JENKINS & LLOYD
[2009] FamCA 832
•4 September 2009
FAMILY COURT OF AUSTRALIA
| JENKINS & LLOYD | [2009] FamCA 832 |
| FAMILY LAW – Children – With whom a child should spend time– allegations of family violence – interim orders |
| APPLICANT: | Mr Jenkins |
| RESPONDENT: | Ms Lloyd |
| INDEPENDENT CHILDREN’S LAWYER: | Cathleen Corridon Solicitors |
| FILE NUMBER: | MLC | 2364 | of | 2007 |
| DATE DELIVERED: | 4 September 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 29 June and 1, 2, 3 and 15 July |
REPRESENTATION
| FOR THE APPLICANT: | In Person |
| FOR THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms S Buchanan |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Cathleen Corridon Solicitors |
Orders
That all previous parenting orders be discharged.
That the mother have sole parental responsibility for the child B born … December 2006.
That the child live with the mother.
That the child spend time with the father as follows:-
(a)On four occasions supervised at S Contact Centre (“the contact centre”) for a period of two hours or such longer period as is offered by the contact centre;
(b)That after the father has exercised time in accordance with paragraph 4(a) of this Order:-
(i)the independent children’s lawyer obtain a brief written report from the Centre and provide a copy to the parties and to the family consultant;
(ii)the child spend time with the father on 2 occasions for a period of two hours, with changeovers to be effected at the contact centre as part of the contact centre’s changeover program; on times and dates to be nominated by the contact centre in consultation with the father and the mother;
(c)provided the father has exercised his time pursuant to (4)(b)(ii) of this Order, the child spend time with the father for two periods of five hours each, with changeovers to be effected at the contact centre as part of the contact centre’s changeover program;
(d)provided that the father has exercised all the time to which he is entitled pursuant to the preceding provisions of this Order or the parties otherwise agree, the child spend time with the father once per week from 10 a.m. to 4.00 p.m. with changeovers to be effected at the contact centre, on times and dates to be nominated by the centre in consultation with the father and advised to the mother not less than 14 days prior to the day
(e)the father spend time and communicate with the child as may be otherwise agreed between the parties from time to time and confirmed in writing (via their respective solicitors) and the independent children’s lawyer.
That an updated Family Report be prepared by Mr V, to be commenced not earlier than 1 March 2010 and to be concluded by not later than 13 April 2010 to assess the progress of the time the child has spent with the father and in particular to ascertain:-
(a)Whether the child has been and is likely to be protected from parental conflict;
(b)The capacity of the parents to develop a more effective parental relationship;
(c)Whether the child should send time with his father for overnight periods; and
(d)Whether the changeover should continue to be facilitated by the contact centre or like organisation.
That the parents maintain a communication book and the father provide to the mother, in the communication book, a copy of his monthly roster as soon as possible after the father receives such roster. That the times referred to in paragraph 4 be detailed in writing in the communication book taking into account the father’s roster and the mother’s availability and the availability of the contact centre.
That the father and the mother be and are hereby restrained from denigrating each other verbally or by written, telephonic, electronic or internet means.
That the father continue to attend upon his treating psychologist and psychiatrist, as recommended by those practitioners, and do all acts and things necessary to authorise and permit the independent children’s lawyer to receive reports from them.
That the independent children’s lawyer provide a copy of Mr V’s Family Report dated 23 June 2009 to the father’s psychologist and psychiatrist.
That the mother attend domestic violence counselling, to include domestic violence counselling and within 14 days provide the independent children’s lawyer in writing with the name and address of the counsellor and details of her first appointment and the identity of the counsellor if she has attended an organisation and allow the independent children’s lawyer to receive reports from the counsellor.
That the independent children’s lawyer provide a copy of the reasons for judgment in this matter and Mr V’s Family report to:-
(a) The father’s psychologist, Dr O
(b) The father’s psychiatrist, Dr N; and
(c) The mother’s counsellor.
That the father complete a parenting after separation course or such other course as is advised to him in writing within 14 days by the independent children’s lawyer.
I reserve to all parties liberty to apply on short notice in the event of alleged difficulty with implementation of this Order and/or in the event of alleged contravention of this order and that any such application be listed before me if I am reasonably available.
That I adjourn this matter for mention on a date to be fixed by my Associate following the release of the family report or at 9.00 a.m. on 1 May 2010 (whichever first occurs) for directions for allocation of the final hearing.
IT IS NOTED that publication of this judgment under the pseudonym Jenkins & Lloyd is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2364 of 2007
| MR JENKINS |
Applicant
And
| MS LLOYD |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the parties’ child, born in December 2006, and the time he should spend with his father.
The proceedings have been ongoing for two years. This is the second suite of proceedings in which the parties are engaged. The parties have been regular litigants (against each other) for intervention orders and breaches thereof in the State Magistrates’ Court. At the time of hearing, the father also had criminal proceedings outstanding for a charge of breaching an intervention order which names the mother as the aggrieved person and in which she is a witness for the prosecution.
These parenting proceedings were initiated by the father by an application filed on 2 March 2007, in which he sought shared parental responsibility and that he be entitled to spend time with the child for one hour on Mondays, Wednesdays and Fridays.
Interim orders were made by consent on 7 May 2007 before Hartnett FM, entitling the father to spend 45 minutes time with the child on a weekly basis and such other times as agreed, to be supervised by the maternal grandparents. Orders by consent were also made for the parties to have random supervised urine screens for the testing of illicit substances. Hartnett FM requested the appointment of an independent children’s lawyer (ICL); that role was assigned to Ms Cathleen Corridon, solicitor.
Further interim orders made by consent before Connolly FM on 23 July 2007, which varied the earlier orders such that the father’s time with the child would be supervised at a contact centre. A family report was ordered. That family report, prepared by Mr E, was not in evidence.
The proceedings were listed for a final hearing before Connolly FM on 13 December 2007 but on that day were transferred to this Court and accorded priority from 13 December 2007. The matter was listed for final hearing on 11 May 2009, however this date was vacated on the grounds that the matter was not ready to proceed.
On 3 June 2009 the matter came before Cronin J. The father’s further interim application for unsupervised time with the child pending final hearing was dismissed and a further family report was ordered in anticipation of a final hearing which was allocated for 29 June 2009. Mr V, family consultant, prepared the report, which was released on 23 June 2009.
Proposals of the parties
The matter was heard by me over five days, commencing on 29 June 2009.
The father filed an amended initiating application on 30 March 2009, in which he sought shared parental responsibility. He sought that the child live with the mother and spend time with him ‘on two occasions per week for five hours to be determined by the father’ until the child attains the age of three; this time would gradually increase to alternate weekends upon the child attaining four years of age, and for half of school holidays upon the child attaining school age. Changeovers would take place at the home at which the child was then present.
The father’s attitude throughout the trial was that he was wholly unwilling to participate in supervised time with the child, and that he would walk out of his son’s life if the court made orders for supervised time. However, at the end of the trial, the father retracted this position, and stated that he would be willing to undertake an initial period of supervised time. It was his belief that the criminal proceedings pending against him would be favourably finalised by 10 August 2009. Whereas the ICL proposed supervised time, the father’s proposal was that he spend supervised sessions of greater duration than that proposed by the ICL, and that this be organised according to his work commitments.
A consequence of the father altering his position in closing addresses is that the other parties did not have an opportunity to test his case by cross examination or otherwise. However, I regard the father’s finally articulated position as being a fall back position put the event that he does not obtain the result he seeks in his amended application.
In an amended response filed 17 April 2009, the mother sought sole parental responsibility for the child. She sought that from December 2009, when the child attains the age of three, he spend time with the father for two hours fortnightly (or weekly if this could be accommodated by the supervising service) at S Children’s Contact Centre (“S Centre”). She also sought that from the child’s birthday in December 2009 until December 2010, the child spend two and a half hours a week with his father by agreement, or failing agreement on Wednesdays and Sundays. Gradually, the time the child spends with his father would increase to alternate weekends and half of all school holidays by the time he attains six years of age. Her proposed orders also contain a provision that the father be restrained from denigrating or abusing the mother, and that the mother and father use a communication book.
At the end of the trial, the mother amended her position as outlined in Exhibit “M9.” Namely, she sought interim orders that the father see the child on a supervised basis at S Centre once or twice per week (depending on what the service can accommodate). She sought that supervised time continue until the completion of the criminal proceedings or eight sessions (whichever is the later), and thereafter, that the father spend five hours unsupervised time with the child with changeovers to occur at S Centre. This unsupervised time should be conditional upon a favourable outcome to the following requirements:
·The father providing the results of three drug screen tests to the ICL and the mother;
·A report being submitted by Dr O which addresses whether the father is focussed on the child (rather than on his relationship with the mother);
·The provision of an updated supervision report from S Centre;
·The provision of an updated family report;
·The father’s completion of a Parenting after Separation course;
·The finalisation of the father’s pending criminal charges by December 2009;
·That no further breaches to the mother’s intervention order against the father occur.
The orders proposed by the ICL are interim orders to the effect that the mother have sole parental responsibility for the child, and that the father spend two hours per week with the child for a period of eight weeks supervised at S Centre. In consultation with the ICL, this should increase to two hours per week unsupervised time, with changeovers to occur at S Centre, for a further period of eight weeks. Thereafter, in consultation with the ICL, the father should spend one day per week with the child for a period of 12 weeks, with changeovers to occur at S Centre. The ICL recommends that a further family report be prepared by Mr V in October 2009, concentrating on the issues identified by Mr V in the recommendations of his 23 June 2009 family report. In addition, the ICL recommends that the father continue to attend upon his psychologist and psychiatrist, allowing the ICL to access their respective reports, and that the mother attend domestic violence counselling. The ICL proposes that the parties maintain a communication book.
At the end of the trial, the ICL amended the initial period of supervised time to six weeks, or three occasions of two hours. In consultation with the ICL, this would increase to six weeks (or three occasions) of two hours unsupervised time; thereafter a period of 12 weeks, one day per week unsupervised time. All changeovers would take place at S Centre, and an updated family report would be prepared in November 2009. Counsel for the independent children’s lawyer sought to justify a quicker graduation than that previously sought on the basis that, come what may, there should be some unsupervised time prior to the further family report being prepared in November 2009.
Evidence
Each party relied on affidavit evidence and the maternal grandmother confirmed the accuracy of a proof of evidence. I will describe below the professional or expert evidence to which I have regard.
These are proceedings to which the provision of Division 12A of Part VII of the Act apply. Section 69ZT excludes from these proceedings various divisions and chapters of the Evidence Act 1995 which deal with general rules about giving evidence[1], cross examination[2], documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. That means that the rules of evidence in relation to the admissibility of business records do not apply to this case.
[1] With the exception of ss.26, 30, 36
[2] with the exception of s 41 relating to improper questions
Section 69ZT(3) provides that in exceptional circumstances and having regard to various matters such as the importance and nature and subject of evidence, probative weight and natural justice, I can decide that certain excluded provisions of the Evidence Act1995 (Cth) should operate in the proceedings. I did not, and was not asked to, make any such order.
There were numerous exhibits.
Section 69ZT(2) of the Act provides that the court can give such weight (if any) as it thinks fit to evidence which is admitted as a consequence of the non-application of provisions of the Evidence Act 1995. I will do so.
In the course of the father being cross examined, it appeared that he may be about to give evidence which could incriminate him. It is difficult to know with a litigant in person. There was no opposition to me granting a certificate pursuant to s 128 of the Uniform Evidence Act (Cth) and I did so.
Standard of proof
In assessing the evidence, I apply the balance of probabilities as the standard of proof. The practical application of the balance of probabilities was discussed by Lord Nicholls in Re: H & Ors[3]. Relevantly, His Lordship stated:
Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.
[3] (1996) 1 All ER 1, 16.
As was observed by Carmody J in D and D [2005] FamCA 356, the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.[4] The balance of probability standard takes account of the instinctive judicial feeling that even in civil proceedings a court should be confident before finding serious allegations proved. There are degrees of probability but, when the law talks about ‘the balance of probabilities,’ it envisages a degree of probability to the point that a court can be satisfied that the alleged fact in issue is more likely than not. There has to be something more than mere conjecture or suspicion. A proposition is proved on the balance of probabilities in a circumstantial case when the combined weight or preponderance of the totality of the available evidence favours it as the most likely explanation. The more information consistent with one of a number of competing hypotheses, the more probable that explanation becomes. I agree with those observations.
[4] Re Dellow's Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771 at 773 per Ungoed-Thomas J.
In these reasons, statements of fact constitute findings of fact.
Credit and Impression of Witnesses
The mother is aged 27 years and is the primary carer of the child. She is employed as a sales attendant two days per week.
The mother was represented by counsel for all but the final two days of the trial. She struck me as a person of moderate intelligence with a high degree of emotional need, as evidenced by the two disastrous reconciliations with the father. The mother presents herself as a victim of physical and emotional abuse perpetrated by the father and one who has been manipulated into an ongoing conflictual relationship with him.
The mother gave an account of the father as volatile and obsessive with regards to her, and in particular, her relationships with other men, which I accept. However, as will become apparent, her evidence revealed a more complex dynamic than that which she presented. She casts herself as the unwilling object of the father’s desire and affection who endured the father for the sake of their son, whereas I am satisfied that she was a willing participant in her relationship with the father. Her evidence was sometimes contradictory and self interested, and sometimes plainly wrong. I have little confidence in the mother’s credibility and, unless her evidence is corroborated or inherently probable, I treat it with caution. I accept that the mother was a victim of verbal and physical abuse by the father and to some extent this would have adversely influenced her behaviour. However that does not alter the weight that I am able to place on her evidence.
The father is 31 years old. He is employed as a picker and packer working at a warehouse where he works full time hours on a rotating shift basis.
The father represented himself. He was often highly agitated and emotional. I am mindful of the stress and anxiety engendered by lengthy family law proceedings, particularly for self represented litigants. However, as a witness the father was frequently non-responsive, inflammatory, defensive and inappropriate. Throughout the proceedings he was prone to tantrums, hyperbole and launching personal attacks against the mother and her counsel. He struck me as lacking maturity and possessed of limited interpersonal skills. I take his demeanour into account and I do not consider him to be a reliable witness.
The father has endured a sad personal history. He was adopted as a child, and his adoptive father died when he was seven years of age. His mother struggled to raise her two children. It is telling that the father gave the following description of how he ‘knows’ that the child feels rejected by the mother in the context of the mother keeping company or having intimate relationships with men:
It’s not nice as a child to witness – it seems to be, like, a continuous stream of guys coming in and out of mum’s life and, “Does mummy really love me? It doesn’t seem to me that it’s – I’m not enough for mummy, so mummy is always with another guy, and then another guy.” And then it seems like, as a child, from that and anyone you ask who has witnessed it as a child, that, yes, that it seems like, “Mummy doesn’t focus on me and doesn’t want me enough. I’m not good enough for her, so she’s off with another guy and then another guy.” But really, at the end of the day, as a child, all you really want is daddy because that’s who you love. “Who are these guys? Mummy now doesn’t want to talk to me because she spends time with this guy and this guy.” I’ve seen this behaviour and I feel that that’s how my son’s going to grow up, witnessing that from guy to guy to guy. I want to protect my son from that. I’d rather know that she goes – if she does go into a relationship and she’d be with a guy for a period of time and he’s a good guy and it works. Not this guy whose raped his ex-wife and this and that, it was only four months to the next one, and to the next one. I’d rather know it’s going to be stable or it’s, you know, she’s focussing more on [the child] and just being single and then working on actually getting along with me – at least getting along with me and then, you know, if she gets on with a relationship, then that’s great but just – using me to fill in the gaps and then how it’s affecting [the child]. Because I see it on so many different views because I’m a child of, like, this sort of behaviour, it’s not good for him.[5]
[5] Transcript of Proceedings, 29 July 2009, page 47-48.
It is apparent from this description that the father conflates his recollections of his unhappy childhood with what he assumes are elements of the mother’s social life and the child’s home environment. It is not a valid construction based on the evidence in the case. However, I mention it now because the sentiments which are apparent from the father’s evidence set out above have, in no small part, driven the father’s behaviour toward the mother, the court and other people, including the child.
The father maintained his belief that the mother ‘has put more energy into boyfriends than the energy into keeping the ongoing relationship with the child and the father.’[6] Consistently, he appeared fixated on the mother’s actual or imagined relationships with other men. His basic position was that she should be concentrating on the child rather than pursuing romantic relationships, and that he maintained a ‘right to know if there’s someone around my son.’[7] However, no evidence was presented to the court which suggested any harm or danger had come to the child as a consequence of the mother’s romantic relationships.
[6] Transcript of Proceedings, 29 July 2009, page 50.
[7] Transcript of Proceedings, 29 July 2009, page 49.
The father also gave evidence that the mother has used him as a ‘rebound tool’ and a ‘sex object’, and that he has been manipulated by the mother because of his willingness to father the child.[8] For the reasons that will become apparent, I make a finding that there is some merit in the father’s view. However, what is ultimately of relevance is the manner in which the dysfunction in the parents’ relationship has or will potentially impact upon the child, and what kind of spend time arrangements will protect the child from this dysfunction and operate in accordance with his best interests.
[8] Transcript of Proceedings, 1 July 2009, page 70
As far as the father’s credibility is concerned, I observed him to give evidence untruthfully. When challenged about whether he said or wrote something to the mother, he tried often to deflect the question by saying that he could not remember. An example was that it was put to the father that prior to me coming into court on the first day of the hearing, he referred to the mother as ‘not being able to keep her legs shut’ so that it was heard by everyone at the bar table and the mother. He said that he could not recall whether or not he made that comment. I accept that he did make the comment.
The father conceded that on a number of occasions throughout the hearing, he imitated the sound a cow makes when the mother walked past him. I accept that the father’s actions are humiliating and demeaning of the mother. Further, the father demonstrates a lack of judgement and appreciation of the likely consequences of his actions.
The maternal grandmother, Mrs Lloyd, gave evidence in support of the mother. She is a source of much support for the mother in her care of the child and has at various instances become embroiled in the conflict between the parties. She gave evidence that she is close to her daughter and very concerned about the impact of the parties’ relationship upon her grandson. She has been at a loss to exercise any control over her daughter’s association with the father. It is apparent that the maternal grandparents have been supportive of the mother and the child in a material sense including having paid credit card liabilities accumulated by the mother. I found to be an honest and reliable witness.
Expert evidence
A family report was prepared by Mr V, social worker, for the purpose of these proceedings and released on 23 June 2009.
Mr V recommends that the child live with the mother and spend supervised time with his father at S Centre until the father’s court hearing in July 2009 is finalised. Dependant upon positive reports from S Centre staff, the report recommends that the child spend unsupervised time with his father for a few hours each week for a period of one month, with changeovers to occur at S Centre. If, after this time, no concerns are raised about ‘[the father’s] functioning or his behaviour towards [the mother]’, the child should spend single day periods each week for three months with his father. After this period, a further family report should be prepared to assess progress and ascertain:
a)The capacity for these parents to develop a more effective parental relationship;
b)The progress of the child’s relationship with his father;
c)Whether the time that the child spends with his father should progress to overnight periods; and
d)Whether changeovers should continue to be facilitated by S Centre.
Mr V recommends that the mother retain sole parental responsibility, but that she keep the father informed about issues relating to the child’s care, which could occur via a communication book. He also recommends that the father continue to see his psychologist and psychiatrist, and that the mother utilise the services of a domestic violence agency.
In paragraph 53 of the report, the Mr V states:
This is a case where the writer believes that parenting arrangements cannot be finalised at this stage. [The child] has only had limited, and generally only supervised time with his father. Both [the father’s] and [the child’s] capacity to deal with unsupervised and lengthy periods of time together have not been tested. [The father’s] anticipated court hearing in respect of the alleged breach of the Intervention Order may also create some tensions for him that have the potential to undermine his functioning and potentially his capacity to provide [the child] with an appropriate care experience. Given [the child’s] age and vulnerable developmental stage, the writer believes there is therefore a need for the Court to adopt a cautious approach.
Upon being cross examined, Mr V said that he believed it necessary for the father’s time with the child to be supervised pending resolution of the father’s criminal court proceedings as he believed the stress of the proceedings may impact negatively on the father’s functioning, in particular, the father’s capacity to contain negative emotions towards the mother. If the outcome of the proceedings were to be unfavourable to the father, in terms of him being incarcerated, Mr V’s view is that the father’s time with the child should be re-assessed.
Mr V acknowledged that the observations of the child and his father, as well as the observations contained in the S Centre report, were positive. He also acknowledged that the parties tended to be encouraging and positive towards the other parent with the child. However, he stated that the father had a tendency to lose control of his behaviour and that witnessing this behaviour would be confusing and frightening for the child. Although the child did not at this stage present as apprehensive or anxious vis-à-vis his father, he believed that the father’s uncontrolled behaviour and continuing conflict between the parents would eventually have a detrimental impact on the child. I accept that evidence.
As stated in paragraph 20 of his report, Mr V recognised that the mother’s concerns about the father may be allayed if the father ceased trying to contact her, presented clear drug screens, received positive reports from his psychiatrist and communicated with her only about the child and not about their relationship.
Mr V described the relationship between the parents as disastrous. That is an accurate assessment. Mr V identified a need for both parents to engage in counselling in order to learn how to relate to one another and take responsibility for their relationship, and maintained that any future communication between them should be strictly child-focused and business like.
Mr V’s opinion was that, first and foremost, the child must be protected from parental conflict. Only if that protection can be achieved, can the child benefit from a meaningful relationship with the father. I accept that opinion as soundly based.
A letter from the father’s General Practitioner, Dr P, dated 25 November 2008, states that it is likely the father suffers from attention deficit disorder, and that he ‘does have difficulty managing frustrations but in recent times has tended to hurt himself rather than others.’[9] Dr P referred the father to Dr N, consultant psychiatrist. The father tendered a report from Dr N dated 7 January 2009.[10] The report confirms the likely diagnosis of attention deficit disorder, stating that he has prescribed a trial course of treatment and is currently evaluating the father’s response. Dr N states that ‘so far [the father] describes a general calming effect and a significant slowing down of his reactions to emotionally-charged encounters’, which is consistent with the provisional diagnosis. It is Dr N’s opinion that he does not believe the father has directed his aggression towards children and as he ‘has gone to great lengths to maintain a connection with his son… [he] is unlikely to jeopardize it.’ He also expressed that he believed the father’s drug abuse was ‘a thing of the past and that the overdose was an impulsive reaction under provocation and does not indicate a significant on-going risk.’
[9] “Exhibit F4.”
[10] “Exhibit F3.”
Dr K prepared a psychiatric assessment of the father dated 7 April 2009. Dr K was not required for cross examination. His evidence was uncontested.
Dr K”s assessment sets out the father’s personal, medical and relationship history. His psychiatric diagnosis is that the father shows ‘some indications of personality weaknesses’, appears to have had depressive tendencies which are currently in a state of remission, and is being treated for attention deficit disorder.
Regarding the parties’ relationship, Dr K noted that a ‘volatile, and complex situation exists with his ex-partner’, and his impression was that although the father had been charged with various breaches of an intervention order, ‘both partners themselves are continuing an on-off relationship in which both manipulate each other.’[11] This view is consistent with my assessment of the parties’ relationship. He recommended that the father’s treating psychologist and psychiatrist work with the father to achieve some stability in the relationship.
[11] Psychiatric Assessment of the father by Dr K, Page 7, attached to the affidavit of Dr K sworn 25 June 2009, filed on 26 June 2009.
Dr K concluded that the father’s prognosis may depend on his response to medication. If the diagnosis of attention deficit disorder were correct, treatment of it should reduce impulsive behaviour patterns. He was of the opinion that his personality weaknesses have started to improve and that the father is gradually maturing. With regards to the father’s drug use, Dr K considers that it is ‘basically a thing of the past, although there could still be some tendency to alcohol, and occasional marijuana.’[12]
[12] Psychiatric Assessment of the father by Dr K, Page 7, attached to the affidavit of Dr K sworn 25 June 2009, filed on 26 June 2009.
Ultimately, Dr K assessed the father to be fit for unsupervised time with his child, although he noted that ‘a court will naturally hear the totality of the evidence, and be able to decide on an appropriate pathway.’[13] I accept Dr K’s evidence but, for reasons which will become apparent, I do not accept his assessment that the immediate introduction of unsupervised time between the father and the child is appropriate at this stage.
[13] Psychiatric Assessment of the father by Dr K, Page 8, attached to the affidavit of Dr K sworn 25 June 2009, filed on 26 June 2009.
Dr O is the father’s consulting psychologist. He wrote a psychological report on the father dated 15 November 2007, a psychological advice dated 3 December 2008, and a further psychological report dated 15 December 2008. Dr O gave evidence and was cross examined. He began treating the father in May 2006 following a medical referral from a General Practitioner, initially on a weekly basis. His evidence was that the visits gradually reduced in frequency to monthly, due to the fact that the father has stabilised. The father’s attendance has been steady and he has not appeared to have had difficulty scheduling appointments.
Save for several paragraphs providing updated psychometric test results and some additional background information, Dr O’s report of 15 December 2008 is substantially the same as his report dated 15 November 2007. The ‘concluding remarks’ contained in both reports are identical, however from a comparison of the two sets of psychometric test results conducted on 24 May 2006 and 15 December 2008, Dr O inferred that the father’s mental health had improved in the last year or two, and that ‘he remains in stressful circumstances, including his ongoing struggle for access to his son, but he is responding well and he also suggests that he is learning to manage his emotions better.’[14]
[14] Psychological Report of the father by Dr O, dated 15 December 2008, page 4 (Exhibit “F2”).
Dr O’s analysis of the parties’ relationship may be gleaned from the following passage of his report:
From my discussions with [the father] I have formed the opinion that the conflicts between him and [the mother] were mostly situational rather than pathological, that is, they arose from the stress that they were both experiencing, and also from the inadequate relationship skills that each of them possessed. I have read the affidavit signed by [the mother] (7-5-2007) and I am aware that allegations have been made by both parties. However I do not believe that [the father] has ever harboured bad intentions towards [the mother]. Nevertheless he has on occasions been unable to contain and restrain himself when they have argued. Considering the background stressors they were experiencing it would have been quite “normal” for [the mother] to become emotional, especially considering her youth, that she was facing motherhood for the first time, that the two of them were attempting to begin a new relationship and were facing financial insecurity. But with his background of inadequate socialisation [the father’s] anxieties may have overwhelmed him and could well have been expressed as anger. Fortunately nothing too bad has come of it although their relationship appears irreparable.
I do not accept that poor behaviour, violence and impulsive actions on the part of the father can be excused for any of the reasons suggested by Dr O.
Dr O concludes are that the father ‘has begun to get his life and career on track’ although he remains insecure and suffers from anxiety issues. Dr O’s opinion is very favourable of the father and relatively critical of the mother, in that he maintains that the father
bears [the mother] no ill will and wishes only to communicate with her about the welfare of the child they share, and to cooperate on whatever is best for the baby. As she seems to be intent on cutting him off without access or communication this worry appears to be entirely realistic (at least, based on the knowledge he presently possesses). [The father] has no unrealistic expectations of having an intimate relationship with [the mother].’[15]
[15] Psychological Report of the father by Dr O, dated 15 December 2008, page 5 (Exhibit “F2”).
Dr O was cross examined on the content of his reports. He clarified that in describing the father as possessing ‘no psychological deficits’ he meant that he had no diagnosable illness. However, he deposed that the father does possess some ‘personality weaknesses’ such as poor impulse control and a tendency towards substance abuse. His evidence was that he does not believe he is currently using marijuana. He further stated that although the father has demonstrated some suicidal ideation when things have been particularly bad, he does not believe the father is likely to act on his feelings.
Dr O indicated that the father lacked insight into his behaviour and that he was often driven by bravado and anxiety. He was asked his opinion on an incident which occurred at a shop on 3 September 2008, where the father said to the mother, in a raised voice, ‘fuck you, you fucking bitch, go fuck your fucking boyfriend then, you fucking slut’ whilst he held the child in his arms. Interestingly, Dr O deposed that the father’s behaviour was not directed at the child, but at the mother, although he conceded that such behaviour would have an impact on both the mother and the child. Similarly, he stated that the father’s voice messages to the mother in September 2008 (transcribed below at paragraph 97, stating words to the effect that he hates the mother and that the child is not his son, do not reflect his attitudes towards the child because he has heard him speak lovingly of the child. Dr O did not alter his opinion after learning that the message directed to the mother was left immediately prior to the father returning the child to the maternal grandmother prematurely and, I am satisfied, angrily and so as to upset the child and his carer.
I am unable to accept Dr O’s conclusions. Having the benefit of all the evidence, I find that the parties have propagated a wholly uncooperative relationship vis-à-vis their parenting of the child. This has been largely fuelled by the father’s jealousy and possessiveness towards the mother, and the mother’s lack of clear boundaries with respect to the father. Although both parties may be faulted for the disastrous state of their relationship, I am unable to agree that the father has behaved with the best interests of the child at the forefront of his mind. In many instances, the best that can be said of the father’s actions is that he did not think of the child at all.
Dr O’s understanding of the father’s behaviour does not appear to include a cohesive assessment of the level of risk he poses to the child, as cross examination by counsel for the ICL demonstrates:
MS BUCHANAN: Thank you, your Honour.
Going further from what her Honour was asking you, Dr [O], what risk of harm to [the child] is there from the perspective of [the father] wanting to punish [the mother]? And that’s clearly his agenda; he wants to punish her. What risk is there to [the child]?‑‑‑There is definitely some risk.
And it’s a risk that can’t be taken, can it?‑‑‑Well, I think it’s a risk that is taken often by all manner of people.
By all manner of people?‑‑‑Well, I don’t know that we can raise children in a completely risk-free way.
But there’s acceptable risks and there’s unacceptable risks?‑‑‑And I put this right on the borderline. I don’t think [the father] would ever do anything to harm [the child]. He may behave stupidly and angrily with regard to [the mother], and [the child] may be caught up in that. Yes, I certainly concede that.
HER HONOUR: Just like he was caught up when he was delivered back to his maternal grandmother, like he was caught up in the arms of his mother when his father went into [the sho[] and in a loud voice called her a “fucking slut.” Right, that sort ‑ ‑ ‑?‑‑‑That ‑ ‑ ‑ - ‑ ‑ of caught up, is it?‑‑‑That sort of caught up is what I mean, yes.[16]
[16] Dr O, Transcript of Proceedings, 2 July 2009, page 11-12.
I am not able to accept Dr O’s assessment of the situation. Although there is no doubt that the father loves the child, he demonstrates little understanding of the potential for his behaviour towards the mother to have a devastating impact on the child. The impression I gained from Dr O’s evidence is that his failure to challenge the father’s behaviour has contributed to the father’s lack of insight into his own actions. However, I am impressed by the father’s perseverance in consulting Dr O. I received evidence of the out of pocket expense to the father over the last three years of treatment. The father is to be congratulated for undertaking the treatment, allocating a significant amount of his income to it and attending appointments regularly.
The father’s application was to have changeovers at a public place such as a Shopping Centre. With regards to conducting changeovers at a shopping centre, Dr O deposed that this would not be sustainable as the parties would eventually start ‘sniping’ at each other and this behaviour would eventually escalate. In this respect, his evidence is in accordance with that of Mr V. I accept this evidence.
Relevant Chronology
The parties commenced a relationship on 28 February 2006. In April 2006, the mother discovered she was pregnant and moved into the father’s home.
The mother states in her affidavit sworn 24 June 2009 that the father did not cope well with the mother’s fatigue and pregnancy sickness and that they argued frequently. She deposes that he was possessive, controlling and would wrongly accuse her of being unfaithful to him.[17]
[17] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 10.
The mother’s affidavit states that on 1 May 2006 the father shook her and pulled her arm behind her back, during an argument in which he had accused her of being unfaithful.[18] She further states that on 8 May 2006, in the course of an argument in which the mother informed the father that she did not wish to continue the relationship, the father choked her, slapped her across the face and punched her right leg.[19]
[18] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 12.
[19] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 13
The mother subsequently went to live with her parents in Y. The mother made a statement to police on 24 May 2006 regarding the incidents of earlier that month,[20] and on 6 June 2006 she obtained an interim intervention order against the father.[21] The intervention order prohibited the father from approaching or contacting the mother, and from knowingly being within 200 metres of her premises in Y. The order was effective until 14 July 2006. The mother believes the father was charged as a consequence of the assault but is unclear as to what the charges were.
[20] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, annexure “A.”
[21] Affidavit of the mother sworn 6 December 2008, filed on 6 December 2008, annexure “B”
The mother alleges that throughout June and July 2006, the father committed breaches of the intervention order by contacting her by phone, email and text message, including text messages wherein he threatened suicide.[22]
[22] See mother’s police statement attached to the affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, annexure “E.”
On 14 August 2006, a final intervention order was made against the father, to operate for an indefinite period.
On 21 September 2006, the father was found guilty of recklessly causing injury and placed on a 12 month good behaviour bond.[23]
[23] LEAP – Victoria Police Court Outcomes Report for the father, page 2, Exhibit “ICL 2”.
The mother deposes to spending some time with the father in October 2006 in order to attempt to build a friendship for the sake of the child, but that this subsequently became difficult as the father ‘again became aggressive and would not accept that we were just friends.’[24]
[24] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 17.
The child was born in December 2006. After the birth, the father spent time with the baby in the presence of the mother, in the home of the maternal grandparents. However, the mother states that the father began to continuously pressure her to reconcile and after approximately one month, following an occasion after she had reiterated to the father that they were just friends, he became very emotional, threatened suicide and refused to leave the house.[25] Following this incident, the father spent time with the child supervised by the maternal grandparents. Around one month later, the mother ceased the father’s time with the child upon the father ‘storming’ into her bedroom whilst holding the child and ‘screaming for [her] to work out the relationship.’ The mother claims that on this occasion, the father threatened to assault the child.[26]
[25] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 19
[26] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 21
On 9 March 2007 the father was found guilty for breach of an intervention order and fined $700. No conviction was recorded and the matter was adjourned until 7 March 2008.[27]
[27] LEAP – Victoria Police Court Outcomes Report for the father, page 2, Exhibit “ICL 2”.
The father initiated court proceedings in the Federal Magistrates Court on 2 May 2007, and on 7 May 2007, orders were made by consent for the child to spend time with his father supervised by the maternal grandparents. The mother and maternal grandmother claim that during this time, the father was aggressive towards the maternal grandparents and preoccupied with his relationship with the mother.
On 23 July 2007, further orders were made by consent, shifting the location of the father’s supervised time with the child to C Children’s Contact Centre (C Centre). Due to difficulties in accessing C Centre’s services, the father’s time with the child was supervised by a supervision agency on 30 September and 14 October 2007. However, the mother’s dissatisfaction with that supervision agency led her to cease using this service, for the reasons set out in her affidavit sworn 6 December 2007,[28] which, essentially, were that the worker in charge of her case, Ms T, was unprofessional and partisan in dealings with her, and that the services of the agency worker who replaced Ms T was also unsatisfactory.
[28] Affidavit of the mother sworn 6 December 2008, filed on 6 December 2008, para 25-44.
The father made an application for an intervention order against the mother which was heard on the 14 August 2007.[29] He alleged that the mother had sent him a series of text messages and emails which were insulting to him and threatening to compromise his time with the child. The father claims that between 7 May 2007 and 13 June 2007 he received over 130 text messages from the mother which he attempted to ignore. The father withdrew his application for an intervention order against the mother, and the mother made an undertaking for period of 12 months not to approach, telephone or contact the father, or attend his premises.[30] The mother also varied the indefinite intervention order against the father made on 14 August 2006 to a 12 month period, due to expire on 13 August 2008.[31]
[29] Exhibit “ICL5”.
[30] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, annexure “E.”
[31] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, annexure “B.”
A family report prepared by Mr E was released on 1 December 2007. None of the parties sought to rely on this report, other than for its historical context.
Proceedings were transferred to this Court on 13 December 2007. Interim orders were made by consent providing for the father to spend time with the child supervised by a supervision agency on a fortnightly basis, and upon C Centre becoming available, supervised by C Centre each alternate week. The supervised time was to operate for three months, after which, the father was to spend unsupervised time with the child twice weekly during the day time. The unsupervised time did not occur.
The parties reconciled for the first time in March 2008. The mother states in her affidavit that the father was due to spend unsupervised time with the child at this time, but that she was very concerned about the child’s safety in his care. The father agreed that she could be present, although she came to understand that the motivation for his agreement was that it would allow him an opportunity to pressure her into resuming a relationship with him. The parties commenced cohabitation in the northern suburbs on 14 April 2008, where the mother continues to live. The mother states that she ‘felt that I had no choice because if I agreed to reconcile then I could ensure the Father would not do anything to hurt [the child].’[32]
[32] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 23.
The mother’s evidence about the basis for the reconciliation did not sit comfortably with the evidence of her mother. The maternal grandmother gave evidence about the mother’s decision to move out of their home and into rented accommodation with the father. The mother and the child were accommodated in the grandparents’ home which was comfortable and free of charge. The grandmother’s evidence was that the mother did not discuss with her any reservations she had about the father’s time becoming unsupervised and nor did she ask for assistance to have the operative orders varied. The mother merely presented her and the maternal grandfather with a concluded arrangement that she and the child would move out, which they did the next day. I accept that the maternal grandparents were alarmed at the parents’ reconciliation. The maternal grandmother stated that she and the maternal grandfather had considered whether they should investigate legal action to try to retain the child, but decided she did not want to jeopardise their relationship with the mother lest the mother feel that she could not ask for assistance subsequently.
My impression of the maternal grandmother is that the mother could have asked for help in a time of distress and need if she felt under undue pressure. I do not accept the mother’s evidence that was pressured by the father to reconcile or that she acted only so as to secure the child’s safety. Nonetheless, I am mindful that the mother has been a subject of domestic violence and therefore vulnerable to behaviour which appears self-interested but may indeed be rooted in far more complicated insecurities.
The mother states that, once reconciled, and living as a family in the rented home in the northern suburbs the father spent time with the child but never in her absence.[33] According to the mother, things went smoothly for approximately one month before the father became controlling and verbally abusive towards her.
[33] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 40.
On 28 April 2008, the father was found guilty of two counts of breach of an intervention order and fined $1000 with conviction.[34] It is not clear what acts constituted the breaches. The father asserted that ‘it was verbal’, and the mother, through her counsel, could not shed light on it. That is indicative of the endemic nature of domestic violence proceedings and sanctions for the couple.
[34] LEAP – Victoria Police Court Outcomes Report for the father, page 1, Exhibit “ICL 2”.
On 11 August 2008, the mother’s intervention order against the father was extended until 11 August 2009. This also occurred whilst the parents were living together and included a prohibition against the father approaching any place at which the mother resides. It was a bizarre step to make an application for a renewal of the order in those terms and for the father to consent to it. However, it is telling of the parents’ use (and misuse) of domestic violence legislation.
The parties separated for a second time in August 2008. The father left the northern suburbs home and moved to another suburb. The mother made a statement to police about an incident which occurred on 15 August 2008, when the father became aggressive and threatened to hurt her in an argument.[35] She states that the parties had broken up approximately one week prior, but that the father had continued to live in the house, sleeping on the couch.
[35] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, annexure “D”.
The mother claims that during August and September 2008 she agreed to the father spending periods of unsupervised time with the child, but that during this time the father sent her threatening phone and text messages.
As I have already mentioned, on 3 September 2008, the father confronted the mother in her place of work when he dropped off the child after spending time with him. The mother’s affidavit states that when the mother refused to come outside to talk with the father, he approached her in the store. When she again refused to talk with him, he became aggressive, and with the child in his arms yelled ‘fuck you, you fucking bitch, go fuck your fucking boyfriend then, you fucking slut.’[36]
[36] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 26.
The father’s evidence was that he said to the mother ‘fuck off, you slut’ and that he ‘knew’ that the mother had a boyfriend at that time. [37] He stated that he did not have the child in his arms at the time but conceded that the child was present and that it was a mistake to have spoken in that manner in front of his son. I am satisfied that the father’s actions were wholly unacceptable.
[37] Transcript of the proceedings, 1 July 2009, pg 37-38.
There were further events later in September 2008. A police statement by the mother states that on 22 September 2008 she received two text messages from the father at around 10:30 p.m.[38] The first said ‘I suppose hanging out with your new boyfriend is more important than [the child] seeing his dad, ha.’ The father denied sending the mother this text message, though he admitted that he believes the mother focuses more energy on her relationships with other men than on the relationship between himself and the child. The second message stated ‘I’m not going to see [the child] cos he has a new dad now, so goodluck and goodbye.’ The father could not recall having sent this message. Approximately 25 minutes later, the mother received a voicemail from the father stating:
[…], it’s [the father], I hate you. I hate you for everything you’ve done to me. I want nothing to do with you. [The child] is not my son. You used me for everything I got. I hope you’re happy with your new man, see you later. I never want to see [the child] ever again, and I never want nothing to do with any of you again. I hope you’re happy.[39]
The father could not remember having left her this message, but he conceded that he had probably been drinking and feeling upset at this time. This is the message which Dr O thought, in my view incorrectly, had no bearing on the father’s attitude to the child.
[38] Exhibit “M6”.
[39] Exhibit “M6”.
There was a further incident on 24 September 2008. It is common ground that arrangements were made for the father to collect the child from the home of the maternal grandparents. The mother’s affidavit states that the maternal grandmother was running late due to heavy traffic, and the mother received a voice message from the father where he stated ‘where is my son.’ Following this, she received a call at work asking her where the child was, and when she explained, he made the comment, ‘by the way, I hope you are having fun with your new boyfriend you fucking slut,’[40] at which point she hung up the phone.
[40] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 43.
The father’s evidence was that he had phoned the mother at work and asked her ‘where is my son’, but he could not say anything further because the mother ‘hung up too quickly’.[41] He stated that upon collecting the child from the home of the maternal grandparents to spend unsupervised time with him, he was informed that he would have to return the child to a police station. The father’s evidence was that he returned the child approximately 20 minutes later because he did not wish to undertake a changeover at a police station, believing this to be an inappropriate environment for a child.
[41] Transcript of the proceedings, 1 July 2009, pg 52.
The mother’s evidence was that, following the phone conversation, she received the following voice messages from the father:
a) At 8.25am
“I know you have a new boyfriend. You can’t even keep your legs shut any longer than a month. I can’t stand you. I hate you. I am only going to see [the child] today and that’s it! You and your new boyfriend can raise him for the rest of your life. I don’t care. I’m just gong to see him today and say goodbye, so have fun, hope you’re happy with your new arrangements USER”
b) At 8.53am
“I picked [the child] up and I decided I don’t want him. I’ve dropped him back at your Mum’s I’m not going out of my way to pick him up and drop him off every day when you can grow up and stop this garbage. I’m absolutely sick of it […] – I’ll have nothing to do with [the child] until you stop this nonsense, you’re on your own OK? You’ve taken everything I own, used me for everything I’ve got I know I made mistakes but you’re sure as hell not innocent yourself. So until you realise that I’m staying away from you all Ok? Goodbye.”[42]
[42] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 43.
Recordings of these voice messages were played in court. The father denied leaving these voice messages, although he conceded that he has made comments to the effect that the mother ‘can’t even keep your legs shut’ several times in the past. In the mother’s police statement of 16 October 2008, she declares that the voice messages were text messages. Whether it was a message by text or by voice message is of little consequence. She also omits that the messages related to conducting changeovers at a police station. It is a significant omission. The mother stated that the ‘errors’ in her police statement were errors of the police member. I do not accept that the responsibility for the errors can lie elsewhere than with the mother. She declared the statement true and correct. I reject the father’s assertion that it was not his voice and his suggestion that the recordings had been tampered with. I am satisfied that he left those messages and said the words attributed to him.
I accept the maternal grandmother’s evidence of the father arriving at her house in an highly angered state, yelling at her for being late and insulting the mother with comments about:
[H]ow [the mother] was such a slut, her new boyfriend, and so on. His body language was very agitated and violent. He was literally steaming, red in the face. He said he knew who the new boyfriend was and said “can’t she keep her legs shut?[43]
[43] Proof of evidence of the maternal grandmother, dated 30 July 2009.
The mother and maternal grandmother gave evidence, which I accept, that the child was highly distressed following this event.
On 26 September 2008 at 11:11 AM, the mother states that the father left the following voice mail on the mother’s telephone:
[…] I will see [the child] tomorrow, ONLY if I can pick him up and drop him off wherever OTHER than the police station, it’s not fair. Please email me, bye.[44]
[44] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 44.
The father agreed that he did leave this voice message. The mother states that she was not willing to effect changeovers other than at a police station.
The father tendered email communications between himself and the mother in October 2008.[45] On 22 October 2008, the father emailed the mother asking whether he could spend time with the child on Saturday, which would have been 25 October 2008, with changeovers to take place at the maternal grandparents’ house. The mother agreed to this time, stating ‘but if there are any dramas and you hurt [the child] again I will cease contact. If all goes well Sunday too.’ Several emails were exchanged for the ostensible purpose of arranging times. This exchange was as follows:
[45] Exhibit “F8.”
· The father wrote at 7:25 p.m.: ‘Ok 9 to what time’
· The mother wrote at 7:29 p.m.: ‘he usually has a nap around 2 or 3 so, before then, you decide. What time Sunday.’
· The father wrote at 7:32 p.m.: ‘9 to 2 an drop him back at your perents.’
· The mother wrote at 7:58 p.m.: ‘Could we place make it till 4pm on Saturday as I would like to get a few things done after work.’
· The father wrote at 8:08 p.m.: ‘No 2 sorry im bise.’
· The mother wrote at 8:11 p.m.: ‘okay then, make it 1pm then, 4 hours.’
· The father wrote at 8:14 p.m.: ‘fine then. you still owe make up time.’
· The mother wrote at 8:15 p.m.: ‘no, I do not.’
· The father wrote at 8:18 p.m.: ‘yes you do. An fm taking it to cout asap.’
On 24 October 2009, the email exchange continued:
· The mother wrote at 5:48 p.m.: ‘Confirming this weekend. Sat from 9-1 from my parents place. Sun from 9-2 from [northern suburbs] police station.’
· The father wrote at 6:44 p.m.: ‘no on sunday it is not in the order your boyfriend is a breach’
· The mother wrote at 7:14 p.m.: ‘So you either calm down and stop being abusive to myself and lying to my parents-and focus on [the child]. Or not see him at all. Your choice. I will give you to 10pm tonight to make your decision.’
· The father wrote at 7:32 p.m.: ‘im Bise Sunday an im not her to give you an your boyfriend some free time as we never had it at all.’
· The mother wrote at 7:36 p.m.: ‘Are you nuts?? For gods sake!!!!!! Okay I give up totally. Don’t see [the child] AT ALL. he will be better off without you. Obviously he doesn’t need a loser that doesn’t care about him like his mother does. Cya.’
This exchange is a telling example of the highly provocative and destructive communication patterns between the parties. It demonstrates how easily distracted the father becomes at the child’s expense. The parents are unable to cooperate with each other for the purpose of achieving something for the child which, in this instance, was as fundamental as the child being able to see the father. It transpired that the father did not see the child again until January 2009, when he spent time with him supervised at S Centre.
The mother deposed in her affidavit sworn 24 June 2009 that on 24 October 2008, she reluctantly agreed to the child spending unsupervised time with the father, although this did not eventuate as the child was unwell. Make-up time was arranged, however this too did not proceed due to an incident where the father verbally threatened the mother and then attempted suicide.[46] The so-called suicide attempt was an overdose of prescription medications. The father gave evidence that the overdose was a result of a ‘mix-up’ in his medication, and that he immediately called a friend who notified the ambulance. The father also referred to having mixed his medication with alcohol. He referred to alcohol as being ‘a very, very, very, very nasty drug that the government provides to us and it causes a lot of problems.’[47] The father took the substances. I do not accept that responsibility lies elsewhere other than with him. In contrast, the mother’s evidence was that the father contacted a friend of hers who contacted the mother. The mother called the police who arranged for an ambulance to attend. I am not satisfied that the father intended to or tried to kill himself. Most likely, it was an attention seeking exercise.
[46] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 45.
[47] Transcript of the proceedings, 1 July 2009, pg 49.
The mother deposes that after October 2008 she ceased all contact with the father, other than an email in December 2008 offering to make the child available to spend time with the father on the chil’ds birthday, in the presence of one of the mother’s friends. This offer was not accepted.[48] However, the bundle of emails tendered by the father demonstrates a further vitriolic email exchange between the mother and the father in early November.[49]
[48] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 46.
[49] Exhibit “F8.”
The mother initiated contact with S Centre in December 2008 and arrangements were made whereby the child would spend time with his father from mid January 2009.[50]
[50] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 47.
On 9 December 2008, the father confronted the mother at this court, prior to a directions hearing. According to the mother, the father threatened her and her then boyfriend, Mr L, telling her ‘fucking bitch, I’m gonna fuck you up SO bad, you’re going down.’[51]
[51] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 50.
In mid December 2008, the mother claims she received a telephone call from the maternal grandmother who was highly distressed because the father had phoned her and threatened to come to the mother’s house to ‘kick [the mother’s] head in and [the child’s] too.’[52] This is corroborated by a police statement made by the grandmother.[53] The father gave evidence that he uttered the words in the context of saying that he knew such statements were what the maternal grandparents expected him to say. I do not discount that as possible. I observed the father to ramble in his evidence, to slip into impersonations of the mother, mimicry and to soliloquise. However, I am satisfied that the father’s comments were reasonably interpreted by the maternal grandmother as being menacing. Those were comments where entirely unacceptable.
[52] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, Annexure H.
[53] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, Annexure K.
The father made an application for an intervention order for himself and on behalf of the child against the mother on 24 December 2008. The mother sought to vary the current intervention order against the father to prohibit him from driving past her home. Both matters were listed for 26 May 2009.
The father began to spend supervised time with the child at S Centre on 8 January 2009. Initially, this occurred on a weekly basis, but shifted to fortnightly after the session on 12 February 2009. This appears to have been necessitated by the contact centre.[54]
[54] S Children’s Contact Service Report, dated 30 May 2009, page 4, attached to the affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, Annexure I.
The parties reconciled for a second time between February and March 2009. The mother stated in her affidavit that the child had spent supervised time with the father at S Centre on 12 February 2009, and that the father had bought her a rose with a teddy bear and card from the child for Valentine’s Day. After the father’s supervised time on 19 February 2009, the father offered her a lift home as she was waiting for a tram. She initially refused, but accepted his offer once the father became agitated. She invited him to her house to complete a parenting plan, which she hoped would reduce the levels of animosity between them. She states that the father was unfocused and intent on discussing counselling with a view to reconciliation. The mother states that she met the father again on 22 February 2009 for the purposes of organising a parenting plan, but the father continued to push for a reconciliation.[55]
[55] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, para 27-30.
Upon being cross examined by the father, the mother conceded that she sent the father several text messages on the evening of 19 February 2009. The first text message, sent at 10:17PM, stated words to the effect of: ‘come over we need to talk just for a smoke.’ Subsequently, she sent a message saying: ‘Too much? Fine no friendship then goodnight.’ At 10:31PM: ‘I’m about to go to bed if you change your mind;’ and approximately 20 minutes later: ‘I just wanted to have a smoke.’ The mother’s evidence was that she simply wanted to smoke cigarettes, discuss a parenting plan with the father and develop a friendship with him. I cannot accept that evidence. The mother’s messages were based on her desire to see the father without regard to the effect on the child of the parents rekindling their romantic relationship.
The mother maintained that she was a victim of the father’s manipulation. The father, knowing she had recently broken up with her boyfriend and was vulnerable, had sent her flowers numerous times, as well as threatened to not have anything to do with the child if she did not have a relationship with the father. Although I am mindful that the mother has been a victim of family violence perpetrated by the father in the past, both parties must take responsibility for their actions.
The mother’s evidence does not contain details of her relationship with the father during the second reconciliation; it does, however, state that the relationship broke down on 26 March 2009 after the father contacted Centrelink and alleged that the mother had a male partner living with her. After asking him to leave, the father refused to leave, and eventually attempted to drive off with the child in his car. The mother gave evidence that she believed he would not return the child due to his anger with her, and that she had feared for his safety. She referred to this as a ‘kidnap attempt.’ My assessment of the mother’s evidence does not support that description.
The father cross examined the mother in relation to the alleged kidnap attempt. He put it to the mother that he had dropped the child off at the child care centre the following day, 27 March 2009. Initially, the mother firmly denied this. However, once prompted in re-examination by her counsel, the mother conceded that the father did take the child to child care on this occasion
The attendance records for that day confirm that the father signed the child in on that day.[56] The mother’s evidence was false. She did not give the evidence lightly. She was asked to reflect on the accuracy of her evidence but remained resolute until she was impermissibly led by her counsel to give evidence that she had been mistaken. The mother knew the evidence was significant in relation to whether she had truly apprehended that the father was going kidnap the child the previous day. I find that the mother gave evidence falsely rather than carelessly and to advance her own case.
[56] Exhibit “C1.”
In April 2009 the father was sentenced to a 12 month suspended period of imprisonment for breach of an intervention order.[57] The father gave evidence from the bar table that the events of August 2008 constituted the breach that was the subject of this charge.
[57] LEAP – Victoria Police Court Outcomes Report for the father, page 1, Exhibit “ICL 2”.
On 26 May 2009 the intervention order in favour of the mother was extended until 26 May 2010.[58] The intervention order included the child as an aggrieved person and included terms limiting the father’s ability to be within 100 metres of the mother’s home. An intervention order to operate for 12 months was made against the mother, prohibiting her from contacting or communicating with the father, including by telephone, text message, email or MSN, other than to make arrangements with regards to the child.[59]
[58] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, Annexure F.
[59] Affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, Annexure G.
A report by S Centre, dated 30 May 2009, details thirteen two hour supervised visits between the child and the father between 8 January 2009 and 14 May 2009. Ten of these visits occurred, two were cancelled by the mother and one was cancelled by the father. The report gives detail of highly positive interaction between the father and the child over the course of the visits. The visits were tarnished only by several statements made by the father to contact workers. On 16 April 2009, the father told a worker that the child was ‘missing out on his father because of “A twenty seven year old who is playing games.”’[60] He also commented to a worker that ‘“It’s gut wrenching having to come here after being able to see [the child] at home last month”’.[61] At the following session, on 30 April 2009, the worker queried the mother as to whether unsupervised visits were occurring outside of the contact service. The mother replied that ‘she had allowed [the father] to visit but needed to pull back again as [the father’s] behaviour towards her had become too intrusive. [The mother] said that she would not be continuing with visits outside of the service.’[62] At the next and final supervised visit, the father told the contact worker that he would no longer be attending the service as ‘“he had had enough of being humiliated and pushed around by that brat.” I accept that the father was referring to the mother, not the child, as a “brat”.
[60] S Children’s Contact Service Report, dated 30 May 2009, page 6, attached to the affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, Annexure I.
[61] S Children’s Contact Service Report, dated 30 May 2009, page 6, attached to the affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, Annexure I.
[62] S Children’s Contact Service Report, dated 30 May 2009, page 7, attached to the affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, Annexure I.
The father also stated work reasons as a factor to his desire that visits cease being supervised.[63] I am satisfied that the father has a strong and admirable work ethic and genuinely wants to better his financial position and his career prospects. However, I do not think that his work commitments are as inflexible as he makes them out to be. I do not accept that there is no alternative but for the mother to fit in with his work schedule from time to time and for the visits to be unsupervised so that they can occur without the need to fit in with any schedule of a supervising person or establishment. Where children are involved there is no negotiation on the level of risk or balancing the convenience of the parties. If I am satisfied that the child is at risk in his father’s care, the father’s work commitments will not diminish the risk or my appreciation of it.
[63] S Children’s Contact Service Report, dated 30 May 2009, page 8, attached to the affidavit of the mother sworn 24 June 2009, filed on 26 June 2009, Annexure I.
The statements made by the father to the contact centre worker, and the fact that he was spending some time with the child outside of S Centre during the period that supervised visits were occurring, is emblematic of the dysfunction in the parties’ relationship, and their inability to interact with each other in a manner that accords with the child’s best interests.
The criminal proceedings against the father for breach of an intervention order were adjourned on 13 July 2009 until August 2009. The father is confident that the charges against him will be withdrawn even if the mother remains prepared to testify against him. It seems that during the trial, the father was able to obtain some legal advice to the effect that, even if he is convicted of the pending charges, that conviction would not constitute a breach of his suspended terms of imprisonment.
Legal principles in parenting matters
The aims and object of the legislation are to ‘ensure that the best interests of the children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.’[64]
[64] s 60B(2) Family Law Act 1975 (Cth).
The objects are the core values of the legislation. Sub-section 60B(1)(a) of the Act has particular relevance in these proceedings. It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests. Sub-section 60B(1)(b) is also of prominent import and, in this case, it requires the assessment of risk to which the child will be exposed as a consequence of the parties’ inability to interact appropriately with one another.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).[65]
[65] s 60B(2) Family Law Act 1975 (Cth).
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration.
In determining what is in the child’s best interests, I am required to consider two primary considerations and several additional considerations listed in
s 60CC of the Act. The primary considerations are set out in s 60CC(2) and are described 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.
This is a case where both of the primary considerations are relevant.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents.
It is apparent from the totality of the evidence that the child currently enjoys a close and meaningful relationship with each of his parents. Although he has been in the primary care of his mother and had only infrequent unsupervised time with his father, the observations of Mr V and S Centre confirm that they share a warm and loving relationship.
However, the child’s relationship with his parents has been persistently compromised by the parties’ highly problematic interactions. A plain example of this is illustrated through the events of 3 September 2008, where the father swore aggressively at the mother at her place of work with the child in his arms. A further example is the events of 24 September 2008, beginning with a spate of abusive voice messages from the father to the mother, and concluding with the father returning the child to the maternal grandmother 20 minutes after having collected him, to the child’s utter distress. The events of 24 September 2008 and the email communications which ensued resulted in the child not seeing the father until January 2009, and then only on a supervised basis.
As I have already discussed, the potential for the father’s uncontrolled behaviours to undermine not only the child’s relationship with him, but with his primary caregiver, is overwhelming. Mr V states in the family report that if the child’s relationship with his primary caregiver is compromised, there is a risk that the child’s emotional and social functioning will be disrupted. Mr V notes that this may occur if:
[The mother] becomes highly distressed, either by factors associated by her own sensitivities, [the father’s] behaviour towards her, or because she is concerned about [the child’s] safety while he is in his father’s care. It may also occur if [the father] becomes highly emotional or confused about his relationship with [the mother], or he engages in any behaviour that compromises his parental capacity.[66]
[66] Family Report, prepared by Mr V dated 23 June 2009, para 50.
I accept Mr V’s opinion and accord it weight.
It is evident that the dynamic in the parents’ relationship is such that the child needs to be carefully protected from being exposed to conflict and inappropriate behaviour by both parties, in particular the father, in order to continue to enjoy meaningful relationships with each of them. If the father’s behaviour does not change, I could not assess a meaningful relationship between the father and the child, whereby there is regular time spent between the father and son, as being of benefit to the child. This is particularly so given Mr V’s evidence, which I accept, to the effect that the father’s behaviour has the potential to disrupt the child’s attachment to the mother as well as to the father.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
S 60CC(2)(b) of the Act recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence. The term, ‘abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’[67] or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person.[68].
[67] s 4(a) Family Law Act 1975 (Cth).
[68] s 4(b) Family Law Act 1975 (Cth).
The parties have been engaged in a high level of conflict since the commencement of their relationship in 2006. On 21 September 2009 the father was ordered by the Melbourne Magistrates Court to complete a behaviour change program with Relationships Australia, without conviction, for the charges of recklessly causing injury and unlawful assault of the mother. The mother has taken out intervention orders against the father continuously since 6 June 2006. The father has been charged with counts of breaching an intervention order on a number of occasions. On the last occasion, he was sentenced to a suspended term of 14 days imprisonment. Criminal proceedings for the most recent charge are still pending.
The child has been exposed to this conflict on numerous occasions. Mr V gave evidence that the child does not yet show signs that he has been adversely affected by his parents’ disastrous relationship. However, Mr V also made it clear that should such behaviour continue, it is very likely that the child will suffer serious emotional damage.
The child is not yet three years of age. It is inevitable that as he develops so too will his appreciation of tension, aggression and how people significant to him, particularly his parents, relate or fail to relate appropriately to each other. As he appreciates those dynamics he will start to absorb the effect of them.
The father has tendered evidence from his psychiatrist, Dr N, and his psychologist, Dr O, that he does not present a risk to his son. There is no evidence that the child has been the subject of physical or verbal abuse by the father. I am not satisfied that the father’s past drug use poses a current or prospective risk to the child and in coming to that view I place weight on the evidence of Dr K, Dr O and Dr N on that issue. However, the mother has raised a strong concern that she fears for the child’s safety as a consequence of the father’s aggressive reactions towards her and his fixation upon their relationship. Such a risk is supported by the evidence.
If I were to be satisfied that the father could not modify his behaviour in the future and that the parents would not be able to prioritise the child’s needs over their own attitudes to one another, I would be compelled to assess the future risk to the child as being of an unacceptable level. I would also conclude that, given the artificiality of supervised time in a contact centre, indefinite supervision of time between the child and the father is neither feasible nor desirable. Therefore, the question is to what extent the father will be able to refrain from being abusive about or toward the mother?
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
As the child is currently two years old, it is not appropriate for the court to accord any weight to his views. I accept that he is happy to be in the father’s care.
Section 60CC(3)(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 relative of the child.
The child’s primary attachment is to the mother. However, I accept that the child enjoys a positive relationship with each of his parents. Unfortunately, that relationship is at risk of being jeopardised due to the nature of the parties’ relationship with each other.
There is evidence, which I accept, that the child has a beneficial relationship with the maternal grandparents, but little evidence of his relationship with the paternal grandparents.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I am required to consider the ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. It is also necessary for me to assess the extent to which each of the parents has to date fulfilled or failed to fulfil their obligations or frustrated the other parent’s participation in this regard.[69]
[69] s 60CC(4) Family Law Act 1975 (Cth).
In one sense, the parties would appear to demonstrate a willingness to facilitate a relationship with the other parent. The family report stated that the mother encouraged the child to spend time with his father during the interview process,[70] and the S Centre report indicated that the mother was positive and supportive when dropping off and collecting the child at the centre. The mother’s evidence was that she values the child’s relationship with the father, and wishes that they could have effective communication regarding the child. She gave evidence that she has made attempts to develop a parenting plan with the father. There is evidence that she has at various stages made arrangements for the father to spend time with the child. The mother’s position is that her efforts have been thwarted by the father’s obsession with her. She now concedes that she sees her desire to have a communicative relationship with the father as unrealistic, which I am satisfied that it is.
[70] Family Report, prepared by Mr V dated 23 June 2009, para 36.
I am not satisfied that the mother’s interactions with the father have been predominantly motivated with the child’s best interests in mind. She has frequently acted out of her own need to continue a relationship with the father. This has resulted in two disastrous reconciliations and a stream of damaging interactions which are ultimately not in the child’s best interests, and if continued would not foster a close and continuing relationship between the father and the child and may jeopardise the attachment which the child has with the mother.
There is some evidence which could be construed as the father attempting to be supportive of the child’s relationship with his mother. For example, the S Centre report notes that he has bought gifts for the child to give to his mother for special occasions.[71] He gave evidence that he values the role of the mother as the child’s primary caregiver but was also critical of the mother’s care of the child in which respect he extrapolated with reference to his own childhood experiences. I find that much of the father’s behaviour has been motivated by the father’s desire to have an ongoing personal relationship with the mother. This is clear from the instances of verbal abuse in which the child has been implicated, both directly and indirectly.
[71] See “Exhibit ICL3.”
The mother’s concerns about the father’s behaviour have resulted in her unwillingness to support unsupervised time between the child and the father at this point in time. The family report stated that her concerns may be allayed if the father does not attempt to contact her, presents clear drug screens, receives positive reports from his psychiatrist and communicates with her only about the child and not about their relationship. These conditions are reflected in the orders she seeks from the court.
Section 60CC(3)(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;
ii) or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The child has been in the primary care of his mother since his birth. His time with the father has almost always been supervised, either by the mother, the maternal grandparents or by a contact service.
The child is still young enough to not appear to have been significantly affected by having to spend time with his father in a supervised environment. The S Centre report recounts the child happily playing with his father, following his father’s instructions and generally sharing a warm and loving relationship with him. It goes without saying that it is not ideal that the child spend a long period of supervised time with his father. Ideally there should be a progression to unsupervised time. However, I am satisfied that further supervision is necessary to ensure the child is able to continue his relationship with his father in a safe environment. It follows that there will be little change to the child’s circumstances.
Section 60CC(3)(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
The father consistently raised concerns throughout the trial that due to the nature of his employment as a shift worker, spending pre-scheduled supervised time with the child at a contact centre was unrealistic and impractical. A work roster of the father’s was tendered.[72] It is clear from this roster that the father does not work every day. Dr O gave evidence that the father attended consultations steadily and did not have difficulty scheduling appointments.
[72] Exhibit ICL1.
On the final day of trial, counsel for the ICL stated from the bar table that the father had been conferring with S Centre regarding accommodating times for him to see the child. As I indicated in the first passages of these reasons, I treat that as a concession by the father that if he does not succeed with his application, he can and will avail himself of time with the child in a supervised setting such as a contact centre.
I am not satisfied that the father would be unable to schedule times to see the child at S Centre. Even if the father’s time with the child did not require an initial period of supervision, due to the level of conflict between the parties, the orders that I would make would require a strict articulation of the times at which the father would spend time with the child.
The father also made the argument that he would soon be moving to the south-eastern suburbs in order to be closer to his work, and this would present additional difficulties in seeing the child at S Centre. In particular, he expressed concern that he would be forced to drive a long distance to spend only a short period of time, such as two hours, with the child. That is a matter which I must assume that the father gave consideration when deciding to move.
I am satisfied that a period of supervised time is necessitated by the circumstances. I am not satisfied that this would substantially affect the child’s right to maintain personal relations and direct contact with the father on a regular basis.
I will make orders which are as flexible as possible. It would be ideal if the child could see the father once a week. Come what may, I intend that there be a progression in the time spent.
The orders which I will make will prioritise the child’s best interests over the convenience of the parents. They will require considerable commitment from the father. They will require commitment and flexibility on the part of the mother. In fact, they may be quite onerous for the mother. In that regard, I take into account that the mother has the support of her parents and it is apparent to me that the maternal grandmother dotes on the child. In the context of the orders which I make, it is important for the mother to have notice of the times and dates of the time to be spent so that she can make arrangements to accommodate that as well as her employment outside the home. However, subject to receipt of reasonable notice, I expect the mother to fit in with the regime. I stress that this is an expectation I have about the orders which I make now. In the longer term the mother and, through her, the child, are going to be entitled to more predictability and certainty.
Section 60CC(3)(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
The ICL submitted that both parents are capable of providing for the emotional and intellectual needs of the child, although their own dysfunctional relationship with each other has at times undermined the child’s relationship with the other parent. I accept this submission in part, however, I find that the father’s aggressive behaviour towards the mother calls into serious doubt his capacity to provide for the emotional and intellectual needs of the child. I have referred above to the fact that in late October 2008, the father refused to spend time with the child because he believed that doing so would enable the mother to spend time with a boyfriend. By this stage, the father had not seen the child for approximately one month. This is behaviour which must change if an ongoing relationship between the child and the father is to be in the child’s best interests.
The success with which the parents deal with the regime which I now impose will inform me of their parental capacity for the final determination.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The ICL submitted that the father’s drug use was a consideration, quoting the family report which stated ‘[the father] will also need to ensure that he does not engage in any form of drug use while he is responsible for [the child’s] care as this will have the potential to compromise his parenting.’[73] As stated earlier, I have found that the father’s drug use does not pose a risk to the child.
[73] Family Report, prepared by Neville Evans dated 23 June 2009, para 34.
The ICL further submitted that the father would benefit from addressing the complex issues of his past through counselling, and that the mother should access domestic violence counselling. The mother would likely benefit from some counselling in relation to personal development. The father has made allegations as to the mother’s use of marijuana and prescription medications. He tendered a note[74] allegedly written by and a photograph[75] allegedly taken of the mother whilst she was under the influence of marijuana. I do not place any weight on this evidence.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
[74] Exhibit “F13”.
[75] Exhibit “F12.”
ii) the likely impact any proposed parenting order under this Part will have on that right.
This factor is not applicable in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The dysfunction in the parent’s relationship presents a significant danger to their ability to function as responsible parents to the child. Mr V’s evidence is that, at the moment, the child does not exhibit signs of stress as a result of the tension between his parents. My view is that this is a consequence of his age, the fact that time has been spent in a supervised setting and that he has a real and genuine bond with the father. Absent a change in the father’s behaviour, however, it is unlikely to remain the case.
I am satisfied that it is in the child’s best interests to adopt the recommendation of Mr V and only make interim orders at this stage. In so doing, I am assessing the parties’ attitude to parenthood and performance as parents as a work in progress.
In terms of financial support, the father pays child support in accordance with an administrative assessment but is in arrears of some payments. On one occasion, the mother said that she would withhold the child from spending time with the father unless he paid some household expenses which it was her view he should pay. She relented and the child did spend time with the father but the threat does not reflect well on the mother. The father should meet his child support liability.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
the order is a final order; or
the making of the order was contested by a person
This factor has been canvassed above. The allegations of family violence for which the father was charged in 2006 are serious. His continuous breach of intervention orders, and the fact that the parties both have current intervention orders issued against each other, has consequences for the orders that I am able to make.
It is not appropriate for the parties to have any contact with each other which is not in direct relation to the child. Orders which do not require the parties to come into contact are therefore in accordance with the child’s best interests. I am satisfied that once the initial period of supervised time has been complied with and supervised time commences, changeovers should occur at a contact centre such as S Centre.
Section 60CC(3)(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
Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes.
Ideally courts should make parenting orders that minimise the prospects of future litigation. Litigation is costly in emotional and financial terms and usually impacts adversely on parenting capacity. Parents and children are readily distracted by litigation. However, sometimes the best interests of a child require that proceedings not be finalised. This is one such case.
I have regard to Mr V’s view that ‘parenting arrangements cannot be finalised at this stage.’ As noted by the report writer, the father has only spent limited time with the child, which has generally been supervised.
I am persuaded that the parents’ relationship is currently such that I have no confidence that orders for unsupervised time with the father would be workable, even if changeovers were to occur at a contact centre. This is because of the level of hostility between the parties, the problematic nature of their interaction and the father’s fixation on the mother which has resulted in him engaging in highly inappropriate behaviours as recently as in the court room during on the first day of the hearing.
Mr V observes that ‘[a]t this stage it may be appropriate for the Court to adopt a cautious approach in order to provide [the father] with an opportunity to demonstrate his commitment and ability to engage in appropriate behaviours towards [the mother] and for him to allay her concerns and anxieties about him.’ I accept that observation as valid.
Parental responsibility
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[76] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the child that the parents have equal shared parental responsibility.[77] Parental responsibility relates to decision making about ‘major long term issues’, which is defined in section 4 of the Act as follows:-
…… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
[76] s 61B Family Law Act 1975 (Cth).
[77] s 61DA(1) Family Law Act 1975 (Cth).
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[78] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[79] and to ‘make a genuine effort to come to a joint decision about that issue’.[80] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions for which parental responsibility is shared.
[78] s 65DAC(2) Family Law Act 1975 (Cth).
[79] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[80] s 65DAC(3)(b) Family Law Act 1975 (Cth).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[81] or abuse of the child or another child who is a member of the parent’s family;[82]
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[83] or;
c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[84]
[81] s 61DA(2)(b) Family Law Act 1975 (Cth).
[82] s 61DA(2)(a) Family Law Act 1975 (Cth).
[83] s 61DA(3) Family Law Act 1975 (Cth).
[84] s 61DA(4) Family Law Act 1975 (Cth).
I have decided that I will only make interim orders at this stage. By the same token, the presumption is rebutted in accordance with section 61DA(4) as I am satisfied that it would not be in the child’s best interests for the parents to have to consult and negotiate in the sense that shared equal parental responsibility requires. This is in accordance with Mr V’s recommendation that shared parental responsibility is not suitable in this case. The parties are completely unable to communicate effectively about the child’s welfare or development. The continued communication between the parties has been most problematic and has resulted in situations were the child has been directly or indirectly exposed to aggression, verbal abuse and denigration of each of his parents by the other parent. The presumption of equal shared parental responsibility is thus rebutted.
The ICL and the mother have submitted that a communication book be utilised for the parties to communicate the child’s care when in each of their care. I find that this would be appropriate in the circumstances.
Consideration of equal time or substantial and significant time with both parents
By virtue of having previously determined that it is not in the child’s best interests for the parties to have equal shared parental responsibility, it is not necessary for me to consider whether I should make an order providing for the child to spend equal or substantial and significant time with each of the parents.
Conclusion
If I was to conclude that past actions are the only indicators of future performance, I could not conclude that it is beneficial for the child to have a meaningful relationship with the father. If the father’s behaviour remained unchanged from the events that I have recited above, subjecting the child to orders to spend time with the father would subject him to the father’s negative attitudes to the mother personally and as a parent which would be harmful to the child on many levels. It is very important that the parents, and the father in particular, appreciate that there can be no reoccurrence of the violent, abusive, petulant and immature conduct of the past. It should also be noted that the ‘past’ is not so long ago. It includes the father’s conduct at the hearing.
I am making interim orders at this stage because I consider that it is in the child’s best interests to provide the father with an opportunity to demonstrate that he can cease all unacceptable behaviour.
I have placed considerable weight on the opinion of Mr V, that it is “too early to cease the father’s time with [the child] altogether” notwithstanding that some of the father’s actions would justify me doing so. Further, whilst the father has been diligent and responsible in seeking treatment from a psychologist, I have reservations about the extent to which the father’s treating psychologist has been prepared to excuse poor behaviour on the part of the father. I do not want the father, and through him, the child, to be disadvantaged by a false appreciation of the father’s conduct being less unacceptable than it was.
There was agreement that the reasons for judgment could be provided to a number of professionals from whom the parties, or either of them, may seek assistance. I will make an order to that effect.
I am aware that my orders are more conservative than those sought by the ICL. I see no particular reason to use the child’s third birthday, in December 2009, as a bench mark in this case. All parties seemed to do so. However, working to a calendar is more likely to reflect the parties’ desires more so than the child’s needs or what is in his best interests.
I am satisfied that the parenting orders which I make are consistent with the child’s best interests.
I certify that the preceding one hundred and seventy nine (179) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 4 September 2009
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