provide details of any supporting evidence to corroborate or substantiate his claims against her.
69At this point in time the child is not aware of the reason behind the father’s imprisonment. To the credit of all family members, he has been shielded from this terrible, but very real, fact. Whether the nature of the relationship he has with the mother or father will change after this knowledge is imparted makes it important that such knowledge is divulged in a supportive and appropriate manner.
70The mother has been the primary caregiver of the child all his life. She has been a stable base for him. Despite her own vulnerabilities, I accept her primary focus is, and has always been, the best interests of the child. She was insightful when she gave evidence that the child knows she is a constant in his life and feels more comfortable being critical of her than of the father because her love for him is unconditional and she will always be there for him.
71The child has a good relationship with the maternal grandmother. Given the mother’s relatively young age, the maternal grandmother has been of great support in assisting in caring for the child and has a strong, close bond with him. She sees him regularly as her home is five minutes from the mother.
72The child also has a good relationship with the grandparents. He sees them on what I consider to be an appropriate basis given their relationship and the circumstances of this case. The child recently spent five days of his school holiday period with them. This is a regular school holiday occurrence. The grandparents work as fly-in fly-out employees on a four day on, four day off roster. It is not possible to be anything other than flexible in these arrangements. I accept that the child is free to communicate and spend time with the grandparents without interference by the mother.
73The mother said that she had a good relationship with the grandparents prior to the incident causing the father’s incarceration. She says they now have a civil relationship.
74The mother has a poor relationship with the father’s biological mother, [Ms W]. She is opposed to the child having any time with Ms W. Although the child expresses a wish to see her I accept there are circumstances that surrounded the incident, for which the father is incarcerated, that make it difficult for the mother to cultivate any relationship between the child and Ms W.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity –
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child
75As a number of considerations overlap, this consideration has been addressed throughout my judgment. Furthermore, I find the mother to be as selfless as one could expect, taking into account the circumstances of the father’s incarceration. Although she does not facilitate the child going to visit the father in prison, to the extent sought by the ICL and the father, she has not prevented the child being taken there by the grandparents when they go. There are no court orders in place for prison visits yet they have happened.
76In his submissions, the father read out a letter the child had sent him on Father’s Day 2015. I accept the mother has facilitated the child sending such a letter and also allowing the child to take the father a gift he made at school. The grandparents facilitated the actual visit.
77Of note, after the sexual assault upon her and whilst the father was on bail, the mother continued to allow the child to see him. She did require the grandparents to be present during such times. She deposed that the grandparents did not do that and they allowed the father to take the child away from their home and to parties. The child told her about the parties and the fact he was left to his own devices. Her concerns about the grandparents do not relate to their relationship with the child but more their relationship with the father, their son. She says they cannot stand up to him or exert any influence over him.
78The mother has been accepting that the father is the child’s parent and to that extent is willing to maintain the relationship between them. Understandably there have been some constraints given the VRO in place. The mother deposed:
181.The assault and behaviours towards me by [the father] including the sexual assault perpetrated on me in June of 2013 causes me ongoing anxiety and stress and I am seeking to limit my interaction with [the father] as much as possible in order to manage that.
79The mother is opposed to the child being taken to visit the father in prison on a fortnightly basis.
80Attached to the mother’s affidavit are a series of Facebook posts and inbox communications, which I consider reflect poorly on her. It is accepted the child does not have access to these communications, but the content reflects adversely on the mother both in terms of the language used and the motivation in obtaining information against the father from his former partner and acquaintances.
81At trial, the father said he accepted that the mother would be the parent with whom the child should live, at least in the short term upon his release from prison. Originally he had sought an equal shared living arrangement immediately upon his release. There is some indication of an understanding of the mother’s position although until he is released from prison his willingness to continue to accept her role is unknown.
(da)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
82The mother has fulfilled all of her obligations to maintain the child. She is currently employed and has been employed since 2006.
83The father has largely been absent from the child’s life. He has not paid child support and the mother bears the sole responsibility in that regard.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from –
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
84There is no real change proposed to the current circumstances.
85The mother has been frank about her own mental health difficulties. Her medical records were produced to the Court. She does have a predisposition towards mental health issues in times of stress. She has had trouble dealing with personally difficult situations in the past and, given her role as the primary caregiver, should be as protected as much as possible from any future crises and stress.
86I consider an important aspect, in relation to a change in the child’s circumstances, to be the likelihood of him finding out the reason behind the father’s incarceration in an insensitive and unplanned manner. The mother said that she had expected to tell him when she considered the time to be right. Given the animosity between the parties, and what is potentially likely to be very different versions of why the father is incarcerated, it is necessary that this matter be dealt with by an appropriate professional at a time recommended by such professional.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
87The child and mother live in [Suburb B]. The grandparents live in [Suburb C]. The father resides in prison in [Suburb D]. The distance necessitates a three hour round trip. Whilst the mother is not responsible for taking the child, and it is the grandparents who do the travelling, there is still a three hour time frame in which the child must travel.
(f)the capacity of –
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and intellectual needs
88The mother has, of necessity, been the primary caregiver for the child since the parties separated. I am satisfied she has done the very best she can. It has not always been easy for her.
89The mother has provided appropriate accommodation and practical support for the child. In addition he is performing well at school. She has very close support from her own family and the maternal grandmother is involved in caring for the child on a Tuesday.
90I have concerns about the father’s capacity to provide for the child when he is in the broader community. In the past he has been far from ideal as a parent. The mother has effectively been left to fend for herself.
91The father says he has changed but only time will tell.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
92Despite the fact the father says he would never do anything to harm the child I consider his behaviour, even if not in the child’s presence, has indirectly harmed him. To date the father has been a poor role model for the child. His use of drugs and alcohol; his propensity for violence and anger; and his antisocial behaviour generally militates against him providing adequately for the child. The fact that his incarceration arises from an offence against the child’s mother is concerning.
93I accept the father loves the child, but he has not put the child’s needs above his own needs. The court made orders on 19 May 2014 that the father spend time with the child supervised by Anglicare. I accept the mother contacted the service provider and did what was necessary to attend an intake interview. The father, however, did not avail himself of the order for supervised time. Prior to that, the mother took the step of refusing to allow the father to see the child, supervised by the grandparents, when it became apparent they were not in fact present during contact. The father has not availed himself of every opportunity to see the child in the past. He has wanted it to be on his terms only. He has now accepted that on his release from prison a period of supervised time is appropriate.
94I find the mother to have a positive and caring attitude to the child. She has taken on the sole responsibility of parenthood given the extended absence of the child’s father.
95The Court had the advantage of viewing the [Suburb B Primary School] report for the child for Semester 1 of 2015. This shows very few absences and reflects consistently good attitudes, behaviours and efforts at school. He is reported to be a determined young boy who tries his best in all his classroom work. There was no recommendation for a parent interview.
(j)any family violence involving the child or a member of the child’s family
96Where relevant this has been canvassed elsewhere in my judgment.
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following –
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
97In 2008 the mother obtained an interim VRO against the father, the basis of which was family violence in the form of stalking-like behaviour. She did not pursue this on a final basis.
98On 21 May 2012 she obtained a final VRO of two years’ duration. The basis for this VRO was threatening phone calls and messages from the father. There were times both parties disregarded this order.
99On 21 August 2014 the mother sought another interim VRO. This was granted and it became final on 26 September 2014.
100Finally in October 2014, given the proven criminal charges against the father, the mother was automatically granted a lifetime VRO against him.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
101It would be ideal, given the past history of this matter, to now proceed to make final orders so that the mother has certainty in her future. I have already canvassed the fact that I consider her to be vulnerable to any situational difficulties that may arise, and which impact on her and the child.
102I also have to consider the fact that the child loves the father and wants to see him. He has not had the opportunity of developing a meaningful relationship with him. Whether it is possible remains to be seen. A decision in that regard cannot be made now. I have expressed my scepticism about whether the changes the father says he has made will endure once he is in the community. He has made declarations of wanting to change his lifestyle previously but has been unable to adhere to that promise or commitment.
(m)any other fact or circumstance that the court thinks is relevant
103I have previously mentioned my concern about the child learning of the sexual offence without appropriate counselling or psychological support in place. I also consider it appropriate that when the father is released into the community he undertakes counselling. This should be viewed as a long-term commitment to ensure that at least until the child is over the age of 18, he is not the poor role model that he has been in the past.
104It was recommended after the mother’s last admission to Sir Charles Gairdner Hospital that she undertake some psychological counselling. She said at trial she had not done so. She felt that she had an adequate support network around her on her release from hospital. She accepted that she would benefit from counselling support but said that she fears it will “open a can of worms” once she does start. She would like the court proceedings to be over before she undertakes such counselling. She should address this.
Discussion
105This Court is called upon to make orders that are in the best interests of the child. There is a delicate balance, firstly, between the mother and child being allowed to live in a secure and safe atmosphere and to continue what has now become a stable routine with, secondly, the opportunity for the child to develop a relationship of value with the father, presently incarcerated, but who will at some stage during this young child’s adolescence be available to him in the broader community.
106It is important for the Court to bear in mind that the Act mandates the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence be given greater weight than the need to consider the benefit to the child of having a meaningful relationship with both of his parents.
107In his correspondence to the Court, the father referred to a Minute of Consent Orders proposed by the mother. In particular, he referred to two orders which are in identical terms to the mother’s Minute of Proposed Final Orders filed for trial. In referring to the earlier Minute of Consent Orders he says:
… I belive [sic] these orders to be fair given the position I am currently in, and I do consent and agree to most of them except 2, where you will note I have highlighted.
108The father did not consent to the Court making an order for the mother to have sole parental responsibility and he did not agree to there be any constraints upon him, once he was released from prison, in coming into contact with the child or communicating with him other than in accordance with the proposed orders. The import of this is the mother anticipates the father having supervised time at Anglicare and does not agree that he should be able to see the child simply supervised by close family.
109The minute referred to by the father in his correspondence was not a minute that had been filed with the Court and it did not reflect the final position of the mother as contained in a Minute of Proposed Final Orders included in her Papers for the Judge.
110In his closing submissions the father attempted to refer to the minute included in his correspondence. This was objected to by the mother’s counsel. The Court had not, at that stage, had the opportunity of considering whether the earlier minute was objectionable. It was clear that the earlier minute had formed part of an offer to settle the proceedings. I indicated to the mother’s counsel, and the ICL, that I would give them the opportunity to make submissions before I determined what use, if any, I could make of the material. I have had the opportunity of hearing from the mother’s counsel and the ICL in this regard and consider I can refer to that document in determining what will be in the child’s best interests. What use I make of it is another matter.
111Offers of settlement are addressed in s 240 of the Act which is as follows:
240.Offers of settlement — FLA s. 117C
(1)This section applies to proceedings under this Act other than the following proceedings —
(a)proceedings under section 235(1) or Division 6 or 12 of Part 5;
(b)proceedings to enforce a decree or injunction made under section 235 or Division 6 or 12 of Part 5.
(2)If —
(a)a party to proceedings to which this section applies makes an offer to the other party to the proceedings to settle the proceedings; and
(b)the offer is made in accordance with any relevant rules,
the fact that the offer has been made, or the terms of the offer, must not be disclosed to a court in which the proceedings are being heard except for the purposes of the consideration by the court of whether it should make an order as to costs under section 237(2) and the terms of any such order.
(3)A judge or magistrate of a court mentioned in subsection (2) is not disqualified from sitting in the proceedings only because the fact that an offer has been made is, contrary to that subsection, disclosed to the court.
(emphasis added)
112As I have said earlier in my judgment, these proceedings were conducted pursuant to Pt 5 of the Act. Division 6, “Parenting orders other than child maintenance”, contains s 86 of the Act. This section directs that the court must regard the best interests of the child as the paramount consideration.
113Section 240 of the Act does not apply to these proceedings. Any terms of an offer to settle can be disclosed to, and considered by, the Court if it is in the best interests of the child to do so. Accordingly, and consistent with the Act, Pt 10.1, Offers to settle, of the Family Law Rules 2004 (Cth) (“the Rules”), does not apply to these proceedings. In any event, the Court is able to dispense with the Rules if appropriate to do so.
114The Minute of Consent Orders referred to by the father is clearly an offer, designed to avoid a final hearing. It appears to have been prepared somewhere in the middle of 2015, but it is undated.
115The material difference between the mother’s two minutes is the time the father would spend with the child whilst he is incarcerated. The mother’s present proposal is that the child spend time with the father on four occasions each year to coincide with the father and the child’s birthdays, Father’s Day and Christmas. The earlier proposal makes reference to the child seeing the father on what would be a minimum of six occasions every six months.
116I have set out earlier in my judgment the reasons for which I intend to make an order the mother have sole parental responsibility for the child. I also accept her position that when the father is released from prison, any time he spends with the child should be in a supervised environment. I am not satisfied that the grandparents are, at the very least at this stage and without some review by the Family Court Consultancy Service, fully appraised of the need for, and manner in which supervision should be conducted. It is appropriate that any time spent should be supervised by independent persons at an independent agency. This may change or it may not, depending on the circumstances at the time. The child’s safety, in every regard, is of prime importance.
117The mother’s upset and concern, in court, over the child having a less restricted visiting regime with the father at prison was palpable. I intend to allow the father the opportunity to develop a meaningful relationship with the child but it will not be at the expense of the mother’s mental health.
118I intend to make the majority of the orders sought by the mother at trial with some variations. These orders are based on all the evidence and what I consider to be in the child’s best interest. These orders would have been made even if I had not read the father’s late proffered documents. I will also make some provision for the matter to be relisted after the father’s release, but with conditions to apply prior to any relisting being allocated.
119In order for the matter to be monitored by the court, I will make an order that the parties give notice when the father is released from prison; on parole; or otherwise.
Orders
120I pronounce the following orders:
1All previous parenting orders be and are hereby discharged.
2The Applicant, [MS JAMES], have sole parental responsibility for the child, [T GENTRY] born [in] November 2003.
3The said child live with the Applicant.
4Whilst the Respondent, [MR GENTRY], is incarcerated he shall spend time with the child on six occasions every 12 months, such time to take place for a minimum of one hour in accordance with prison visiting hours and is to include, if possible, the following:
(a)within two weeks of the child’s birthday;
(b)within two weeks of the Respondent’s birthday;
(c)within two weeks of Father’s Day; and
(d)at the Family Christmas visit organised by the prison or within two weeks of Christmas Day.
5For the purposes of paragraph 4 above, the visits are to be facilitated by, and in the presence of, the paternal grandfather, and the paternal step-grandmother, (“the paternal grandparents”) on such times and days as agreed between the Applicant and the paternal grandparents.
6Following the Respondent’s release from prison, he spend time with the child supervised by Anglicare Children’s Contact Service or such other Children’s Contact Service (“the Service Provider”) as agreed between the parties.
7Subject to the availability and approval of the Service Provider, the time the Respondent spends with the child pursuant to paragraph 6 above occur on six occasions every six months, for two hours on each occasion.
8The costs of the:
(a)intake interview shall be borne by each party; and
(b)supervision shall be borne by the Respondent.
9The Respondent be at liberty to telephone the child each Thursday between 7:30pm and 8:00pm, with the Respondent to initiate the calls to the child’s mobile phone, and such calls to be subject to the child’s wishes.
10For the purposes of paragraph 9 above, the child’s phone number is to be provided to the Respondent by the paternal grandparents.
11The Respondent be at liberty to communicate with the child by way of cards; letters; and gifts, such communication to occur via the paternal grandparents.
12The Respondent be restrained and an injunction is hereby granted restraining him from:
(a)molesting, harassing or abusing the Applicant and/or child or from interfering with the Applicant or child’s manner of living or attempting to do so or having someone do so on his behalf;
(b)coming into contact with the child or communicating with the child other than in accordance with these orders or with the prior written consent of the Applicant;
(c)removing, or attempting to remove the child from the care and control of the Applicant, any day care, school or third person;
(d)coming within 100 metres of the residence of the Applicant and/or the child; and
(e)attending at the child’s school or having any other person do so on his behalf.
13No earlier than six months after the Respondent’s release from prison and only upon completion of:
(a)all and any courses, counselling or other interventions recommended by the relevant authorities upon the Respondent’s release from prison on parole; or
(b)if not on parole, all and any courses, counselling or other interventions recommended by the ICL upon the Respondent’s release from prison; and
(c)at least, six consecutive occasions of supervised visits with the child, of two hours’ duration,
the Respondent be at liberty to take steps to relist the proceedings.
14The parties and the ICL are to notify the Court, in writing, of the date upon which the Respondent is released from prison.
15In the event a written request to relist these substantive proceedings is not received from the Applicant or the Respondent upon the expiration of eight months after the Respondent’s release from prison, then these orders will become final, and the said proceedings will be dismissed.
I certify that the preceding [120] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
0
0
0