Kirk and Baldry

[2016] FCCA 941

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIRK & BALDRY [2016] FCCA 941

Catchwords:
FAMILY LAW − Risk to child from father’s mental health − balance between risk and relationship.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAC

Applicant: MS KIRK

Respondent: MR BALDRY

File Number: DGC 1672 of 2014

Judgment of: Judge Phipps

Hearing dates: 4, 5 & 6 November 2015

Date of Last Submission: 6 November 2015

Delivered at: Dandenong

Delivered on: 29 April 2016

REPRESENTATION

Counsel for the Applicant: Mr Gates

Solicitors for the Applicant: Julie Taylor

The Respondent: Appearing on their own behalf

Counsel for the Independent Children’s Lawyer: Mr Lovering

Solicitors for the Independent Children’s Lawyer: O’Halloran Davis

ORDERS

1. That all previous orders are discharged.

2. That the mother have sole parental responsibility for the child X born (omitted) 2013.

3. That the mother keep the father informed of any major long-term decision she makes about the child’s education and medical matters concerning the child.

4. That the child live with the mother.

5. That the child spend time and communicate with the father as follows:

   (a)Until 1 September 2017 each alternate Sunday from 10 00am until 2.00pm;

   (b)Commencing 1 September 2017 each alternate Sunday from 10.00am until 4.00pm;

   (c)On Father’s Day from 11.00am until 3 00pm;

   (d)At Christmas for four hours as agreed and if not agreed:

   (i)In the year 2016 and each alternate year thereafter on Christmas day from 11.00am until 3.00pm;

   (ii)In the year 2017 and each alternate year thereafter on Christmas Eve from 1.00am until 3.00pm;

   (e)On the child’s birthday as follows:

   (i)For a weekday for a period as agreed between the parties and failing agreement for two hours from 5.00pm until 7.00pm;

   (ii)If on a weekend day that the child would not otherwise spend time with the father for a period as agreed between the parties and failing agreement for four hours from 11.00am to 3.00pm.

   (iii)At other times as agreed between the parties.

6. That the child’s time with the father shall be suspended at the following times:

   (a)In the event that the child’s time with the father coincides with Mother’s Day time is suspended on that day, and make-up time shall occur 11.00am until 4.00pm on another weekend as agreed between the parties within four weeks of Mother’s Day and failing agreement the Sunday immediately after Mother’s Day from 10.00am to 4.00pm;

   (b)In the event that the mother takes work on a (employment omitted) and upon the mother providing the father with two months’ notice in writing of the dates of the (employment omitted) between the dates of that (employment omitted).

7. That in the event that the mother obtains work on a (employment omitted) the mother is authorised to take the child with her on that (employment omitted) and take the child out of Australia.

8. That the mother sign all documents and do all acts and things necessary to authorise any treating medical professionals of the child to communicate with the father.

9. That the mother sign all documents and do all acts and things necessary to authorise any kindergarten or school attended by the child to provide to the father, at his expense if any, copies of newsletters, order forms for photographs, notifications of parent teacher interviews, reports and like documents ordinarily provided to parents.

10. That the mother keep the father informed in writing as to the child’s medical practitioners and contact details and kindergarten and school details when applicable.

11. That the father is restrained by injunction from;

    (a)Placing photographs of the child on electronic media, and disseminating information about the child and the mother on electronic media;

    (b)Denigrating the mother or partner or her family in the presence or the hearing of the child or permitting any other person to do so.

12. That the mother and the father use a communication book or sheets to provide to each other information relating to the child’s care, welfare and development as well as information in relation to her schedule while with the father.

13. That the mother and the father keep the other informed of their contact details including mobile telephone numbers on which they can be contacted in relation to the child.

14. That the father shall continue to engage in psycho–educational counselling as recommended by Ms S in the family report until the counsellor or treater recommends that treatment is no longer required and the father shall authorise the counsellor or treater to provide the mother with a report each six months as to attendance and progress and in the event that treatment is ceased a report detailing the reason for that cessation.

15. That the father enrol in, attend and complete a parenting of toddlers and young children course and provide to the mother proof of enrolling and completion.

16. That the MOTHER is authorised to apply to the Registrar of Births, Deaths and Marriages, that the child/ren previously registered as X be now registered as X.

17. That a sealed copy of this order be served upon the Registrar of Births, Deaths and Marriages, who is requested to give effect to any such application.

18. The order appointing the Independent Children’s Lawyer is discharged.

19. Otherwise all extant applications are dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym Kirk & Baldry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1672 of 2014

MS KIRK

Applicant

And

MR BALDRY

Respondent

REASONS FOR JUDGMENT

Introduction

1. The dispute concerns the time the parties’ one child X born (omitted) 2013 will spend with her father.  The mother proposes daytime time only with a responsible adult in substantial attendance.  The father proposes a short period of daytime time only without any restrictions.

2. The principal issues are:

   a)How parental responsibility should be shared;

   b)How much time the child should spend with the father;

   c)The father’s mental state;

   d)The fathers ability to care for the child;

   e)Whether the child’s name should be changed to include the mother’s name.

3. The mother proposes that she have sole parental responsibility for the child and the child live with her, the mother.  She proposes that the child spend time with the father:

   a)Each alternate Sunday from 10.00am until 2.00pm;

   b)On Father’s Day from 11.00am until 3.00pm;

   c)On Christmas Eve from 11.00am until 3.00pm;

   d)At such other times as shall be mutually agreed in writing.

4. The mother proposes that the time shall be spent with either Ms L or Ms M in substantial attendance.  She proposes change over at McDonald’s family restaurant in (omitted).

5. The mother is a (occupation omitted) and has worked as an (occupation omitted) on (employers omitted).  She proposes that she be permitted to take the child on (employment omitted) upon providing the father with two months’ notice and that the father’s time be suspended during the course of those (employment omitted).  She proposes a restraint on the father placing photographs of the child on electronic media and a non-denigration clause.  She proposes that the child’s surname be amended to Kirk-Baldry.

6. The father’s proposal in his outline of case is that the parties have equal shared parental responsibility for the child and that the child live with the mother.  In his case outline he proposed that eventually the child should spend overnight time with him.  In his evidence he said he was only proposing daytime time, each alternate weekend from 9.00am to 5.00pm on the Saturday and again on the Sunday.  He opposes any change of name.

7. The Independent Children’s Lawyer proposes that the mother have sole parental responsibility for the child and the child live with the mother and spend time with the father each alternate weekend for a period of six hours as agreed between the parties and failing agreement from 10.00am to 4.00pm each alternate Sunday.  The proposal includes time on the various celebratory occasions.  It does not include a proposal for supervision or substantial attendance by another adult.

Background

1. The mother was born on (omitted) 1976 and is 39.  The father was born on (omitted) 1971 and is 44.  The mother is a (occupation omitted).  The parents met when the mother was (occupation omitted) at a (employer omitted).  They commenced a relationship and the mother became pregnant soon after.

2. The mother moved into the father’s house at (omitted) in (omitted) on (omitted) 2013 after she became pregnant.  The parties separated on 31 July 2013.

3. After separation the child spent some time with the father supervised by the mother.  In October 2013 the mother and the child went on a (holiday omitted) with the mother.  The mother had employment as an (occupation omitted).  On 7 March 2014 the parties attended Roundtable Dispute Management through Victoria Legal Aid and an interim parenting plan was made between the parties including supervised time.

4. From April 2014 until December 2014 the child spent no time with the father.  The mother commenced these proceedings on 10 June 2014.  That resulted in an order that the father spend time with the child supervised at Boyd House contact centre.  The father spent supervised time at Boyd House from 21 December 2014 until June 2015.

5. Interim orders on 22 May 2015 provided for a graduated spend time schedule moving away from Boyd House to daytime unsupervised time with the father commencing in October 2015.

6. From July 2015 to October 2015 the child spent time with the father initially supervised by Ms L or Ms M and then with Ms L and Ms M in substantial attendance.  In October 2015 the father commenced unsupervised time, five hours once a week, with the child but he brought another adult with him when he collected the child.  The mother, working as an (occupation omitted), went on a further (holiday omitted) with the child in October 2015.

7. Throughout this time the father was living in (omitted) and working on the (omitted).  At the time of the hearing he was intending to move to a new property at (omitted) near (omitted).

The father’s mental state and care ability

1. The father has attempted suicide four times, although he admits to only three suicide attempts.  These attempts were by carbon monoxide poisoning from a motor vehicle and overdose of medicines.  They have been after romantic relationships have broken down.  When discussing this with the family consultant, Ms O, the father describes his romantic relationships as all having ended because of the wrongdoings or shortcomings of the other person.  The family consultant noted that the father portrayed himself in a favourable light.  The family consultant remarks that this may indicate a lack of insight and difficulty in accepting personal faults or shortcomings.

2. The consultant psychiatrist Dr K assessed the father and provided a report.  He noted that the father “has some significant personality issues, but he does not have a mental illness which would preclude or limit his parenting capacity of an infant toddler“.

3. Ms O said that the information provided describes the father as having demonstrated a pattern of dysfunctional behaviour, including him attempting suicide on four occasions in a 10 year period.  These indicate poor coping skills and the family consultant says it cannot be stated confidently that his poor coping would not extend to include or affect the child and therefore potentially place her at risk.

4. Ms O’s report was prepared in December 2014.  Her observations of the child with the father were that the child did not recognise him when she entered the activity room and did not approach him.  Ms O noted that when the child stood on a toy pram the father was unable to recognise the danger and the potential of falling and did not redirect her to a safer activity.  She nearly fell from the pram only to be “caught” by the father and he allowed her to continue to stand in the pram.  Ms O notes that this demonstrated minimal awareness of age-appropriate boundaries in play.

5. The second report was prepared by the family consultant Ms S in September 2015.  She describes the father as presenting as an immature and self-absorbed man.  He minimised and justified his suicide attempts and blamed others for his actions.  He said he did not attempt suicide following the occasion of the separation from the mother and he would not likely behave this way in the future.  He said he had recovered and had received a lot of help and it would not happen again.

6. The family consultant said the father presented as well-meaning but again noted he was rather self-absorbed.  She said he did not impress as being an attuned and child focused parent.  This assessment by Ms S is confirmed by some actions of the father.  He posted pictures of himself and the child on his Facebook page with comments which suggested that he was more concerned about himself than the child.  He participated in an interview with a journalist which resulted in an article in “The Age” newspaper entitled “(omitted)”.  The article was accompanied by pictures of the father and the child.  The article quotes the father at length.  The theme is the little time the father is spending with the child and the effect on him rather than what might be best for the child.

7. The mother describes the father as egocentric and refers to his neglect of everyday living such as personal hygiene.  The house was dirty and untidy, something confirmed by the evidence given by his neighbour.  She describes living with the father as awful.  Ms S quotes the mother as saying that when the child was born “he’d distance himself…always outside…at work…I tried to get him involved with X but nothing”.  After she moved out she said that he became really emotional.  She met him at a local cafe or in the park and she became increasingly concerned about his emotional and psychological state.  She told Ms S “he’d grab X and cry kissing her and telling her I will never see her again”.  At other times he displayed aggressive behaviours.

8. In her evaluation Ms S describes the father as an enigma.  Mental health professionals did not identify him as having a diagnosable psychiatric illness but she says there remain concerning aspects to his psychological functioning.  He has had five suicide attempts.  He presented with a superficiality that seemed to cause him to try to present a socially acceptable manner and to minimise or resist admitting to any shortcomings.  She said it was difficult to accept his view that he had “recovered” stable mental health and is not at risk of regressing.

9. She concludes that the child might be sufficiently safe in his care provided he is engaged in activities with the child for brief periods of time and with others monitoring his progress.  However, she assessed that there exists an unacceptable level of risk of harm to the child in the fathers sole care on an extended and overnight basis.

10. Ms S observed the child with both parents.  She was comfortable and confident to play alone or with her mother.  When it was time to transition to the fathers care her demeanour altered dramatically.  Moments before she was happy interacting with her mother and talking confidently.  Upon seeing the father she stopped talking and became quiet.

11. Ms S says the father’s initial response showed a lack of attunement and responsiveness to the child’s needs.  Despite her earlier talkative demeanour she did not speak for 10–15 minutes when she transitioned to the father’s company.  The father cuddled her but the child did not respond.  She remained limp and whimpered.  The father chose to overlook her passive response and he repeatedly kissed her on the head and face while simultaneously rocking back and forth with her.  Ms S says that the fathers cuddling of the child seemed more representative of his own needs for contact with the child and affirmation of the closeness of the relationship than reflecting the child’s needs.

12. Ms S says that after a period of time the father engaged in an activity with the child and she relaxed noticeably.  Ms S says that despite the discomfort, it was apparent that a relationship had been formed between the father and child.

13. Ms S says that the child has spent enough time with the father to allow the relationship to begin to develop.  She saw no clear benefit to the child in increasing the amount of time.  She said that the current alternate weekend time was sufficient to continue to nurture the father/daughter developing bond.  She said it is the quality of interactions that will determine how the father/child bond will become rather than the length of time they spend together.  She recommends that the child spend time with the father for one day on alternate weekends for between four and six hours.

14. The father has an older daughter, now an adult.  She was born on (omitted) 1996.  Separation from her mother was one of the occasions of the father’s suicide attempts.  This daughter filed an affidavit.  The father and her mother separated when she was three.  This affidavit, contrary to the father’s evidence, says that she saw her father only sporadically.  She does not consider that he showed much interest in her.  She says that her impression is that whenever the father got a new girlfriend he would make contact with her to show her off.  He would then disappear for months.  She says he would ring her after he had broken up with the girl and say he was sad.  She said he would not answer her texts or phone calls, often for months.  Her mother filed an affidavit which describes the relationship with the father and gives a similar description of his relationship with their daughter.

15. A neighbour of the father of 20 years, Ms I, filed an affidavit and was cross-examined.  She said that to her knowledge the father had had four partners live with him since he lived next door to them.  She said that she provided emotional support and food from time to time.

16. She says the father has always been very different.  He appears perfectly normal when you meet him, but that is a facade.  She says that in her observation he has an obsessive personality and is not particularly realistic.  She was aware of the father’s suicide attempts and described police and ambulance officers coming to his house.  Of particular note is her observations during the short period the mother and child remained living with him.  She visited at least once a week often taking food.  She said that when the child was born the father did not appear to know what to do with her.  She did not see him undertake any practical one-on-one tasks.  She says he appeared to view the child as a possession.  Ms I says over the years she never saw the father’s older child.  She said he seemed to have no interest in her.  She said her mother refused to see his daughter.

17. The evidence of both the father’s older daughter and his neighbour confirm Ms S’s assessment of the father that he is only capable of caring for the child for a limited time.

18. Mr T is the father’s treating psychologist.  He expressed the view that the father does present with some rigid traits.  He says that if the allegations outlined by the older daughter and her mother are closer to the truth then his rigid traits are more concerning and have greater implications for parenting readiness and capacity than if the father’s accounts are closer to the truth.  He says their accounts described the father with evidence of his naiveté, self-centredness, lack of knowledge about children and child development, errors in priorities for optimal parenting and boundary issues.

19. Ms S’s assessment of the father and observations of him with the child are consistent with the descriptions of the father given by the mother, the older daughter and her mother.  The neighbour impressed as a person sympathetic to the father and anxious to help him over the years.  I am satisfied that her description of his behaviour is correct and it is similar to the description given by the mother and others.  This corroborates the mother’s evidence about her experience with the father and so supports Mr T’s alternative assessment of the father.

1. All this evidence shows that the father has a limited ability to care for the child.  His fragility, shown by his many suicide attempts, presents a risk to the child if in his care for any length of time. 

2. In cross examination by counsel for the Independent Children’s Lawyer the mother accepted the independent children’s lawyer proposal for six hours once a fortnight on a Sunday was appropriate provided that there was an order for the child to have a sleep while with the father.  In final submissions counsel for the mother said that despite what the mother had said the position remained that the time should be alternate Sundays from 10.00am until 2.00pm.

3. Ms S’s assessment, which I accept, is that the child has a relationship with the father and will maintain a relationship by seeing him for four to six hours once a fortnight.  Given the evidence about the father’s ability to care for the child I cannot be confident that he would be able to recognise that the child required to sleep and make sure it happened.

4. The order of 22 May 2015 provided for unsupervised time for five hours once a week to commence in October 2015.  This was prior to Ms S’s assessment of the father’s limited ability to care for the child.  Both the mother’s proposal and the Independent Children’s Lawyer’s proposal involves a reduction in frequency of the child’s time with the father.  The mother’s proposal a substantial reduction in time.  Given Ms S’s assessment which, as set up out above the evidence shows is soundly based, the proposal for a reduction in frequency and a reduction in time is reasonable.

Family Law Act

1. The evidence on the findings has to be applied to the provisions of Part VII of the Family Law Act 1975 (Cth). Section 60CA provides that in making parenting orders the best interests of the child is the paramount consideration. Section 60CC contains the considerations a court must take into account in determining what is in the child’s best interest.

2. Section 61DA provides that when making a parenting order the court must apply a presumption that it is in the best interests of the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence or if 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.

Parental Responsibility

1. Parental responsibility is an issue. The effect of an order for equal shared parental responsibility is described in s.65DAC. The order requires decisions to be made jointly by parents and requires the parents to consult the other in relation and make a genuine effort to come to a joint decision about the issue.

2. The parties’ ability to communicate, except on a very basic level, does not exist.  They commenced using a communication book but the mother decided the use of a communication sheet similar to that used by Boyd House contact centre was better.  While the father’s time with the children was being supervised many of the entries written were by one of the supervisors.

3. Ms S recommends sole parental responsibility to the mother.  This is consistent with Ms S’s assessment of the father.  Apart from the lack of communication the fathers ability to make child focused decisions is limited.  The evidence shows that consistently he is more concerned about himself.  The best interest consideration of the ability of each parent to provide for the child’s needs is relevant.

4. In the circumstances it is not in the child’s best interests to make an order for equal shared parental responsibility.  As well as potentially affecting the quality of decision making the child disputes might lead to further litigation and the avoidance of litigation is a best interests consideration.

5. This means s.65DA does not apply.  The best interest considerations govern the decision about the question of the child’s time with the father and the conditions of that time.

Best interests

1. The two primary considerations are the benefit to the child of a meaningful relationship with each parent and the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse neglect or family violence.  Greater weight is to be given to the second consideration.

2. The child has as meaningful relationship as can be expected in the circumstances.  That follows from Ms S’s evidence.  The father’s past history of mental instability and the evidence about his personality show that anything other than limited time with the father might place the child at risk.  The mother proposes that the time should continue to be monitored by having a responsible adult in substantial attendance.  The two adults who have supervised and then worked in substantial attendance for a time have both filed affidavits giving a positive description of the time.  While this is part of the evidence about the child’s relationship with the father it does not alleviate the risk.

3. A permanent order for named adults to be in substantial attendance is not practical.  They cannot be expected to be available for an indefinite time into the future.  The proper balance between the two considerations, bearing in mind that greater weight must be given to the safety consideration, is to not require substantial attendance of another adult but to limit the time to once a fortnight.  The child will maintain her relationship with the father and any risks are minimised.  The difficulty about the child’s sleep can be managed, at least in part by limiting the time to 4 hours until the child is 4 ½ and then increasing that to six hours.  The child turned three on 19 March 2013.  Commencing the six hours on 1 September 2017 will maintain the child’s relationship with the father, manage the risks and deal with the problem of the child’s sleeping.  Another consideration is limiting the time to 4 hours until the child is 4 ½ will give some comfort to the mother.  This is relevant to the best interest consideration of the mother’s ability to care for the child.

4. An additional consideration for limiting the time is that it may help to maintain the father’s interest in the child.  His desire to see the child seems to concentrate more on his own needs rather than the child’s needs.  His history with the older child does not bode well for his continuing attention to his younger child.

5. This is a substantial reduction from the current five hours a week but it accords with Ms S’s recommendation and it allows the mother to have a weekend with the child every second week.  It will give the mother more confidence in the child’s safety with the father.  These are relevant in relation to the child’s relationship with the mother, the best interest consideration.  The risk to the child must be managed and the father’s ability to care for the child has to be taken into account.

6. The additional best interest considerations require some consideration.  The child is too young to express any views.  The nature of the child’s relationship with each parent has been discussed already.  The mother is her primary carer while she does have a relationship with her father.  The mother has a family and friends who support her and the child has a relationship with them.  The child has been seeing the father’s relatives when with him.

7. One consideration of particular relevance is the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs.  The father has a limited ability to do this as already discussed.

8. Otherwise, the other additional considerations do not require discussion.

9. The mother applies for a change of name so that the child’s surname is Kirk-Baldry.  Ms S suggests consideration be given to this.  Nothing in the evidence suggests that a change of name will affect the child’s relationship with either parent.  The relevant consideration is that it will be the mother who makes decisions about education and medical matters and so will be dealing with doctors and other professionals and school authorities.  The father’s history with his other daughter shows that he may reduce his contact with his younger child.  It will give the mother some comfort and assist her ability to care for the child if the child does have a connection with her by way of surname.  Since it will not affect the child’s relationship with the father I consider it is in her best interests to order the change of name.

10. Various ancillary orders are proposed by the Independent Children’s Lawyer and are either agreed to by each parent or are in the child’s best interests.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  29 April 2016