KNIGHT & KNIGHT

[2015] FCCA 684

FEDERAL CIRCUIT COURT OF AUSTRALIA

KNIGHT & KNIGHT [2015] FCCA 684

Catchwords:
FAMILY LAW – Child matter – further interim hearing – condition of supervision imposed on child’s time with father in August 2014 – substantive trial in July 2015 – father seeks removal of condition of supervision – untested evidence of experts – constraints of interim hearings – Court not persuaded that child’s best interest served by removal of supervision.

Legislation:

Family Law Act 1975

Champness v Hanson [2009] FamCAFC 96
Goode v Goode [2006] FamCA 1346, (2006) FLC 93-286, (2006) 36 FamLR 422

Applicant: MS KNIGHT

Respondent: MR KNIGHT

File Number: MLC 5778 of 2014

Judgment of: Judge McGuire

Hearing date: 24 March 2015

Date of Last Submission: 24 March 2015

Delivered at: Melbourne

Delivered on: 27 March 2015

REPRESENTATION

Counsel for the Applicant: Ms Sevdalis

Solicitors for the Applicant: Julie Andritsos

Counsel for the Respondent: Ms Bonney

Solicitors for the Respondent: Slater & Gordon

ORDERS

1. The application in a case filed 12 March 2015 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5778 of 2014

MS KNIGHT

Applicant

And

MR KNIGHT

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the parties and one child [X] born [omitted] 2011 (aged 4 years) (“[X]”).

2. The substantive parenting and financial proceedings are listed for trial before me in July 2015.

3. On 20 August 2014 Interim Orders were made for [X] to spend supervised time with the father with a nominated supervisor.

4. On 15 October 2014 that Order was amended to have the paternal grandfather, Mr K, as the supervisor.

5. That situation has now continued over the subsequent months. A direct time/with between the father and [X] occurs each Sunday between 10.00am and 6.00pm.

6. The father now applies to dispense with the requirement of supervision.

7. The application is opposed by the mother.

8. The father’s application appears to be based on the following broad factors:

   i) Mr K is unavailable to supervise time with due to a forthcoming overseas trip between 27 March 2015 and 7 May 2015- a period of some six weeks;

   ii) no alternative supervisor is available;

   iii) in any event, and after a number of months of supervised time, there is no need for further supervision, and this successful period of time together with other evidence adduced should alleviate any reasonable concerns of the mother or the Court; and

   iv) a psychiatric report from Dr K dated 7 October 2014 supporting the removal of the condition of supervision.

9. The father’s application in a case filed 12 March 2015 is supported by affidavits of himself and Mr K both affirmed 11 March 2015 and are generally corroborative of the father’s case set out above.

10. The report of Dr K was tendered in evidence as was a document certifying satisfactory attendance by the father at a men’s behavioural change program between September 2014 and March 2015.

11. The mother has filed an affidavit dated 17 March 2015.

12. She also relies on documents tendered from the file of Dr G, clinical psychologist, who seems to have had a professional relationship with the father extending over a period of years.

13. The mother’s broad concerns in respect of the father have been historically related to his alleged alcohol abuse/prescription drug abuse, violence/ anger management, and issues concerning his mental health.

14. The mother says that the materials obtained from Dr G corroborate her continuing concerns rather than alleviate them. She has added concerns about the father’s lack of insight into his alleged difficulties and any commitment to address them. She relies on the evidence of Dr G which suggests the father is deflecting blame to the mother and says that she remains fearful that the father would pose a risk to [X] vicariously through reason of his unaddressed anger and bitterness towards her.

15. The mother argues that Dr K’s report is of little assistance to this Court given that the doctor is not fully or accurately informed by the father and the doctor did not have the mother’s affidavits or her version of history.

16. Notably, Dr K’s report is not one ordered by the Court but rather is evidence adduced by the father.

17. These are interim proceedings. The Court does not have the benefit of the testing of the evidence. The truncated hearing proceeds on submissions made on the untested affidavit and exhibited evidence. Findings of disputed fact and credit are consequently difficult. Nevertheless, and despite the limitations, the Court is still bound to follow the statutory and intellectual course of considerations provided in the well-known decision in the Full Court in Goode v Goode.[1]

    [1] [2006] FamCA 1346, (2006) FLC 93-286, (2006) 36 FamLR 422

18. The best interests of [X] are the Court’s paramount considerations.

19. Those best interests are determined by referencing the parties’ proposals and the probative evidence to the mandatory considerations set out in s.60CC(2)(3) of the Family Law Act 1975 (Cth) (“the Act”).

20. In this matter the relevant considerations, as is often the case in interim proceedings, involve a balance of the two primary considerations set out in s.60CC(2) and often referred to as the operation of the “twin pillars”. Firstly, the Court is to consider making Orders which benefit children having meaningful relationships with their parents. Subsection (b) dictates that the Court should make Orders, where necessary, to protect children from physical or psychological harm from being subjected to, or exposed to, abuse or family violence. Although, each matter rests on its own factual platform and it is always the task of Judge accordingly to attribute weight on the basis of evidence, recent amendments to the Act at s.60CC(2A) oblige the Court:

    In applying the considerations set out in subsection (2), (the court is to) give greater weight to the consideration set out in paragraph (2)(b).

21. In this matter it is also relevant to reference the evidence and the proposals to a number of the additional considerations set out in s.60CC(3).

22. They include:

    i) the nature of the relationship between [X] and his father;

    ii) the capacity of the father and the mother to attend to [X]’s physical, intellectual and emotional needs;

    iii) the effect on [X] of any changes in his circumstances including any anticipated separation from any parent;

    iv) any practical difficulties and expenses in exercising time with the parent;

    v) [X]’s young age; and

    vi) issues of family violence.

Consideration

1. It is clear that this Court considered it as being in [X]’s best interests to impose a condition of supervision in the Interim Orders made in August 2014. Whether such an Order was made by consent or by an Order of the Court is, in my view, immaterial.

2. The father now points to practical difficulties namely the unavailability of his own father as supervisor. He says that there is no ready replacement and that local contact centres have no immediate availability. The implication is that the relationship between [X] and his father would be negatively impacted by a six week gap in visits. In this respect I note that [X] has just turned four years of age and I accept that frequency and direct contact would be beneficial in establishing and maintaining a meaningful relationship between him with his father.

3. The father says that the Court should be satisfied that his capacity to care for [X] is not compromised in respect of the mother’s concerns. He says that he has attended a men’s behaviour change program (although I note that the material tendered on his behalf is limited to his attendance and does not reference a successful or otherwise outcome).

4. The Court can, of course (and has), impose injunctive or prescriptive Orders to protect [X] against the concerns raised by the mother. For example there is no suggestion on the evidence that an ongoing injunction in respect of alcohol use has been breached.

5. The affidavit of the supervisor, Mr K, is complementary of both the father’s behaviour and the easy and comfortable relationship between [X] and the father.

6. On its face, Dr K’s report is supportive of the father’s argument. Indeed, at page 7 Dr K says:

   From the psychiatric viewpoint alone, in my opinion, Mr Knight does not require supervision when he has access with his son, [X]. I could detect no psychiatric reason as to why he would require supervision, and he appears to be genuinely very fond of his son, as well as dedicated to maintaining a caring, and loving, (sic) relationship with him.

7. That same paragraph does, however, contain the caveat from Dr K:

   Naturally, however, the decision about custody, and access, of [X], will be made by the Family Court, on hearing the totality of the evidence.

8. Dr K’s report suggests that Mr Knight has a major depressive disorder but that he is currently in remission with no current depressive symptoms. He does, however, note Mr Knight presenting with situational anxiety which he relates to the Family Law proceedings.

9. Dr K’s report notes that the father denies the mother’s anticipated allegations of family violence. The father indicated to Dr K that he was compliant with medication to address his depression. He denied the anticipated complaint by the mother that he was an alcoholic although admitting to drinking socially and “…about 12 cans per week”.[2]

   [2] Report of Mr Knight, 7 October 2014, page 2.

10. The father holds full time employment and there is no evidence before me to suggest that this employment has been compromised by any of the matters of complaint made by the mother.

11. These are all factors which argue for the Orders sought by the father being to remove the condition of supervision from his time with [X].

12. The mother says that Dr K’s report should be viewed with caution given the lack of a complete history from the father and none from the mother.

13. The mother relies on materials at Court on subpoena and from the father’s own psychologist, Dr G. Selected parts of Dr G’s file were tendered into evidence.

14. On 23 March 2013 Dr G reported to the referring doctor thus:

    Thank you for your referral of Mr Knight on the 30^th January 2013 for assistance with long standing anxiety and depression. Mr Knight has now attended six sessions under his Mental Health Care Plan but he is in need of further assistance.

    Mr Knight and his wife have been struggling as a couple, which has added further to his distress. It is my opinion that his depression combined with his current escalating alcohol intake, which is exacerbating his depression, is perhaps best addressed with some form of intensive/ inpatient therapeutic input at this stage. A review of symptomology does not indicate any immediate risk of suicide, but I have suggested a voluntary psychiatric admission or a therapeutic retreat as a circuit breaker to his alcoholic intake. He is reluctant to pursue either option because he perceives it as evidence of further failure. Unfortunately, his depression is making it difficult for him to make good decisions. At the very least, his medication may need reviewing.

15. This material significantly predates the application before me and also Dr K’s report. Nevertheless I note the reference to the father’s alcohol intake and suggested psychological admission/therapeutic retreat in comparison to the above comments by the father to Dr K.

16. The subpoenaed material suggests a further referral from a general practitioner to Dr G in April 2014. A previous file note at 14 September 2013 says:

    Concerns re determination in [Mr Knight’s] function (MM and Alcohol use) and blaming of [Ms Knight] in context of long history of emotional abuse and controlling behaviour. Further, [Mr Knight’s] current status and absence of insight are impact of his behavioural or other, esp [X], raised concerns about his ability to care for [X].

17. A file note of 9 September 2014 which is more contemporaneous of Dr K’s report states;

    Potential Barriers

    (1) anger/ managing anger

    (2) alcohol

    (3) attitude to [Ms Knight]- this became focus of discussion- blaming of [Ms Knight]- no respons. for his actions.

18. The file note of 9 September 2014 includes;

    NB-[Mr Knight] remained v. blaming & self-focused

    – no insight into his role or impact of his behaviour on others

    – Hence, no commitment to engaging in therapeutic change process.

    – impressed as seeking evidence against [Ms Knight]., and not receptive to considering actions to effect changes in him and better outcomes

    – ongoing work not indicated while he continues to deny and minimise his drinking problems, and mood disorder (?PD)

19. The mother’s own affidavit alleges historical alcohol abuse and the mixing of alcohol with medication during the relationship. She alleges property damage by the father during “uncontrolled violence”.[3] She says that he has not always been compliant with his medication. She says that he is self-focused and does not acknowledge his problems with alcohol and anger. She says that his parents are either oblivious to such problems or are also in denial.

    [3] Affidavit of Ms Knight, sworn 17 March 2015, paragraph 27.

20. The Court has the benefit of a report prepared pursuant to s.11F of the Act by a family consultant in August 2014. To that reporter, Mr Knight essentially denied the allegations of violence. He “acknowledged consuming alcohol daily due to anxiety and work related stress but did not identify that he engaged in excessive use”.[4] He acknowledged being diagnosed with depression in 2008 and more recent episodes.

    [4] Child Inclusive Conference Memorandum to Court, 21 August 2014, page 2.

21. The reporter observed the mother thus;

    Ms Knight presented as catastrophising around the potential for [X] to be mortally harmed by his father. She was unable to provide any substantial basis for such a fear, which appeared to be generalised and fuelled by media reports regarding other such incidents.

22. In her summary the reporter noted inter alia;

    …[X] appears to experience his father in a positive manner and he was not observed to be fearful or apprehensive in his interactions of Mr Knight.

    Ms Knight appears to be experiencing a high level of anxiety and distress as a result of her belief that [X] may be at risk in his father’s care. Her statements, particularly those around [X]’s life being under threat, did not appear congruent with the history, as reported by her. Ms Knight was largely unable to articulate what experiences have led to her adopting this position.

    However, there is information, presented by both parties, that under recommendation of the parents’ previous treating psychologist, Mr Knight’s time with [X] has been supervised, as a result of alleged risks relating to his care.

    Information from the parents’ treating psychologist would be of assistance in determining whether Mr Knight was, in fact, assessed as posing a risk to [X], at that time, as alleged by Ms Knight. If this is the case, a cautious approach to [X]’s time with his father would be advised.

    Consequently, until there is further information available to the Court regarding Mr Knight’s mental health, it is suggested that [X]’s time with his father remain supervised. Developmentally appropriate arrangements would see [X] spending time with his father for frequent but shorter period of time each week. The geographical distance between the parents will restrict the frequency with which [X] can see his father however this should occur a minimum of once each week.

Findings and Conclusions.

1. On the limited evidence before me, I can be satisfied that [X] has developed a meaningful and comfortable relationship with his father. I repeat my comments above as to the desirability of frequency in such a relationship. It is likely that there would, therefore, be a negative impact on the child/father relationship if the Order for supervision is not removed or alternatively cannot be found. A gap of six weeks in a relationship for such a young child is likely to be significant. Nevertheless, the consideration in s.60CC(2)(a) is just one of many for the Court to weigh and balance the evidence and is certainty not determinative of the Orders (as neither is any other s.60CC reference). As the Full Court observed in Champness v Hanson[5];

   The submissions of Counsel for the father also appear at times to be based on an assumption that it was obligatory for the Trial Judge to make Orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make Orders most likely to promote the child’s best interests. In seeking to achieve that objective, s60CC(2)(a) directs the Court to consider “the benefit to the child” having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighted along with all of the other relevant factors…

   [5] Champness v Hanson [2009] FamCAFC 96

2. I share the mother’s concern as to the weight to be accorded to Dr K’s observations and recommendations at this stage given what appears to be an incomplete and unbalanced history. Certainty, the observations of Dr G as to the father’s alcohol use and lack of insight seem at odds with Dr K’s conclusions and add to my concerns until the evidence is fully tested.

3. It may be of course that this mother is motivated by more nefarious agenda. Alternatively she may be an overly vigilant mother lacking in objectivity. I cannot make such findings on the evidence now before me and untested, although, undoubtedly such matters will be fully canvased and determined at the trial in July.

4. However, at this stage I am not persuaded that the condition previously ordered by the Court and as being in [X]’s best interest should be removed. I place some considerable weight on the material from Dr G which is corroborative to a large degree with the mother’s case and at odds in other ways to the history reported by the father to Dr K. I remain concerned as to the possible denial or minimising by the father to Dr K of the issues which concern the mother and Dr G. Matters of alcohol/prescription drug abuse and anger management directly relating to the capacity of the father to care for [X] and in respect of the matters referenced under s.60CC(2)(b) of the Act. They were issues which grounded the initial imposition of a supervision order. The evidence given and adduced now before me does not satisfy me that such concerns have been alleviated.

5. I am of the view that time in the interim for [X] with his father should remain supervised. I will hear Counsel as to any alternative arrangements that may be made in the interim or during the absence of Mr K. At this stage, however, the only Order will be that the application in a case be dismissed.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  27 March 2015